It’s Judge John Hlophe’s racism that really matters

29 November 2022

Western Cape High Court Judge President John Hlophe has exercised his right to freedom of speech. The Free Speech Union believes this is a right he must be entitled to exercise even though what he said was racist and crassly inarticulate.
 
It also wasn’t impetuous. Judge Hlophe was addressing a meeting of the Black Lawyers Association in Durban recently and said that “white colonisers continued to own the majority of South Africa’s land”. He suggested that “the only way to get it back from ‘thieves’ was through nationalization”.
 
To the apparent enjoyment of the audience, Judge Hlophe said they should remind their children at least three times a day that their land was stolen and point to the “thieves”, without naming them.
 
Judge Hlophe is entitled to say things that are hateful and racist, but he is not entitled to avoid responsibility for what he says when exercising that right.
 
The Judicial Service Commission (JSC) Act: Code of Conduct requires judges to act “honourably and in a manner befitting judicial office”. In his professional and his private life, he must avoid impropriety and the appearance of such.
 
The Code provides that “(o)ffences involving moral turpitude are
Inexcusable” and this includes extra-judicial conduct.
 
Section 6 provides that in court and in his chambers, a judge “must always act courteously and respect the dignity of others”. A judge is expected to avoid personality issues with colleagues, lawyers and parties, and to foster collegiality. The complaint by a Cape Town advocate that Judge Hlophe said he could tell his client to “f**k off” and that if his case was heard in open court he would dismiss it with costs, contradicts that requirement. This complaint has been with the Judicial Conduct Committee (JCC) since December 2021.
 
In July, the JSC recommended to President Ramaphosa that he suspend Judge Hlophe, pending a National Assembly vote on whether he should be impeached. The JSC found Judge Hlophe guilty of trying to persuade Constitutional Court justices Bess Nkabinde and Chris Jafta to rule in favour of then ANC president Jacob Zuma in one of his corruption trial challenges. This misconduct arose in 2008.
 
Two months ago the appeals committee of the JCC recommended a judicial conduct tribunal investigate possible impeachment in a conflict between Hlophe and his deputy Patricia Goliath which arose in 2020.The appeals committee’s decision must be endorsed by the JSC before a tribunal is established. Nothing has happened yet. One of the allegations in the dispute is that Hlophe called her a “piece of s**t”.
 
Hlophe has also called an attorney “a piece of white shit” and accused another of “trying to f**k my wife”. 
 
Judge Hlophe brings the judiciary into profound disrepute; so too does lack of timeous action by the president and the JSC. Given his status and the disrespect he has shown to the judiciary, he deserves everything that’s coming to him.
 
In contrast the comments Belinda Migor made in a voice note in which she said “the black man” must be banned and killed – “Ban them, kill them, shoot them” – while black women must have their uteruses and ovaries cut out so they do not reproduce. This evidently came in response to reporting on fatal pitbull attacks.
 
No right thinking person would condone what she said. Her actions and comments are outrageous. The Human Rights Commission and the Equality Court will likely come into the fray. However, she has no power other than the power to offend and disgust.
 
Judge Hlophe, in contrast, tarnishes the third arm of government – the judiciary. In our corruption-ridden society, it is the judiciary that has often been the bulwark against the executive and parliament ruining our democracy.
 
The judiciary and the president owe it to the people of this country to impeach Judge Hlophe: the rights of the citizenry take precedence over a judge’s career.

Issued by Sara Gon, Director FSU SA, 29 November 2022