How not to influence a Constitutional Court justice

Goodness, we’re probably only a few hours away from the #HandsOffJudgeHlophe mob forming. I’ll place bets that it will be constituted by people who, assuming they can read, would not have read his judgments, let alone this weekend’s findings.

If one does read the 46-page report of the Judicial Conduct Tribunal, it makes for an excellent pitch document for an Oscar-worthy film.

It has everything; ambiguity, a 12-year timeline, appeals against appeals responded to by appeals. The story takes the audience from hope to despair, to hope, to a realisation of hopelessness and back to hope before crescendoing in a gorgeous unstoppable realisation.

It will probably be the first film in a trilogy since it’s likely that John Hlophe will take this finding on review but since the decision is so gloriously well written, I have doubt that the review will be anything but a non-starter. But hey, it’s not like the second and third films are ever really better than the first.

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Two things struck me while reading this decision: on the one hand, it made me feel sick about how this Hlophe dude made it this high up in the judiciary. On the other, it made me smile from ear to ear about the robust nature of and internal respect for the judiciary that got him bust.

The first is how, in Hlophe’s mind, the ANC seemed to be elevated in status when it came to legal matters.

It seems that he went as far as commenting that the Zuma-Thint case was probably one of the most demanding cases that the Constitutional Court (ConCourt) had dealt with, “given its importance to the president of the ANC, Jacob Zuma, and the ANC itself and the country…”

Let’s ignore that by this time, the ConCourt had dealt with matters pertaining to the death penalty, marriage equality, housing relief, health obligations of state, customary land rights…the list goes on. But no, this matter, at least to Hlophe, is one of the most important because it relates to Zuma and the ANC. If ever you needed an indication of Hlophe’s cadre self-importance, there you have it.

But then there’s another thing that is frightfully odd? What leverage was Hlophe going in there with? Here you have a judge president of a high court. Remember back then was before the 17^th constitutional amendment that amalgamated all the high courts into a single court with different provincial divisions. There is a whole Supreme Court of Appeal between this dude and those he’s trying to influence. In what world does he think he’s going to get anywhere? What can he offer?

It’s not like justices of the ConCourt can be easily removed because political actors don’t like their decisions. It’s not like judge presidents of lower courts can review their judgments. It’s not like Hlophe held any weight at all. No, in terms of the findings, Hlophe seemed to merely have the heartstring card as his strongest. That’s probably why he concluded his conversation with Justice Chris Jafta with a “sesithembele kinina”, meaning “you are our last hope”.

It begs asking who this “our” is in his statement but I fear it would be too depressing to delve into that analysis.

If Hlophe was going to have any defence to this, it would be that he has no real influence. Perhaps a similar argument as made by Malema regarding his tweets in a defamation trial where he indicated that his words don’t lead to proportional action…but this is different.

In this case, we shouldn’t be fooled into conceding this matter as one of no harm, no foul.

There is incredible harm in Hlophe’s actions. People have been talking about the judiciary being captured and if a judge president’s actions are going to reinforce those ideas, unjustifiably, that judge president must be taken to task.

ALSO READ: Hlophe ruling shows that SA’s judiciary is alive and well

And take him to task this tribunal did, with incredible subtle jabs like, “We do not know whether judge president Hlophe ever practised law as either an advocate or an attorney prior to his elevation”. They even outright denied his arguments feigning ignorance of legal principles of the profession. It was incredible.

If there’s anything to show that there’s a long way to go before the judiciary is significantly captured, it’s this outcome. It may be over a decade late. It may even be scary. But what it does is shine light in some pretty dark places and even in law, the fickle creatures dislike the light.

Richard Anthony Chemaly. Entertainment attorney, radio broadcaster and lecturer of communication ethics.