Once upon a time, this country was inhabited by giants such as Nelson Mandela, Robert Sobukwe, Walter Sisulu, Oliver Tambo and Steve Biko. Each had a clear vision of a South Africa purged of racism, able to heal the wounds of more than 300 years of colonial and apartheid oppression and ensuring that the human agency of the majority of the country would be restored. 

Hlumelo Biko’s book Black Consciousness: A Love Story, which documents the relationship between his parents, Steve Biko and Mamphela Ramphele, provides a moving, indeed inspiring account of the manner in which his parents, and others with them, conceived of the idea of a truly non-racial society which eradicated the very racist foundations of that built over more than 300 years and the struggle to ensure that Black South Africans reasserted both their dignity and central role in the construction of a democratic country

How we have failed to live up to this vision! 

If any further justification is required, look no further than the grotesque nominations of Judge President John Hlophe and Public Protector Busisiwe Mkhwebane for the post of Chief Justice, both nominations being justified in the name of transformation. That any organisation of lawyers which seeks to claim the banner of black consciousness (BC) can drift so far from the intellectual moorings of BC to even consider such nominations is nothing more than the utter rejection of the noble and vital objectives that the philosophy espouses.

In the first place, there are four obvious candidates for the post – Deputy Chief Justice Raymond Zondo, President of the Supreme Court of Appeal Mandisa Maya, Judge President Dunstan Mlambo and Justice Mbuyiseli Madlanga. 

Thus, the idea that either Hlophe or Mkhwebane is “our last hope” to lead the judiciary is not only absurd but is a rank insult to the four candidates, each of whom operates in a different legal stratosphere. 

But more than that, it raises the question of what kind of judiciary is envisioned by the nominators. Is a judiciary based on a constitutional principle as opposed to populist fad; integrity and collegiality as opposed to opportunism and insult not on the radar of the nominators?

Let us examine these two candidates. The less said about Mkhwebane the better. Charged with perjury, held in countless cases to be legally incompetent, mulcted with personal cost orders by courts for her outrageous conduct of cases, the current Public Protector has been a monstrous failure. In a country bedevilled by corruption sourced in the public administration, the office of the Public Protector since the end of the tenure of Professor Thuli Madonsela has failed lamentably to hold corrupt public officials to account. She has focused the office energy on enemies of Jacob Zuma such as President Cyril Ramaphosa and Minister Pravin Gordhan. 

The only possible explanation for her nomination would be to ensure that the judiciary becomes another weapon in the hands of the Radical Economic Transformation faction, thereby enabling even more of the criminality that characterised the lost years under Zuma. Regrettably, had it not been for the legal fiasco of a judgment emanating from the Western Cape High Court, Parliament could have got on with the job of removing Mkhwebane from office.

For the Black Lawyers Association (BLA), (which did not appear to nominate Mkhwebane, to be fair), and the other fellow nominators who did, the possibility of removal from office appears to be a recommendation for the post of Chief Justice. For in this the Public Protector is not alone.

John Hlophe has already been found guilty of gross judicial misconduct. Absent a successful review of the Judicial Service Commission decision, Parliament will have to vote on his removal from office. That Judge Hlophe may be a unique case is illustrated by the reality that he faces yet another Judicial Tribunal hearing for his alleged assault of Judge Mushtak Parker, who, ironically, following a complaint, is also the subject of Judicial Tribunal proceedings, has been suspended from office. 

Now it is possible that Teflon John may escape sanction in this hearing and be the subject of a favourable vote in Parliament. But how in a constitutional democracy fought for through the generations and for which many gave their lives in struggle, can such a person be nominated for the apex position in the judiciary at all? And by the way, this newly minted protagonist of transformation has no record of any kind that indicates he participated in the struggle for democracy during the 1980s.

By contrast, the BLA, in its letter of support, argues that Judge Hlophe has written insightfully about the doctrine of legitimate expectations, delivered progressive judgments and excelled in the transformation of the Western Cape High Court where he is Judge President. 

Save for some accuracy about academic writings, these claims rank as quintessential fake news. 

Some 30 years ago, Judge Hlophe emerged as an academic of great promise when he completed a PhD at Cambridge University and penned two articles on the subject of legitimate expectations. However, within the context of instilling the entire legal system with fresh transformative content, as important as was the development of legitimate expectations, after the judgment by Corbett CJ in Administrator of Transvaal v Traub in 1989, the topic was hardly on the cutting edge of progressive jurisprudence. 

But even with this qualification, the promise of John Hlophe transformed into a delivery system that has rivalled that of the government in ensuring a better life for all other than the elite. Over the past 25 years, unlike many other judges, Judge Hlophe has not published any article in a referred journal. 

According to a Southern African Legal Information Institute (SAFLII) search, Judge Hlophe has published some 13 judgments since 2002 when SAFLII began to publish a full set of judgments. There is nary an important judgment on this list, but there are at least two strikingly retrogressive efforts: in particular, the eviction of 20,000 destitute people from Joe Slovo township, a decision that was mercifully reversed by the Constitutional Court. There is also a dissent in Contralesa v Speaker of the National Assembly in 2016 in which Judge Hlophe articulated a stout defence of traditional chiefdom authority, a judgment that stands in stark contrast to the progressive approach to customary law set out recently by Deputy Judge President Isaac Madondo in Casac v The Ingonyama Trust.

No more Stalingrads, Judge Hlophe

The editorial in Daily Maverick shows compellingly that contrary to the Kool-Aid offered by the Hlophe supporters club, the claim about the transformation of the Western Cape High Court is, at best, highly questionable. 

There is clear evidence of a host of conservative white acting appointments throughout the Hlophe tenure. Take the case of the regular acting judge appointment, Bryan Hack, who as an ultra-conservative law student was charged under the Terrorism Act for being part of a group that attacked the house of Colin Eglin, the then leader of the opposition in the whites-only Parliament (in fairness, he was acquitted). His regular acting stints are hardly an advert for transformation. To the contrary, they reveal the gross misrepresentation that Judge Hlophe is a beacon of progressive jurisprudence. 

And if that was not enough, there is the judgment of the Supreme Court of Appeal in Mulaudzi v Old Mutual where a unanimous court excoriated Hlophe for the preferential treatment that he gave to his own attorney, Barnabas Xulu, a finding that should have led to another misconduct inquiry.

That an organisation which some 44 years ago embraced the political philosophy of Steve Biko could have stooped to such a nomination is a disturbing illustration of the degradation of contemporary politics. 

The inspiring visions of the giants of yesteryear have been replaced with populist opportunism and the desire to ensure that the constitutional form of governance is bent to the whim of those who wish to mount the second wave of State Capture. 

How else does one explain these nominations? 

Notwithstanding these nominations, the prize for the most bizarre nomination must go to whoever nominated Alan Nelson SC, a journeyman silk who must surely be over the judicial retirement age. That nomination puts even the BLA’s contribution in the shade. DM