In 2008, John Hlophe was Judge President of the Western Cape and Jacob Zuma was president of the ANC, heading for the hot seat, trailed by serious charges of fraud and corruption relating to the 1999 Arms Deal.
More than 20 years later, Zuma, after a short stint in jail, turning back from death’s door both literally and politically, will finally face trial in the KZN High Court on Arms Deal charges in 2025.
Meanwhile, his loyal friend and ally Hlophe, impeached and deprived of a judge’s considerable lifelong benefits, has now been dispatched by Zuma to serve on the Judicial Service Commission (JSC), the same body which found Hlophe guilty of gross misconduct.
Read more in Daily Maverick: Disgraced judge John Hlophe will serve on JSC after GNU fails to come together
Wounded colossi
For more than 20 years, Hlophe and Zuma (including while Zuma was president of the ANC and South Africa and controlled the levers of power) stalked the landscape like two wounded and enraged colossi, undermining accountability and the rule of law.
Politicians like Trump and Zuma and their acolytes, like Hlophe, arise each new day to polish grudges, score points and eliminate enemies and obstacles to gaining personal power, wealth and privilege in a world of their imagining.
All of this is cloaked in populist rhetoric, a flavour the impeached former Public Protector Busisiwe Mkhwebane, now an EFF MP, also prefers when informing the masses that everyone else is out to get them and they are the god-sent saviours.
These are men and women who are, in essence, shameless one-trick ponies with tunnel vision and a remarkable atavistic instinct for survival.
They deploy the notion they are perpetual victims: of political conspiracies, “witch-hunts”, intelligence agency regime-change plots or murderous wives trying to do them in.
Hlophe has verbally insulted colleagues and has been accused of assaulting a fellow judge and of domestic violence.
All this is written in the piles of affidavits, some filed in the divorce courts, some by fellow judges to the JSC, setting out just how rude, nasty, dishonest and ruthless Hlophe can be.
https://www.dailymaverick.co.za/article/2023-01-16-john-hlophe-the-judge-president-who-fought-the-law-decades-later-the-law-won/
A special kind of ‘Africanisation’
Hlophe’s now infamous parting shot in isiZulu — “sesithembele kinina” (translated loosely as “we rely on you”) — after a meeting in 2008 with Constitutional Court judge Chris Jafta, nailed the then Western Cape Judge President’s colours to the mast.
He claims it was just a casual remark and meant nothing really. In this universe (and that of fugitive lawyer Paul Ngobeni as well as Dali Mpofu and others who join Hlophe in this trench), all behaviour is excused as “African”, beyond the grasp and understanding of flaccid non-African minds.
Back in 2012, Zuma told traditional leaders, “Let us solve African problems the African way, not the white man’s way”, as if the Constitution of the Republic of South Africa was not homegrown and was a fake import.
“Clever blacks” in Hlophe’s (and Zuma’s) world are sellouts, kowtowing to inherited Western worldviews, Roman-Dutch Law, White Monopoly Capital (as opposed to Dubai Monopoly Capital) and a Constitution that is not “fit and proper” to liberate the masses.
That more than R49-billion was redirected from the poor and the economy into the pockets of Zuma’s besties, the Gupta family, during peak State Capture, is a kind of economics and law-by-numbers, make-it-up-as-we-go-along tactic.
It is a tactic Zuma also deployed during his rape trial.
Zuma claimed that Fezekile Kuzwayo, Kwezi, the daughter of one of his old comrades, who accused him of rape in 2005, had worn a kanga which he had interpreted as an “invitation to sex”.
Kuzwayo, who was an Aids activist and who died aged 41 in 2016, has become a symbol of resistance in a country where rape is a national sport.
Zuma was acquitted of the charges, claiming the sex was consensual, that he took a shower afterwards to avoid contracting HIV and providing the court with a unique “customary” understanding of how Zulu men who are aroused cannot be left high and dry.
Zuma also claimed that Kuzwayo had brought the rape charge as part of a “political conspiracy”. His supporters hounded her, bearing placards stating, “Burn the witch”.
Turn back the clock, we say.
We have news for you
Zuma led the ANC and the country for almost 10 years, defended, propped up and idolised by successive fellow KZN besties like lawyer Barnabas Xulu, who has represented Hlophe all these years and who owes the state R20-million in legal fees he was not entitled to.
Xulu is currently being investigated by the Legal Practice Council.
Read more in Daily Maverick: Hlophe lawyer Barnabas Xulu found in contempt of court, slapped with fine & suspended prison sentence. Must hand over his Porsche, too
Many constitutional law experts have pointed out, the Constitutional Court as well as the Supreme Court of Appeal have been grappling for years with the “indigenisation” of South African law.
As Professor Pierre de Vos has pointed out, the ConCourt has leaned on the Bill of Rights to refashion Roman-Dutch law principles of ownership which were relied upon during the apartheid era.
In that instance, De Vos reminds us, traditional Roman-Dutch property law failed to take account of the inherent tension between individual rights to property, on the one hand, and the social responsibilities of property owners, on the other.
Former justices Albie Sachs and Yvonne Mokgoro “infused the law of defamation with the value of ubuntu/botho by proposing a remedial shift from almost exclusive preoccupation with monetary awards, towards a more flexible and broadly based approach that involves and encourages apology”.
Not cloud cuckoo land
There have been other rulings which demonstrate that “our Constitution contains indigenous values which should permeate our law”.
Wilmien Wicomb was a member of the Legal Resources Centre team representing the Land Access Movement of South Africa as an amicus curiae in the hugely important Bakgatla ba Kgafela matter.
The Bakgatla community live in the wealthy Platinum Belt and their battle against a traditional chief, Chief Nyalala Pilane, who mismanaged the community’s wealth over many years, was taken to the courts.
Wicomb has written that South Africa is one of the few countries where “domestic courts have been forced to engage with customary forms of tenure”.
She writes that in terms of section 211(3) of the Constitution, the courts “are obliged to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law”.
The Constitutional Court had, in the past, placed great emphasis on “the dangers of understanding custom in terms of that which was codified by the colonial powers or, indeed understanding customary forms of tenure in terms of familiar common law principles”.
As a result, the court had come to distinguish between “living” and “official” customary law and noted that it was the former that was recognised by the Constitution rather than the statutory entrenchments of custom.
It is worth reading Wicomb’s 2011 exposition for the African Human Rights Law Journal of the distinctions that South African law makes.
“Living customary law refers to customary law that is ‘actually observed by the people who created it’, as opposed to ‘official’ customary law that is the body of rules created by the state and legal profession”.
Or dare we say, created in the minds of Zulu patriarchs.
There are other cases in which the Constitution has upheld the rights of citizens that have been violated or ignored by successive ANC governments, including Zuma’s.
Hlophe is bound to enjoy the spotlight and the feeling of revenge and self-importance that will burn in his belly as his presence on the JSC will offend right-thinking and law-abiding members.
Hlophe was Zuma’s lackey then, and he’s Zuma’s lackey still. It’s in the open now. DM
Daily Maverick's journalism is funded by the contributions of our Maverick Insider members. If you appreciate our work, then join our membership community. Defending Democracy is an everyday effort. Be part of it. Become a Maverick Insider.