(Judge) Hlophe should have been dealt with long ago – fired, impeached or whatever they do to hack judges. His defence for his prior contraventions seems to have been a he said / she said situation or a misinterpretation of what he actually stated. However, his latest outrage is blatant and not subject to misinterpretation. Furthermore, it is wilful in that it displays a conscious disregard for facts known by him in order to express a personal opinion and advance a biased racist narrative. As such, he is not a fit and proper person to be a judge, not only for white people appearing before him, but everyone because he has displayed a creative relationship with facts (evidence) before him. A Trumpian personality of the first water.
Around the beginning of May, Hlophe delivered a lecture to UNISA’s Department of Public, Constitutional and International Law and made some of the following statements:
- Hlophe accused the judiciary “of being soaked in politics, battling to deal with transformation, and allowing apartheid-era judges to dominate the narrative”.
- Hlophe described South Africa’s law “as a white man’s law imposed by colonialists and an infusion of English heritage and the Roman-Dutch law, which rendered it incapable of delivering justice for the common man”.
- “race is very important given our (apartheid) past. So any judiciary which is still white male-dominated can never be construed as legitimate”.
The first statement is not particularly kosher for a senior judge to air in a public forum but that in itself and the content thereof is debatable, so we’ll just leave it there.
The second statement is far more problematic. Perhaps, instead of vaguely dissing our current law solely based on the fact that it had its origins in a colonial, Eurocentric past, he should explain what precisely is wrong with it. On the other hand, perhaps he thinks African customary law with all its lack of rigour, documented precedent and dubious human rights provisions should hold sway. This, also, is not too much of a train smash so we’ll just park it there.
The last proposition is extremely problematical as it makes a racial distinction which can be measured against facts. If the facts prove his observation, then he’s off the hook. If the facts disprove his statement, then he could just suffer from confirmational bias – not a good trait in a judge but not yet a hanging offence.
If however, he knows that he is wrong and yet he continues to push his racially biased opinion as fact then that is a hanging offence for a judge. There are no extenuating circumstances.
Let’s first investigate the validity. According to the FW de Klerk Foundation, these are the facts:
- Only 35% of SA’s 255 judges are white (let alone, male).
- Only 30% of the 20 judges on the Supreme Court of Appeal are white.
- 0% of the 9 judges on the Constitutional Court are white.
- The Chief Justice is black.
- The Deputy Chief Justice is black.
- The President of the Supreme Court of Appeal is black
- All 9 of the Provincial Judge Presidents are black
That is what our American friends would call a slam dunk. The judiciary is not overwhelmingly white male dominated. On the contrary, it is massively black dominated.
For him to be roundly pilloried, we must next interrogate whether he knowingly peddled these falsehoods.
(Judge) Hlophe is the Judge President of the Western Cape Division of the High Court of South Africa, to give him his undeserving full title. This is a very high position in the judiciary and, at the very least, he should know that White male domination does not hold in his division. Further, his ‘finely tuned’ legal mind should first have established the national demographic statistics by consulting the Department of Justice’s website before spewing his petty bilge. Finally in his many years at the top of his game (11 years as Western Cape President), he could scarcely have been blind to the fact that all the Justice Department grandees are black.
Above is sufficient evidence of his prejudice and his lazy thinking or incompetence for him to face a second impeachment based on that he is not fit for purpose. Theoretically, his statements give sufficient grounds for appeal by any white found guilty by him. In fact, he should have to recuse himself from any case involving a white person, but even his judgements involving black people could be questioned given his Trumpian logic.
There is no hope for Hlophe. Hlophe must fall.