John Hlophe’s threat to the judiciary isn’t via the JSC

The John Hlophe brand has been causing divisiveness in the judiciary for over two decades.

If you hadn’t been in the Cape legal circles in the 2000s, you can be forgiven for forgetting all the ridiculous back and forth. From the conflicts of interest to a Judicial Service Commission (JSC) that backed him, there was always something to say about Hlophe.

What really played in his favour is that it seemed like those who stood against him were white and the folks who supported him were black, including the Black Lawyers Association.

It was only when the Constitutional Court Justices lodged a complaint after Hlophe attempted to influence Justice Bess Nkabinde and Justice Chris Jafta that major public black voices started speaking out against him.

Even now, Hlophe is milking the racism thing, making it appear as though the criticism against him is bite back from his leaked racism report, which ultimately came to nothing.

The people he’s talking to though; don’t have the context. They don’t know about him presiding over a case where an attorney of record was his own personal attorney. They don’t know about the trusteeship he had in a company that appeared in his court. Oh, and obviously, everybody forgot the parallel complaints by his former colleague, acting Judge President of the Western Cape Division, Patricia Goliath. You know? You never knew about these because they were dismissed since he was already facing impeachment and they were later regarded as moot.

ALSO READ: ‘Free’ judges, lack of resources: Hlophe bemoans judicial ‘nightmare’ after budget cuts

From all of this, it’s pretty obvious to see that Hlophe isn’t well-loved in many important circles, yet he’s apparently loved by many others. What he’s been able to do is paint his haters as white and his lovers as black and the sense is that so many people have played into that narrative.

Where his detractors are not white, there may be an argument about how they’ve been influenced or that they themselves are anti-progressive.

No matter what happens, he’s painted himself as the leader of victims of racism and has rallied significant support around him in that manner. Of course, according to him, it was his attempt to stamp out racism that caused all this unfounded ruckus. He might not care for the 15 years of deliberation that show the foundations of the criticism against him, yet he still marvels at the years when he was the darling of the legal industry.

It’s scary to think that one can have the power to paint decisions as racist based on the outcome, regardless of the decision. That’s the position Hlophe has crafted for himself and he has the backing to do it.

The issue with that is that even if he’s not on the JSC, the judiciary will suffer a huge blow if Economic Freedom Fighters and uMkhonto weSizwe (MK) party supporters start following that narrative. We know there’s no way to justify racism so if the courts are branded as racist, or worse, working with racists, there will be a crisis of legitimacy.

ALSO READ: Hlophe’s JSC gig halted after court ruling

This recent ruling preventing him from being on the JSC is only temporary and is to be expected; it’s based on a balance of convenience, so it was always going to be granted. When the full case is heard, it could get messy and pretty damaging.

Should the courts have any input on who gets to decide who occupies their benches? It’s one of those exceptionally complicated issues. You could try explaining that courts don’t get to decide who goes in but get to block people who shouldn’t be in, even though that’s the job of the legislature. But sometimes the legislature gets it wrong or applies irrational thought and that’s… goodness, I’m bored already. It’s far easier and appealing to some to just say that the judges are racist and that’s why the courts are wrong.

There are important legal matters to determine, so we cannot allow this to turn into a cheap battle of narratives on the ground.