Hlophe remains our only preferred candidate - JFH Alliance

The Justice for Hlophe Alliance welcomes the opening up of the debate around the impending filling of the vacancy for the chief justice of the Constitutional Court, as evidenced by the recent article in the Mail & Guardian titled "ConCourt dark horse takes the lead". It is reassuring that those who sought to keep the debate as a "privilege" for the select few have heeded the JFH Alliance's clarion call for the general public to become active participants in the unfolding developments. Of further interest, is the acknowledgement that there is indeed "a race to replace chief justice, Pius Langa". This particular concession demonstrates that our decision to nominate Hlophe JP was not "necessarily" out of the ordinary, but rather part of an ongoing process in which some legal academics and experts continued to put forth their preferred candidates for the "race" yet at the same time wanting to deny others the right to comment which smacks of hypocrisy.

After reading the article, we however, do not believe that President Jacob Zuma would choose a candidate "politically palatable" to himself and the ANC" as suggested by the analysts. This has never been our understanding of the President or the ruling party's position and accordingly we wish to categorically reject this notion. During his address at the Second Judicial Conference for South African Judges, the President reaffirmed the government's commitment to "judicial transformation", and emphasised that such initiatives would be "advanced and undertaken without interfering with the principle of judicial independence". We therefore remain confident that a clear vision for judicial transformation will inform the President's final decision on who to appoint as Chief Justice. It concerns us though that more and more, some political parties, particularly the official opposition is meddling in the JSC's affairs. These opposition party leaders are doing the opposite of what they constantly advise the ruling party against doing.

It is now instead they who are interfering with the JSC's processes and they are painstakingly trying to cast aspersions on the integrity of the three-man task team who will review the Hlophe complaint in order to determine whether there is enough evidence to proceed with the hearing. Their new stance on the JSC is ironic considering that they have always maintained that the JSC is a good "bet". Ever since Adv George Bizos' term expired and new commissioners were appointed, their tune has changed though. We thus wonder whether this is not another one of those "Black people drop standards" kind of inferences. The DA leader's constant undertones and utterances contradict her party's earlier position that the ANC must leave the JSC to do their job. It is therefore regrettable that Mrs. Zille, the constant lecturer of the ANC on the judiciary and its independence, in one of her most vicious statements/attacks yet against the JSC, said "This is clearly a matter of significant importance to the public, and Section 9(3) of the Judicial Services Commission Act provides for JSC meetings to be held in public in such circumstances" (see here).

The very constitution the DA leader quotes is silent on preliminary hearings hence Section 9(3) doesn't exactly apply to the Hlophe matter. Even a closer look at this Section of the Act nonetheless reveals that her interpretation thereof leaves a lot to be desired since when it states that, "Meetings of the Committee may only be attended by the members of the Committee and persons whose presence are required or permitted in terms of this Act,..." Although it does state further that, "...unless the Committee on account of public interest and for good cause decides otherwise, Mrs. Zille has in this instance, omitted to mention that Section 173 (4), of the Constitution states that, "The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members. It follows that it is at the discretion of the JSC to allow or disallow the public to sit in the hearings. Besides this, no good cause has been shown by the supposedly "interested public" and this so called public interest doesn't supersede the right to conduct an investigation without media interference.

Again, to demonstrate the DA & analysts' hypocrisy, when another judge (Siraj Desai) had a preliminary hearing conducted years ago, they didn't show the same contempt and mistrust for the JSC. We are now convinced that these opinion makers are the kind of people who want to reserve the right to be the only commentators and/or interpreters of the constitution, particularly the subject relating to the judiciary or Hlophe's enquiry. The Justice for Hlophe Alliance thus wants to remind them that the constitution was enacted with good intentions and it is not to be used for narrow political mischief or point scoring.

It is for this reason that we took it upon ourselves as the JFH Alliance to not only seek to transform but also to fight for the independence of the judiciary. This principled position was inspired by the realisation that these minority political parties are jostling for continued control of the judiciary. We are aware too that allowing the media in the preliminary hearings is meant to minimise Hlophe's chances of making the shortlist and later use the information gathered to discredit the verdicts on cases that he will preside over should he be cleared.

It is our understanding that the DA has long been leading the pack of disgruntled politicians who are not happy with democratic processes, and yet lecture others about upholding the principles of our constitution. It would be interesting too, to know how the DA got wind of information to the effect that the ANC garnered a majority in the JSC when it is no longer represented, or is it perhaps the notion that correct procedures will only be recognized when the DA gets 65,9% of the seats in the national assembly .

The President and NCOP have not broken the law, by appointing commissioners such that the make-up is representative of the demographics, especially the voting patterns in the polls. We also hold a view that the DA must be warned about their unruly behaviour of attacking the new commissioners in the JSC through the media as this is a clandestine way of waging an unholy war against the judiciary. The only interest these detractors (the likes of Mrs. Helen Zille) want to protect is the provisions of the Sunset clause so that those apartheid era judges who didn't see anything wrong with apartheid can enjoy protection and continue with ill considered verdicts.

We cannot put it past them that, in the event that Hlophe does become Chief Justice, they may very well be cultivating fertile for setting up parallel structures by increasingly utilising the courts of mediation and arbitration of which these motives seek to undermine our constitution. We find it despicable that these opinion makers and detractors are hell-bent on tarnishing the image of judge president Hlophe's credibility as a jurist, intellectual and visionary. We note further that they have shied away from challenging the contents of our motivation, presentation and argument.

The public has been receptive of our action and this as a positive sign that our people are beginning to realise and acknowledge that Hlophe is not the "devil" some sections of our society have branded him as. It also confirms our long held belief that there should be no confusion around the fact that Hlophe is the best legal mind to steer the Constitutional court ship into a new chapter.

We welcome healthy competition in the race to succeed Langa CJ, but would be wary of any intention to push Judge Sandile Ngcobo to the fore as a "compromise candidate". We hold Judge Ngcobo in high regard, as we do any other judge on the bench, but we believe that if the President was to put faith in him, it should be because of his ability to advance the republic's commitment to fair judicial interpretation and adjudication, and not because he would be perceived as the "lesser devil" by certain sections of our society.

Furthermore, we reiterate that we are going to continue to lobby for Hlophe, whom we deem head and shoulders above his colleagues in the judiciary, to be elected by the President as the successor of the current Chief Justice. The million signatures campaign in support of our written motivation for Hlophe is already well underway. We appeal to the public at large to enhance democracy and make history by supporting this noble cause by participating in this unprecedented campaign.

As the Justice for Hlophe Alliance, we remain committed to the transformation of the judiciary and the independence thereof, free from political, business and academic influence.

Statement issued by Setumo Stone on behalf of the Justice for Hlophe Alliance, North West Chapter, July 27 2009

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