S. Africa's divisive jurist

Even before he became president, Jacob Zuma vowed to "transform" the South African judiciary. Translation: There were too many white male apartheid-era judges and too few nonwhites and women.

Now Zuma will appoint four new judges to the 11-member Constitutional Court in coming months, his chance to effect a transformation that will shape the country's highest court on constitutional matters.

But the nebulous definition of "transformation" has some people worried. To critics, the term has been so diluted by nepotism and cronyism that it's come to mean appointing your political friends. And some worry that it also means payback time for Zuma, who has been involved in court battles that he believes were politically motivated.

Into this debate strides South Africa's most controversial judge, John Hlophe, president of the high court in Western Cape province. A noisy lobby of supporters is pushing for him to become a member of the Constitutional Court, and even, at some point, chief justice.

Similarities to Zuma are striking. Both grew up in dire poverty in what is now KwaZulu-Natal province but rose through the ranks to power. Both are flamboyant and controversial, and see themselves as victims of persecution. And the possibility that he could become the next chief justice has divided the country, just as Zuma's ascendancy to the presidency did.

Also like Zuma, Hlophe has been accused of impropriety and misconduct, allegations he rejects.

He denies allegations that he pressured two fellow judges to find in Zuma's favor in one of the president's legal tangles. Corruption charges against Zuma were dropped in April on a technicality. In an earlier, unrelated case, Zuma was acquitted on rape charges.

Among his alleged ethical lapses, Hlophe gave a company permission to sue a fellow judge while he was serving as a paid board member for the firm. The Judicial Service Commission, responsible for investigating complaints against judges, found no evidence of gross misconduct.

In early September, the 23-member commission will hold public interviews in Soweto with the 23 judges, including Hlophe, who are on the short list for the four upcoming seats on the Constitutional Court, then forward a final short list to Zuma.

In South Africa, Constitutional Court judges can serve only 15 years before retiring, and four judges are scheduled to leave this year.

Despite the campaign by Hlophe supporters, Zuma last week overlooked him for the top job, appointing Sandile Ngcobo as chief justice. Many analysts speculated that Ngcobo would be in the job only 18 months because he has been a judge for more than 13 years, leaving a path for Hlophe to win the post in 2011.

The idea that Hlophe could gain appointment to the Constitutional Court has stirred fierce debate. First of all, there's the irony involved: The complaint against Hlophe involving the alleged pressuring of two judges, now before the judicial commission, was brought jointly by all Constitutional Court judges.

Human rights advocate Rhoda Kadalie, writing in the Business Day newspaper, called on judges and lawyers to resign en masse should he be chosen.

"That Hlophe has even made it onto the short list for vacancies in the Constitutional Court, despite his long track record of serious judicial infringements, is a warning signal that should propel us into action," Kadalie wrote. "His appointment will destroy the dwindling confidence the public has in the judiciary."

Writing in the same paper, one of Hlophe's supporters, Paul Ngobeni, former deputy registrar at the University of Cape Town, called Hlophe's opponents "unrepentant racists, hell-bent on undermining those black judicial officers advocating transformation."

"Whites want to entrench themselves in the last unelected branch of government, the judiciary," Ngobeni said in a separate interview with Independent Newspapers online.

Analysts see South Africa's judiciary as still too white-dominated, yet rate it as relatively robust and independent on a continent where court decisions are often bought and sold.

Hlophe believes he's been "lynched" by fellow judges. It all began in 2004, he says, when he wrote a report to the government accusing fellow judges and white lawyers of racism.

"Before 2004, I was a darling of the legal profession. I was a superstar," he said in a May interview with Business Day. "There were people in the legal profession, including some retired judges, who were saying openly that John is a star; he is a future chief justice of this country. Until 2004. Until the racism report."

Hlophe's advocacy of the Africanization of the courts, including more black judges and the use of African languages, is in sync with Zuma's agenda to transform the courts. But his opponents say there are less controversial black judges with impressive records on transformation.

Past criticism of the judiciary by Zuma's allies in the ruling African National Congress have fueled the fear that payback is on his mind. In July 2008, Gwede Mantashe, now ANC secretary-general, said Constitutional Court judges were part of the "counterrevolutionary forces" arrayed against Zuma and that they were using the complaint against Hlophe to get at Zuma.

"I think it would be myopic to say there's no political dimension," said Sello Alcock, legal affairs analyst with the weekly Mail & Guardian newspaper, commenting on the forthcoming judicial appointments.

He said Zuma's supporters in the ANC had been pushing for "judges who look more like us" because they felt some had been biased against Zuma during his legal trials.

Alcock said ordinary black South Africans sympathized with Hlophe, believing he was being picked on because he stood up against racism.

Patrick Smith, editor of the analytical journal Africa Confidential, said Zuma's desire to shape the political orientation of the Constitutional Court resembled the politics that come into play in U.S. Supreme Court appointments. But he said that although all administrations seek to appoint judges sympathetic to their ideologies, appointments seem to be becoming more political in South Africa.

"It would be a worrying signal if he did emerge as chief justice, because he is not seen as an independent person," Smith said. The Constitutional Court "is meant to be independent of the government and legislature. It could not do that job if the head of the Constitutional Court was seen as a political ally of the president of South Africa."



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