The Dr Hlophe-JSC paradox.

This was published in the TimesLive on 08 October 2024 under the title "The Hlophe-JSC paradox: builders of the constitution couldn't have seen this coming.

To say that justice has become a means to other ends and not an end itself is not a semantic quibble but a serious moral point. When the halls of justice appear to be more and more about protecting the establishment's interests, the opportunity to liberate South Africa's jurisprudence from its tormented past diminishes. The paradox that justice and freedom face in South Africa requires a truly blindfolded lady justice. With a history of justice that could wait for legislation to be drafted so that people could be charged, the notion of the rule of law and the supremacy of the Constitution has rendered most of South Africa's judicial officers refugees in an unfolding judicial system; they are expected to be pathfinders. 

The apex requirement of an independent judiciary is for judicial officers to respect, promote, protect, and fulfil the Bill of Rights. Judicial independence, significantly impacting the interpretation of the Constitution, should be about setting intergenerational and posterity-defining legal precedents beyond the present exigencies. The principle of separation of powers, the safest way of insulating society against any form or orientation of dictatorship, should be a substrate of judicial independence. This means none of the authorities in a state should risk the temptation of overreach. History records the abundance of benevolence in the incumbent leadership of society, such as the GNU context we are inside, which has the potential to degenerate into a dictatorship, chiefly orchestrated by an unquestioned cognitive legal elite possessing the power to prescribe the adjudicative power of a nation. 

 

It is no secret that on 16 December 2023, when Jacob Zuma announced that he would campaign for the MK Party and later became its leader; he became a game changer in South Africa's politics. Almost all political parties and leaders knew about the possibility of a Zuma retaliation to what he considered torments, hence the 'wenzeni uZuma' clarion call in his native province of KZN. Yet many, especially in his then political home, the ANC, believed that he would execute a political plan that was inarguably the first existential threat to the liberation movement and potentially the essence of the new constitutional order. The general discontent at how the 'system' has treated some of the leading minds of the immediate post-apartheid era, notwithstanding an abhorrence towards what they were accused of, created a polyvalent solidarity constituency birthed by the absence of consistency in the system when 'similar' scenarios are not treated same. This constituency coalesced around the MK Party as its refuge in the wake of a system perceived to be hostile to them. 

 

Working through the courts to bend the purposes of the new constitutional order to pursue the establishment's interests meant the law interpretation would be an elite or legal representation affordability affair. Being from an oppressive past can only mean the muscle memory of the justice system is defending the interests of the establishment or economically dominant in society. The system has perfected its capability to look for ways of hiding its incapacity to live up to the demands of the liberation promise in the Constitution when things start to go wrong for the establishment. 

 

The election of persons into the National Assembly is the primary mandate of society. Once sworn in,  their participation in the 'system' is based on the arrangements the constitutional order has prescribed. This means each member is entitled to serve in all structures of Parliament. Beyond the set codes of conduct, elected representatives have parliamentary privilege- 'rights and immunities enjoyed by Parliament as an institution and MPs in their capacity, without which they cannot discharge their functions as entrusted upon them by the Constitution. This privilege, save for conditions of eligibility to being a member of parliament, extends to various other unnamed privileges associated with the tasks. 

 

MPs serve in committees with significant impact on the constitution and autonomy of the executive and the judicial authority of the Republic. Criteria to serve in some of the committees, most of which the barriers to entry are presumptuous of ethicalness expected of MPs. At no stage had the drafters of the Constitution assumed the possibility of an impeached judge becoming a member of parliament and potentially being appointed to the Judicial Service Commission. In the vortex of the establishment of the MK Party, several standard assumptions were upended, and those societies have been defined differently and become part of the system's opposition complex. The MK Party vote restored those the system and establishment had relegated to being outside 'the proverbial power tent'. 

 

The appointment of Dr Hlophe to serve in the Judicial Service Commission, an institution assigned the task of commissioning into the judiciary members of society, whilst being a former judge who left the judiciary through impeachment, is paradoxical. Until there is a pronouncement on it, either by the Constitutional Court if an application is made or a constitutional amendment with an appropriate majority on eligibility to serve in the JSC beyond just being an MP, the Dr Hlophe matter will always be seen as pursuing two contradictory goals, to allow him the role of the commissioner in the JSC because he is an MP and seeing him as an impeached judge and thus inarguably questionable as to be a commissioner creates a pair of opposites only a juridical call can help determine the extent of the interdependence relative to the pursuit of justice. 

 

It will take the form and character of the blindfolding of Lady Justice and the extent to which she can genuinely operate outside her knowledge of Dr Hlophe's set of circumstances that the complexity of this appointment can be appropriately paradoxical. Excluding him without a substantive process to determine criteria for eligibility in the context of it being part of the role of the legislative authority of the Republic is prejudicial. Continuing with his appointment based on separation of power but disregarding the person the impeachment has made him to be might undermine the impeachment process the legislature has pronounced upon. 

 

Plausible as the argument that stability and change can be opposites, inhaling and exhaling are opposites when seen in their distinct character and outside a living organism; their interdependence requires a co-existence that does not undermine one for the other to happen; they are opposites which complement each other. The degree to which the same can be assumed regarding conduct and ethicalness, notwithstanding the human fallibility, mainly political, that might have undergirded the impeachment process, constitutes the whirlpool of the paradox. Given that the greater purpose is justice or the adjudicative authority of the Republic, how jurists and legislators reach a compromise beyond the exigencies of being incumbents will define the posterity of South Africa's justice system, the constitutional and democratic order. 

 

In the ethical and human conduct spaces, as Schroeder-Saulnier says, "Paradoxes don’t only come in pairs. As the complexity of the situation increases, so does the complexity of paradoxes". Those in the historical moment must seize the opportunity to lead and define the criteria to serve in the Judicial Service Commission. The 1994-1996 Constituent Assembly, like our jurisprudence, which never anticipated contempt of the Constitutional Court, did not envisage that an impeached judge could be a leader of the opposition party and eligible to be JSC commissioner under the circumstances. CUT!!!