STATEMENT OF THE JUSTICE FOR HLOPHE ALLIANCE IN SUPPORT OF THE NOMINATIONOF JUDGE PRESIDENT, JOHN MANDLAKAYISE HLOPHE, TO BE JUSTICE AND CHIOEF JUSTICE ON THE CONSTITUTIONAL COURT

SUBMITTED BY: The Justice for (Judge President) Hlophe Alliance (JFH)

I. INTRODUCTION

1. PRELIMINARY STATEMENT

1.1 As stated in its Founding Statement [1], The Justice for (Judge President) Hlophe Alliance (JFH) is a non-profit organization that works to defend and seek justice for Judge President Hlophe and all black judges who find themselves unfairly attacked for their strong, principled and unwavering pro-transformation stance. Our goal is to build a public consensus behind an independent and non-racist judiciary and respect for the rights, human dignity and due process rights of the hardworking judges who form the pillar of our justice system and who are often subjected to unfair, unwarranted and politically motivated attacks.

1.2 The Justice for (Judge President) Hlophe Alliance was formed in response to the relentless unfair attacks on Judge President Hlophe by anti-transformation elements within and outside the judiciary as well as the infamous and opportunistic attacks on Judge President Hlophe by unsavory characters who have an axe to grind with him. Justice for (Judge President) Hlophe Alliance emerged as a coalition of Judge President Hlophe's friends, colleagues, concerned attorneys and advocates and other concerned citizens who believed (and continue to do so) that Judge President Hlophe is being persecuted for his strong and principled fight for transformation in our judiciary. The Justice for Judge President Hlophe Alliance will unveil a well-orchestrated campaign around the issues where the rights of Judge President Hlophe and other black judges are violated, and empower the silent black majority to hold anti-transformation elements accountable and to ensure a truly transformed and independent judiciary.

1.3 The Justice for (Judge President) Hlophe Alliance has adopted a policy of active public participation in matters affecting our judiciary. In judicial nomination cases, the JFH shall nominate candidates deemed qualified for appointment to our courts. Whenever a judicial nomination is submitted to the Judicial Services Commission (JSC) in response to the JSC's invitation to the public for such nominations, the JFH will undertake thorough research and compile a report summarizing the candidate's past judicial record (if any), academic/scholarly writings, speeches, philosophical and constitutional rights record etc., specifically in regard to transformation for use by the JSC, the executive branch of our government specifically the Presidency as well as by the press and other members of the public in evaluating the nominee.

1.4 In accordance with JFH Policy this report summarizes the record of accomplishments including the transformation and constitutional rights record of Judge President Hlophe, an outstanding jurist, formidable academic, a patriot, and a devoted father. In preparing this report, we reviewed his impressive record as an academic, a scholar and a judge. We reviewed his writings and judicial opinions on matters dealing with transformation or law reform, including leading opinions he authored, his concurrences and dissents. We have also reviewed some of the seminal or significant cases in which Judge President Hlophe provided leadership and guidance to his colleagues, scholars and academics at home and abroad. In compiling this report, we could not be oblivious to the current political climate which is characterized by free for all well-orchestrated ad hominem attacks on Judge President Hlophe.

1.5 We had to scrutinize, confront and expose demonstrably false and malicious claims by his former judicial colleagues that Judge President Hlophe "took no part in the struggle against apartheid." We have to expose the false narrative and vituperative propaganda of academics who have ignored all available evidence and distorted Judge President Hlophe's unparalleled record of accomplishments and claimed that Judge President Hlophe has issued the most "anti-poor judgments." We have to expose the major cracks in the façade of the narratives constructed by these former judges and academics and highlight multitudinous inconsistencies therein. Finally, we reviewed his published articles, his contributions in form of chapters in books, along with press reports and media programs in which he was featured. We are absolutely confident that this summary presents a fair and accurate portrayal of the Hlophe's record, as we know it today.

1.6 We apologize in advance for the detailed nature and prolixity of this report but this was unavoidable under the circumstances. The stakes are enormously high as South Africa faces a unique opportunity at a time when there will be so much change at the apex of the nation's judiciary, the Constitutional Court. At a time of such unique change, we humbly submit to you that leadership is a quality on which we all must focus.

1.7 As one of the most experienced and respected High Court judges of his generation, Judge President Hlophe clearly possesses the intellectual qualifications to sit on the Constitutional Court and to be the leader of our judiciary as a whole. That is certainly a necessary condition for confirmation, but it ought not to be a sufficient one. The larger question is what kind of Justice will John Mandlakayise Hlophe be if confirmed? What does the record reveal about his views on the role of the Constitution in preserving our hard-won individual rights, and on the role of the judiciary in interpreting the Constitution? In a country where others are describing the daunting challenges facing a "developmental state" and where the questions of democracy and delivery, transition and transformation, are being bandied about sometimes as essentially complementary and at times as basically conflictual, do Judge President Hlophe's writings and judicial decisions tell us anything about his views of a democratic state? Do they recognize the living constitution that opens up the democratic space and opportunities, that creates a voice for the poor and marginalized and not only promotes, enhances and protects the rights that accrue but pursues the obligations owed to it by citizens, and which inculcates diversity, responsiveness and representation and representativity, the institutional separation of powers and functions, transparent decision making, accountability and effective oversight? Those questions provide the framework for this report.

1.8 Reasonable people may hold divergent views about whether it is fair to assume that the views John Mandlakayise Hlophe advocated as a legal scholar, both as a student and a law professor, or his judicial rulings represent his personal views as well. We agree that is a fair question and hope that the JSC hearings will provide an opportunity to explore that issue further. Indisputably, many of the writings Judge President Hlophe authored through the years as a budding scholar and academic were clearly expressions of his own personal views. But the overarching question is whether those views advanced the cause of the anti-apartheid struggle - were they subversive of the oppressive, racist regime or did they betray a collaborationist mindset of one determined to play "no role in the struggle against apartheid" ? As a corollary, did Judge President Hlophe's writings contribute to the progressive strand and to judicial decisions ameliorating the harshness of oppressive laws during the darkest days of apartheid? Did he contribute substantially to the constitutional democracy we all enjoy? Do his judicial rulings combined with his writings give us a consistent and coherent picture of his values as a judge?

1.9 It is no exaggeration to state that Hlophe made a lasting and tangible contribution both to the dismantling of apartheid jurisprudence entrenched over decades and the building of our constitutional democracy. The doubting "Thomases" are being provided with clear incontrovertible record contained in this document. It is a challenge to those who can to produce countervailing evidence refuting this record of accomplishments which so far points ineluctably towards Judge President Hlophe's very strong candidacy and unique qualification to be the Chief Justice and leader of our judiciary.

1.10 South Africa faces a unique opportunity at a time when there will be so much change at the apex of the nation's judiciary, the Constitutional Court. At a time of such unique change, we humbly submit to you that leadership is a quality on which we all must focus. The most important attributes of leadership are restraint, modesty and tenacity and Judge President Hlophe has all those attributes, he has them all in abundance and he combines them with a keen intelligence, with extraordinary communications skills, a passion for justice and for inclusiveness.

1.11 Hlophe will be an enormously effective leader. He is one of the finest legal writers in the judiciary today. He is a "meticulous author and he handles difficult factual issues, difficult procedural issues, difficult legal issues with ease. He approaches complex legal issues through the lens of common sense along with the lens of his understanding of the law. It may not be obvious to many of our citizens the complexities involved in the job duties of a judge president or a chief justice - we need to understand the dual roles that the chief justice plays in our judiciary. One is the jurisprudential - the writing of cases, conferring with one's colleagues on the court - and the other, which is so vital and time consuming, is the administration of the court. Why are Hlophe's writing skills so important? It is important because judges speak through their opinions; they are not supposed to comment on them after they are published. We are very confident that Judge President Hlophe, as the the constitutional court nominee or chief justice designate, will perform both functions admirably. What makes us so supremely confident that Judge President Hlophe will be a great justice? He has already demonstrated that he is a great jurist - whether as a scholar, a law professor or a high court judge, he has proven that he has some of the following characteristics: hope, confidence, integrity and unshakable moral and political courage, emphasis on the courage.

1.12 Contrary to the naïve assumptions of others, judging or judicial leadership in a developmental state can never be a passive spectator affair. In a democratic developmental state the other branches of government make conscious policy choices, design policies with clearly defined socio-economic objectives that require active state interventions. Some of the social objectives include:

(the) alleviation of absolute and relative poverty; the correction of glaring inequalities of social

conditions (between genders, classes, regions, and ethnic groups); provision for personal safety and

security. In the context of the South African democratic constitution, the idea of a developmental state is not as abstract as it sounds. It finds resonance in the pro-poor stance of local economic development policies, government infrastructural expansion programmes, social welfare grant policies, housing policies as well as employment and business equity policies show a level of government intervention in the redistribution of wealth and social justice. The government is said to have an affirmative constitutional obligation to ensure the realization of the social and economic rights guaranteed our citizens on the constitution.

1.13 As shown by the record pertaining to Judge President Hlophe's judicial rulings, the promises to our citizens contained in our constitution through hey can be described as developmentally successful; their success depends on the existence their success depends on the existence a judiciary willing to hold the other branches of the government accountable

and willing to work toward the efficacy of the democratic developmental state. Judge President Hlophe's visionary leadership, his bold and innovative approach to the law and fealty to our constiotution have all been documented and will be discussed extensively in this document. Most of his published work and judicial decision is contained in his Curriculum Vitae which has been made available to the JSC and the President, his excellency Jacob Gedleyihlekisa Zuma. We restrict ourselves to pointing out the following points in this regard.

1.14 Here is a synopsis of the Judge President's record:

· Hlophe's Recognition of African Customary During Apartheid and Under The Constitution: Both as a student, an academic and a judge, Hlophe has demonstrated acute awareness of the injustices and distortions imposed upon African customary laws by colonialism and apartheid. The very first article Hlophe ever published was about the "The KwaZulu Act on the Code of Zulu Law" and was written as "...a guide to intending spouses" and contained some incisive comments on the custom of lobolo.[2] He not only challenged apartheid at a theoretical level but he made sure that he demystified the law and provided guidance to intending spouses. His approach has always been that equality and fairness should be the guiding principles. This is borne out by his later judicial decisions. As a judge operating within the framework of a constitutional democracy, Hlophe issued a seminal decision, Mabuza v Mbatha,[3] in which he recognized both the validity of customary marriages and the potential injustice to African women if the validity was determined solely by reference to common-law, as opposed to the Constitution. Displaying sagacity and brilliant analysis which highlights the difference between a mere judge and a true justice, Hlophe interpreted customary laws in a manner which prevented a man from exploiting his superior bargaining position or taking advantage of such laws to deny a woman equal protection. As shown later, the Constitutional Court has relied on Hlophe's incisive analysis and has cited the Mabuza case in numerous decisions emanating from that court. Other scholars[4] and gender activists have praised Hlophe for his wisdom and fealty to the constitution. More on this later.

· Hlophe's approach to "South African Ouster Clauses" During Apartheid and Under the Constitution: Very early in his academic career, Hlophe recognized that the "ouster clauses"[5] in the apartheid legislation (which ironically is still on our statute books) undermined judicial independence and violated human rights. In an article authored while still a law student and during apartheid, Hlophe recognized that the so-called ouster clauses imposed Legislature supremacy to the detriment of the public. In South Africa, ouster clauses have long been regarded with suspicion as they contain the inherent ouster of judicial review of draconian legislative enactments or excutive action. It is a kind of practice that prevents even the courts from reviewing executive action that threatens the human rights of the citizens. It constitutes a serious departure from the well-known rule of constitutional law in all civilised countries - namely, that the courts of law alone are entrusted with deciding on the rights and duties of all persons who are within the protection of the courts. As a justice of the High Court in a free and democratic South Africa Hlophe confronted the apartheid relic, the "ouster clauses" once again. In De Lille and another v Speaker of the National Assembly,[6] Hlophe demonstrated his consistent and even-handed application of the law and held that an ouster clause in sect.5 of the Powers and Privileges of Parliament Act 91 of 1963 was invalid because it conflicted, inter alia, with s 34 and s 38 of the Constitution. He added "at common law there is a presumption against ouster clauses which are considered to constitute an improper infringement upon the role of the Courts." 1998 (3) SA 430 (C), 1998 (7) BCLR 916 (C) (Hlophe J). Hlophe was emphatic in rejecting these clauses and states at 452 that : "Ours is no longer a parliamentary state. It is a constitutional state founded on the principles of supremacy of the Constitution and the rule of law. A new political and Constitutional order has been established in South Africa. The new Constitution shows a clear intention to break away from the history of parliamentary supremacy."

· At the risk of offending "Caesar" Hlophe ruled in favour of a member of a minority opposition party based on a clear understanding of established legal principles and the dictates of our constitution. We are painfully aware that some commentators and alleged "Luthuli house insiders" have seized on such rulings as an indication that Hlophe is a "maverick" - the goal is of course to perpetuate a false narrative in order to persuade some ANC members not to support Judge President Hlophe. However we are comforted in the knowledge that all members of the South African public including minorities and opposition party members will appreciate Judge President Hlophe's abiding respect for the constitution. Judges are not mere politicians in robes, they are part of the third branch of our government but perform an independent function, namely to dispense justice to those who seek it, regardless of race, political affiliation or gender. Judge President Hlophe personified those values and has assured us all that justice is not simply for the powerful or those politically connected with the "right" political party.

· The Doctrine of Legitimate expectation in Hlophe's Scholarly work, advocacy for law reform and Judicial Decisions: Hlophe emerged many years ago as an expert on the doctrine of legitimate expectation. See J. Hlope, "Legitimate expectation and natural justice: English, Australian and South African law" [1987] 96 SALJ 165. His published scholarly works on this subject and related matters are voluminous and have been quoted extensively in international law journals. Within two years after Hlophe's article, the former Chief Justice Corbett issued his leading decision, Administrator, Transvaal v Traub 1989 (4) SA 731 (A) which is generally regarded as leading pro-human rights case in South African jurisprudence. Most significant, Corbett cited Hlophe's groundbreaking article in his judgment. Thereafter Hlophe's writings as well as his court decisions were frequently relied upon as authoritative statement of the doctrine of legitimate expectation. This is a key doctrine in administrative justice and constitutional law.

· It is no exaggeration to state that Judge President Hlophe made a lasting and tangible contribution to both the dismantling of apartheid jurisprudence entrenched over decades and the building of our constitutional democracy. He is continuing in his quest to strengthen our democracy. It is not insignificant that in the past six months alone, the doctrine of legitimate expectation and its interpretation has featured in two very important cases, National Director of Public Prosecutions v Zuma[7]and Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others[8]. In the latter case, the constitutional court itself agreed with Hlophe's interpretation of the legitimate expectation doctrine.

· Hlophe's Stance Against Odious Apartheid Security Legislation and his Contribution to Transformative Constitutionalism: At the height of apartheid repression and during the state of emergency Hlophe wrote an article entitled "Natural Justice: Whether detainees have a right to be heard under the Internal Security Act No. 74 of 1982" (1987) 104 SALJ 392. Hlophe was amongst the few scholars to recognize that the rules of natural justice are adaptable in their use. The rules can impose varying criteria in different situations, which can be adapted to protect fundamental rights. Id. 396-7. It is puzzling how white liberals can claim that African intellectuals like Hlophe who were participating in the people's struggle and advocating protection of the human rights of detainees and doing their utmost to undermine apartheid "took no part in the struggle against apartheid." More on this later.

· Hlophe's Advocacy of use of African languages and Effective Access to Court: As a scholar Hlophe has written extensively on the subject of using African languages in our courts as part of transformation and ensuring the African majority's access to justice. See, Hlophe, J. M. 2003. Receiving justice in your own language - the need for effective court interpreting in our multilingual society[9]. Hlophe has advocated the use of African languages in the courts as part of his quest to make justice accessible to ordinary South Africans. See also, JM Hlophe, 'Official Languages and the Courts' (2000) 117 SALJ 690. As a judge, Hlophe had an opportunity to put his theory into practice in a major case involving economic and social rights under our constitution. That was in the precedent-setting decision Cape Killarney Property Investments (Pty) Ltd v Mahamba and 543 others. The case turned on the interpretation of section 4 of the Prevention of Illegal Eviction Act. In that particular case, the larger part of the community consisted of Xhosa-speaking, illiterate people. As Judge President Hlophe saw it, effectiveness of an eviction notice in that case would have meant that the written notice would have had to be accompanied by a Xhosa translation and that the contents thereof should have been broadcast, in Xhosa, by a megaphone throughout the community when many of the residents would be there. Accordingly, he denied the request for eviction and saved the houses of Africans who still enjoy their peaceful and quiet enjoyment of the premises to this day. Some might say he used a technicality to save the right to housing for the poor and marginalized. Not exactly true - he based his decision squarely on the constitution which protects language rights in our judicial system and the statute which required an "effective notice' before an eviction could be authorized. Once again, this is clear evidence exposing as fabrication the oft-repeated statements that Judge President Hlophe is "anti-poor" or insensitive to the constitutional rights of our citizens. More on this later.

· Hlophe has taken positions that protect the rights of the poor in compensations for automobile accidents. Judge President John Hlophe believes that "the State has to treat its citizens equally" and should therefore pay a flat figure for all citizens, irrespective of their means. See, Road Accident Fund Commission Report 2002 Volume 1 Chapter 17 (The "Safety Net" - Thresholds And Ceilings p.449). He was speaking against the inequitable compensation under the Road Accident Fund where many experts agreed that South Africa has a reverse Robin Hood problem in that area - the poor subsidize the rich when it comes to compensation under that system. More on this later.

· Hlophe's rulings reflect an abiding respect for and protection of the rights of women and children: Hlophe has demonstrated wisdom, compassion and courage in a number of cases. However, the leading case, Greenspan v. Greenspan 2000 (2) SA 283 (C) 2000 (2) SA P.283 truly stands out as a case where Hlophe adopted a proactive approach in a highly contentious and increasingly acrimonious divorce case. The case involved a fabulously wealthy man "described by Lategan J as 'an enormously wealthy man in any terms . . . [who] is worth in the vicinity of R100 million'." His wife who had initiated a divorce action sought an order that the husband should pay a contribution of R250 000 towards her costs in the divorce action. It was common cause between the parties that the husband had already paid about R56 000 as contribution towards the wife's costs in the divorce action. The wife asserted that that was just not good enough, she pointed out that the matter involved complex factual issues surrounding fixed property the parties owned in Houghton, coupled with the fact that the husband himself was "conducting litigation on a luxurious scale." Hlophe took note of the asymmetrical relationship and the fact that the husband had hired himself the best legal team his money could buy - he was conducting the litigation "on a luxurious basis." Hlophe ruled that what is good for the goose is good for the gander; the wife was equally entitled to " to conduct litigation on a similar basis" and Hlophe ordered the husband to pay more money towards her costs. This is not the stuff of law school textbooks - it is a case of a judge with Solomonic wisdom striving to do justice as warranted by the facts and the constitutional principles including rights to equality and access to justice. True the case was a divorce matter and strictly a family affair conducted away from the glare of media spotlight but the pedagogical value should not be easily obfuscated - Judge President Hlophe issued his ruling not to please some activists or any special interest groups as there were none in attendance in his Court that day. He saw the lurking issues of gender inequality and attendant disparity in wealth between the divorcing couple. He chose to do justice by ensuring that the playing field was leveled - the wife was given sufficient resources (at the husband's expense) to ensure her access to court and to place her on an equal footing with the wealthy husband who was litigating on a "luxurious basis."

· Another precedent-setting case, Magewu v Zozo and Others 2004 4 SA 578 (C) case shows the courageous leadership of Judge President Hlophe and his abiding concern for the constitutional rights of women and children. In what started as a run-of -the mill maintenance case, Judge President Hlophe confirmed a creditor's common-law right to obtain an interdict against a debtor in order to prevent the creditor from disposing of funds with the purpose of frustrating the claim of the creditor. Hlophe also ruled that the Maintenance Act and Pension Funds Act work together in order to provide relief to the applicant and that the Maintenance Act "opened new legal avenues to deal with recalcitrant fathers." Hlophe also stated that he has a constitutional duty "to develop new mechanisms of granting the applicant a means to vindicate her constitutional rights" - courts are obliged to shape new remedies in order to vindicate the infringement of an entrenched right. The Constitutional Court and legal scholars at home and abroad have cited Hlophe's ruling with approval. More on this later.

· Suffice it to state that some of Hlophe's decisions are reflected on his Curriculum Vitae, which is being submitted with this document. These cover a wide spectrum from commercial law to other politically sensitive or controversial cases. They too offer a revealing insight into Hlophe's prodigious talents as a scholar, a jurist and a leader.

1.15 Judge Hlophe has won support from various groups within the silent African majority with his common-sense decisions, loyalty to the constitution and sharp intellectual instincts.

1.16 Many South Africans from all walks of life may disagree on many legal, social and political issues of the day, but we are supremely confident that a majority of them will agree that Judge President John Mandlakayise Hlophe should be appointed to the constitutional court and to the position of Chief Justice. Through this document, we are providing the Judicial Services Commission with the story of his life and his distinguished career as a jurist. We are hopeful that he will be called upon during the interview process to answer questions on a wide range of issues - controversial or not. In the process, Judge President Hlophe will demonstrate the ability, the temperament and the wisdom to serve as a justice of the Constitutional Court of the Republic of South Africa. In the process, he will demonstrate to all and sundry and to the Presidency of the Republic, Jacob Zuma, that he is eminently qualified to be appointed Chief Justice of the Republic of South Africa.

1.17 Judge President Hlophe is a loving and a dutiful father of three children, two of who are teenagers. He struggles like the rest of us and faces many challenges faced by parents of teenagers in this fast evolving society of ours. He goes to his children's school activities and attends to their extra-curricular activities - he mingles with the "hockey" and "soccer-moms" and dads and shares the same anxieties and deep concern for our children's future. He is a good and honest man. Hlophe's life has been one of outstanding and selfless public service. He has had a distinguished academic career and has served with distinction in every job he has ever had almost all of them in public service. His unrivalled record of public citizenship is compelling evidence pointing ineluctably that he would bring to the Constitutional Court his compassion for the common man, and that his experience as a leader of the Cape Provincial Dision, (the second largest high court division in South Africa) would stand him in good stead. His abiding respect for the rule of law and for the constitution and the human rights entrenched in it, amply demonstrate that he would be an outstanding Chief Justice on that Constitutional Court.

1.18 We trusted that this process of nomination and of public debates around the real issues would be conducted with the utmost honesty, integrity, robust but civil respect for one another. And most important, we believed, naively as I turned out, that the debate around the merits and demerits of the various judicial candidates would be conducted with respect for truth and for the institutions of our democracy. We are still hopeful that the false statements about Hlophe's role in the struggle against apartheid and the deliberate distortions of his record on human rights will never be repeated. We believe that Judge President Hlophe, more than anyone else, fully appreciates and understands the role of a Constitutional Court justice and is uniquely qualified to discharge the duties of the Chief Justice. His record amply demonstrates that he will be compassionate to the vulnerable, the poor and unfortunate members of our society. He will be uncompromisingly fair to all and in the application of the rule of law, impartial and unbiased. This is extremely important - all the members of the Judiciary have a non-delegable duty to zealously protect our hard-won rights as South African citizens, adjudicating our multitudinous grievances, promoting order and justice for all, and serving as custodian of the rule of law. The Chief Justice of the Republic of South Africa is truly a leader in a dual sense - he/she is the highest-ranking official in the Judiciary Branch of our government. He is also a leader of the Constitutional Court and is in charge of the management or administration of the highest court in the land. Not just an ordinary court but also one with the final say over the nature and extent of our constitutional rights.

2. BIOGRAPHICAL BACKGROUND.

(a) Family background

2.1 Judge President Mandlakayise John Hlophe was born in Madundube rural settlement, in Stanger on the 19th of May in 1959, the younger of two sons from poor parents, Thomas and Monica Hlophe. Thomas, from Port Shepstone, started as a security guard but later became a full time practising herbalist of many exploits, including traveling barefoot for about 350 kilometres to KwaMhlabuyalingana to harvest "umdlebe", a rare tree with amazing healing powers. He died in the latter part of 1980, at the age of 76. Monica, from East Pondoland was a devout Christian, with a strong personality. She worked as a sugar cane cutter and was later promoted to become a gardener at the home of Mr. Ian Smeaton, then Chairman of the South African Sugar Association. She was completely illiterate, but courageous, dignified, and respected by the Madundube community. She died of pneumonia at the age of 67 in February, 1980. Unfortunately that was before Hlophe obtained his first of many university degrees and his mother died within sharing the many proud moments in Hlophe's life. Judge Hlophe comes from a humble background. His family lived in a tiny mud hut, and their usual meal was "uphuthu nemfino" (cornmeal and leaves from wild-growing plants). At an early age, he learned to cut sugar cane on Mr. Smeaton's sugar cane plantation (where his mother was also employed), and to work as a gardener. His father was an African with a strict work ethic, trying to raise a family in the years of apartheid. Hlophe witnessed his parents' steadfastness despite injustices, their hopefulness despite bigotry, and their deep love for their country and community. Hlophe was truly his father's son - a man of steely resolve, perseverance, a thick-skinned determined man whose faith, courage, and perseverance inspired him to rise up against all odds and achieve his dreams.

2.2 To relate Hlophe's life story is to describe the life of a working class African child born and bred under apartheid South Africa. It is a common story of suffering, child labour, and ultimately surviving against the odds. Hlophe and his mother worked long hours on the sugar cane farms in Stanger. He spent much of his youth on that farm developing the values which have become a hallmark of his life and achievements. His early years were spent in poverty. He lived his early life in an environment that exposed daily to the abuses and ravages of social and economic systems based upon the oppression of Africans in all aspects of life. Hlophe is a person who has lived the black experience to the ultimate, yet, looks back at his humble origin with a measure of satisfaction and gratitude for what God provided to him. Rather than blaming the system for any stumbling blocks to personal achievement, Hlophe has, he had gotten to where he is today by dint of sheer hard work, sacrifices, discipline, commitment to strong values and his unshakable belief in a nonracist and nonsexist society. He has risen from his humble beginnings to the appointment by President Nelson Mandela as the first African judge appointed to the bench and later nomination to lead the Cape Provincial Division - the second largest division in South Africa. His sense of values were born and nurtured in a strong home and religious environment. Truly, this is an extraordinary man who conquered deprivation, without self-pity or complaint. Judge Hlophe has acknowledged that he has received a helping hand up from time to time in his personal, educational and professional journey. He has graciously acknowledged this help and has expressed appreciation to those who have befriended him along the way.

2.3 Judge Hlophe's humble beginnings instilled in him values that have sustained him throughout his life. His parents taught him respect for elders and other human beings, and the principles of "ubuntu"; and that in life you receive what you give, and to have compassion. Most of all, poverty taught him courage, empathy for the deprived and passion for hard work. It gave him life skills, which he still cherishes to this day.

2.4 We have not had the pleasure of knowing Judge President Hlophe for a long period of time, but have developed a great respect for him during the short time we have been associated with him. Born in KwaDukuza in KZN, Hlophe's life is a common story of suffering, child labour, and ultimately surviving against the odds. Truly, this is an extraordinary man who conquered deprivation, without self-pity or complaint. 

2.5 Some time ago, Judge President Hlophe has this to say about his life; "Being poor, like many others, I walked 6km to school and 6km back. One grew up in a harsh environment. Then came the 1976 Soweto riots and that gripped my attention about what was going on throughout the country."

(b) Primary and Secondary Education

2.6 Hlophe started primary education in 1967 at the Prospect Farm Primary School, with classes conducted in the Methodist Church building. He and his brother had to travel several kilometres across a river to and from school, daily. He completed his Standard Six (equivalent of Grade 8) in 1973.

2.7 For his secondary education, he moved to Tshelenkosi Secondary School in Shakasville Township, Stanger. He excelled in all his subjects and was recognized for his leadership qualities - he even became a school prefect. At this school, he was exposed to urban township conditions, habits and outlooks. In 1976, he obtained his J.C. Certificate (equivalent of Grade 10).

2.8 In 1977 he moved from Stanger to Ohlange High School, where he met students from all over South Africa and got exposed to other urban influences. His experience as a rural youngster and of being thrust into an urban environment because of his quest for education helped prepare him for life, giving him a resilience that has carried him through many storms.

2.9 Hlophe attended Ohlanga High north of Durban, a school founded by the ANC's first president John Langalibalele Dube. He also excelled in his academic work, became a prefect and started teaching in lower classes mainly biology, one of his star subjects at the time. He had a passion for medicine. But for the type of courses that he studied, he could not apply for medical studies, post-matric. He passed his Matric in 1978, did very well obtaining first class pass in certain subjects.

(c) Tertiary Education: Undergraduate and Post-graduate Studies

2.10 Much against the wishes of his benefactor, Mr. Smeaton, who felt that law would be too difficult for him and recommended that he register for an Arts degree instead, Judge Hlophe went to the University of Fort Hare in 1979 to pursue law studies. Mr. Smeaton did not live long enough to realise that his fears were unfounded. He died of lung cancer in 1985.

2.11 In his first year, as a law student, there were approximately 120 students in his class, but in the final year only 12 students remained, and only 6 of those passed the B. Juris degree in record time. Judge Hlophe was the highest performer amongst the 6 and received "The Best B.Juris Student in 1981" award, for his meritorious work. Fort Hare also exposed him to national political and social issues, and international trends and developments.

2.12 Upon graduation from Fort Hare, and with the help of Mr. Smeaton, Judge Hlophe enrolled for the LLB degree course at the University of Natal, Pietermaritzburg in 1982. Because of apartheid's Group Areas Act, Hlophe had to register as a job seeker, and accept fictitious employment as a gardener. This was a ruse which worked very well - he was accommodated in a maid's quarters in Scottsville and was thus able to live closer to the university .

2.13 Hlophe met Professor Lawrence Baxter, a leading scholar in Administrative Law, who kindled his interest in Administrative Law. Under Prof. Baxter's guidance and whilst a student, he wrote his first academic article entitled "The KwaZulu Act on the Code of Zulu Law. No.6 of 1981- a guide to intending spouses and some comments on the custom of lobolo" referred to above, which was published in the Comparative and International Law Journal of Southern Africa (CILSA) Vol. 17. Page 163.

2.14 At the University of Natal, Judge President Hlophe developed a greater love for academia over practising law. He passed, with distinction, Administrative Law, Civil Procedure, Criminal Procedure, and Jurisprudence, and received a prize for academic excellence.

2.15 Judge President Hlophe completed his LLB degree in 1983. The completion of his post-graduate degree also marked the end of a ten year period of sponsorship and support from Mr. Smeaton.

2.16 In December 1983, he joined the Legal Resources Centre (LRC) as a fellow, in Durban. The LRC was founded by amongst others, Arthur Chaskalson, the former Chief Justice of a democratic South Africa who has recently criticized Hlophe unfairly and without any basis. The LRC has offices in Johannesburg, Durban, Grahamstown and Cape Town. The LRC describes itself thus: "The LRC is a human rights organization in South Africa. We use the law as an instrument of justice for the vulnerable and marginalised, including poor, homeless, and landless people and communities who suffer discrimination by reason of race, class, gender, disability or by reason of social, economic, and historical circumstances."[10] The LRC boasts about being a "Defender of the Poor and Marginalised."[11] It alo claims: "Since 1979 the Legal Resources Centre (LRC) has played a pivotal role in the realisation of human rights, by providing free legal services to poor and marginalised communities and individuals, who often lack the protection of the law. The LRC is a law clinic that uses the law to pursue justice, democracy and the realisation of socio-economic rights in South Africa, through the promotion of public interest law. The law clinic has been promoting public interest law in South Africa for 28 years and more so since 1994, when South Africa became a democratic state, whereupon the clinic intensified its work for the development of a fully democratic South Africa based on the principle of substantive equality."[12]

2.17 The LRC had the same mission when Hlophe, joined it in 1983 fresh out university. Although Arthur Chaskalson would later claim that "Hlophe played no role in the struggle against apartheid" while acknowledging his own role and other whites who worked for the LRC as being participation in the struggle against apartheid, Hlophe remains very proud and grateful for the opportunity he had at the LRC. At the LRC, Hlophe learned the exigencies of legal practice, defending the weak and indigent, and participating in court battles challenging the draconian laws or battling the harsh consequences of various apartheid laws. At the LRC, he met a number of young lawyers, who to this day remain his friends and colleagues, who are also accomplished, in legal circles, in particular. Hlophe left the LRC a year later upon being awarded a full merit scholarship to pursue his studies in the United Kingdom (UK). 

2.18 In 1984, on a Livingstone Trust Scholarship, Hlophe left for Cambridge University in the UK to pursue Master of Laws (LLM) studies, at Churchill College. In spite of the demands of an LLM course, he published an article entitled "South African Ouster Clauses - Meaning and Effect" in the Cambridge Law Journal (CLJ) No 45 (1986) @ Page 369. He passed his LLM courses with high marks and qualified for entry into the Cambridge Doctoral Studies (Phd.) Programme.

2.19 In between 1984 and 1985, Hlophe joined the law faculty at the University of Zululand (Ongoye) as a temporary senior lecturer. During this time he lived in a shack with his brother. Many of his students and colleagues would fondly remember Hlophe hitchhiking to work (at the University) alongside the road or arriving at work dripping wet from the rain - he usually traveled in the back of a "bakkie" which had no protection when it was raining.

2.20 In 1985, Hlophe was awarded the Africa Educational Trust Scholarship to pursue doctoral studies in Cambridge University. He was a man full of purpose and on a mission - he researched on a subject entitled "Natural Justice in South Africa: A comparative survey with reference to common law jurisdictions" and completed his work in two years instead of the usual three years it took a normal British student to complete the course. Hlophe also taught Roman law to undergraduate students in Cambridge, whilst doing his doctoral studies. Even with the increasingly demanding and rigorous schedule combining academic work and teaching responsibilities, Hlophe managed to publish published widely in law journals. In short order, he published the following articles variously dealing with the doctrine of "legitimate expectation" and the rules of "Natural Justice": J. Hlope, "Legitimate expectation and natural justice: English, Australian and South African law" [1987] 96 SALJ 165; "Natural Justice: Do students Have Rights?" (1987) 104 SALJ 255; "Natural Justice: whether detainees have a right to be heard under the Internal Security Act No. 74 of 1982" (1987) 104 SALJ 392; and "The Rules of Natural Justice in relation to tertiary institutions vis-a-vis their students" 1988 Transkei Law Journal 133. Despite the rigorous academic program which when combined with teaching responsibilities consumed his entire time, Hlophe still found time to participate in the anti-apartheid movement campaign to isolate the racist apartheid government internationally. His research and publications were almost all about South Africa. He was never reticent about discussing the evils of the apartheid system with anyone who would listen whether individuals or small groups of students.

15 In a very real sense, he participated in a bigger battle to combat the apartheid propaganda and to isolate the regime internationally in line with the UN initiatives. In June 2004, Kofi Annan, the former UN Secretary-General received from our government the ‘Companion of O.R. Tambo' Award June 2004 to acknowledge the role the UN played in the anti-apartheid struggle. He stated in regard to the anti-apartheid campaign: "The United Nations joined in that struggle, and worked to accelerate the isolation and eventual demise of the apartheid regime. We remember it as a struggle which galvanized the entire world community -- one that rallied peoples and governments behind a common objective: the objective of reaffirming the basic human rights and fundamental freedoms of all peoples, irrespective of race or gender."[13]

(d) "Professing" and Teaching Law

2.21 In 1988, Hlophe returned home to join his alma mater, the University of Natal in Pietermaritzburg as a lecturer in the law faculty. He never stopped being productive insofar as his writing and legal scholarship was concerned. In 1989 he wrote another article "Legitimate Expectation and Student Cases" (1989) 106 SALJ 591. That was followed by another article with almost prophetic overtones, "Some Reflections on Constitutional Development in South Africa After the Demise of Apartheid." 1989 Transkei Law Journal 1. He penned another article, "The Doctrine of Legitimate Expectation and the Appellate Division"(1990) 107 SALJ 197. Furthermore, Hlophe co-authored another article, "SA Breweries v. Food & allied Workers Union: A Comment" 1990) 11 Industrial Law Journal 473, with his colleague Brenda Grant, a lecturer at the University of Natal, Pietermaritzburg.

2.22 In 1990, at the age of 31, he joined the University of Transkei as Professor and Head of Department of Public Law. He also joined the IMSSA panel of mediators and arbitrators and became a member of the Industrial Court of South Africa and the Transkei, and was admitted as an advocate of the Supreme Court. In the interim period between his appointment at Unitra and the dawn of our democracy, Hlophe continued with his passion for legal writing. He wrote another article, "Judicial Control of Administrative Action in a Post-apartheid South Africa - Some realities" (1993) Acta Juridica 105 in which he articulated Hlophe a "reasonableness standard" in judicial revies and states: ‘to put it bluntly, "unreasonableness" will provide our judiciary with the requisite muscle to challenge the abuse of discretionary powers by administrative bodies and officials.'

3. JOINING THE JUDICIARY AND PUBLIC SERVICE

3.1 In 1995, at the age of 35, Hlophe was appointed a judge of the Cape Bench by former President Nelson Mandela, making Judge Hlophe the youngest High Court judge in the country. His former mentor and Phd. thesis external examiner, Professor Lawrence Bexter, in his congratulatory note, wrote: "...the courts in South Africa have been substantially strengthened by your intellect and measured approach to the law. What a difference for South African justice from the bad old days!!"

3.2 In November, 1998 Hlophe was appointed Acting Deputy Judge President of the Cape of Good Hope Provincial Division. On the 18th of May 1999, he was formally appointed by the Judicial Services Commission to the position of Deputy Judge President of the Cape Division.

3.3 On Workers' day, 1 May 2000, Judge Hlophe was appointed Judge President of the Cape of Good Hope Provincial Division, a position he currently holds. As Deputy Judge President and Judge President, he has been appointed Honorary Professor in the Faculty of Law, at the University of Cape Town (UCT), and Chancellor of the Peninsula Technikon, respectively.

3.4 Even as a judge, Hlophe never stopped legal scholarship and research. His writings run the gamut from issues such as transformation, children's rights, constitutional rights of access to court and related issues of effective use of African languages in the courts. In 1995, he wrote an article appropriately entitled "The Role of judges in a transformed South Africa- Problems, Challenges and Prospects" (1995 ) 112 SALJ 22. Simultaneously, he co-authored with Mduduzi Khoza another article "The Relevance of the Question of Land in the New South Africa" 1995 Transkei Law Journal 47. This was followed a few years later by another article, "The Judicial approach to ‘Summary applications for the child's return': a move away from ‘Best Interests' principles?" (1998) 115 SALJ 439.

3.5 Hlophe also had time to write about a subject that has always been near and dear to his heart - transformation and right of access to court and use of African languages in the courts. As stated above, Hlophe has advocated the use of African languages in the courts as part of his quest to make justice accessible to ordinary South Africans. See, Hlophe, J. M. 2003. Receiving justice in your own language - the need for effective court interpreting in our multilingual society[14]. See also, JM Hlophe, 'Official Languages and the Courts' (2000) 117 SALJ 690.

3.6 It is indeed fair to say that Hlophe has been one of the most productive jurists on the bench. Since 1995, he has continued to publish numerous articles has a number of precedent-setting reported cases to his credit. Hlophe also enjoys a good intellectual debate with his colleagues and is true to the creed that one can disagree without being disagreeable. A good example was the following exchange with Justice O'Regan. ‘Breaking ground: Some thoughts on the seismic shift in our administrative law'121 (2004) SALJ 424 is a paper delivered by Justice Kate O'Regan at the South African Law Journal Jubilee Conference held in Johannesburg in 2003.

3.7 In the paper, Justice O'Regan discusses the use of administrative law before 1994 and the full-blown acceptance of the right to administrative justice in the new constitutional order. The paper takes a specific look at the idea of ‘reasonableness' and administrative law. There are two responses to Justice O'Regan's paper, also published in the SALJ. The one is by Justice JM Hlophe, Judge President of the Cape High Court (‘A response to Justice O'Regan 121 (2004) SALJ 445. The other is by the Dean of the University of Cape Town Law School, Professor Hugh Corder (‘Without deference, with respect: A response to Justice O'Regan' 121 (2004) SALJ 438).

3.8 John Mandlakayise Hlophe has demonstrated that he is an independent thinker, maybe too independent for some self-appointed spokesmen against his nomination and confirmation. It is for this very independence of intellect that certain white liberals, including former judges, journalists, academics and self-styled gay activists, have criticized Hlophe. While some may disagree with his approach or judicial philosophy, no person who knows Judge President Hlophe, his caring attitude or his willingness to help others, could ever question his motives and his dedication to improving the life of all South African.

3.9 In contrast with the approach of his detractors and critics, judge President Hlophe has never claimed that he alone has a monopoly on the definition of the struggle against apartheid. He has never arrogated to himself the right to define whom amongst our fellow citizens contributed the most to the struggle. Nor has he attempted to quantify the contribution of the individual members of our judiciary in the struggle against apartheid. Hlophe has never claimed that he alone has first hand experience and knowledge of the plight of Africans under apartheid. Certainly his humble beginnings and objective material conditions surrounding his upbringing have shaped and influenced the man he is today. Isn't it reasonable to expect him to show understanding and compassion toward those who have suffered racist oppression and discrimination? Judge Hlophe's work as a scholar and a jurist, as well as his public statements speak volumes and show very clearly that he is heartily committed to equal justice and equal opportunity for all. He certainly would not accept the notion that the entire struggle of a people can be reduced to a mere calculus of one's years of incarceration. The struggle was fought on many fronts and it is true that some of its heroes were apprehended and sent to jail for lengthy periods. Equally true is the fact that many others who remained outside of prisons continued the struggle in many other ways some in conjunction with their regular professional pursuits such as academics, lawyers, teachers and even students. The sacrifices of some of these unsung heroes cannot be devalued or discounted simply because they did not go through a political trial and come into contact with some of the advocates who defended accused persons in political trials. A reductionist view of the African people which sees their role in the struggle against apartheid solely from the perspective of whether they were ever detained or incarcerated is very unhelpful and is singularly unbecoming in discourse involving mebers of our judiciary. The mischief occasioned by such an approach is very difficult to contain once unleashed - how many whites except for those exiled, placed under a banning order or detained can truly claim to have played a "role in the struggle against apartheid" within the definition envisaged by Chaskalson? If Hlophe is to be denied appointment to the constitutional Court on the basis of this ill-defined,vague and amorphous concepts such as "struggle against apartheid" should similar criterion be used when evaluating the credentials of the other candidates including whites? What would be the impact of such yardstick on the chances of most white applicants to serve on our judiciary? We respectfully submit that the use of such criteria was invoked against Hlophe because some people who were his former colleagues in the judiciary ads well as at LRC have chosen to distort Hlophe's record and unleashed public condemnation of Hlophe because of personal dislike of the man and professional jealousy about his phenomenal achievements.

3.10 To be sure, Hlophe has been involved in a few controversies some directly tied in with his passion for justice and respect for our constitution. It was that passion for justice and respect for our constitution that actuated Hlophe into writing the report about racism in the judiciary. Charity beings at home - without a transformed judiciary willing to eradicate racism and sexism in all their manifestations, the broader national transformation agenda is imperiled. Merely being black or claiming to be for transformation is not by itself sufficient - a truly tyransforming judiciary would speak out against racism and injustice. One would have expected Chaskalson to speak out or express concern when the JSC, the very body charged with appointing almost allour judges was found guilty of violating Hlophe's constitutional rights. As matters stand now, there is a bigger question mark looming large - can the same JSC with a judgment of unconstitutional acts and of bias hanging over its head, truly be allowed to conduct an impartial hearing over any of the matters involving Hlophe without bringing our entire judicial system into disrepute. What other justice system allows a judge found guilty of violating a party's rights and of exhibiting bias to proceed in an adjudication of that same party's rights. If South Africans are willing to risk being a laughing stock of the entire world what happens to the adage about appearance of impartiality - that justice must not only be done in actuality but must be seen to be done? One would have expected Chaskalson, a former chief justice, to speak out and condemn Tony Leon for his outrageous attacks on Hlophe and for labeling him a traitor and questioning his patriotism. After all, in 2008 Chaskalson and Bizos rebuked Zuma's supporters including alliance partners SACP and Cosatu for alleged "tone of the debate" and alleged statements aimed at judges involved in Zuma's case.[15] 

3.11 A long-time friend of Judge President Hlophe who is also a jurist was recently asked to describe Hlophe the person. He describes him as a devoted father who lives with three of his children, an adult son, a teenage boy and a teenage girl. He further had this to say about Judge President Hlophe: "He is gregarious, humble but strong and resilient. He is a workaholic and a perfectionist. He is friendly, respectful, and loves a good laugh. He is an accomplished jurist, and a rising star. He idolises justice. He is kind and humane. He is a wine-maker. He is a hunter. The joy in life he epitomises is such as described by George Bernard Shaw: ‘This is the true joy in life, being used for the purpose recognised by yourself as a mighty one, being a true force of Nature instead of a feverish little clod of ailments and grievances complaining that the world will not devote itself to making you happy. ...I want to be thoroughly used up when I die. For the harder I work, the more I live. I rejoice in life for its own sake. Life is no brief candle to me. It is a sort of a splendid torch which I have got to hold up for the moment and I want to make it burn as brightly as possible before handing it onto future generations.'"

4. THE STANDING (LOCUS STANDI) OF THE JUSTICE FOR HLOPHE ALLIANCE TO NOMINATE JUDGE PRESIDENT HLOPHE AS A JUSTICE OF THE CONSTITUTIONAL COURT.

4.1 The JFH wishes to be brutally frank in the discussion of the constitutional rights of South Africans with divergent views to fully participate in the nomination process for appointment of judges in the Constitutional Court, our nation's highest court. A few days ago, Arthur Chaskalson, a former chief justice of the Republic launched a sledgehammer assault on a person he contemptuously refers to as "a Paul Ngobeni" for waging what he pejoratively labels 'something unusual' in the form of a 'full-scale political-type campaign' on Hlophe's behalf. Exactly what does that " political campaign consist of and what is so "unusual" or offensive about Ngobeni's activity in Chaskalson's view? An answer to this question lies not in what Chaskalson said. Rather it lies in what he omitted to say - his selective treatment of the facts, his hamfisted approach and his not-so-veiled criticism of Judge President Hophe under the guise of addressing Ngobeni's one-time article discussing Hlophe's qualification as a potential chief justice. It is incontrovertible that in mid-June 2009, the Judicial Services Commission invited members of the public to nominate candidates for the soon to be vacant positions on the constitutional court. It is also common cause that there was wide public discussion and speculation about potential vacancies on the Constitutional Court including that of Chief Justice (which would occur when Langa CJ retires).

4.2 In this atmosphere, several white academics took steps to circulate names of persons they deemed qualified for the likely vacant positions. One self-styled white homosexual internet blogger has even urged readers on his website to "nominate" their dream candidate.[16] He also states that at "the end of the process I will put forward my own list of "dream candidates"[17] Not to be outdone, the Mail &Guardian newspaper published a list of "favourites" candidates relying purely on junk social science.[18] The Mail & Guardian also reported that the "University of Cape Town's Democratic Governance and Rights Unit is working on a study headed by Professor Richard Calland to assist in the determination of possible candidates. The work in progress, which the Mail & Guardian has been privy to, analyses judges' track records since 2005 and highlights 23 likely nominees."[19] The paper concludes "Based on the UCT analysis and on opinion in well-informed legal circles, here are the five "favourites" and goes on to list these as Azhar Cachalia described as one "comes out head and shoulders above the rest" in the UCT study. It also reports favourably on Judge Dennis Davis, a white male about whom the paper says: "With [Judge] Edwin [Cameron] out of the equation there is none better than Dennis Davis," says a prominent Johannesburg advocate who has handled many Constitutional Court cases. The paper goes on to state: "Davis is the only white judge president -- he heads the Competition Appeals Court -- and is a legal scholar well published in most areas of the law." Next is Mandisa Maya about whom the paper states: "With two female judges retiring, Judge Mandisa Maya is favoured for elevation...She formed part of the Harmse Bench that overturned Judge Chris Nicholson's judgment in the Jacob Zuma case." Next come Belinda van Heerden who "has served on the SCA for the past nine years. Legal professionals say her solid legal background, with qualifications from Stellenbosch and Oxford, makes her an automatic nominee. She was initially a legal academic before being appointed to the Western Cape Bench in 2000." And finally it mentions Leona Theron who "was ...previously nominated for deputy judge president of KwaZulu-Natal and at the end of last year she was interviewed by the JSC for the Constitutional Court. She has served on the SCA where she produced a celebrated dissenting judgment in the Nkomo rape case, arguing for an increased sentence."

4.3 The JFH contends that Chaskalson's statements have far more serious implications and may threaten the social cohesion of our society or racial harmony. In his view, Ngobeni's one article stating the argument in support of Hlophe is derisively labeled "full-scale political-style campaign" but similar or comparable actions by whites are cherished as scholarship or mere exercise of citizenship rights, including free speech. Richard Calland of the UCT is free to " to assist in the determination of possible candidates" for the judiciary and to produce a "UCT analysis and on opinion in well-informed legal circles" resulting in the selection of five "favourites" without being accused of "political-style campaign by Chjaskalson. Why the disparate treatment at the hands of a former chief justice who should know better? Is it perhaps symptomatic of the pathology of racism in South Africa which dictates the response of even prominent white liberals to mundane debates that may touch on race discrimination issues? It is a conditioned response from the apartheid years where certain topics were off limits for blacks, blacks had to know their place, to be subservient to whites and to renounce their right to be treated as human beings. In a subtle and mischievous way, Chaskalson adds his voice to, and gives ammunition to those vilifying Hlophe by falsely stating that "Hlophe played no role in the struggle against apartheid." By his words and deeds he associates himself with those who have weaved a tapestry of false narratives against Hlophe. He endorses the self-serving approach of those who ignore the record and objective evidence about Hlophe's accomplishments and dwell on the blatant falsehood that Hlophe "played no role in the struggle." This goes beyond speaking with a forked tongue - it defies all logic and far exceeds all parameters of reasoned discourse.

4.4 The former Chief Justice, Arthur Chaskalson, has pointedly asked questions about whether Judge President Hlophe approves of what he calls a "political-type" campaign being waged and what is being said about him. Further, Chaskalson singles out a person he contemptuously refers to as "a Paul Ngobeni" for harsher criticism including accusations that he uses polemics "calculated to stir up racial divisions." Chaskalson also claims that "racism will not be an issue; nor will commitment to transformation (all will be committed to that)..." Chaskalson responds to Ngobeni's argument about Hlophe's qualification for position of Chief Justice with the following derisive comment: "As if an issue as important as the appointment of the Chief Justice should be the subject of populist rhetoric and be determined by who is thought to be the closest to the President." These are serious questions deserving serious answers. The JFH hereby undertakes the daunting task to respond to Chaskalson's diatribe in a cogent fashion based on our constitution.

4.5 To start with, neither the JFH nor any citizen of this Republic requires advance permission of any member of the judiciary before expressing the view that the said jurist is eminently qualified for a seat on our nation's highest court. Clearly, Chaskalson recognizes this reality when he castigates those who support Judge President Hlophe but maintains a deafening silence when white acadenics select their "favourites" judicial candidates or when the same persons are "nominated" by activists and members of the news media backed up by "studies" or junk social science from UCT academics. 

4.6 Besides these major cracks in the façade of Chaskalson's narrative, other inconsistencies are in evidence. Substantively, Chaskalson fails to distinguish between persons who are eligible for appointment to the positions of Chief Justice and deputy chief justice (who are to be appointed by the President ) and other judges whose appointments can only be through the JSC nomination and appointment process. Section 174 gives the President the prerogative power to appoint his Chief Justice. More on this later. Chaskalson also fails to grasp the full import of the JSC calling for nomination of judicial candidates from the public. He would like us to believe that the JSC call for "public" nomination does not mean what it says or that such invitation to the "public" is the exclusive preserve of a few white academica or gay right activists. Nothing could be farther from the truth!

4.7 The JFH submits that the judicial branch is not merely an appendage - it is an arm of government that exercises the judicial form of power albeit in the form of appointments and impeachment of judges. Since power in a democracy belongs to the people, those who exercise such power therefore, are accountable to the people. In the case of members of the legislative and executive branches, accountability is exercised through periodic elections, and through other inter-branch checks and balances, which may include recall of Presidents as Thabo Mbeki found out. Judicial officers are not accountable to the public through these kinds of procedures, for good reason. Under our Constitution, Judges don't contest elections, cannot be recalled by their constituents, cannot be impeached on political grounds alone, do not account for their stewardship to their societies, and with certain exceptions have no term limits. But does this mean that everything about Judges is off-limits to the public, and no concept of accountability exists between them? No. The power and role of the public to participate in the judicial appointments process starts as soon as vacancies are known or announced by the JSC. Interests groups including lawyers, activists, civil society groups and even retired judges start discussing whom their "dream candidates" should be. There is intense lobbying and even horse-trading amongst such groups where say for instance, the BLA may agree to support a particular candidate in exchange for some other group, say AFT supporting their candidate. The jockeying for positions and lobbying intensifies once the JSC invites members of the public to submit nominations. That is very normal in a democracy. Does Chaskalson expect anyone to accept his absurd view that JSC, which actually invited nominations from the "public", did not really mean what it said and say what it meant when it issued the said invitations?

4.8 The obvious truth is that rules governing public participation in judicial nominations have deep and sturdy roots in South Africa's constitution: Openness and transparency are among the essential principles upon which the Republic of South Africa was founded. [20]These principles are based on a fundamental recognition that in order for a nation's institutions of government to be accountable, corruption-free, and truly democratic, the public must be informed as to government action. Voters must be able to observe the doings of their leaders in all branches and at all levels of government in order to ensure that government is truly acting according to the will, and in the best interests, of the populace. The mere fact that the populace does not directly elect judges is not dispositive. The establishment of the Judicial Service Commission (JSC) gave effect to these principles. Through the mechanism of the JSC the South African public can monitor the appointment and conduct of those who hold judicial office. This is most commonly effected through public participation in nominating judicial candidates, public interviews for judicial candidates. All actions of the JSC should embrace this same Constitutional spirit of openness. Merely condemning some citizens and labeling their participation as "populist rhetoric" while tacitly endorsing other participants does not obfuscate the obvious facts.

4.9 May we remind Chaskalson and other like-minded persons that the 1996 Constitution contains a clear recognition of the necessity of openness, beginning with the Preamble, which explains that the Constitution was adopted in order to "[l]ay the foundations for a democratic and open society in which government is based on the will of the people." It goes on to recognise "accountability, responsiveness, and openness" as founding values of the Republic.[21] The importance of these values is emphasised by the more stringent procedures mandated for amending Section 1 of the Constitution.[22] The message is abundantly clear: to fly in the face of openness and accountability is to fly in the face of the values that created the Constitution itself, and living up to these values is the essential goal and purpose of the South African Government. 

4.10 May we remind Chaskalson that the JSC is itself a manifestation of the Constitutional understanding that openness and transparency are essential to a democratic judiciary. The decision to create a body charged with the nomination and selection of judges is a direct reaction to the behind-closed-doors system of judicial appointment of the apartheid-era. As Sachs J has written: "Exposure to the public gaze is particularly important in a country where historically all the major instruments of public power in general functioned in a way that was oppressive, distant, unresponsive, and frequently mysterious."[23]

4.11 The requirement for the JSC to invite nominations directly from the public is not a mere gratuity or empty formality - it is a recognition of the vitality of the participatory democracy and openness principles. The decision of the JSC to hold interviews for judicial candidates in public was originally an acknowledgement of the importance of allowing public oversight of the appointment of the Justices of the new Constitutional court, a task that was deemed too important to be done in secrecy. This was later extended to all judicial appointments. The JSC's role in fostering judicial independence and allowing public oversight of the judicial process has been praised by the International Bar Association (IBA), which calls for an even stronger role for the JSC in judicial appointments and administration.[24] In a similar vein, the President who has pledged to make the Presidency accessible to ordinary citizens cannot be insulated from citizens' expression of concerns or preferences in the judicial nomination process and appointment of Chief Justice merely because some people consider it unwelcome for them. That might make a mockery of the hotline numbers and other means of communication the Presidency has worked hard to establish in recent months - all geared towards facilitating communication with the public.

4.12 May we also remind Chaskalson that the Preamble to the Judicial Service Commission Act of 1994 calls for the JSC "to create an appropriate and effective balance between protecting the independence and dignity of the judiciary when considering complaints about, and the possible removal from office of, judicial officers, and the overriding principles of openness, transparency and accountability that permeate the Constitution and that are equally applicable to judicial institutions and officers." In a matter of such public importance, it is those overriding principles that must be emphasized over and over again. The JSC has a fundamental and Constitutional responsibility to ensure that such crucial events do not take place shielded from the eyes of a democratic populace. Chaskalson is being blinded by his not-so-veiled dislike of Hlophe. In a haste to write an obituary on Hlophe's illustrious judicial career, Chaskalson uses his poison pen to rubbish Hlophe in public. He is even willing to take away our rights as citizens to lobby for and to have a candidate of our choice considered for judicial appointment.

4.13 May we remind Chaskalson and other like-minded citizens that it is a long-standing principle of the common law that justice must not only be done, it must be seen to be done. This principle was also endorsed by the Bangalore Principles of Judicial Conduct, an international code of conduct for judges, created out of recommendations by a panel of distinguished judges including Chief Justice Pius Langa.[25] The Constitutional Court has also made it clear that judicial openness is essential to the continued democratic governance of South Africa. In S v Mamabolo (E TV and Others Intervening), the Court elucidated even further the importance of an open judiciary, saying:

"Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud, or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self evidently such informed and vocal public scrutiny promotes impartiality, accessibility, and effectiveness, three of the important aspirational attributes prescribed for the Judiciary by the Constitution."[26]

4.14 Although the judges in the Mamabolo were referring to criminal proceedings rather than judicial nominations before the JSC, the principles stand firm. The power to nominate judicial candidates is not controlled by political parties - it is one of the purest vehicles through which members of the public can directly nominate a person to an office in one of the three branches of the government. It is one of the ways the twin concepts of people's sovereignty and of accountability are preserved and worked into the Constitution. In what appears to be an anomaly in our political life or system of government, the process offers ordinary people whether organized as political interest groups or acting as individuals (lawyer and layman together), the right to publicly scrutinize, debate merits and demerits or the credentials of those who will shape the destiny of our country. It is usually through this power that opportunities are created for those who can help the JSC reach an informed decision to take part in the process. Chaskalson's panegyric on the JSC misses this crucial point completely. He left the same JSC a mess and is even embarrassed to comment on the fact that the same JSC has a judgment against it - there is now a judicial finding that the same body that is supposed to select our judges has been found guilty of violating Hlophe's constitutional rights and acting in a biased manner towards him.

4.15 There is a more compelling reason why popular participation and the "populist rhetoric" accompanying judicial nominations should be welcome when it comes to appointing Chief Justice and Deputy Chief Justice under Section 174 of the Constitution. Chaskalson displays embarrassing ignorance of the provisions and this requires the JFH to explain some points for his benefit. The Chief Justice will be appointed by President Jacob Zuma after he has consulted the JSC and leaders of opposition parties. Furthermore, any candidate nominated for that position, including Hlophe would not need to be interviewed or recommended by the commission for him to be appointed Chief Justice. Section 174 of the Constitution, which deals with the appointment of judicial officers, makes a distinction between the process to be followed in the appointment of the Chief and Deputy Chief Justices, and that of ordinary justices even at the Concourt level. It is only in the case of the latter that the President makes his selection from a list prepared by the commission. So, Chaskalson's rambling panegyric on the JSC shows he is way off the mark. By condemning citizens like Ngobeni who wish to make their voices heard before the President makes his choices, Chaskalson is advancing a perverse jurisprudence completely antithetical to a democracy. He is actually advocating that the President who acts as head of the executive when he makes his choice of chief justice must be shielded from "populist rhetoric" when he exercises what amounts to a virtual dictatorial power of appointment of the head of our judiciary. Indeed, the Chief Justice or his deputy are not subject to the transparent and publicly accessible hearings for judicial nominees that usually takes place when anyone is being considered for judicial office. The president is not even required to take submissions from the public on the appointment of a Chief Justice.

4.16 Viewed with this prism, public debates about the merits and demerits of potential appointees constitute the only vehicle for the public to let the president know about its support for or concern about particular candidates. The JFH does not recall that Chaskalson himself was subjected to any public hearings or interviews when he was catapulted overnight from being President of the Concourt to Chief Justice of the Republic.

4.17 The JFH takes seriously the Freedom Charter's statement and principles that the "People shall govern" - it is an exhortation to us to do whatever is in our powers to make our voices heard in this manner. We are not alone in our beliefs - worldwide also (for example England , Canada , the USA), access to judicial office is being democratized, and procedures leading up to judicial appointments are more transparent. Judicial vacancies are announced, and interested people are invited to apply but the public (in the case of South Africa) is given a direct role in campaigning for and nominating "dream candidates." In Chaskalson's view, the only person who should be denied this privilege is the one he contemptuously refers to as "a Paul Ngobeni." If Chaskalson could cure himself of this bigotry and myopic view of the judicial appointment process he could discern a very important but less obvious role played by the public and accompanying "populist rhetoric" in our judiciary. No candidate for judicial office can be bound or should ever be bound by what his supporters or detractors say in support or in opposition to his nomination. The call on Hlophe to essentially distance himself from his supporters is a very ingenious devise to disempower Hlophe. Create a fore-storm of controversy about the statements of his supporters even at the risk of blatant viewpoint discrimination and then use the resultant "controversy" to extract from Hlophe what amounts to forced exit from the judicial succession race. The fact remains that citizens do not need the nominees advance permission to debate, lobby and canvass opinions on whether the nominee accepts the honour being bestowed upon him by his fellow citizens. Of course, the candidate judge is free to decline the nomination or ven withdraw after acceptance - that is a democratic choice available evemn to Hlophe. But the JFH has no intention to retreat from its stance - not now not ever. 

4.18 When it is all said and done, we (the people) are the ultimate consumers of the service these illustrious men and women of the judiciary will deliver after their appointment to the bench. Some of the interest groups, including professional bodies that nominate persons for judicial appointment are not directly affected by the quality of selections they make - they suffer no direct consequences for bad appointments. Moreover, if a Judge selected by the JSC turns out to be a racist, incompetent, lazy or corrupt, it is mostly the lawyers, litigants, criminal defendants, prosecutors and the administration of justice that suffer, and not the Judicial Service Commission that made a wrong. The JSC would not, perhaps, have to appear before the Judges they appoint, and suffer the consequences of any misjudgments they made in appointing her or him. Does this not make it imperative for these appointing bodies to open up the process of appointments, and use the most merit-laced and transparent processes in recruiting the sturdiest and finest people to the bench? Chaskalson's hides behind the language of viewpoint bigotry and demonizes people and ideas alike - he misses a very important opportunity to interrogate these deep issues simply because he dislikes Ngobeni and Hlophe. We stand on very firm ground - we have predicated our case for public participation on the exigency of both our constitution and on the Freedom Charter that says "the people shall govern." These are the same principles that actuated the JSC to call for public nominations in the first place.

4.19 Professor Shetreet has had profound things to say upon the subject: "An important duty lies upon the appointing authorities to ensure a balanced composition of the judiciary, ideologically, socially, culturally and the like ... The judiciary is a branch of the government, not merely a dispute resolution institution. As such it cannot be composed in total disregard of the society."[27] [our emphasis]. In the same vein, we cannot leave the judicial nomination process an exclusively middle class affair restricted to select special interest groups including self-styled gay activists in which there is no room for popular participation. President Zuma made multitudinous promises to the electorate of South Africa which gave him a resounding mandate at the polls. Amongst these promises were accessibility of government and effective service delivery. The JFH will approach the President's office directly and will submit today its letter to President Zuma in which it is nominating Judge President Hlophe to the position of Chief Justice. The brazen manipulation of the nomination debate and the issues in it have actuated our action - we shall be more proactive and robust in this judicial nomination process and many others in the future.

II. SUBSTANTIVE RECORD

5. HLOPHE'S TRANSFORMATIVE INTERPRETATION OF AFRICAN CUSTOMARY LAW AND GENDER JUSTICE IN A CONSTITUTIONAL DEMOCRACY.

5.1 Judge President Hlophe has, throughout his life as a student, an academic and a judge, demonstrated acute awareness of the injustices and distortions imposed upon African customary laws by colonialism and apartheid. Judge President Hlophe has consistently taken positions that are supportive of the equal rights of African women in particular and of the validity of African customary laws in general. His passionate commitment is reflected in the very first article Hlophe ever wrote and published in his life - it was about the "The KwaZulu Act on the Code of Zulu Law," was written as "...a guide to intending spouses" and contained some incisive comments on the custom of lobolo.[28] The article was written during the apartheid days but Hlophe's intentions were unmistakable - he recognized the injustices in the laws governing relations between spouses in a customary marriage which had evolved from traditional customary law, through the Natal Code of Zulu Law of 1891. The injustices flowing from this situation also resulted in a scenario where there was complete failure to interpret customary law in its own setting but rather attempting to see it through the prism of the common law or other systems of law. That approach also led in part to the fossilisation and codification of customary law and this , in turn, led to its marginalisation. This consequently denied African customary law the opportunity to grow in its own right and to adapt itself to changing circumstances. As a result, customary law was lamentably marginalised and allowed to degenerate into a vitrified set of norms alienated from its roots in the community. The evolution has affected the status, role and functions of men and women in a customary marriage. This is particularly important with respect to property rights, legal status, and the rights to children. 

5.2 As a youngster, Hlophe recognized this injustice - the Black Administration Act accorded customary marriages partial recognition and accepted bride wealth. Sec 35 of the Act, as amended by sec 9 Act 9 of 1929 downgraded a customary marriage to ‘a customary union.' It also distinguished ‘a marriage' from ‘a union'. ‘A marriage' meant a union of one man with one woman in accordance with any law, for the time being, in force in any province governing marriages, but does not include any union contracted under Black law and custom or any union recognized as a marriage in Black law under the provision of sec 147 of the Natal Code. ‘A customary union' was defined as n association of a man and woman in a conjugal relationship according to Black law and custom, where neither of them was a party to a subsisting marriage. A consequence of this new law was that customary marriages were not considered completely valid under common law. [29]

5.3 As a judge operating within the framework of a constitutional democracy, Hlophe issued a seminal decision, Mabuza v Mbatha,[30] in which he recognized both the validity of customary marriages and the potential injustice to African women if the validity was determined solely by reference to common-law, as opposed to the Constitution. In this case, the wife instituted a divorce action against defendant, her husband after a period of more than ten years of cohabitation during which they produced a child. In terms of the amended particulars of claim the wife sought a decree of divorce, custody of the minor child born of the marriage, an order directing husband to pay maintenance in respect of the child born of the marriage and other ancillary relief.

5.4 The husband pulled a surprise out of his bag of tricks - he vigorously opposed the divorce action not because he sought to preserve the sanctity of the marriage but he actually asseverated that there was no marriage between the parties pure and simple. He was unshakable in his position that there was simply no valid customary marriage between the parties. He retained experts who would testify in support of the gravamen of his defence. From the court record, it appears the parties agreed that the following facts are not in dispute:

5.5 "That siSwati customary law would be applicable in the dispute between the parties; the plaintiff and the defendant entered into a relationship in 1989; the plaintiff fell pregnant in September 1989; in or about November 1989 the defendant's family approached the plaintiff's family to start negotiations for the penalty (damages) and ilobolo payments; the penalty payment related to the fact that the plaintiff fell pregnant out of wedlock, i.e. before the parties got married; agreement was reached with regard to the payment of ilobolo in the amount of R2500 which the defendant paid in full; plaintiff and defendant lived together as husband and wife since about 1992 when plaintiff moved into the house with the defendant; in 1992 the plaintiff decided not to go back to the University of the North and spent her time with the defendant as though they were married as husband and wife; in or about June 2000 and after the parties had relocated to the Western Cape, the relationship between them terminated; and that there was no reasonable prospect of their relationship being normalised. It was also not in dispute that the plaintiff maintained that she married the defendant in terms of African Customary Law, and that the defendant maintains that they were not so married. That much was common cause between the parties.

5.6 The only issue for determination by the Court was whether the parties were married according to siSwati Customary Law. The plaintiff (wife), Ms Lindiwe Sarah Mabuza, gave evidence to the following effect. She was forty (40) years old. She met the defendant (her husband Mbatha), in 1989 in Nelspruit. In 1992 the defendant sent his people to go and arrange that the plaintiff be handed over to him. Since then the wife was called Mrs Mbatha and was known as such in her community. The husband had paid the full amount of ilobolo in 1991. Plaintiff and defendant's family members were involved in the negotiations concerning the payment of ilobolo. When the defendant sent his delegation to the plaintiff's people in Nelspruit with a view to asking her to move in and live with him, the plaintiff's mother agreed that plaintiff could live together with defendant. The wife credibly testified that she could not move in and live together with defendant, she said, without her mother's consent. She further testified that after she moved in and lived with the defendant, she regarded herself as being the defendant's lawful wife, and her family members did not further involve themselves in the affairs of husband and wife. The defendant himself referred to the plaintiff as his wife and accorded her all the privileges, benefits and recognition due a married wife. In a similar vein, the plaintiff enjoyed all the rights of being the defendant's lawful wife and never had any reason to question the bona fides of her marriage to her husband. Her evidence was further that in August 1999 she relocated to the Western Cape at the request of the defendant.

5.7 Throughout this period of blissful marital co-existence, nobody ever told her that there was any problem in their marriage. Nor did anybody ever tell the wife that her marriage was on a shaky foundation as they were not properly married according to siSwati Customary Law.

5.8 At trial before Judge President Hlophe, the wife was subjected to a withering cross-examination by the husband's lawyer. She stuck to her guns and stated that "according to her there were three requirements for a valid African marriage according to siSwati Customary Law. The first was payment of ilobolo, the second was ukumekeza (which means the formal integration of the bride into the bridegroom's family), and the third one was the formal handing over of the bride to the bridegroom's family. Her evidence was that the essentials of a valid African marriage were complied with, save the requirements relating to ukumekeza custom. Upon being asked why ukumekeza custom did not take place, the plaintiff's answer was that her husband, the defendant, said that he was happy with the kind of the marriage they had and that it was not necessary in his view that ukumekeza should take place." As Judge President Hlophe observed, "her evidence was clear in this regard, namely, it was never an issue between the parties that they should solemnise their marriage according to siSwati Customary Law." 

5.9 The wife also presented the testimony of Professor de Villiers, an expert with some thirty-seven (37) years' experience as an academic at various universities in South Africa. He testified as to the evolution of African Customary Law and stated traditionally the State adopted a hands-off approach and did not get directly involved. Family groups had delegated powers. There was no insistence on consent of the parties in traditional African Law. In modern law, however, consent of the parties is paramount. He referred to the Recognition of Customary Marriages Act No 120 of 1998, in terms of which consent of both parties is essential. Professor de Villiers also gave evidence regarding the essentials of a valid customary marriage, namely consent of both parties intending to marry in terms of African Law, ilobolo agreement and thirdly the handing over of the bride. Concrete ceremonial rituals were held according to different African nationalities. However they could be dispensed with in appropriate cases by agreement between the parties.

5.10 It was Professor de Villiers' evidence that if the parties believed that they were married because the families were involved, there was formal handing over of the bride and ilobolo had been paid, that would constitute a valid African customary marriage. There is no reason, according to Professor de Villiers, why failure to observe some of the rituals or ceremonies cannot be waived or condoned by the parties in terms of an agreement between them. Judge President Hlophe observed that in the case before him "nothing else was outstanding. Ilobolo had been paid and there was the formal handing over of the bride to the bridegroom's family." The husband's legal theory was posited to Professor de Villiers in cross-examination - the defendant's case was that "ukumekeza is a vital component of customary marriages according to siSwati Customary Law. Ukumekeza cannot be waived or dispensed with by parties." Although Professor de Villiers conceded that he is not an expert in siSwati Customary Law, he asserted that he "he had done some reading on siSwati Customary Law." He stated that "based on his knowledge of African Law in general and the research material at his disposal, he was nevertheless of the view that it was inconceivable that ukumekeza was so vital such that it could not be dispensed with by agreement between the parties."

5.11 The defence also presented an expert witness, Mr. Shongwe, who is an expert and chief advisor to the Matsamo Tribal Authority Council in Mpumalanga Province. His evidence was that he has been practising siSwati Customary Law for some twenty-two (22) years. He is now attached to the Matsamo Tribal Authority in the Nelspruit Region. He is also serving as an advisor on siSwati indigenous law to the Nkomazi Magistrate's Court in Mpumalanga. He emphatically told the Court that "siSwati Customary Law never changes, it is part of the siSwati culture and does not evolve." With reference to ukumekeza, Mr Shongwe's evidence was that the "parties cannot dispense with this vital component of an African marriage. Ukumekeza is vital because it makes a woman a wife. If a bride did not go through ukumekeza she would be no more than a mere girlfriend even if ilobolo was paid for her. Ilobolo does not change the status of a woman to that of a wife. It is only ukumekeza custom, according to the Swati people, which makes a woman a wife." 

5.12 Further, Mr. Shongwe explained to the Court the rituals that ukumekeza custom would entail in any given situation. He said a woman "cannot refuse to undergo ukumekeza as this was a surprise ritual. A woman's consent was not sought; it was irrelevant. Mr Shongwe's evidence was clearly that the bride would have no say whatsoever in the ukumekeza custom, and that she was expected to cry when the custom took place as an indication that she was prepared to sever her links with her own family and be formally integrated into the family of her husband. If the woman refused to cry, she could be physically assaulted until she cried, which would be an indication that she was indeed accepting her husband's family as her own. A woman would also have to appear semi-naked in front of her prospective husband's family when ukumekeza custom was being practised." 

5.13 As summarized by Judge President Hlophe, the "gist of Mr Shongwe's evidence was that for purposes of valid marriages according to siSwati Customary Law all that one needed was simply ukumekeza custom. The other requirements such as payment of ilobolo and consent of the parties were not so material for purposes of siSwati Customary Law." Upon being asked how Mr Shongwe could reconcile the practice of ukumekeza in the sense in which he described to Court with the provisions of the Recognition of Customary Marriages Act No 120 of 1998, particularly section 3 thereof which provides that consent of both parties is essential for a valid customary marriage, "his answer was that they (the Swatis) are not yet aware of that piece of legislation! Mr Shongwe also testified that according to the Swati people cohabitation was unacceptable." 

5.14 Both parties rested their cases and Judge President delivered his judgment which was vintage Hlophe - balanced, clear and very profound in terms of its constitutional implications. First, he rejected the expert testimony of the husband's witness. He stated at para. 26:

"In my judgment there is no doubt that ukumekeza, like so many other customs, has somehow evolved so much so that it is probably practised differently than it was centuries ago. I got a firm impression that Mr Shongwe was not being truthful to the Court insofar as he attempted to elevate ukumekeza into something so indispensable that without it there could be no valid siSwati marriage. It is my view that his evidence in that regard cannot be safely relied upon. As Professor de Villiers testified, it is inconceivable that ukumekeza has not evolved and that it cannot be waived by agreement between the parties and/or their families in appropriate cases."

Second, Judge President Hlophe went to the heart of the matter and ruled as follows:

[27] In my judgement there was a valid siSwati customary marriage between plaintiff and defendant. It follows, therefore, that the defendant's contention that there was no such marriage between the parties is entirely without substance. That, in my view, should dispose of this matter, but for the fact that the case raises a number of important issues of principle. I shall deal with some of them.

5.15 Third, in a section of the judgment entitled ‘Issues of Concern" Judge Hlophe elaborated at length on the baneful effects of colonialism and apartheid on African customary laws. He continued:

[28] The first issue is that after African Customary Law was formally recognised in terms of the Black Administration Act No 38 of 1927, it was never allowed to develop and therefore take its rightful place in this country. Section 11(1) of the Black Administration Act recognised African Law provided that it was not opposed to the principles of public policy or natural justice.

[29] Secondly, since 1994 there has been a new political, democratic dispensation for the first time in this country. As a result thereof we have the Constitution of the Republic of South Africa Act No 108 of 1996 ("the Constitution"). Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. In terms of section 9(1) of the Constitution, everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9(3) provides that the State may not unfairly discriminate directly or indirectly against anyone, on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (My emphasis). Furthermore, customary marriages have been given constitutional recognition and protection by section 15 of the Constitution. Section 15(3)(a) of the Constitution provides "This section does not prevent legislation recognising -marriages concluded under any tradition, or a system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion." Further constitutional protection of customary marriages is provided by section 30 of the Constitution which enshrines language and cultural rights. Furthermore section 31 protects cultural, religious and language communities and the practice of such culture and religion. As Bertelsmann, J pointed out in Thembisile & another v Thembisile & another 2002 (2) SA 209 (T) the core values of the Constitution, namely human dignity, non-racialism and the equal protection afforded to individuals and communities, underscore this fact. (at 214).

[30] Thirdly, if one accepts that African Customary Law is recognised in terms of the Constitution and relevant legislation passed thereunder, such as the Recognition of Customary Marriages Act No 120 of 1998 referred to above, there is no reason, in my view, why the courts should be slow at developing African Customary Law. Unfortunately one still finds dicta referring to the notorious repugnancy clause as though one were still dealing with a pre-1994 situation. Such dicta, in my view, are unfortunate. The proper approach is to accept that the Constitution is the supreme law of the Republic. Thus any custom which is inconsistent with the Constitution cannot withstand constitutional scrutiny. In line with this approach, my view is that it is not necessary at all to say African Customary Law should not be opposed to the principles of public policy or natural justice. To say that is fundamentally flawed as it reduces African Law (which is practised by the vast majority in this country) to foreign law - in Africa!

[31] The approach whereby African Law is recognised only when it does not conflict with the principles of public policy or natural justice leads to an absurd situation whereby it is continuously being undermined and not properly developed by the courts which rely largely on "experts". This is untenable. The courts have a constitutional obligation to develop African Customary Law particularly given the historical background referred to above. Furthermore, and in any event, section 39(2) of the Constitution enjoins the Judiciary when interpreting any legislation, and when developing the common law or customary law, to promote the spirit, purport and objects of the Bill of Rights.

32] In conclusion the test is not, in my view, whether or not African Customary Law is repugnant to the principles of public policy or natural justice in any given case. The starting point it to accept the supremacy of the Constitution, and that law and/or conduct inconsistent therewith is invalid. Should the Court in any given case come to the conclusion that the customary practice or conduct in question cannot withstand constitutional scrutiny, an appropriate order in that regard would be made. The former approach which only recognises African Law to the extent that it is not repugnant to the principles of public policy or natural justice is flawed. It is unconstitutional.

(Emphasis added)

5.16 Based on the foregoing reasoning, Judge President Hlophe proceeded to grant the following:

· a decree of divorce as requested by the wife;

· award the custody of the minor child born of the marriage to the wife subject to the husband's right of reasonable access to the child,

· husband was ordered to pay maintenance in the amount of R1800 per month in respect of the minor child until such time as the child attains the age of twenty-one (21) or becomes self-sufficient, whichever event occurs first, the husband shall be liable for all reasonable medical expenses relating to the wife and the minor child, including but not limited to costs of hospital, dental, optometry and pharmaceutical expenses,

· the husband shall be liable for all school and school related expenses, including but not limited to school fees, school uniform, textbooks and stationery, sports clothing and equipment as well the costs of all extramural activities related to the minor child's schooling;

· the husband shall be liable for the costs of all tertiary education of the minor child together with related expenses, insofar as the minor child is desirous to continue with tertiary education and to such extent as good progress is made with regard thereto;

· husband was ordered to pay the costs of the suit, including the costs of Rule 43 Applications under case numbers 4780/01 and 1321/02 as well as the costs necessitated by the two previous postponements of the trial;

· The court entered no order as to expert fees.

5.17 This case has been recognized as precedent-setting and cited at home and abroad. It shows Judge President Hlophe at his best. Displaying sagacity and brilliant analysis which highlight the difference between a judge and a justice, Hlophe interpreted customary laws in a manner which prevented a man from exploiting his superior bargaining position or taking advantage of such laws to deny a woman equal protection. In his decision, Hlophe recognises the supremacy of the Constitution at the same time as he asserts that the protean nature of customary law should enable it to conform, as necessary, to the dictates of the Bill of Rights. He rejected "expert evidenced" of unwieldy or unchanging customary law written in stone which was offered by one of the male expert witnesses. He relied on his nuanced assessment of the role of "ukumekeza" and reconfigured siSwati marriage conventions in a manner that (a) refuses to allow ukumekeza to be used by the groom's family as a means of control over the bride and (b) consciously places the husband and wife on an equal footing with respect to subsequent determinations of whether a valid marriage under siSwati customary law has taken place. As shown later, the Constitutional Court has relied on Hlophe's incisive analysis and has cited the Mabuza case in numerous decisions dealing with customary laws. Other scholars[31] and gender activists have also praised Hlophe for his wisdom and fealty to the constitution.

5.18 Hlophe's decision was quoted with approval by the Zimbabwean High Court in Ncube v Moyo (HCA 16/02) [2004] ZWBHC 15; HB 15/2004 (25 March 2004). There too, the court rejected a witnesses testimony after concluding:

"He lectured us on the advantageous position of the husband in a Ndebele customary set up. His submissions tended to ignore the sharp distinction between law and custom that is enjoined by positivism. Some of the rituals that the appellant highlighted though deeply rooted in tradition, have a purely cultural, and not legal significance. What I think should be emphasised is that over the years customary law has been reformed. In A Source Book of African Customary Law for Southern Africa by T W Bennett [1995] at page 194 the learned author stated: "In contrast customary law was always flexible and pragmatic. Strict adherence to ritual formulae was never absolutely essential in close knit, rural communities, where certainty was neither a necessity nor a value." Mabuza v Mbatha [2003] I ALL SA 706 (C)"

5.19 Hlophe's ground-breaking case was also included in a February 2005 study by the Center for Reproductive Rights (New York) and the University of Toronto entitled "Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Countries"[32]. The aim of the study as stated in the Foreword (p.11-12) is as follows: "This publication provides a crucial starting point for women's rights advocates and jurists who need access to information about courts across the African Commonwealth, which refers to sub-Saharan African countries that were colonized by the British and share a legal system based on English common law. This report should serve as a wake-up call that we must not dismiss the role of the courts and judiciary in furthering women's rights. Women's rights activists should feel comfortable borrowing legal strategies from distant jurisdictions to press courts in their area to interpret national and international standards for the benefit of women. In turn, courts will become sensitized and increasingly responsive to these rights as more cases are filed."

5.20 The study aims to empower human rights practitioners to formulate litigation and policy strategies for their own countries and the region. Advocates can use the information in this report in either of the following two ways:

(a) To develop litigation strategies:[33]

· "Jurisprudence from African Commonwealth courts that shows a trend or that shows a consistent line of reasoning is persuasive, since it demonstrates growing regional acceptance of and support for human rights norms, particularly as they relate to women;

· Jurisprudence implementing international standards can inform and instruct courts that are struggling to interpret and apply international women's rights norms;

· Jurisprudence from African Commonwealth courts provides human rights practitioners with legal arguments that can be used to support the judicial recognition and protection of women's rights.

(b) To develop grassroots and other advocacy strategies:

· Legal cases can offer compelling, concrete examples of the need for national-level law reform;

· Jurisprudence from African Commonwealth courts may spur policy reform by exposing the poor implementation of international and national legal standards that protect women's rights.

· Advocates can use jurisprudence to educate women about the content and scope of their rights.

· Advocates can use the decisions in this report to raise awareness about women's rights and highlight the importance of the judiciary and the legal system in general. [34]

5.21 Judge President Hlophe's recognition that the courts are duty-bound to develop African customary law is in line with the Constitutional Court ruling in Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at 1006 whetre the court stressed that it did not have a discretion but was obliged to develop the common law to bring it in line with the Constitution. With specific regard to the development of indigenous law, Hlophe's judgment has been cited with approval in by Constitutional Court itself. See, Bhe v Magistrate, Khayelitsha[35] which cited Hlophe's decision (foonote no.42) for the proposition that while in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common-law, but to the Constitution." In Bhe, the Constitutional Court ruled that the customary law rule of male primogeniture - and several statutory provisions that reinforced the rule - impaired the dignity of and unfairly discriminated against the deceased's two female children because the rule and the other impugned provisions prevented the children from inheriting the deceased's estate. Bhe case, paras 91-93, 97. The Constitutional Court held that the customary rule of primogeniture discriminates against women on the basis that they are women. It further held that fundamental rights must be protected and equality of sex is a right that should be respected. The Court reiterated that as equality forms a core value of the new democratic South Africa, there is, therefore, an urgent need to do away with legacies of apartheid as it is manifested in section 23 of the Black Administration Act 38 of 1927.

6. HLOPHE'S APPROACH TO "SOUTH AFRICAN OUSTER CLAUSES"- PARLIAMENTARY SOVEREIGNTY VERSUS DEMOCRATIC CONSTITUTIONALISM.

6.1 Very early in his budding career as legal scholar and academic, Hlophe recognized that the "ouster clauses"[36] in apartheid legislation undermined judicial independence and violated human rights. In an article authored while still a law student and during apartheid Hlophe recognized that the so-called ouster clauses imposed Legislature supremacy to the detriment of the public. In South Africa, ouster clauses have long been regarded with suspicion as they contain the inherent involved in departing from the well-known rule of constitutional law in all civilised countries - namely, that the courts of law alone are entrusted with deciding on the rights and duties of all persons who are within the protection of the courts.

6.2 In a real sense, Hlophe's pre-occupation with this subject was almost prophetic. Little did Hlophe know that as a justice of the High Court in a free and democratic South Africa he would be confronted with the apartheid relic, the "ouster clauses" once again. That opportunity came when he decided De Lille and another v Speaker of the National Assembly,[37] a case in which Hlophe demonstrated his consistent and even-handed application of the law and held that an ouster clause in sect.5 of the Powers and Privileges of Parliament Act 91 of 1963 was invalid because it conflicted, inter alia, with s 34 and s 38 of the Constitution. He added "at common law there is a presumption against ouster clauses which are considered to constitute an improper infringement upon the role of the Courts." 1998 (3) SA 430 (C), 1998 (7) BCLR 916 (C) (Hlophe J). Hlophe was emphatic in rejecting these clauses and states at 452 that :

 "Ours is no longer a parliamentary state. It is a constitutional state founded on the principles of supremacy of the Constitution and the rule of law. A new political and Constitutional order has been established in South Africa. The new Constitution shows a clear intention to break away from the history of parliamentary supremacy. There are many other provisions in the Constitution which do not support Mr. Heunis' contention. For example: (i) s 1(c) says the Republic of South Africa is a democratic state founded on the supremacy of the Constitution and the rule of law; (ii) s 2 provides that the Constitution is the supreme law of the Republic and law or conduct inconsistent with it is invalid; (iii) s 34 states that everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court of law or, where appropriate, another independent and impartial tribunal or forum; (iv) s 38 entitles anyone alleging that a right in the Bill of Rights has been infringed or threatened to approach law courts for appropriate relief; (v) s 165(3) provides that no person or organ of state may interfere with the functioning of the courts; (vi) s 172(1)(a) provides that when a court decides a Constitutional matter within its power it must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; (vii) s 8 provides that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state; and (viii) other relevant sections include s 165(2), s 39(1)(a) and 39(2).

6.3 At the risk of offending "Caesar" Hlophe ruled in favour of a member of a minority opposition party based on a clear understanding of established legal principles and the dictates of our constitution in our democracy. We are painfully aware that some commentators have seized on such rulings as indicative that Hlophe is a "maverick" in order to persuade some ANC members not to support him. However we are comforted in the knowledge that all members of the South African public including minorities and opposition party members will appreciate Hlophe's abiding respect for the constitution. Judges are not mere politicians in robes, they are part of the third branch of our government but perform an independent function, namely to dispense justice to those who seek it, regardless of race, political affiliation or gender.

7. THE DOCTRINE OF LEGITIMATE EXPECTATION AND TRANSFORMATIVE CONSTITUTIONALISM

(a) Hlophe's Original Contribution to The Development of the Doctrine of Legitimate Expectation and Administrative Justice.

7.1 Hlophe emerged many years ago as an expert on the doctrine of legitimate expectation.[38] His published scholarly works on the subject has been quoted extensively in German[39], US, British and Australian law journals and is frequently relied upon by our courts. At the time that Hlophe's article was written, administrative law functioned in a very different context when compared with the present constitutional dispensation. This point was made by Professor Dean ‘Our Administrative Law: A Dismal Science?' (1986) 2 SAJHR 164, 164:

'Notwithstanding a blossoming of interest in the subject amongst lawyers, administrative law remains a somewhat depressing area of South African law. It has developed within a system of government which concentrates enormous powers in the hands of the executive and the state administration and in which law has been used not to check or structure those powers, but rather to facilitate their exercise by giving those in whom they are vested as much freedom as possible to exercise them in the way they see best. In this process the South African courts have at times appeared to be all too willing partners displaying what virtually amounts to a phobia of any judicial intervention in the exercise of powers by administrative agencies.'

7.2 Hlophe was undaunted - he did not allow the "depressing area" of administrative law to dissuade him from thinking about and advocating strategies to curb the excessive executive and administrative powers. In his published article, Hlophe recognized the potential of the "legitimate expectation doctrine" and elucidated how it extended the scope of application of the rules of natural justice, specifically the audi principle beyond the traditional "liberty, property and existing rights" formula to cases where something less than an existing right was involved - a legitimate expectation, required a fair procedure to be followed. Hlophe noted the trend in other Commonwealth jurisdictions he studied - these tended to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. He noted that the content of the expectation may be substantive or procedural in nature depending on the circumstances. Hlophe emphatically rejects the view that legitimate expectation can only arise from an express promise or the existence of a past practice as both misguided and unwarranted by authority. He contends that a conclusion that a legitimate expectation cannot arise simply out of the power of the decision-maker to decide adversely to the applicant presupposes that the circumstances under which legitimate expectation arises are exhaustive, whereas this is not so.

7.3 According to Hlope, 'fairness' is the limiting factor in any given case and in this regard he states as follows at 178: "In my view in any given case "fairness" plays an important role in determining whether the expectation should be characterised as legitimate for the purposes of natural justice. Thus it is fairness that determines that unfounded or unreasonable expectations should not be afforded the protection of natural justice. It is also fairness which dictates that where the discretionary power is being exercised over a person, he may well be entitled to expect that it will not be exercised unfavourably or unfairly without his having been afforded a hearing."

7.4 In Hlophe's opinion, the view that a legitimate expectation can arise only from express assurances or regular practices should be discarded as this would lead back to the deficiencies and anomalies which the doctrine sought to remove in the first place. For instance, the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing. This observation accords with the spirit of the legitimate expectation doctrine as well as with common sense. To ask whether a person's expectation of a hearing was "legitimate" is in effect to ask whether denying him a right to state his case was fair and reasonable in all the circumstances. The bottom line in Hlophe's article can be stated as follows: Officials entrusted with public power must exercise such power rationally and fairly. In order to act rationally and fairly the decision-maker would of necessity have to apply his mind properly to all relevant aspects and circumstances pertaining to a decision and in order to do this he would in most instances be obliged to afford the person affected by the decision a hearing prior to coming to his decision.

7.5 Up to the time of Hlophe's writing, South African courts had been rather more tentative, despite pleas for the unequivocal acceptance of the doctrine of legitimate expectation into our law (see eg Hlophe 1987 SAL] 187). Within two years after Hlophe's article, the former Chief Justice Corbett issued his leading decision, Administrator, Transvaal v Traub 1989 (4) SA 731 (A) which is generally regarded as a leading administrative law case and important precedent in South African jurisprudence. Some scholars an advocates have claimed "In 1989, in the Traub case, Justice Corbett introduced into the South African legal system the principle of legitimate expectation, a principle that has had a far-reaching impact on the prevailing common law."[40] See, also, Gauntlett J:[41], "We remember ... ‘Duty, for duty's sake' MM Corbett remembered" in which the author claims Corbett "... examined closely the exercise of discretion in administrative law, exploring this through such leading decisions as... Administrator, Transvaal and Others v Traub and Others; introducing the doctrine of legitimate expectation in our law, despite a prior discounting of it by his own court." What the author and others fail to do is to acknowldge Hlophe's pioneering work, something that the late Corbet, to his great credit, acknowledged readily!

7.6 In the case of Traub, the applicants, all medical interns, stated that they had been offered positions at Baragwanath Hospital by the Administrator of Transvaal. They were employed as interns and practitioners and were given the impression that they would be offered full-employment contracts upon the completion of their internship. The Administrator then changed his mind and did not offer such contracts to these prospective employees. Their applications were rejected by a provincial director of hospital services, solely because they had been party to a published letter that severely criticised the Provincial Administration's attitude to the conditions prevailing in the Hospital. The director concerned considered these dissenting medical practitioners to be unsuitable for the post for which they had applied. The Administrator did not formally give them reasons for the decision, nor did he permit a hearing at which they could discuss the issue or voice their concerns.

7.7 In the court a quo Goldstone J had found for the applicants (the medical practitioners), holding that the decision of the authorities not to confirm their appointments had prejudicially affected their rights and that they were therefore entitled to the observance of the rules of natural justice. It was therefore not necessary for him to deal with the issue of legitimate expectation. On appeal, however, it was held (per Corbett CJ) that the respondents (they were no longer applicants as they had won in the court aquo) had no right to be appointed and that the refusal to appoint them did not affect any existing right. The respondens were not entirely without remedies - the issue was therefore whether 'the audi principle', as the court termed it, 'is confined to cases where the decision affects the liberty, property or existing rights of the individual concerned or whether the impact is wider than this' (748). Just like Hlophe before him, Corbett CJ summed up the position in English law and concluded that the legitimate expectation doctrine some times entails some benefit which an individual may reasonably expect to acquire or retain and which it would be unfair to deny without prior consultation or a prior hearing; and at other times involves the right to be heard before a decision adverse to the interests of a person may be taken.

7.8 In the case in point the court found that the respondents did in fact have a legitimate expectation to be afforded a hearing before their appointments could be refused; this expectation was based on a long standing practice at the hospital that such applications carrying the recommendation of the departmental head had invariably been granted by the Director of Hospital Services, the appointment being no more than a formality. This conclusion was reinforced by the seriousness of the consequences to the career prospects of the respondents which would attach to a refusal based on suitability for appointment. The court found in favour of the applicants. To "observe the principles of natural justice", Corbett CJ said at 761E-H that:

"The law should in such cases be made to reach out and come to the aid of persons prejudicially affected. At the same time, whereas the concepts of liberty, property and existing rights are reasonably well defined, that of legitimate expectation is not. Like public policy, unless carefully handled it could become an unruly horse. And, in working out, incrementally, on the facts of each case, where the principle of legitimate expectation applies and where it does not, the courts will, no doubt, bear in mind the need from time to time to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration."

7.9 Through this Traub decision, the doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law. Significantly, Chief Justice Corbett adopted an approach similar to that advocated by Hlophe two years earlier - he extended the scope of application of the rules of natural justice, specifically the audi principle[42] beyond the traditional "liberty, property and existing rights" formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed.[43] Corbett's acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. This too was explained by Hlophe who researched extensively the laws of UK and Australia for his article. In other Commonwealth jurisdictions the doctrine of legitimate expectation has been developing beyond the procedural context for a number of years. The question that has been asked in these jurisdictions is whether the existence of a legitimate expectation can give rise to a substantive remedy. In other words, can a court compel an administrator to grant a substantive benefit to an individual based on that individual's legitimate expectation of receiving such benefit? This application of the legitimate expectation doctrine is referred to as substantive legitimate expectation, as opposed to the traditional procedural legitimate expectation.

7.10 Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature,[44] the protection of that expectation, if found to be legitimate, was exclusively procedural.[45] Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action.[46] It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken.

(b) Assessing Hlophe's influence in the seminal Traub decision and beyond.

7.11 Hlophe's scholarly writings represented one of the rarest occasions when advocates and judges under apartheid South Africa would cited the opinions of African scholars as authority for anything outside the confines of African customary law or other innocuous subjects. The late Chief Justice Corbett was reputed to be a fair-minded man; it is therefore not surprising that he acknowledged and used Hlophe's published research and scholarly work in the seminal Traub case. Corbett cited with approval Hlophe's analysis of the cases referred to in his article and his observation that "there is great uncertainty as to the limits and applicability of the doctrine." Counsel for one of the parties urged upon the court the great inequity which the principle in a previous case, Laubscher's case may, bring about (and had brought about in later cases) and stressed the pressing "need for legal reform." Applicant's counsel invited the court to extend the principle in order that relief may be granted in cases where an administrative decision, which does not affect a person's rights but nevertheless involves serious consequences to him, is taken without observance of the audi alteram partem rule. In support of this argument both counsel and Justice Corbett referred to an "illustrative discussion of the topic appeared in 1987 SALJ 165 in an article "Legitimate Expectation and Natural Justice: J English, Australian and South African Law" by John Hlophe.)" The court cited Hlophe's scholarly article as part of the "serious and, in certain respects, justified criticism which has been leveled at some of the decisions and at the principle involved."

7.12 While some may now for political reasons seek to deny or suppress knowledge about Hlophe's contribution, the JFH urges the JSC to follow the example of former Chief Justice Corbett and give credit to Hlophe where it is due. In fact, Hlophe's published scholarly works on the subject has been very influential and is quoted extensively in German, US, British and Australian law journals and is frequently relied upon by our courts in the post-apartheid South Africa.

7.13 Two years after Hlophe wrote his scholarly article discussing the doctrine of legitimate expectation and administrative justice, Arthur Chaskalson, the former chief justice followed suit and made his contribution. Writing in 1989, Chaskalson, said of administrative law that it was the ‘interface between the bureaucratic state and its subjects. The day to day lives of ordinary people are profoundly affected by the way those who hold power of their lives exercise that power. Important steps towards the creation of a just society can be taken by opening up the administrative process and developing an equitable system of administrative law'.[47] The first important steps towards creating such a system of administrative law were later taken when the interim Constitution[48] introduced a fundamental right to what it termed ‘administrative justice'.[49] The final Constitution contained a similar fundamental right to what it termed ‘just administrative action' as set forth in Section 33.

7.14 In the South African Rugby Football Union case, Chaskalson who was then President of the constitutional Court held that the ‘principal function of s33 is to regulate conduct of the public administration and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common-law principles developed over decades'.[50] The JFH respectfully submits that Hlophe played a key role in developing these "common-law principles developed over decades" as evidenced by his writings on the doctrine of legitimate expectation. He championed administrative justice and was clearly gratified to see that principle enjoy a special status in our constitutional democracy.

7.15 Another evidence of Hlophe's enormous influence in our jurisprudence is found in the statements of Pickering J in Gemi v Minister of Justice, Transkei[51], another case decided before the advent of our democracy. Pickering J said the following about then Professor Hlophe:

Professor Hlope in his article 'Legitimate Expectation and Natural Justice' (1987) 104 SALJ 165 rejects the view that legitimate expectation can only arise from an express promise or the existence of a past practice as both misguided and unwarranted by authority. He contends that a conclusion that a legitimate expectation cannot arise simply out of the power of the decision-maker to decide adversely to the applicant presupposes that the circumstances under which legitimate expectation arises are exhaustive, whereas this is not so. According to Professor Hlope, 'fairness' is the limiting factor in any given case and in this regard he states as follows at 178:

 'In my view in any given case "fairness" plays an important role in determining whether the expectation should be characterised as legitimate for the purposes of natural justice. Thus it is fairness that determines that unfounded or unreasonable expectations should not be afforded the protection of natural justice. It is also fairness which dictates that where the discretionary power is being exercised over a person, he may well be entitled to expect that it will not be exercised unfavourably or unfairly without his having been afforded a hearing.'

In Professor Hlope's opinion, therefore, the view that a legitimate expectation can arise only from express assurances or regular practices should be discarded as this would lead back to the deficiencies and anomalies which the doctrine sought to remove.

Professor Hlope's article finds an echo in an article by Professor Grogan, 'When is the "Expectation" of a Hearing "Legitimate"' (1990) 6 SAJHR 36. In what is described by Cora Hoexter in the Supplement to Baxter, Administrative Law at 77 as a valuable article, Professor Grogan refers to the dictum by Corbett CJ in Traub (supra at 758F), namely 'the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing'. He comments thereanent at 39:

 'This observation accords with the spirit of the legitimate expectation doctrine as well as with common sense. To ask whether a person's expectation of a hearing was "legitimate" is in effect to ask whether denying him a right to state his case was reasonable in all the circumstances...."

7.16 Judge Pickering concludes by stating:

"It seems to me, with respect, that the views of Professors Hlope and Grogan are correct. Officials entrusted with public power must exercise such power rationally and fairly. In order to act rationally and fairly the decision-maker would of necessity have to apply his mind properly to all relevant aspects and circumstances pertaining to a decision and in order to do this he would in most instances be obliged to afford the person affected by the decision a hearing prior to coming to his decision. Officials are not relieved of this duty except to the extent that a departure from the rules of natural justice is expressly or impliedly sanctioned by the relevant enabling legislation. In the absence of such statutory authorisation a departure from the rules of natural justice can only be justified in circumstances where it is necessary to promote some value or end of equal or greater significance than natural justice or, to put it differently, 'where circumstances are so exceptional as to justify such a departure'. (Per Leon J in Dhlamini v Minister of Education and Training and Others 1984 (3) SA 255 (N) at 257H.) By approaching the test in this manner a balance can be struck between 'the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in the administration'.

7.17 No fair-minded person reading Judge Pickering's summation of "Professor Hlope's" contribution will deny that Hlophe advocated law reform to the benefit of the ordinary citizens in their continuing struggle against the behemoth of apartheid bureaucracy and oppressive state machinery. Contrary to the false, scandalous allegations of those who insist that Judge President Hlophe "took no part in the struggle against apartheid" the record speaks volumes in Hlophe's favour. The observations of the late Justice Corbett and Judge Pickering in cases decided during the apartheid years shows Hlophe's enormous scholarly contribution to law reform even during the darkest days of apartheid and state of emergency. The JFH respectfully submit that the JSC must judge Hlophe on the basis of his record of accomplishment and not on the gossamer and malicious propaganda of those who have an axe to grind with Hlophe. The JFH would be demanding an apology from the parties responsible for spreading this transparent lies about Hlophe and would request that candidates nominated by these individuals or their associates denounce the said false charges. It is both incongruous and hypocritical for some individuals to praise the late Chief Justice Corbett for his decision Traub and for being a human rights champion while at the same time denying Hlophe the recognition for the role he played in subverting apartheid jurisprudence. Statements such as Hlophe "took no part in the struggle against apartheid" are not only meant to provoke public condemnation of Hlophe or lower him in the esteem of his fellow citizens. Such statements have already been misused by ignoramuses like Zachie Achmat, a self-styled aids activist and a severely ill-informed Ms. Dwane[52] from Khayelitsha.

7.18 Hlophe's approach to the doctrine of legitimate expectation was later praised and emulated by the Chief Justice of the Namibian Supreme Court in In the matter between:Waterberg Big Game Hunting Lodge And The Minister of Environment & Tourism[53](23/11/2005) case involving permit applications and legitimate expectations. The Namibian Chief Justice (Shivute CJ) stated that Hlophe "lucidly and succinctly stated the principles pertaining to the substitution of the functionary's decision" and legitimate expectations. The court stated "Hlophe J (as he then was) lucidly and succinctly stated the principles pertaining to the substitution of the functionary's decision in University of Western Cape and Others v Member of Executive Committee for Health and Social Services and Others 1998 (3) SA124 (C) at 131D - G as follows and I quote with respectful approval:

"Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter, the Courts have not hesitated to substitute their own decision for that of the functionary. The Courts have also not hesitated to substitute their own decision for that of a functionary where further delay would cause unjustifiable prejudice to the applicant. Our Courts have further recognized that they will substitute a decision of a functionary where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again. It would also seem that our Courts are willing to interfere, thereby substitutingtheir own decision for that of a functionary, where the Court is in as good aposition to make the decision itself. Of course the mere fact that a Courtconsiders itself as qualified to take the decision as the administrator does not per se justify usurping the administrator's powers or functions. In some cases, however, fairness to the applicant may demand that the Court should take such a view."(Reference to authorities omitted.)

(c) Hlophe's Development of the Doctrine of Legitimate Expectation in South African Jurisprudence - Relevance to Transformative Constitutionalism

7.19 Ten years ago in an article published in the South African Journal on Human Rights, Prof. Karl Klare - a scholar in the critical legal studies(CLS) movement - described the South African Constitution as a transformative document. By 'transformative constitutionalism' he meant: 'a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.' His thesis was that the South African Constitution included many features of a social democratic constitution with its commitment to substantive equality, restitution and redistribution and socio-economic rights. However, it also transcends this conception by including features such as the promotion of diversity, equality on grounds such as gender and sexual orientation, environmental justice, participatory governance and holding powerful private actors accountable for human rights violations. The Chief Justice, Pius Langa, in an extra-curial lecture at Stellenbosch Law Faculty described 'transformative constitutionalism' as 'a permanent ideal' which embraces an openness to the other, a commitment to inclusive, democratic dialogue, and a sharing of the responsibility of transformation between all three branches of government in partnership with a vibrant, independent civil society. Nice sounding but what does "sharing of responsibility" among the coordinate branches of government entail and what does that mean in actual practice? Does it mean for instance, accepting that our judges will be performing their job duties in a democratic developmental state where the priorities may be very different from those prevailing in bourgeois democracies? Does this government "partnership" with "a vibrant, independent civil society" entail trusting also the sovereignty of the people. 

7.20 The notion of 'transformative constitutionalism' has found a deep resonance in the jurisprudence of the courts, academic literature and civil society campaigns for social justice. It is no exaggeration to state that Hlophe made a lasting and tangible contributed both to the dismantling of apartheid jurisprudence entrenched over decades and to the building of our constitutional democracy. He is continuing in his quest to strengthen our democracy. It is very significant that in the past six months, the doctrine of legitimate expectation and its interpretation has featured in two very important cases, National Director of Public Prosecutions v Zuma[54]and Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others[55]. In the latter case, the constitutional court agreed with Hlophe's interpretation of the legitimate expectation doctrine. Although critics had delivered a sledgehammer assault on Hlophe for his judgment granting the developer of the N2 Gateway project an order to evict the residents, it has now been established that the order was just and equitable. Critics assiduously avoided mentioning that the residents' legal theory was anchored on the premise that they have a substantive and procedural legitimate expectation to at least 70% of the housing which is to be built at Joe Slovo. Hlophe, a recognized expert in legitimate expectation doctrine, ruled that the residents had no legitimate expectation. Accordingly, he made an order for the eviction and certain ancillary relief.

7.21 It is now well established that Hlophe's scholarly contribution on the subject has been cited with approval and described by the Concourt itself as part of "a rich academic discussion." That was in the Mpumalanga school case, Premier, Mpumalanga v Executive Committee, Association of State Aided Schools, Eastern Transvaal[56] where where O'Regan J spoke of the interaction between the affirmative steps needed to achieve transformation, on the one hand, and the requirements of procedural fairness, on the other. She said:

‘This case highlights the interaction between two constitutional imperatives, both indispensable in this period of transition. The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the

second is the obligation of procedural fairness imposed upon the government. Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness. A characteristic of our transition has been the common understanding that both need to be honoured.'[57]

7.22 We must point out that one other current justice of the Constitutional Court, Bess Nkabinde, has also cited with approval Hlophe's scholarly contribution. This was in a case, Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others[58] where Judge Nkabinde stated that our courts have begun to give a greater recognition to the broader concept of natural justice. She stated: "Fortunately, greater recognition is given by our courts to the broader concept of the principle of natural justice. The traditional scope of the principles relating to the observance of natural justice has been extended to decisions affecting a person who has no existing right, but merely a legitimate expectation (Everet's case,supra; Langeni and Others v Minister of Health and Welfare and Others 1988 (4)SA 93 (W); Mokoena and Others v Administrator, Transvaal 1988 (4) SA 912 (W). An illustrative discussion of the topic also appears in the following articles:(1987) 165 SALJ "Legitimate Expectation and Natural Justice: English, Austrialian and South African Law" by John Hlope, and (1979) 96 SALJ 607 "Fairness and Natural Justice in English and South African Law" by L. Baxter)."

7.23 We respectfully submit that Hlophe's enriching contribution to the vibrancy of our constitutional democracy and our jurisprudence is further evidenced by legislative acts and court decisions in the post-apartheid era. Take for an example, PAJA, an Act which provides for certain minimum requirements of procedural fairness in s3. Section 3(1) states that when administrative action ‘materially and adversely affects the rights or legitimate expectations of any person' that administrative action must, in order to be valid, be procedurally fair. While the Act acknowledges that what is fair depends on the circumstances of each case, s3(2)(b) provides that the following are the minimum requirements of procedural fairness: "(a) adequate notice of the nature and purpose of the proposed administrative action; (b) a reasonable opportunity to make representations; (c) a clear statement of the administrative action; (d) adequate notice of any right of review or internal appeal, where applicable; and (e) adequate notice of the right to request reasons in terms of section 5."

7.24 We respectfully submit that a constitutional state or a democratic develeopmental state with an enormous social reconstruction programme like that of post-apartheid South Africa must have a sophisticated mechanism for the maintenance of administrative justice. The immediate past experience of apartheid under which the administrative process was devoted to the victimization of a large section of the population has also meant that every constitutional means possible in the arduous task of social reconstruction must be deployed towards the declared objective of the evolution of a humane and just administrative process. Hlophe's scholarly writings both on the doctrine of legitimate expectation and natural justice reflect that march towards a humane and just administrative system. It was therefore not surprising that the post-apartheid constitutions considered the availability of administrative justice for citizens as one of their foremost civil liberties. Under the common law, the concept of administrative justice is generally associated with the notion of natural justice. Thanks to Hlophe's enormous contribution to the sophisticated doctrine of legitimate expectations, our courts were enabled to come to the aid of persons who would have in previous situations been unable to obtain redress in matters where the application of administrative discretion is of paramount importance.

7.25 We respectfully submit that the realization of the ambitious programs of the ANC-led government and the daunting challenges of service delivery will inevitably require judges who have mastery of the common-law precepts Hlophe has grappled with so successfully and a clear understanding of our constitution. It is in blending these two requirements for the fulfillment of the public interest that administrative law plays an important role: on the one hand, governmental policy must be capable of effective implementation but, on the other, that implementation cannot be effected at any price and in any manner that may take the whim of the administrator concerned. Administrative law serves both to empower administrative officials so that they can implement policies and programs and to limit the exercise of power by officials by requiring all administrative action to meet certain minimum requirements of legality, reasonableness and fairness.

7.26 From these values a number of important provisions of the Constitution flow so as to give it a capacity to control the exercise of all public power. In President of the Republic of South Africa v South African Rugby Football Union[59] the Constitutional Court set these out as follows:

‘The constitutional goal is supported by a range of provisions in the Constitution. First, in the Bill of Rights there is the right of access to information and the right to just administrative action. Both these provisions require national legislation to be enacted by 3 February 2000 to give effect to these rights. Pending the enactment of that legislation, the provisions of the interim Constitution apply. Secondly, all the provisions of the Bill of Rights are binding upon the Executive and all organs of State.

The Bill of Rights, therefore, imposes considerable substantive obligations upon the administration. Thirdly, chap. 10 of the Constitution, entitled "Public Administration", sets out the values and principles that must govern public administration and states that these principles apply to administration in every sphere of government, organs of State and public enterprises. This chapter also establishes a Public Service Commission to promote the values of public administration. Fourthly chap 9 of the Constitution establishes the office of the Public Protector, whose primary task is to investigate and report on conduct in the public administration which is alleged to be improper. Fifthly, the Constitution establishes the office of the Auditor-General whose responsibility is to audit and report on the financial affairs of national and provincial State departments and administrations as well as municipalities.'

7.27 Of prime importance for present purposes is the fact that the Constitution is based on the founding value of constitutional supremacy and the rule of law. This value is directly enforceable. The Constitutional Court has held that the rule of law means that: no body or person may exercise public power or perform public functions unless the authority to do so has been conferred by law;[60] that when such functionaries exercise power or perform functions they are required to do so in good faith and they may not misconstrue their powers;[61] that they are required to exercise powers rationally;[62] that, to protect fundamental rights, laws should be ‘pre-announced, general, durable and reasonably precise rules administered by regular courts or similar independent tribunals according to fair procedures';[63] and the rules must be stated in a ‘clear and accessible manner'.[64]

7.28 It is no accident that s1(c) forms part of the Constitution. It gives expression to the broader value that underpins every constitutional state - that every exercise of public power must be capable of rational justification. This idea was eloquently expressed by Ackermann J in S v Makwanyane[65] albeit in the context of the constitutionality of the death penalty and against the backdrop of another founding value, that of equality:[66]

 ‘In reaction to our past, the concept and values of the constitutional State, of the "regstaat", and the constitutional right to equality before the law are deeply foundational to the creation of the "new order" referred to in the preamble. The detailed enumeration and description in s33(1) of the criteria which must be met before the Legislature can limit a right entrenched in chap 3 of the Constitution emphasise the importance, in our new constitutional State, of reason and justification when rights are sought to be curtailed. We have moved from a past characterized by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional State where State action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional State presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution. Arbitrariness must also inevitably by its very nature, lead to the unequal treatment of persons. Arbitrary action or decision-making is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way. Without such a rational justifying mechanism, unequal treatment must follow.'

7.29 Thanks to Hlophe's enormous contribution to the sophisticated doctrine of legitimate expectations, our courts have been enabled to come to the aid of persons who would have in previous situations been unable to obtain redress in matters where the application of administrative discretion is of paramount importance. 

8. HLOPHE'S PRINCIPLED STANCE AGAINST ODIOUS APARTHEID SECURITY LEGISLATION AND HIS CONTRIBUTION TO TRANSFORMATIVE CONSTITUTIONALISM

7.30 At the height of apartheid repression and during the state of emergency Hlophe wrote an article entitled "Natural Justice: Whether detainees have a right to be heard under the Internal Security Act No. 74 of 1982" (1987) 104 SALJ 392. Hlophe was above all else deeply concerned about the rights of detainees under the notoriously draconian security legislation. While the apartheid Parliament purported to be sovereign and its laws supreme and while it arrogated to itself the right to exclude the rules of natural justice either expressly or by implication, the common law demands that the courts must enforce the rules of natural justice. The imposition of this obligation prior to the issuance of the notice ensures that at least some intensive thought will go into the decision to make use of this draconian legislation. Hlophe was amongst the few scholars to recognize that the rules of natural justice are adaptable in their use. The rules can impose varying criteria in different situations, which can be adapted to protect fundamental rights even in the face of apartheid tyranny. Id. 396-7.

7.31 Adriaan Anderson in his "Preventative Detention in Pre-and Post Apartheid South Africa: From a Dark Past to a Brighter Future"[67] makes the following profound observation:

"The history of detention in South Africa demonstrates that it was directly linked with political events and a central device to control and suppress democratic black opposition to white minority domination. Detention without trial was one of the central elements in the repressive apparatus of the South African state. And in the minds of many people the notions of detention and torture were synonymous, despite state claims to the contrary. As time went by, and the perceived threat of a communist-inspired, black dominated overthrow of the white minority government increased, security provisions became increasingly draconian in order to silence growing opposition and protest. The "violent-action campaign" adopted by the ANC, PAC and SACP in the latter stages of the struggle, added fat to the fire of legislative and executive "counter-revolutionary" actions. Detention, including preventative detention, was only some of the methods employed to suppress unrest and protest."

7.32 Anderson then asks a rhetorical; question, "Where were the lawyers?" which he answers as follows: "This is indeed a valid question. But since the political system was a Westminster-type system of superiority of parliament, the ruling party would simply enact the legislation specifically excluding judicial scrutiny. Both the Association of Law Societies as well as the General Council of the Bar criticized the Rabie Report and declared the safeguards for detainees recommended therein as inadequate. Various prominent lawyers and legal academics vilified the security provisions in journals and other publications. And though there were valiant attempts by defence council to challenge the fundamentals of preventative detention, and from time to time high-court judges that required the Minister to furnish reasons for his "opinions", and who recognised the incompatibility of the security legislation and emergency regulations with fundamental common-law rights, they were ultimately thwarted by the executive-mindedness of the Appellate Division. Prof Raymond Wacks in an article in the SA Law Journal titled Judges and Injustice argued that South African judges properly allowed themselves to be guided by the "morality" or "institutional history" of the white community in exercising their choices." Hlophe was one of those academics who "vilified the security provisions in journals and other publications" but the refusal by certain self-appointed gate-keepers of the black liberation struggle to recognize his scholarly contribution is itself a by-product of apartheid. There were very few African legal academics writing about such sensitive subjects. For that reason, the few who ventured to do so are likely to be overlooked and treated as invisible objects. It is puzzling how white liberals can claim that African intellectuals like Hlophe who were participating in the people's struggle and advocating protection of the human rights of detainees and doing their utmost to undermine apartheid "took no part in the struggle."

7.33 Hlophe's contribution, and his incisive analysis are cited in a book "Preventive detention and security law" 1993 By Andrew Harding, John Hatchard (p.218). A book review of the same give a clear picture of the human rights issues Hlophe involved himself in: "Preventive detention law is a subject which continues to receive great international attention. In recent years the legal rights of detainees have been more and more frequently litigated, and significant new approaches have been developed. There is, however, no current publication which deals with the new preventive detention law. The purpose of this book is to provide a discussion of the new preventive detention law in 15 common-law jurisdictions, mainly in Asia and Africa, focusing on the practical operation of the law rather than the theoretical issues relating to the legitimacy of such laws. The book will be of practical assistance to those practicing or studying this important area of law. It will be of particular interest to human rights lawyers, activists and researchers. All the chapters are contributed by academics or practitioners specializing in the field of human rights law."

 9. HLOPHE'S PIONEERING ADVOCACY OF RIGHT OF EFFECTIVE ACCESS TO COURT AND USE OF AFRICAN LANGUAGES

9.1 As a scholar Hlophe has written extensively on the subject of using African langages in our courts as part of transformation and ensuring the African majority's access to justice. See, Hlophe, J. M. 2003. Receiving justice in your own language - the need for effective court interpreting in our multilingual society[68]. Hlophe has advocated the use of African languages in the courts as part of his quest to make justice accessible to ordinary South Africans. See also, JM Hlophe, 'Official Languages and the Courts' (2000) 117 SALJ 690. .HLOPHE, J.M., "Official Languages and the Courts," South African Law Journal, Vol. 117, Part 4, 2000, p. 695. See, also "HLOPHE: SAfm Radio Transcript, "Language of Justice" Interview with Judge President of the Cape High Court J.M. Hlophe." Broadcast date: 29 October 2003. Transcript accessed online: www.safm.co.za/transcripts/index.jsp?transcriptid=4054

9.2 As a judge, Hlophe had an opportunity to put his theory into practice in a major case involving economic and social rights under our constitution. That was in the precedent-setting decision Cape Killarney Property Investments (Pty) Ltd v Mahamba and 543 others. The case turned on the interpretation of section 4 of the Prevention of Illegal Eviction Act. It followed attempts by Cape Killarney Property Investments to evict the inhabitants of an informal settlement set up on the company's land in Blaauwberg, in the Western Cape. The company obtained an order evicting the occupiers from the Cape High Court in June 1999. The order was set aside by Hlophe in the same court, and the matter was then brought on appeal to Bloemfontein. In his ruling, Hlophe confirmed, with reference to the right to housing, that eviction orders may only be granted after all relevant circumstances had been considered. He employed a transformative interpretation of the amorphous "relevant circumstances" concept in a manner which protected the poor and vulnerable. He ruled that the purpose of the notice was to protect occupants by warning them that their occupation was threatened, informing them of their rights and remedies in terms of the provisions of PIE. It would therefore not be sufficient to merely have the notice in writing and in English, because the effectiveness of the notice is as important as its form. Hlophe DJP held that, in the circumstances of that case, where the overwhelming majority of the respondents were Xhosa-speaking, a notice in the English language unaccompanied by a Xhosa translation was not 'effective' within the meaning of s 4(2) (see at 75C - 76G). He also held that, since a substantial proportion of the respondents were illiterate, the notice should have been conveyed, in Xhosa, by a loudhailer throughout the community (see at 75C - G). In the Supreme Court of Appeal, the appeal was dismissed on other grounds. It was therefore found unnecessary to express any view on the correctness of these findings. Once again, this is clear evidence exposing as fabrication the oft-repated statements by some ill-informed people that Hlophe is "anti-poor" or insensitive to the constitutional rights of our citizens.

9.3 In terms of rules of practice in eviction matters, Hlophe's judgment has a revolutionary effect: Further statutory interpretations ensured that in all cases potential evictees (often previously evicted without ever having seen court papers)[69] were to have two sets of papers served on them before an application could proceed. Cape Killarney Property Investments (Pty) Ltd v Mahamba & Others 2001(4) SA1222 (SCA). In addition to procedural protections such as adequate notice of pending eviction proceedings, PIE requires that, before granting an eviction order, the courts must be of the opinion "that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women." PIE, Sect. 4(6).

9.4 Hlophe's judgment has been cited with approval by many other high court judges.[70] The LRC with which Chaskalson was associated has claimed the following about Hlophe's decision in Cape Killarney: "The LRC has intervened in the past few years in several matters which seek to expand upon the rights of land occupiers and tenants not to be evicted unless by a court which has considered all of the relevant circumstances. In its attempts to contribute to the creation of a jurisprudence of landlord-tenant relationships, the LRC's interventions are recorded in the Ross decision, which has been subsequently overruled, the Ndlovu decision (NPD), and the Cape Killarney Properties decision."[71] 

9.5 Hlophe's judgment is also cited in "Socio-economic rights in South Africa By Danie Brand, Christof H. Heyns, University of Pretoria. Centre for Human Rights. Another scholar Seehaam Samaai[72] notes the importance of the decision. Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) at para 20 confirmed the decision of the court a quo with regard to the service of notices. It stipulated that section 4(2) of PIE is peremptory. The court a quo stipulated that the notification had to be in a language, which the occupants understand as a large majority of them were illiterate and could only speak Xhosa. The SCA required that the notices had to be read in Xhosa, to ensure due process and fairness within the eviction process.

9.6 The writer concludes as follows:

"If evictions are invoked unfairly it leads to undue hardships and destitution. Compliance with the procedural and substantive provisions of the Acts cannot be over-emphasised as it facilitates fairness within the eviction process, which provides a better opportunity for the parties to place all the relevant circumstances before the court thus ensuring that the eviction processes do not disproportionately affect one of the parties. Factors which promote fairness and due process are, inter alia, effective and proper notification before an eviction, the right to legal representation and to be consulted before the eviction, proper identification of the occupiers who are to be evicted and that evictions happen at an appropriate time so as to mitigate the harshness of the eviction.

 Procedural requirements, which facilitate fairness within the eviction process, are provided for in PIE.. and ESTA... Despite clear procedural requirements and a body of case law setting out directive guidelines on the procedures to be followed, many cases have fallen foul of the procedural requirements, which resulted in many matters being set aside by the courts on appeal or review. This is reflected in matters where there has been non-compliance with the effective serving of notices...." (Page 29).

9.7 In the Human Development Report 2000, HUMAN DEVELOPMENT AND HUMAN RIGHTS SOUTH AFRICAN COUNTRY STUDY by Sandra Liebenberg,[73] the author notes that the "High Courts are also playing a key role in protecting people against arbitrary and unfair evictions from their homes" and then cites Hlophe's judgment in Cape Killarney Property Investments for her proposition.

9.8 Bongani Majola, former National director of the Legal Resources Centre (the very outfit associated with Chaskalson) stated in a document entitled "At least 21 reasons to celebrate the LRC's 21 st birthday"[74] the following: "For more than 21 years, the Legal Resources Centre (LRC) has provided legal assistance to poor and vulnerable people in South Africa. But since the adoption of an entrenched Bill of Rights in our Constitution only a few years ago, the LRC has made significant contributions to the development of a human rights jurisprudence and the strengthening of constitutional democracy in our country. Standing at the brink of the 21st century, as we celebrate more than 21 years as a leading public interest law centre in this country, we consider 21 cases in which the LRC helped define and give meaning to some of our new constitutional rights. The cases range from the right to access to adequate housing to the right to life, and from the right to gender equality to the right to a fair trial." The former LRC Director then goes on to cite Hlophe's case, Cape Killarney, as number 11 of the 21 reasons for the LRC to celebrate. It is one of the key decisions emanating from Hlophe's division establishing the right not to be evicted without a court order. Two of the cases are reported as Ross v South Peninsula Municipality 2000 (1) SA 589 (C) and Cape Killarney Property Investments (Pty) Ltd v Mahamba 2000 (2) SA 67 (C). He goes on to state: "Thousands of South Africans have been made homeless despite section 26 of the Constitution which states that 'no one may be evicted from their home or have their home demolished, without an order of court made after considering all relevant circumstances.' The LRC has intervened in the past few years in several matters which seek to expand upon the rights of land occupiers and tenants not to be evicted unless by a court which has considered all of the relevant circumstances. In its attempts to contribute to the creation of a jurisprudence of landlord-tenant relationships, the LRC's interventions are recorded in the Ross decision, which has been subsequently overruled, the Ndlovu decision (NPD), and the Cape Killarney Properties decision."

9.9 In an ironic twist, Steve Kahanovitz a lawyer working at the LRC states on his CV[75] the following: "...Kahanovitz works at South Africa's premier public interest law group the Legal Resources Centre. After many years representing clients facing an oppressive apartheid state, his primary work since the adoption of a democratic Constitution with its Bill of Rights has been in the realisation of socio-economic rights on behalf of the LRC's poor clients. Several of these cases have become important precedent setting cases in relation to housing and evictions including cases setting out the procedural requirements for eviction (Cape Killarney Property (Pty) Ltd v Mahamba & Others 2001(4) SA1222 SCA)." Once again those who cling to the false allegations that Hlophe is "anti-poor" will be confronted with the obvious craters that appear in their façade of their narrative. All fair-minded South Africans including this JSC must ask themselves whether our judicial nomination politics can accept with integrity situations where certain prominent people hail Hlophe for "important precedent setting cases in relation to housing and evictions including" in private while at the same vilifying Hlophe as "anti-poor" and someone who played "no role in the struggle against apartheid." Chaskalson, the maion proponent of these falsehood and distortions has assiduously edited Hlophe's contributions out of his narratives. Worst of all, he has assiduously rewritten history to deny Hlophe's association with and work history at the LRC!

9.10 The opportunistic attacks on Hlophe are exposed when one considers the praises heaped upon Hlophe by some community activists after the Cape Killarney Property ruling. The Western Cape Anti-Eviction Campaign hailed the judgment as follows: "No evictions without a day in court". It went on to state the following: "No one may be evicted from land they occupy without having a chance to state their case in court, the Supreme Court of Appeal ruled in a judgment delivered in Bloemfontein on Monday. The judgment in Cape Killarney Property Investments (Pty) Ltd v Mahamba and 543 others turned on the interpretation of section 4 of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act. It followed attempts by Cape Killarney Property Investments to evict the inhabitants of an informal settlement set up on the company's land in Blaauwberg, in the Western Cape. The company obtained an order evicting the occupiers from the Cape High Court in June 1999. The order was set aside by another judge in the same court, and the matter was then brought on appeal to Bloemfontein. The company may still apply for an eviction order, but both parties must be allowed to state their case, the court ruled. "[76]

9.11 In fact, the only groups to complain about Hlophe's decision were landlords and their representations. See, City of Cape Town v. Rudolph and Others 2004 (5) SA 39 (C) where the court stated: The Supreme Court of Appeal has recently ruled that s 4 of PIE requires two notices in respect of eviction proceedings. A notice of motion as prescribed by Rule 6 of the Rules of Court to be served in accordance with Rule 4 thereof and, in addition, a separate notice in terms of s 4(2) of PIE. (See Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA).) Mr Le Roux characterises the effect of the SCA judgment as: 'Effectively [making] it impossible in law for any land-owner to evict an unlawful occupier from his/her land or home under a period of 14 days, (in practice this period is likely to become many weeks or months as a result of the logistics involved e.g. translations that have to be made, notice boards that have to be manufactured, etc) and even then eviction is only possible after strict compliance with the provisions of the Act. In the cases of certain urgent matters which comply with s 5 of the Act it is theoretically possible to evict under 14 days, but also only if there is compliance with that section."

10. HLOPHE'S SEMINAL DECISION EVIDENCING HIS BELIEF IN JUDICIAL INTEGRITY AND PRESUMPTION THAT THE JUDICIARY IS IMPERVIOUS TO IMPROPER EXTRANEOUS INFLUENCE

10.1 Judge Hlophe has demonstrated his firm belief in judicial integrity and has articulated a view of judicial influence that has influenced the Constitutional Court's decision of a major case involving judicial independence. It is a judicial philosophy that only the most seasoned of judges understand. Very early in his judicial career, Hlophe ruled that an objection to his or her race can never be a reason for a presiding officer to recuse himself or herself. Apart from the fact that the objection itself is reprehensible, it would make litigation in a multi-racial country such as ours impossible. It should not be tolerated. That was in S v Collier 1995 (2) SACR 648 C where the appellant, a black person, objected to the race of a white magistrate who presided over his trial. He demanded to be tried by a black magistrate. He argued that the white magistrate's refusal to recuse himself contravened section 25(3) of the Constitution, because the magistrate and the complainants were white, and some of the charges against the appellant had certain racial connotations attached to them. Hlophe J, in the judgment, referred to Professor LG Baxter, Administrative Law, at 566, where the learned author gives a commonly cited example, namely, that the mere fact that a decision-maker is a member of the SPCA, does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals.

10.2 By the same token, Hlophe J, stated the obvious principle: "the mere fact that the presiding officer is white, does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true". This precedent-setting case was followed by the Constitutional Court in a major case, President of the Republic of South Africa and Others v South African Rugby Football Union and Others - Judgment on recusal application (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999). In that case, Louis Luyt made a recusal application on the basis that some of the judges of the Constitutional Court had a history of links with the ANC and would, therefore, not be able to give him a fair hearing in his case against then president Nelson Mandela. The additional allegations made by the Luyt collectively with regard to Chaskalson P, Langa DP, Sachs J and Yacoob J were the following:

17.1 Four judges have "had extremely close ties with the ANC ", and a finding against the appellants would be adverse to the interests of the ANC and the President;

17.2 An adverse credibility finding against the President would have serious political implications for the government, and the ANC as a political party, especially as the appeal was being heard on the eve of the national elections.

10.3 In dismissing the application, the Constitutional Court followed Hlophe's lead and referred to "... a presumption that judicial officers are impartial in adjudicating disputes." This is based on the recognition that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence. Social relationships, collegiality, entreaties from relatives and friends or political connections are never supposed to enter into the decisional calculus when a judge adjudicates a case. Individuals having conversations or mere social banter with judges are entitled to rely on this legal presumption and trust that no judge will easily succumb to any influences. Hlophe's ruling was not a denial of racism even from amongst his judicial colleagues. Rather, it was a recognition of the constitutional duty of each judicial officer to decide cases independently and free from improper influences. Significantly, the court also referred to the judgment of Hlophe J in S. v. Collier. As the court reports:

"Before the commencement of a criminal trial in the magistrate's court, the accused insisted that he be tried by a black magistrate. The white magistrate before whom the matter was called refused to recuse himself. In dismissing an appeal against that decision, Hlophe J said:‘ Equally, the apparent prejudice argument must not be taken too far; it must relate directly to the issue at hand in such a manner that it could prevent the decision-maker from reaching a fair decision. ... Professor Baxter gives a commonly cited example, namely the mere fact that a decision-maker is a member of the SPCA does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals. By the same token, the mere fact that the presiding officer is white does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true. Otherwise no black magistrate or Judge could ever administer justice fairly and evenhandedly in a matter involving white accused.' For the reasons set out above, the argument that the white magistrate erred in refusing to recuse himself upon being asked to do so at the appellant's trial is both unfortunate and untenable. The fact that he is a white person does not disqualify him from presiding in a case involving an accused belonging to a different race ..."

10.4 Hlophe's decision which is cited with approval by his Concourt colleagues also makes an enormous contribution to South Africa's jurisprudence insofar as it can be extended to, and addresses the proper approach to concerns relating to the choice of judge in the various highly sensitive legal proceedings against prominent individuals in our society. It rejects the naïve assumption that in light of out apartheid past, certain sensitive cases should be assigned to certain judges based on their race, gender, political background etc. Hlophe's decision in S v. Collier makes abundantly clear the legal presumption that judges are supposed to decide cases without regard to race considerations or political loyalties. If rule of law is to survive, our courts must not succumb to the views advocated by some that in any matter against say a prominent black person, a judge who has struggle credentials or is black must invariably be appointed to placate certain constituencies.

10.5 Hlophe recognized and rejected the well-intentioned argument in certain legal circles that any kind of political pressure or particular sensitivities about race, must be taken into account in order to ensure that the trial is regarded by the generality of the public as credible. In his view, the judiciary must always resist the temptation to yield to political pressure because of the potential to do irreparable harm to the independence and integrity of our judicial system. Appointing a black or female judge on bases other than the ability of such a judge to deliver a judgment only on the strength of the evidence presented to the court will likewise set a dangerous precedent.

10.6 Hlophe's approach has continued to guide judges at many levels of our judiciary including the Concourt, Labour Court etc. See, Cell C (Pty) Ltd v Finger and Others (JR251/06) [2006] ZALC 48 (28 March 2006) (Revelas J where the applicant instituted an urgent application to review and set aside the decision of the third respondent, a commissioner who had recused himself from arbitration proceedings, following an objection by the first respondent (who describes himself as a black man) to the race of the arbitrator who is Indian. The applicant also sought an order compelling the arbitrator to discharge the duties under the Labour Relations Act no 66 of 1995, as amended ("the Act"), and to arbitrate the dispute to its finality. Judge Revelas stated:

"The dispute was referred to the second respondent ("the CCMA") by the first respondent, against the applicant, and related to an alleged unfair dismissal. The basis of the first respondent's racist objection was that since the applicant's attorney and counsel were also indian, and the arbitrator was "pre-appointed", he (as a black person) perceived the situation as "racially imbalanced" against himself."

[3] The third respondent clearly rejected any notion that there were grounds for his recusal, but held:

"Having heard this application, I find that the affront to my dignity may lead to the seeds of bias being planted. In the circumstances, it will be in the interest of both parties if the matter is heard before another commissioner".

After he recused himself, the arbitrator made a punitive cost order against the third respondent's attorney, despite the fact that he was functus officio."

10.7 The JFH invites the JSC and honest members of the public to delve deeper and scrutinize Hlophe's jurisprudential record. We are very confident that Hlophe's enormous contribution to justice in our country, which spans almost three decades, will be recognized.

11. HLOPHE'S PROTECTION OF THE RIGHTS OF THE POOR IN ROAD ACCIDENTS FUND COMPENSATION DEBATES

11.1 Hlophe has taken positions that protects the rights of the poor in compensations for automobile accidents. See, "Road Accident Fund Commission Report" 2002 Volume 1 Chapter 17 discussing The "Safety Net" - Thresholds and Ceilings p.449[77] Part of the Report dealt with the subject "Inequitable Subsidisation" and stated the following about Judge President Hlophe:

"17.117 As mentioned above, the present system of unlimited compensation is considered to perpetuate gross inequity between road users whose compensation is not proportionate to their contributions towards the fuel levy or to their needs but is related solely to their pre-accident economic and social status.

17.118 In this regard the public/private health forum in Cape Town comments that "there is cross-subsidisation and the poor are subsidising the rich".

17.119 Judge President John Hlophe believes that "the State has to treat its citizens equally" and should therefore pay a flat figure for all citizens, irrespective of their means."

11.2 So much for the slanderous and outrageously false claims by some that Hlophe is anti-poor. Judge President Hlophe did not mince words - he stated his belief founded on our constitution that "the State has to treat its citizens equally" and should therefore pay a flat figure for all citizens, irrespective of their means. See, Road Accident Fund Commission Report 2002 Volume 1 Chapter 17 (The "Safety Net" - Thresholds And Ceilings p.449). He was speaking against the inequitable compensation under the Road Accident Fund where the poor virtually subsidized the rich.

12. HLOPHE'S JUDGMENTS REFLECT AN ABIDING RESPECT FOR THE CONSTITUTIONAL RIGHTS OF VULNERABLE WOMEN AND CHILDREN

12.1 Hlophe has demonstrated wisdom, compassion and courage in a number of cases interpreting the rights of women and children. However, the leading case, Greenspan v. Greenspan 2000 (2) SA 283 (C) 2000 (2) SA P.283 truly stands out as a case where Hlophe adopted a proactive approach in a highly contentious and increasingly acrimonious divorce case. The case involved a fabulously wealthy man "described by Lategan J as 'an enormously wealthy man in any terms . . . [who] is worth in the vicinity of R100 million'." His wife who had initiated a divorce action sought an order that the husband should pay a contribution of R250 000 towards her costs in the divorce action. It was common cause between the parties that the husband had already paid about R56 000 as contribution towards the wife's costs in the divorce action. The wife asserted that was just not good enough, regard being had, inter alia, to complex factual issues that would arise with regard to the fixed property in Houghton, coupled with the fact that the husband himself was "conducting litigation on a luxurious scale." Hlophe took note of the unequal or asymmetrical relationship between the parties and the fact that the husband's "legal team, save Mr Rogers, comes from Johannesburg. This includes senior counsel and a Johannesburg attorney. It is also a fact that the respondent's attitude has throughout been that his financial circumstances are irrelevant for purposes of the divorce action. That is obviously not true, as the respondent will soon find out."

11.1 Hlophe concluded: "The respondent was described by Lategan J as 'an enormously wealthy man in any terms . . . [who] is worth in the vicinity of R100 million'. This is not to say the respondent should be punished for his wealth. The [wife] is entitled to litigate on a scale commensurate with the means of her husband. She is certainly not expected to litigate upon the basis that she has to watch every penny that is spent in litigation. Her husband is clearly conducting litigation on a luxurious basis. The applicant likewise is entitled to conduct litigation on a similar basis (see Glazer v Glazer 1959 (3) SA 928 (W) at 932; Nicholson v Nicholson 1998 (1) F SA 48 (W) at 52; Cary v Cary [1999] 2 B All SA 71 (C) at 76 - 7). In all circumstances of the case I consider that an amount of R56 000 as a contribution towards costs already paid by the respondent to the applicant has proved to be inadequate. I am quite satisfied that a case has been made out for increasing the contribution towards the applicant's costs. In my view the respondent should be ordered to make a further contribution in the amount of R100 000 towards the applicant's costs. The said amount should be paid by the respondent by no later than two months as of the date of this judgment."

11.2 How does this case advance the cause of equality for women, especially vulnerable women of limited economic means going through an acrimonious divorce battle? In some bitterly fought divorce cases, there is usually a temptation for the wealthy and powerful partner (more often the husband) to wage a divorce litigation in a manner calculated to harass, harangue, and intimidate the other party, and to create a kind of economic slavery by utilizing vast amounts of marital funds in a really destructive way. The wealthy husband may surround himself with an entourage of lawyers, experts, consultants and other paid henchmen resulting in high costs of litigation to the detriment of the wife and children. The message from case is that Hlophe is not the type of judge who stands idly by while lawyers and their wealthy clients engage in all manner of scorched earth tactics - throwing mud on the other party in order to "win" at all costs. Hlophe sent an unmistakable message that the courts are willing to do something to redress that imbalance. Parties can no longer assume that having money gives them the right to wage these frivolous, scorched-earth campaigns without risking paying the price for the other side. And if they do, they do so at their own peril. Recognizing the wife's right to "litigation on a luxurious basis" levels the playing field and may have a sobering effect on parties who utilize scorched earth tactics, initiated without thought to the cost inflicted upon the wife and the children. Leveling the playing field in this manner clearly advances the cause of gender equality and is clearly based on the recognition of the women's right to equality enshrined in our constitution. So much for the false allegations that Hlophe is insensitive to the struggles for equality and is "anti-poor."

11.3 In another precedent-setting case, Magewu v Zozo and Others 2004 4 SA 578 (C) Judge President Hlophe's courageous leadership and his abiding concern for the constitutional rights of women and children were all on display. In what started as a run-of -the mill maintenance case, Hlophe confirmed a creditor's common-law right to obtain an interdict against a creditor in order to prevent the creditor from disposing of funds with the purpose of frustrating the claim of the creditor. Hlophe also ruled that the Maintenance Act and Pension Funds Act must work together in order to provide relief to the applicant and that the Maintenance Act "opened new legal avenues to deal with recalcitrant fathers." Hlophe also stated that he has a constitutional duty "to develop new mechanisms of granting the applicant a means to vindicate her constitutional rights" - courts are obliged to shape new remedies in order to vindicate the infringement of an entrenched right. 584E-G. See also Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 826G-I (courts are obliged to shape new remedies in order to vindicate the infringement of an entrenched right).

11.4 Hlophe's ruling has been cited with approval by the Constitutional Court , his judicial colleagues, academics and legal scholars at home and abroad. In a paper entitled "TEN YEARS OF DEMOCRACY - THE ROLE OF WOMEN IN ESTABLISHING DEMOCRACY IN LAW"[78] and delivered at a gathering of INTERNATIONAL ASSOCIATION OF WOMEN JUDGES, FORMATION AND LAUNCH OF THE SOUTH AFRICAN CHAPTER OF THE IAWJ 6 - 9 August 2004, Cape Deputy Judge President Traverso stated the following:

Women's day is a day of celebration. It is a day when the social, economic, and political achievements of women are commemorated and the struggles for women's rights are acknowledged and affirmed. On the 9th of August we honour those women who, 48 years ago, marched to the Union Buildings to demand an end to unjust apartheid laws. Their passion for freedom, equality, and human dignity gave us a gift of which the benefits are still being reaped today, and will continuously be reaped long into the future. The launch of the South African Chapter of the IAWJ serves as a manifestation of their contribution. The celebration of women's day in 2004 is thus both a celebration of the constitutionalization of women's rights and the integration of women's issues into the human rights debate, as well as a commemoration of those women who, especially over the last ten years, have been responsible for the enhancement of human dignity, the achievement of equality and the advancement of human rights and freedoms, values true to the spirit of democracy. Women have always been at the forefront of these struggles, not only assuming the responsibility for the advancement of their rights but also the advancement of rights of people in general. For that reason, I want to pay homage today to those women who, in the ten years of our democracy, have had the courage to contest the injustice and the indignities not only suffered by women, but by all South Africans, and who have, through their tireless efforts, succeeded in ensuring that the courts uphold those rights which underpin our democracy. Most of these women are just the ordinary citizens of this country, the "unsung heroes" who, despite suffering some demoralising defeats, remained persistent in their challenges. Of course there are many of these women, too many to all be mentioned in the short time which is available to me, and therefore I will only be able to briefly discuss some of their cases. I am however sure that you will agree with me that these women, by taking legal action, are the women who, in the words of the official theme of Women's Month 2004, are "building a better South Africa and a better world".

11.5 Traverso went on to specifically recognize the "courageous action" by Ms. Magewu, a litigant in Hlophe's court. She continued:

A handful of very brave mothers have led the way in ensuring that maintenance orders are observed and that their children receive the care and protection to which they are entitled. In Bannatyne v Bannatyne[79] the Constitutional Court held that the logistical difficulties of the maintenance system were compounded by the gendered nature thereof. After numerous attempts to force her ex-husband to adhere to the maintenance order granted against him, Nadena Bannatyne applied to the Court to have him imprisoned for contempt of court. The Court granted this order while emphasising that effective mechanisms for the enforcement of maintenance obligations are essential for the simultaneous achievement of the rights of the child and the promotion of gender equality. This was also the approach of the Court in Magewu v Zozo and Others... where it was held that the attachment of pension fund benefits in respect of future maintenance claims, is a direct and effective means of ensuring that the rights of the child and dignity of women are upheld. What made the case even more remarkable is the fact that Ms Magewu appeared in person and won her battle not only against the father of her child, but also against two big corporations, namely The Telkom Retirement Fund and the Old Mutual Employees Benefits.

12.7 Legal scholars have also noted Hlophe's enriching contribution. See, Elsje Bonthuys "Realizing South African Children'S Basic Socio-Economic Claims Against Parents And The State: What Courts Can Achieve" Int J Law Policy Family, December 2008; 22: 333 - 355. The author essentially argues that there are two systems for realizing South African children's basic socio-economic rights: the ‘private' system for claiming maintenance from parents and the ‘public' system of child welfare.

12.8 The article compares the courts' responses to problems in realizing children's rights in these two systems, focusing particularly on the emerging jurisprudence dealing with recalcitrant social welfare departments. Although courts have been willing to adopt innovative and severe measures against private maintenance defaulters, a similar willingness to issue drastic orders against malfunctioning government departments only arose once it became clear that they were deliberately ignoring court orders. "Failures in both systems have prompted the courts to craft original, socially responsible legal rules and to limit the technical defences that prevent the realization of constitutional rights. In the welfare cases, courts have assumed sweeping remedial powers against government officials, relying on the claimants' fundamental constitutional rights. The article concludes by setting out the limits of court intervention in ensuring effective realization of children's rights, especially for the most disadvantaged children."

12.9 The Constitutional Court itself has acknowledged Hlophe's contribution to the jurisprudence of equality for women and protection of children. In S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); (26 September 2007), the constitutional court noted that whilst it must be borne in mind that the best interests of the child are of paramount importance,1section 28(2) like other rights enshrined in the Bill of Rights is subject to limitations that are reasonable and justifiable in compliance with the provisions of section 36 of the Constitution. This right creates an independent right that goes beyond the scope of the rights enumerated in section 28(1) of the Constitution. The court cited with approval, Hlophe's decision in Magewu v Zozo and Others 2004 (4) SA 578 (C) at para 18.

13. HLOPHE'S RULINGS ON THE TRC AND OTHER CONTROVERSIAL CASES - CASE OF A FIERCELY INDEPENDENT JURIST

13.1 One could write a whole PHD dissertation on Judge President Hlophe's contribution to the law, his influence on his colleagues in the law, at home and abroad, but we wish to restrict ourselves to several reported cases illustrative of his enormous influence and stature in the judiciary. Judge Hlophe has won support from various political groups with his common-sense decisions, loyalty to the constitution and sharp intellectual instincts.

13.2 The first controversial case that comes to mind is the case involving the African National Congress v The Truth and Reconciliation Commission: Case No. 1480/98 (Cape of Good Hope Provincial Division). The narrative that follows is taken straight out of the TRC report. This matter involved the ruling ANC's legal challenge to the publication of the TRC report. During the early hours of the morning of 29 October 1998 - the date of the scheduled handover of the Commission's Report to the President in Pretoria - the ANC launched an urgent application to the High Court for an interdict restraining the Commission from publishing any portion of its Final Report that implicated the ANC in gross violations of human rights before the Commission had considered certain written submissions it had received from the ANC on 19 October 1998. The ANC's submissions were largely critical of the Commission's competence, integrity and bona fides in respect of the findings on the ANC. The ANC was especially concerned in view of the fact that the struggle for liberation against the unjust system of apartheid was in itself morally and legally justifiable in terms of international law.

13.3 This was no doubt a politically sensitive legal issue that required wisdom and courage for its resolution. After all, the TRC also analysed the role of the liberation movements during the mandate period. The Commission also made a distinction between human rights violations committed: firstly, by the armed combatants of the liberation movements in the course of the armed struggle; secondly, against their own members outside South Africa and, thirdly, by their supporters during the 1980s and after the unbanning of the organisations concerned on 2 February 1990. The ANC failed to respond within the time limit stipulated. Instead, it entered into a series of correspondences with the Commission, seeking an extension of the deadline and requesting an audience with the Commission to discuss the findings the Commission intended to make against it. The Commission was required to set certain absolute deadlines for the receipt of information in order to finalise the editing, printing and publishing of the Final Report by the already determined handover date of 29 October 1998. Yet, despite various extensions acceded to by the Commission, no written submissions were forthcoming from the ANC.

13.4 The Commission also explained in detail to the ANC why it could not grant the requested audience and, on 2 October 1998, informed the General Secretary that 5 October 1998 would be the last date on which the Commission would be able to consider any submissions. The ANC blew that deadline again and on 19 October 1998, the ANC made its submission to the Commission. On 6 October 1998, the Commission informed the ANC that the submission had arrived too late to be considered but that, nevertheless, some but not all the Commissioners had been given access to the submission and that much of the factual content referred to in the objections had been rectified during the editing process. The ANC was also assured that its position as a liberation movement had been contextualised in the chapter on ‘The Mandate' and that the findings of the Commission were based on a careful analysis of the evidence placed before it. The ANC launched a court application assailing the TRC ruling.

13.5 In a judgment by Mr. Justice J Hlophe, (as he then was) the court dismissed the ANC's application with costs. In summary, the court found that the onus was on the ANC to establish the existence of a clear right (or a right clearly established in its favour) for the granting of an interdict to prevent the publication of the Commission's findings against the ANC. The court found that the Commission was entitled (in terms of section 30(1) of the Act) to adopt a procedure for the purposes of implementing the provisions of section 30(2) (the notice provisions). The procedure was to invite submissions in writing before it made findings to a person's detriment or to receive evidence at a hearing of the Commission, as the case might be. The court found that there had been no timely objection by the ANC to the fifteen-day notice period. This was substantially in accordance with the ruling in the case of Niewoudt v Truth and Reconciliation Commission 1997 (2) SA 70 SECLD at 75 H-I. The ANC had not argued that this time period was unreasonably short, nor had it elected to testify at a further hearing of the Commission. The ANC was, as a result, lawfully obliged to respond to the section 30(2) notice by no later than 8 September 1998 and, in the circumstances, had no right to insist on a further extension of time. Any extension of time granted by the Commission would be the result of largesse rather than legal obligation. The Commission had clearly impressed on the ANC that it should make its submissions by 5 October 1998, given the Commission's responsibility to finalise the report for handover to the President. Because the ANC submission tendered on 19 October 1998 was extensive and contained serious allegations regarding the Commission's competence, integrity and bona fides, it was unreasonable to have expected it to convene as a body between 19 and 29 October 1998 to discuss and deliberate on submissions delivered so late in the day. The court found that the ANC had failed to prove that the Commission had either condoned the late filing of the submission (in terms of section 30(2) of the Act) or that the ANC had a legitimate expectation of having the submission considered by the Commission, given the fact that the Commission had set 5 October 1998 as a final date for submission in extension of the original date of 8 September 1998, when the submission had been lawfully due.

13.6 Needless to emphasize that Judge Hlophe's decision displeased certain influential or politically powerful people but it is a decision that he had to make without fear or favour. He summoned his courage and wisdom and based his decision on the law and the facts. The Bard of Avon once warned that "delays have dangerous ends." William Shakespeare, The First Part of King Henry the Sixth act 3, sc. 2. Deadlines exists for a good reason and the ANC should have scrupulously observed the same regardless of its status as a ruling party. Hlophe strictly enforced the law not as a punishment for the ANC's procrastination or for its having cavalierly flouted the TRC-announced deadlines. The overarching principle here was the rule of law and equality of treatment for all litigants regardless of political stature, race, beliefs etc.

13.7 In another TRC case involving the killing of Mr. Chris Hani, Clive Derby-Lewis and Janusz Walus, Hlophe also upheld the TRC's findings and denied the killers' review application. The facts as gleaned from the Court records were as follows: On 10 April 1993, Janusz Walus shot and killed Chris Hani in the driveway of the latter's residence in Dawn Park, Boksburg. Walus was arrested on the same day, as were Clive Derby- Lewis and his wife, Gabrielle (Gaye) Derby-Lewis. They were all charged in the Witwatersrand Local Division of the High Court with, amongst other things, the murder of Mr. Chris Hani. All three accused pleaded not guilty, but both Derby- Lewis and Walus were convicted of the murder of Mr. Hani and the unlawful possession of the murder weapon (a Z88 pistol). Derby-Lewis was also convicted of the unlawful possession of five rounds of ammunition. Gaye Derby-Lewis was acquitted of all charges against her. On the 15 October 1993, both applicants were sentenced to death on the murder count. Both Derby-Lewis and Walus appealed to the Supreme Court of Appeal against their convictions and sentences; but their appeals were turned down in November 1995. The death penalty was, however, declared unconstitutional by the Constitutional Court on 6 June 1995.[80] As a result, the applicants escaped the gallows and had to be re-sentenced by the trial court. On 14 November 2000, the court imposed sentences of life imprisonment on both Derby-Lewis and Walus.

13.8 In April 1996, the applicants applied for amnesty for the murder convictions and the unlawful possession of the murder weapon and, in the case of Derby-Lewis, the illegal possession of ammunition. The SACP and the family of Mr. Chris Hani strenuously opposed the applications for amnesty. The applications for amnesty were considered by the Amnesty Committee, comprising Mr. Justice Mall (as chair) and Judges Wilson, Ngoepe, Potgieter and Khampepe. On 7 April 1999, the Committee refused the amnesty applications of both applicants. Subsequently, an application for a review of the Committee's refusal was brought before a full bench of the High Court, Cape of Good Hope Provincial Division. The applications for a review were opposed by the chairperson of the Committee as well as the Hani family and the SACP.

13.9 The basis of the Committee's refusal of amnesty was that it found that both Derby-Lewis and Walus had failed to satisfy two of the three jurisdictional pre- conditions for the granting of amnesty as set out in section 20(1) of the Act: that is, they had failed to comply with the requirements of section 20(1)(b) read together with section 20(2), and they had not made a full disclosure of all relevant facts as required by section 20(1)(c). With reference to section 20(2)(a), the Committee was not satisfied that, in assassinating Hani, the applicants had acted on behalf of or in support of the CP, the publicly-known political organisation of which both applicants were members at the time of the assassination. The Committee expressed itself as follows: It is common cause that the applicants were not acting on the express authority or orders of the CP, which party they purported to re p resent in assassinating Mr. Hani. The CP has never adopted or espoused or propagated a policy of violence or the assassination of political opponents. The CP was never aware of the planning of the assassination and only became aware thereof after the event. It never approved, ratified or condoned the assassination.

13.10 The Committee did not find it necessary to decide whether the phrase ‘on behalf of' (in section 20(2)(a) of the Act) should be interpreted narrowly. This would have had the effect of confining the application of this phrase to cases where a person acted as a representative or agent of the relevant political organization or liberation movement. The Committee held the view that, in any event, section 20(2)(a) ‘does not cover perpetrators who act contrary to the stated policies of the organisation which they purport to represent'. As the assassination of political opponents was contrary to the stated policies of the CP, the applicants had failed to comply with the requirements of section 20(2)(a) of the Act. With reference to section 20(2)(d) of the Act, the Committee found that, in assassinating Mr. Hani, the applicants were not acting within the course and scope of their duties or on the express authority of the CP. This was confirmed by the evidence tendered by the leader of the CP, Mr. Ferdi Hartzenberg, and by the applicants themselves.

13.11 In respect of section 20(2)(f), the Committee rejected the argument that the applicants had any ‘reasonable grounds' for believing that, by assassinating Mr. Hani, they were acting in the course and scope of their duties, or within the scope of their express or implied authority. Finally, the Committee found that both Derby-Lewis and Walus had failed to make full disclosure (as required by section 20(1)(c)) in respect of a number of ‘ relevant and material issues', identified by the Committee as follows:

a) the purpose of the list of names and addresses found in Walus' apartment after his arrest and on which Hani's name and address appeared;

b) the purpose for which the names on the list were ‘prioritised';

c) the purpose for which the Z88 pistol (the murder weapon) was obtained and fitted with a silencer; and

d) whether or not Walus, in assassinating Hani, was acting on the orders or

instructions of Derby-Lewis.

13.12 The applicants challenged all the above grounds provided by the Committee in refusing amnesty, and argued that its decision should be reviewed and set aside on the grounds that they had complied with all the legal requirements for amnesty. They argued that the Committee had misinterpreted section 20(2)(a); that the Committee had failed to follow the correct interpretation of section 20(2)(a) as established by other (differently constituted) amnesty committees in previous decisions where amnesty had been granted (such as the murder of Ms. Amy Biehl and the St James' Church attack); that the Committee had misdirected itself both in fact and in law in its interpretation of section 20(2)(f), and that its findings in respect of these subsections were not justifiable in relation to the reasons given for them. The case of Koos Botha, a CP member of Parliament who planted a bomb at a school, was cited. Mr Botha had been granted amnesty for purely political objectives because he ‘had interpreted the public utterances of the CP leaders as a call to violence'. With regard to the question as to whether or not Walus had acted on the orders of Derby-Lewis, they claimed that the Committee had erred in law by setting a higher standard than the Act required, because it had elevated the criterion or consideration set out in section 20(3)(e) of the Act to the status of a substantive requirement for amnesty in the context of section 20(1). With the exception of the purpose for obtaining the pistol and silencer, the other issues identified as relevant facts for purposes of section 20(1)(c) were not relevant facts required to be disclosed fully by the applicants in order to qualify for amnesty. Even if the issues referred to above, or only some of them, were relevant facts for the purposes of section 20(1)(c), the decision of the Committee in respect of each of these issues was not justifiable (objectively rational) in relation to the reasons given for them.

13.13 The full bench of the High Court (headed by Hlophe JP) decided that the questions to be decided were whether there was any merit in the applicants' main points of argument. The court considered all the evidence that had been presented before the Committee, as well as the arguments by all the parties, and analysed the various provisions of section 20 of the Act in considerable detail. The court's main findings were as follows: The court held that the established principles of interpretation should be applied in interpreting the provisions of section 20. Legislative purpose, as opposed to legislative intent, was only one of the principles to be applied. The court should not adopt a purely benevolent or a purely restrictive interpretation. The fact that other amnesty committees had interpreted or applied section 20 in an incorrect way could not create a legitimate expectation that such an error, either of law or of fact, would be perpetuated by the court. In respect of Section 20(2)(a), the court held that the applicants did not act on behalf of the CP, but that they had embarked on a terrorist foray of their own. Although the applicants said that they held the subjective belief that their conduct would advance the cause of their party, the court held that it should assess objectively whether it was reasonable for them to hold such a belief. The court concluded that the Committee had correctly rejected the applicants' contention that they fell within the ambit of this section.

13.14 In respect of section 20(2)(d), the Committee had correctly held that the applicants had not acted in the course and scope of their duties as members of the CP as required by this section of the Act, as assassination had never been one of Derby-Lewis' duties as a senior member of the CP. It followed that Derby-Lewis could not have shared a nonexistent duty with Walus; nor could he have delegated part of it to Walus. It also followed that assassination never formed part of Walus' duties.

13.15 In respect of section 20(2)(f), Derby-Lewis did not act, and could not have had any reasonable grounds for believing that he was acting, in the course and scope of his duties and within the scope of his authority in assassinating Mr. Hani. He was a senior ranking member of the CP, a parliamentarian and a serving member of the President 's Council.

13.16 Walus was, however, in a different position, as he was a rank-and-file member who was entitled to assume that Derby-Lewis had authority to speak on behalf of the party. Walus could have made a case for such a proposition and this could have led to a closer evaluation of his (Walus') beliefs and the reasonableness of them. This was not, however, the case that he had made. Walus had stated in his original application that ‘he had acted alone in the planning and commission of the deed'. Under cross-examination, he said that this was not true. He later amended his amnesty application to incorporate Derby-Lewis as his accomplice, insisting that this was the truth. Walus' version was that he believed that he had been assigned the assassination plan as an order from Derby-Lewis, given as a result of his senior position within the CP or as part of his duties as a member of the party. The court found that this claim lacked objective credibility, and therefore Walus also did not meet the requirements of this section. With regard to relevance and full disclosure, the evidence of the applicants in respect of the main issues (namely the purpose of obtaining the pistol and silencer, the purpose of the list of names and the prioritising of the names on the list) was generally improbable, contradictory and lacked candour. The Committee was correct in rejecting the applicants' evidence in these respects as being false and was, therefore, entitled to find that the applicants had failed to make full disclosure of all relevant facts as required by section 20(1)(c) of the Act.

13.17 In the result, the full bench dismissed the application with costs. Both Derby-Lewis and Walus subsequently brought an application before the same court for leave to appeal to the Supreme Court of Appeal. The court refused leave to appeal on the grounds that the applicants had failed to show that there were any reasonable prospects of success on appeal or that another court could come to a different conclusion on the same facts. On 31 May 2001, the applicants filed a petition to the Chief Justice seeking leave to appeal. The petition was refused. The applicants have now exhausted all their available remedies in law although they keep trying every avenue to get out of jail.

13.18 The case involving the murder of Mrs. De Klerk, S v Mboniswa (CC 101/2002) [2003] ZAWCHC 14 (13 May 2003) was equally controversial but handled with utmost professionalism by Judge President Hlophe. Hlophe found the individual who murdered the wife of former apartheid President De Klerk guilty of murder. Amongst other incriminating pieces of evidence were the following: Mr. Mboniswa had in his possession Mrs de Klerk's cellular telephone; her wristwatch and a torch. These items were satisfactorily identified as being the property of Mrs de Klerk. The cellular telephone and watch were hidden by his girlfriend Victoria at his request. When it later emerged that the accused was a suspect in connection with the murder the girlfriend gave the items to another individual who later gave them to the Police. The torch was found in a jacket in his room. Hlophe concluded:

"173. The only conclusion that can be drawn from the evidence before this Court is that the accused was the perpetrator of the crimes that were committed. Defence counsel attempted throughout the trial to show that another person or other persons may have been involved in the commission of the crimes, but from the evidence before the Court, no such finding can be made.

174. In addition to this evidence linking the accused to the crimes there was a detailed statement made by the accused to the magistrate in which he admitted his participation in the commission of the alleged crimes, except that of rape. This statement contains details which could only be known to someone who was at the scene at the time of the commission of the crimes in question. Many of such details were corroborated by evidence of various State witnesses. Although the so-called confession by the accused certainly confirms his involvement in the commission of the crimes, the Court did not find it to be the deciding factor in reaching its conclusion that the accused is guilty of the following crimes: ...Murder; Robbery (with aggravating circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977); Housebreaking with intent to commit a crime unknown to the State." 

13.19. Hlophe acquitted the accused on the rape charge.

13.19 Another judgment that offers a very interest insight into Hlophe's firm grasp of the law and the rights of accused persons is S v The Attorney-General of the Western Cape; S v The Regional Magistrate, Wynberg and Another 1999 (2) SACR 13 (C). The rule is generally that while an accused person must be given a fair trial, fairness is an issue which has to be decided upon the facts of each case. It follows, of course, that prejudice that an accused might suffer should generally be decided upon the facts at the trial. Such prejudice must be trial-related and not fanciful or speculative (see, id. at 25-26). The reasons for this strict procedure are self evident. Any accused is always entitled to wait for the conclusion of the trial, and if there is a conviction, to take the point on appeal or review. The power exists in limited and exceptional circumstances to prevent illegalities in lower courts which could severely prejudice the accused. Hlophe recognized that there are situations where the court will intervene in unterminated proceedings but it will only do so in cases where grave injustice might otherwise result: S v Burns 1988 3 SA 366 (C). See also Nourse v Van Heerden 1999 2 SACR 198 (W). 

14. HLOPHE'S COMMUNITY ACTIVITIES, WRITINGS AND OTHER COURT DECISIONS EVIDENCING DEEP COMMITMENT TO THE STRUGGLE AND TO TRANSFORMATIVE CONSTITUTIONALISM

1 14.1 Judge Hlophe is extremely humble - in fact humble to a fault. He has maintained a stone-faced but dignified silence in the face of false and scurrilous allegations by even his former judicial colleagues that Hlophe played no role in the anti-apartheid struggle. And yet testimony from his academic and judicial colleagues who truly know him point to verifiable evidence that shows Hlophe did play a very important role in the struggle. Hlophe's own Curriculum Vitae which is submitted with this document lists amongst other socially responsible community activities the following: Because of his deep commitment to workers'' struggles and human rights Hlophe used to give legal advice to FOSATU (forerunner to present COSATU) in the 1980's in Pietermaritzburg. Hlophe also worked at the University of Natal (Pietermaritzburg) Legal Aid Clinic giving advise to indigent persons and advancing the cause of human rights. As stated above, the most ground-breaking research and very important articles that are the hallmark of Hlophe's legal scholarship were about the South African people and their struggles against the brutality of racist oppression. They were above all else about hope for a better, kinder and gentler more democratic society in which oppression and racism would have no role. Even as an academic in England, Hlophe wrote and spoke against the vicious apartheid system - he never missed an opportunity to educate persons he encountered about the struggles of his people and their yearning for freedom. As the late ANC President OR Tambo used to say, the international campaign to isolate the apartheid regime and for the imposition of sanctions was an important part of the pillar of the struggle against apartheid. Even as a Law Professor in Umtata, Professor Hlophe gave regular advice on the radio on various Labour Law and Industrial relations issues for the benefit of the workers.

14.2 In 1995, Judge President Hlophe was awarded a prize by the Black Lawyers association (BLA)- Legal education Centre in recognition of his stellar contribution to the Development of Human Rights. Hlophe has never been reticent about stating his views on matters involving transformation of our society. See, Hlophe J, "The Role of Judges in a Transformed South Africa - Problems, Challenges and Prospects" (1995) 112 SALJ 22-31. In the apartheid era, the majority of South Africans viewed the judiciary as "illegitimate and existing to serve the interests of the ruling white people," a view reaffirmed when "the judiciary itself frequently and blatantly sided with the executive even in cases where it was not obliged by the relevant statutory instruments to do so." Id. at p.24 (1995). Indeed, judges often hid their complicity behind a separation of powers veil. Id. at 25. Since many apartheid-era judges remained on the bench during and after the transition to democracy, fears about judicial legitimacy have lingered. Id. at 24. Hlophe spoke and wrote candidly about these sensitive matters in an effort to promote dialogue and to facilitate transformation.

14.3 The transformative nature of the post-apartheid democratic Constitution, paired with the disastrous historical record of judicial over-deference to a brutal apartheid regime, led constitutional drafters and later judges such as Judge President Hlophe to assert the legitimacy of independent, proactive judicial review and to proclaim such review integral to a functioning democracy. It is a view reflected in another article by Hlophe, J ‘Judicial Control of Administrative Action in a Post-Apartheid South Africa - some Realities' 1993 Acta Juridica 105 at page 112 where he articulates a reasonableness standard which provides scope to the judiciary to enquire into the societal and factual context of the case, and to give effect to the broad governing principles in the Constitution. Writing in 1993 and at this time in South Africa's legal history and clearly a proponent of an increased activist role for the judiciary vis-à-vis the administration, Hlophe argues in favour of a reasonableness standard and states: ‘to put it bluntly, "unreasonableness" will provide our judiciary with the requisite muscle to challenge the abuse of discretionary powers by administrative bodies and officials'

14.4 It is positions such as this, read in the current context where the state is entrusted with delivering massive socio-economic transformation, that feed the unease with a reasonableness standard as it creates a challenge for the judiciary to maintain the divide between judicial review and appeal and, consequently, the separation of powers so necessary to the modern democratic state.

14.5 Hlophe's article on judicial transformation was cited in "USING STRUCTURAL INTERDICTS ANDTHE SOUTH AFRICAN HUMAN RIGHTS COMMISSION TO ACHIEVE JUDICIAL ENFORCEMENT OF ECONOMIC AND SOCIAL RIGHTS IN SOUTH AFRICA" MITRA EBADOLAHI* NEW YORK UNIVERSITY LAW REVIEW Vol. 83:1565 (2008) at 1580.

14.6 Hlophe has continued to engage his judicial colleagues in debates dealing with the administrative justice issues raised in this document. See, ‘Breaking ground: Some thoughts on the seismic shift in our administrative law'121 (2004) SALJ 424 which is a paper delivered by Justice Kate O'Regan at the South African Law Journal Jubilee Conference held in Johannesburg in 2003. In the paper, Justice O'Regan discusses the use of administrative law before 1994 and the full-blown acceptance of the right to administrative justice in the new constitutional order. The paper takes a specific look at the idea of ‘reasonableness' and administrative law. There are two responses to Justice O'Regan's paper, also published in the SALJ. The one is by Justice JM Hlophe, Judge President of the Cape High Court (‘A response to Justice O'Regan 121 (2004) SALJ 445. The other is by the Dean of the University of Cape Town Law School, Professor Hugh Corder (‘Without deference, with respect: A response to Justice O'Regan' 121 (2004) SALJ 438).

14.7 Suffice it to state that some of Hlophe's writings and decisions are reflected on his Curriculum Vitae which is being submitted with this document. These cover a wide spectrum from commercial law to other politically sensitive or controversial cases. They too offer a revealing insight into Hlophe's prodigious talents as a jurist and a leader. For instance, he has been an ardent supporter of the role of arbitrations and other alternative dispute resolution mechanisms which are all vital to improve to eliminate the huge backlogs that have plagued our courts, to improve service delivery and the overall efficiency of our judicial system. See, Hlophe J M "The New Domestic Arbitration Act" Unpublished paper presented at the Dispute Resolution and Cross Border Trade Conference held by the Association of Arbitrators (Southern Africa) Sandton 16 September 2000. The May 2001 South African Law Commission report [81](Justice Y. Mokgoro as Chairperson) on domestic arbitration submitted to then Justice Minister Maduna contains interesting observations about Hlophe's enormous contribution to the field of arbitration and sipute resolution mechanisms. The Report stated:

 " 2.18 The powers of the court are a particularly sensitive subject in the context of arbitration in South Africa. There is the danger of a perception, particularly among black lawyers, that some white members of the legal profession see arbitration as a form of "privatised litigation", enabling them and their corporate clients to avoid courts which increasingly comprise black judicial officers. This perception needs to be addressed. Objectively considered, arbitration holds equal advantages for black legal practitioners and their clients. The civil courts are struggling to cope with their present case load. A healthy arbitration industry helps to promote the administration of justice by relieving the burden on the courts. Countries like India, Kenya and Zimbabwe point the way in this regard." Id. P16-17.

14.8 The Report continues and acknowledges Hlophe's wisdom as follows:

"2.19 South Africa will not become an important regional centre for international arbitration unless it is seen to have the necessary court support for the arbitration process. Arbitration in this country therefore requires the support of judges who are sympathetic towards arbitration as a means of resolving disputes. (Such support was recently provided by Justice J M Hlophe "The New Domestic Arbitration Act" Unpublished paper presented at the Dispute Resolution and Cross Border Trade Conference held by the Association of Arbitrators (Southern Africa) Sandton 16 September 2000.) Attention also needs to be given to the introduction of streamlined court rules to facilitate the expeditious handling of court applications relating to arbitration proceedings." (footnotes omitted).

14.9 Former Chief Justice Chaskalson has previously acknowledged that by his own yardstick Hlophe is preeminently qualified for appointment on the Constitutional Court. See, http://www.legalbrief.co.za/article.php?story=20080822124455797 where Chaskalson made the following statement: "Who are the Judges of the Constitutional Court? 8 of the 11 judges are black. Look into their backgrounds and you will see that all of them have strong credentials in the struggle against apartheid, in the struggle for human rights and freedom, and have a deep concern for the crucial question of improving access to the law for the poor and the vulnerable. Those were factors that influenced the JSC in recommending that they be appointed to the office they now hold. If you read their judgments you will see that they have remained true to these concerns." The JFH fervently hopes that the JSC will heed Chaskalson's admonition here and not apply a different standard or criterion when it comes to evaluating Hlophe's credentials. He too deserves to have his "strong credentials in the struggle against apartheid" properly evaluated and credited. Hlophe also deserves to have his contribution to law reform and his full role "in the struggle for human rights and freedom" whether as a student, an academic or a judge fully understood and appreciated. Hlophe's clear record of "deep concern for the crucial question of improving access to the law for the poor and the vulnerable" is amply demonstrated in this document and properly reflected in his writings and judicial decisions. Since, according to Chaskalson, those "were factors that influenced the JSC in recommending" that the current Constitutional Court judges "be appointed to the office they now hold", it follows that there is no legitimate non-discriminatory reason for the JSC not to appoint Hlophe using the same criteria. It would indeed be incongruous to allow the current justices of the Concourt to acknowledge and continue using Hlophe's intellectual work product while denying him the chance to work in a collegial atmosphere with them in the same court.

15. HLOPHE'S PROVEN LEADERSHIP, INTELLECTUAL PROWESS, COURAGE, PASSION FOR JUSTICE RENDER HIM UNIQUELY QUALIFIED TO LEAD A TRANSFORMING JUDICIARY.

15.1 The President of the Republic, Jacob Gedleyihlekisa Zuma, recently stressed the importance of a judiciary deeply committed to transformation, not merely in terms of race but also in terms of deepening our people's access to justice. [82] That was President Zuma's 6 July 2009 address entitled "Justice for all: Strengthening a Transforming Judiciary to Enhance Access to Justice" President Zuma makes several points which should make it perfectly clear why Hlophe is eminently qualified for the Chief Justice position. First, the President states "Transformation should also mean the appointment of judges who are committed to the new democratic order." Chaskalson has never and will never dare to suggest that Hlophe has no such commitment. Zuma further stated "It means increased access to justice for all sectors of society, including the poor and marginalised." He continued "Transformation to ensure improved access to justice must address issues of language, procedures and processes, as well as other issues that may alienate poor from the justice system. It must include physical access to courts, and the provision of some form of legal aid to ensure that a lack of financial resources does not hamper access to the justice system. Poverty is still one of the major barriers for our people in exercising their right of access to justice."

15.2 President Zuma continued to say that "...Government has also begun to deal with the question of language in some courts on an experimental basis." He remarked that "Fifteen years after the democratic breakthrough the language used in many of our courts and in the administration of justice is alien to many of our people who have to rely on interpreters. Working together with the judiciary, we must devise means in terms of which all official languages of the country are used in the courts to enhance access to justice."

15.3 Even Hlophe's harshest critics have grudgingly acknowledged his pioneering research and advocacy role in areas which featured prominently in the President Zuma's speech. See, Hugh Corder's article[83] in which he claims Hlophe has "certainly written judgments that have upheld the spirit of the constitution, such as those in support of Patricia de Lille when she fell foul of the majority party in Parliament at the beginning of the arms deal saga more than 10 years ago. He delivered a landmark decision in which he held that, in the face of possible eviction from their homes, it was insufficient to give poor and illiterate shack-dwellers notice in writing in English; resort should rather have been had to broadcasting such notice in Xhosa. Hlophe has also been a champion of the use of African languages in court, which again reflects the spirit as well as the letter of the constitution." And finally, Zuma concluded his speech by stating "Compatriots, the common or indigenous laws of all peoples and nations are informed by their belief systems, culture and traditions. The colonial and apartheid efforts to suppress African culture sought to destroy the spirit of African law. The democratic Constitution of the country sought to address the problem by recognising African law."

15.4 Well, just to find out how much of a visionary Hlophe is consider the following: An Octobert 22, 2007 report stated that Hlophe "told the Black Lawyers Association in East London that transformation in the judiciary should be speeded up. And according to an SABC News report he also called for various African legal systems that were not recognised under apartheid to be integrated into current laws. He said the SA law was incomplete without its rich African heritage. ‘I don't believe litigants can really have their dignity restored until such time that indigenous African languages are promoted and used on daily basis in the courts.'" See, http://www.legalbrief.co.za/article.php?story=20071022082542104. 

15.5 This was not an isolated one-time incident in which Hlophe championed the rights of Africans. A December 2, 2006 news report indicates that Hlophe made the following remarks at a conference held at University of Johannesburg. He made the comments in a speech on the need for indigenous-language usage in the courts. http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20061202091402502C997856. We shall quote extensively from the report to illustrate a point: He stated "Notwithstanding our 12 years of democracy in the country, all our other languages do not exist in the courts. There's only English and Afrikaans." Judge Hlophe went on to cite several cases in which judicial prejudice against indigenous- language speakers was obvious. Firstly, there were outright racist and shameful comments by judges during the 1980s, as in: "Black witnesses, when it comes to alibi, generally lie," or "Coloureds and blacks will sometimes stab without any reason other than a lust for stabbing". Id. Then there were cases of honest confusion, such as State versus Mphopho, heard in 1978 by the late Judge George Munnik, who "thought he knew" Xhosa so well that he sentenced a Sotho-speaker under the wrong impression he had understood what the man was saying. Id. Judge Hlophe cited numerous examples where words in Zulu, for instance, differed substantially from the meaning of the same word in Xhosa. Isoka, he said, in Zulu is "a playboy" but in Xhosa, merely "a bachelor". Kusasa in Zulu means "tomorrow" but in Xhosa it means "in the morning". Such linguistic misunderstanding leads to frequent miscarriages of justice, Judge Hlophe said. Judicial officers showed disrespect for indigenous languages, preferring to conduct business in the comfort of their home language, often to the detriment of the administration of justice. Id. Hlophe said the situation was "deplorable", given the constitutional provisions, which stated that the 11 official languages were equal on paper - but where, in the lower courts particularly, accused and witnesses, most of them black and fluent in neither English nor Afrikaans, were confused, misunderstood and misinterpreted by judicial officers who were merely bilingual.

15.6 Hlophe concluded: "We are Africans," he added. "Why can't we develop a true African judicial system that ordinary people in the street can understand? The court in its present form is a foreign institution." Id. Judge Hlophe said that when the colonisers arrived in South Africa, they encountered traditional systems of law, justice and cultural practice that they considered barbaric, so they imposed their own Anglicised version of Roman-Dutch law. But the rules of evidence of adversarial European jurisprudence, for example, were very different from those of African jurisprudence, with the latter allowing for hearsay. Id. Judge Hlophe said: "This is untenable in the long term. We need to Africanise... The current legal system must be harmonised with indigenous legal systems. Id. "We must develop a new jurisprudence," he argued, saying judges should be free to borrow from Xhosa traditional law an element that would update outmoded parts of the current jurisprudence. This Africanisation process, he said, would best be driven by gradual adaptations, made by judges setting precedents, rather than an act of parliament, because "legislation is always a skeleton, but judges give flesh to it".

15.7 In an article, Justice By The Colour Bar, New African, Dec 2005 by Nyanto, Kgomotso,[84] the author states this about Hlophe:

Hlophe is now leading a campaign for the review of the whole judicial system, echoing similar calls by another colleague, Judge Motata. In an address to black lawyers, Hlophe called for the Africanisation of the judiciary, saying: "We, as black judges, must make the world know we are real and not there in the judiciary to add numbers. We will make this judicial system our own. We need to make sure that the aspirations of people are taken care of." He added, to a standing ovation, that the judiciary was a contested terrain because those who had failed to pursue their agenda in the Executive and Legislature were now turning to the Judiciary as a last resort to pursue their failed agendas. He accused them of trying to circumvent parliamentary laws through the backdoor of the judiciary where laws can be struck down.

In the past few years, Hlophe claimed, those resisting change had tried to use the judiciary to stifle progressive laws by rushing to court, a clear reference to the Pharmaceutical Society case - not unlike Zimbabwe in the days when white judges called the shots and thwarted government efforts to right wrongs in the thorny land issue.

In a telling point, Hlophe reiterated: "When the laws were made prior to 1994, we were not represented in parliament. The laws that we apply and enforce today as judges are the laws which were made before 1994. Very little is done by the highest court, the Supreme Court of Appeals, to recognise African law as a system of rules. It is the greatest irony in the legal system that we have to apply the laws and culture of the minority to the majority. The greatest challenge facing black judges was not to take the legal system called Roman Dutch Law and English Law as it is, but to analyse it, Africanise it, and make it relevant to Africans."

It is often the case that white judicial officers are insensitive to black defendants. In the minds of these people, black offenders belong in jail, even for the pettiest of offences. They cannot be rehabilitated. To these white judicial officers, jail is the solution to their security, enjoyment and economic dominance, and they never consider the apartheid results of socio-economic factors that fuel crime and the need to redress it. So they hand out harsh sentences to blacks and treat white defendants with kid gloves. Therefore, the perception of "white man's justice" is still very real in the minds of black South Africans.

A columnist, Khathu Maimala, writing in the City Press of 23 October, facetiously warned Judge Hlophe to learn to leave whites alone. He cited the example of President Thabo Mbeki who was the darling of white liberals until he spoke of South Africa as a country of two nations, one rich and white, the other poor and black. "It is not rocket science," Maimala wrote, "that blacks seem to have the exclusive rights to own shacks while 12% of whites on the other hand are right to own 90% of the country's wealth."

15.8 Hlophe was in an almost prophetic sense absolutelycorrect in his assertions that the judiciary was "a contested terrain because those who had failed to pursue their agenda in the Executive and Legislature were now turning to the Judiciary as a last resort to pursue their failed agendas." The Constitutional Court is the highest court in all constitutional matters and thus decides appeals form other courts in disputes involving natural and juristic persons and the state, including criminal matters, provided that the matter is a constitutional matter or an issue connected with a decision on a constitutional matter. Sec 167(3). The Constitution makes it clear that courts are independent and subject only to the Constitution and the law. Sec 165(2). All persons to whom and organs of state to which a court order or decision applies are bound by it. Sec 165(5). Courts must apply the Constitution and the law impartially and without fear, favour or prejudice. Sec 165(2). When taking office, judges swear or solemnly affirm to uphold and protect the Constitution and the human rights entrenched in it and to administer justice to all persons alike, without fear, favour or prejudice, in accordance with the Constitution and the law. See the oath or solemn affirmation of judicial officers in Item 6 of Schedule 2 of the Constitution. The JFH believes that we have demonstrated, through a creditable citation to Hlophe's scholarly and jusrisprudential record that Hlophe stands head and shoulders above the rest. The JFH can only add its voice in support of Hlophe's nomination; of course it has no power to appoint. Those who vilified the "campaigning" for Hlophe were afraid that the caricatured image they have sought to portray about Hlophe would evaporate as soon as the public begins its serious engagement with the truth about Hlophe.

15.9 South Africa faces a unique opportunity at a time when there will be so much change at the apex of the nation's judiciary, the Constitutional Court. At a time of such unique change, we humbly submit to you that leadership is a quality on which we all must focus. The most important attributes of leadership are restraint, modesty and tenacity. We respectfully submit that Judge President Hlophe has all those attributes, he has them all in abundance and he combines them with a keen intelligence, with extraordinary communications skills, a passion for inclusiveness and protection for the democratic rights of all including minorities. Hlophe will be an enormously effective leader. He is one of the finest legal writers in the judiciary today. His writings show him to be a visionary, who spent his years as a student and academic researching and acquiring skills that would that perfectly equip him for a role as a public servant in a post-apartheid South Africa. When others despaired in the face of apartheid tyranny, Hlophe drew inspiration from the struggles of his people and spoke of "manipulating" the law to chip away at the walls of apartheid oppression. When he was later promoted to the bench, Hlophe's talents continued to blossom. He has quickly established a reputation as a meticulous author who handles complex factual issues, extremely difficult procedural issues, and complicated legal issues with ease. He approaches complex legal issues through the lens of common sense along with the lens of his understanding of the law.

15.10 Some might say, it comes with the territory and it is no big deal! But that would be extremely myopic and would show a lack of understanding by some of the complexities involved in the job duties of a judge president or a chief justice. Invariably, there are dual roles that the chief justice or even judge president of a division plays in our judiciary which deserve serious study and understanding. One is the jurisprudential - the writing of cases, conferring with your colleagues on the court and offering guidance to other coordinate branches of the government on the law. The other role, which is equally important is the very critical and time-consuming task of the administration of the court.

15.11 Why are Hlophe's writing skills so important? It is important because judges speak through their opinions; they are not supposed to comment on them after they are published. They cannot even defend themselves against false attacks or claims that they have issued the most "anti-poor judgments" as some gay rights activists have claimed about Hlophe. Hlophe has maintained a dignified silence and refused to defend himself even in the face of relentless, scurrilous, unwarranted, politically-motivated and downright racist attacks on him. Newspapers such as Mail & Guardian and their editors have, through their brand of slanted journalism, upped the ante and increased the vitriolic attacks on Hlophe. The paper cited unnamed "Luthuli House" sources in its claim that Cape Judge President John Hlophe's "star is on the wane" and that he is a liability that Zuma (and presumably the JSC) should avoid like a plague in his judicial appointments. Not to be outdone, Tony Leon of the DA (the party hypocritically claiming to be a paragon of judicial indeopendence and respect) also launched scurrilous and unwarranted personal attacks on Hlophe's integrity. He even questioned his patriotism by using derogatory epithets stigmatising Hlophe as a member of the "fifth column" who "seeks to destroy from within". 

15.12 Webster's online dictionary defines the phrase "fifth colummn" as "a group of secret sympathisers of an enemy that engages in espionage or sabotage within defence lines or in national borders". It is said that a typical technique of the fifth column is the infiltration of sympathisers into the fabric of the nation and into positions of policy decision and national defence. From such posts fifth-column activists exploit the fears of a people by spreading rumours and misinformation, as well as by employing the more standard techniques of espionage and sabotage.

15.13 This is the most hurtful thing to say about Judge President Hlophe whose writings advocating law reform were recognized even by apartheid era judges. What really underlies Leon's attack is his own appeal to bigotry -- to the widespread belief that Hlophe's resort to the courts to vindicate his constitutional rights is seditious, that he must be reviled as unpatriotic and is unfit for judicial service even though his judicial colleagues have agreed that his constitutional rights were violated. Not surprisingly when Chaskalson chose to speak on the matter, he said not a word of condemnation for Leon's incendiary remarks and slanderous attack on a sitting judge. Chaskalson acquiesced in Leon's unfair and slanderous labeling of Hlophe an upstanding and patriotic citizens as seditious. What is worse, Chaskalson added his own criticism of Hlophe and labeled those supporting Hlophe as making arguments "calculated" to sow racial divisions. This proves that Leon was not alone and these attacks on Hlophe are a well-orchestrated attempt to create a false narrative around Hlophe and a partisan attempt to aid certain factions in the judicial succession battle. The complete record has now been explored, exposed and laid bare for all right-thinking South Africans to make up their minds. The bottom line is this: the JSC and President Zuma should emphatically reject the arguments against Hlophe's appointment as they have been exposed for what they truly are- empowerment of a minority that arrogates to itself the right to question the patriotism of good South Africans, to devalue their contribu tion in the struggle against apartheid, denigrate and devalue them as profesisonals and human beings, to humiliate black intellectuals and leaders. And that was not all- soon after the Young Communist League took a principled stance to voice its criticism of the JSC for violating Hlophe's rights, individuals including Zachie Achmat and some "Khayelitsha" activists were parroting the demonstrably false and vituperative propaganda that Hlophe is "anti-poor." Of course, these individuals wopuld strenuously deny that theirs is in any way, shape or form, a ‘political campaign" notwithstanding their appeal to class prejudice.

15.14 It is in this context that the JFH emphatically states the following: It would be hypocritical for Zuma to rely on the irresponsible statements of Hlophe's detractors and their naked appeal to class prejudice and charactyer assasinations or to use untested allegations of misconduct, of being "anti-poor" or for having "played no role in the struggle against apartheid" against a sitting judge president as a litmus test for promotion within judicial ranks. After all, the masses overwhelmingly supported Zuma when his own detractors were baying for his political blood and were demanding that he exit the race for presidency based on similarly untested and unproved allegations. Some of the same forces even questioned President Zuma's own commitment to the human rights values enshrined in the constitution - they made slanderous allegations about his alleged role in brutalities in ANC camps. The people displayed a sophisticated understanding of the presumption of innocence, rejected the lynch-mob approach advocated by some journalists and gave the ANC and Zuma a resounding victory at the polls. The masses collectively rejected the push by these white lawyers, academics, retired judges and politicians who are busy thrusting a culture of resistance or indifference to constitutionalism on the silent majority. Ironically, it was Chaskalson who chided Zuma's supporters for their alleged "tone' in a debate about the violation of Zuma's own rights. The approach this time around is slightly different but even more strident - vilify anyone supporting Hlophe, distort his judicial record, lend tacit and at times express support to anyone attacking Hlophe and then hope to prevail in the discourse by giving a veto power to a minority of activists who are equally determined to disregard the objective acts or evidence showing Hlophe's outstanding qualities.

15.15 To highlight these issues is not to suggest that our judicial nominees should be reduced to mere politicians in robes. Nor is it to suggest that "populist rhetoric" should determine the outcome without perscrutation of the substance, the qualities and the individual jurist's record. Rather, it is to suggest that silence in the face of scurrilous attacks on a black member of the judiciary is no neutrality at all - it is active connivance and participation in such attacks and speaks volumes about the selective endorsement of agendas and silencing of persons deemed to be supporting Hlophe. The way towards a better race-neutral discourse on the judiciary is itself clear only when lit by truthful dialogue and respect for all members of the judiciary, not just whites. That goes for Hlophe as well - when one eliminates all the lies told about him having "played no role in the struggle against apartheid" and the lies about him being "anti-poor" one is left with the only inescapable conclusion, that is, Hlophe's leading role as a champion and martyr of transformation has actuated or informed the hidden agendas of those seeking to derail his judicial career.

15.16 It is no exaggeration to state as Professor Klare did that the South African Constitution included many features of a social democratic constitution with its commitment to substantive equality, restitution and redistribution and socio-economic rights. Juxtaposed on these is something that transcends this conception by including features such as the promotion of diversity, equality on grounds such as gender and sexual orientation, environmental justice, participatory governance and holding powerful private actors accountable for human rights violations. The meaning to Chief Justice Langa's statement about "sharing of responsibility" among the three coordinate branches of government must be located in the idea of a democratic developmental state. When Langa speaks about the need for a partnership he must mean a judiciary performing its duties in a democratic developmental state that emphasises effective performance, managerialism, technical and bureaucratic efficiency and effectiveness which are considered essential to achieving the ambitious programmes including service delivery and poverty reduction the ANC has outlined. Any institutional rationalization and transformation must co-exist with the idea of a democratic state that creates a voice for the poor and marginalised, that promotes, enhances and protects the rights that accrue but pursues the obligations owed to it by citizens, and which inculcates diversity, responsiveness and representation and representativity, the institutional separation of powers and functions, transparent decision making, accountability and effective oversight. President Zuma has also spoken out about the need for South Africa "to be an effective developmental state". [85] He stated that the country "needs to be an effective developmental state if it is to achieve social transformation" and that its "economic growth needed to be supported by health and education transformation, a fight against crime, rural development and agrarian and land reform." He concluded by stating that "key to achieving these priorities will be the building of an effective developmental state." The type of ambitious programme he has identified will mean bringing conscious state-driven economic development agenda to persons who may be illiterate and are located in the rural areas and do not speak English or Afrikaans. Accepting that our judges will be performing their job duties in a democratic developmental state where the priorities may be very different from those prevailing in bourgeois democracies. Inevitably, the concept of government "partnership" with "a vibrant, independent civil society" must appointing judges like Hlophe whose grasp of the complexities of the is way ahead of all others.

15.17 Taking into account our history and the challenges facing a developmental state, a democratic constitutional state with an enormous social reconstruction programme like that of post-apartheid South Africa we must urge the JSC to ensure that we have a sophisticated judiciary that will evolve credible and lasting mechanism for the maintenance of administrative justice especially in the targeted rural areas. The immediate past experience of apartheid under which the administrative process was devoted to the victimization of a large section of the population while a privileged racial minority dominated public life and discourse militates stringly against giving any special interest group, no matter how powerful, the right to evict others from public debates through lies and distortions. Our collective experience from our apartheid past has also meant that every constitutional means possible in the arduous task of social reconstruction must be deployed towards the declared objective of the evolution of a humane and just administrative process. The one judge who uniquely deserves a chance to serve and to lead is one John Mandlakayise Hlophe. He is an embodiment of the following characteristics: hope for a people who have suffered uner the yoke of apartheid oppression, hope for children of the poorest, hope for the victims of gender and racial discrimination for whom the dream of a free and democratic society has been ever elusive. He personifies confidence in our people and their future, integrity and unshakable moral and political courage, emphasis on the courage. Judge Hlophe has won support from various groups within the silent African majority with his common-sense decisions, loyalty to the constitution and sharp intellectual instincts.

15.18 On the basis of Hlophe's stellar record of life-time dedication and commitment to the liberation struggle of our people, the JFH is unabashed in proclaiming that Hlophe is every black man and one of us. When Hlophe's name goes on to the list of nominations for chief justice, the names of all the people, the African majority, who gave Zuma a mandate go in as well. That is not legal or political heresy or a form of "full-scale political-type campaign" as Chaskalso asserted - it is common-sense reality recognized by an international legal expert, Professor Shetreet who has had profound things to say upon the subject: "An important duty lies upon the appointing authorities to ensure a balanced composition of the judiciary, ideologically, socially, culturally and the like ... The judiciary is a branch of the government, not merely a dispute resolution institution. As such it cannot be composed in total disregard of the society."[86] [our emphasis].

15.19 It would be incongruous for President Zuma to fail to acknowledge the obvious here. How can President Zuma talk eloquently about giving priority to "transformation to ensure improved access to justice must address issues of language, procedures and processes, as well as other issues that may alienate poor from the justice system. It must include physical access to courts, and the provision of some form of legal aid to ensure that a lack of financial resources does not hamper access to the justice system. Poverty is still one of the major barriers for our people in exercising their right of access to justice" on the one hand and yet overlook, devalue or ignore the pioneer of these ideas, one Judge President Hlophe? How can the Presidency lament the fact that "fifteen years after the democratic breakthrough the language used in many of our courts and in the administration of justice is alien to many of our people who have to rely on interpreters" and yet ignore the one judge whose entire career is an embodiment of passionate advocacy for these issue belatedly identified as priority by the new government. Hlophe fearlessly advocated these even aftert Zuma was fired by Mbeki and even when it appeared almost a certainty that Zuma's own political career was finished. It is accordingly incorrect to simply say that all judges are equally committed to these vital transformation issues as Chaskalson glibly suggest. When the Presidency announceds that "working together with the judiciary, we must devise means in terms of which all official languages of the country are used in the courts to enhance access to justice" it suggest that someone is finally listening and taking seriously what Hlophe has been advocating all along. But that is only a small part of the larger transformation agenda involved in these matters. Chaskalson is correct in stating that having "strong credentials in the struggle against apartheid, in the struggle for human rights and freedom, and have a deep concern for the crucial question of improving access to the law for the poor and the vulnerable" are " factors that influenced the JSC in recommending that they be appointed to the office" constitutional court judges now hold. It is equally true that in seeking to appoint a leader amongst these equally committed good jurists, the President must reach deeper - he must appoint the only jurist with the record of achievements and leadership exhibited by Hlophe. Anything less will be scandalous.

15.20 To say that Judge President Hlophe is "every black man" is not only to recognize the obvious but it is to recognize at the same time something more profound - his role as an "organic intellectual" in the African context. As theorized by Gramsci, an organic intellectual, unlike a traditional intellectual, is a bourgeoisie scholar who cultivates strong roots in his/her community, working to maintain links with local issues and struggles that connect to the people and their experiences. While traditional intellectuals imagine themselves as an autonomous group with an historical presence above and separate from political class struggle, they are in fact strongly allied with the dominant ideology and the ruling class. For such intellectuals political preferences masquerading as scientifically sound research passes muster - the UCT study producing "favourites" judges is perfectly acceptable to learned former judges and advocates and can never be "political-type" campaigning. On the other hand, organic intellectuals openly recognize their location within the dominant ideology and their function in perpetuating it, and use their positionality to cultivate strategies for helping their communities to develop a self-inspired, organic consciousness. In the South African context, where Africans suffered dual oppression in the form of race and class, organic intellectuals like Hlophe effectively used their education in building a counter hegemonic revolutionary consciousness - they defended the African culture, customs and laws (see articles and Hlophe's judicial rulings on customary laws) against a colonialist and apartheid assault. They used common law concepts such as natural justice and "legitimate expectation" to defend the rights of security detainees and to contribute toward a culture of human rights respect and to advance the anti-apartheid struggle. Gramsci called upon the working class to produce its own organic intellectuals as well as traditional intellectuals, and an accompanying class consciousness that would appreciate the local experiences of the people. Hlophe knows his working class roots and has never in his life betrayed our people's struggle.

15.21 To say that Hlophe is "every black man" and one of us is to acknowledge his roots and his connection to the struggle of the people. The African revolutionary thinker Frantz Fanon said that 'each generation must discover its mission in life and either fulfil it or betray it." We consider that Hlophe has embarked on a mission but has not yet fully accomplished his mission in life as a warrior for justice. The picture that emerges from the few giant footsteps taken by Hlophe so far is that of a proud, humble and dignified man. Like the legendary Amilcar Cabral said of himself, Hlophe is a simple African man doing his duty in the context of his time. But what sets him apart from all his contemporaries is the consistency with which he seeks to learn from his mistakes and the clarity of his thoughts and principles. He is of course not a bloodless automaton, he is a human being, endowed with the human affectation of imperfection and our statement that he is "every black man" is not to romanticize him as icon, messiah, or infallible transformational leader. He is just one human being, a humble servant who seeks to have all South African people especially the powerless and marginalized simply recognized, respected and treated as human beings.

15.22 The JFH fervently believes that Hlophe brings to the JSC and the President who must judge him, a clear record of extraordinary public service and unparalleled accomplishment. The JSC and the Presidency will be obligated in line with their constitutional duties to look at the entirety of this individual, Judge President Hlophe and look at the South African people -- not just the powerful fringe groups and lobbyists representing special interest groups who will take a role in this one way or another, as they should and are entitled to. Our paramount consideration is the silent majority of our citizens who monitor our government perform its duties and fulfill its electoral promises. We are absolutely convinced that this fair-minded majority of the South African public will judge Hlophe on the basis of an accurate record and as the facts come out. The JSC must be under no illusions about the process that will follow - it will be robust and perhaps a bitterly contested nomination process. In the ultimate end it would be an invaluable educational process for all involved - spectators and players alike. We hope that when all said and done, the country (overwhelming majority of our South African public) will look at Hlophe squarely in the eyes and say to itself: "This is my Son, whom I love; with him I am well pleased." Matthew 3:13-17.

Issued by the Justice for Hlophe Alliance, July 16 2009

Click here to sign up to receive the free Politicsweb daily headline email newsletter

[1] See, our website: http://www.justiceforhlophealliance.co.za/

[2] Hlophe JM ‘The KwaZulu Act on the Code of Zulu Law, 6 of 1981, a guide to intending spouses and some comments on the custom of lobolo,' Comparative and International Law Journal of South Africa, CILSA 1984 163-171

[3] 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C)

[4] AFRICAN CUSTOMARY LAW AND GENDER JUSTICE IN A PROGRESSIVE DEMOCRACY: http://www.docstoc.com/docs/2957119/AFRICAN-CUSTOMARY-LAW-AND-GENDER-JUSTICE-IN-A-PROGRESSIVE-DEMOCRACY

[5] "South African Ouster Clauses-Meaning and Effect" J. M. Hlophe The Cambridge Law Journal, Volume 45, Issue 03, November 1986, pp 369-372

[6] 1998 (3) SA 430 (C), para 41

[7] (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA) (12 January 2009)

[8] (CCT 22/08) [2009] ZACC 16 (10 June 2009)

[9] Unpublished Paper. CALSSA: Cape Town: University of Cape Town. See, also, Receiving justice in your own language - the need for effective court interpreting in our multilingual society" April 2004 Advocate (The South African Bar Journal) 42;

[10] http://www.lrc.org.za/about-us

[11] http://www.sangonet.org.za/portal/index.php?option=com_content&task=view&id=6243&Itemid=374

[12] Id.

[13] http://www.unis.unvienna.org/unis/pressrels/2004/sgsm9370.html

[14] Unpublished Paper. CALSSA: Cape Town: University of Cape Town. See, also, Receiving justice in your own language - the need for effective court interpreting in our multilingual society" April 2004 Advocate (The South African Bar Journal) 42;

[15] See, Open letter to Judge Arthur Chaskalson and Advocate George Bizos:

By Paul Ngobeni - 8 January 2008 http://amadlandawonye.wikispaces.com/Open+letter+Chaskalson+and+Bizos,+Paul+Ngobeni

[16] See, http://www.thoughtleader.co.za/pierredevos/2009/06/16/get-involved-in-the-debate-about-our-constitutional-court/.

[17] Id.

[18] http://www.mg.co.za/article/2009-06-21-race-for-concourt-judges.

[19] Id.

[20] For the discussion that follows in this section, the authors have borrowed heavily from Heads of Argument prepared by CALS and filed in the Hlophe matter.

[21] Section 1(d) of the Constitution.

[22] Section 74(1) of the Constitution

[23] South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) para 139 (Sachs J, dissenting).

[24] International Bar Association: Human Rights Institute Beyond Polokwane: Safeguarding South Africa's Judicial Independence Section 3.116 July 2008.

[25] "Bangalore Principles of Judicial Conduct" Section 3.2 available at http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/bangalore.pdf

[26] S v Mambolo 2001 (3) SA 409 (CC) para 29.

[27] S Shetreet "Who Will Judge: Reflections on the Judicial Process and Standards of Judicial Selection" (1987) 61 ALJ 776. Professor Shetreet is not alone in subscribing to the principle of fair reflection: see The Judiciary in England and Wales, 1992, JUSTICE, London, pp 23-24; Report of the New Zealand Royal Commission on the Courts, New Zealand, 1978, para 665.

[28] Hlophe JM ‘The KwaZulu Act on the Code of Zulu Law, 6 of 1981, a guide to intending spouses and some comments on the custom of lobolo,' Comparative and International Law Journal of South Africa, CILSA 1984 163-171

[29] Hlophe id. at p164

[30] 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C)

[31] AFRICAN CUSTOMARY LAW AND GENDER JUSTICE IN A PROGRESSIVE DEMOCRACY: http://www.docstoc.com/docs/2957119/AFRICAN-CUSTOMARY-LAW-AND-GENDER-JUSTICE-IN-A-PROGRESSIVE-DEMOCRACY

[32] http://reproductiverights.org/sites/default/files/documents/bo_legalgrounds_2005.pdf

[33] Id. at 13-14

[34] Id. at p.14.

[35] Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC)

[36] "South African Ouster Clauses-Meaning and Effect" J. M. Hlophe The Cambridge Law Journal, Volume 45, Issue 03, November 1986, pp 369-372

[37] 1998 (3) SA 430 (C), para 41

[38] See J. Hlope, "Legitimate expectation and natural justice: English, Australian and South African law" [1987] 96 SALJ 165.

[39] 5 German Law Journal No. 1 (1 January 2004) - European & International Law;

Substantive Legitimate Expectations in South African and European Administrative Law. http://www.germanlawjournal.com/article.php?id=362

[40] THE CONTRIBUTION OF JUSTICE MM CORBETT TO THE DEVELOPMENT OF THE LAW OF TAXATION IN SOUTH AFRICA: by Wessel Johannes Van Der Walt (p.176-177). http://etd.unisa.ac.za/ETD-db/theses/available/etd-08212008-133747/unrestricted/dissertation.pdf

[41] A tribute delivered by Jeremy Gauntlett SC at a formal commemoration in the High Court, Cape Town, on 8 October 2007; Advocate December 2007 3 http://209.85.229.132/search?q=cache:cgtEo86pqvMJ:www.sabar.co.za/law-journals/2007/december/2007-december-vol020-no3-pp03-06.pdf+corbett+chief+justice+traub&cd=4&hl=en&ct=clnk&gl=za

[42] The audi alteram partem principle, which in its most basic form requires the administrator to afford affected parties the right to be heard before taking a decision which would adversely affect them.

[43] Traub, supra at 761 D-G.

[44] Id. 758D: The expectation may be that the individual will acquire some substantive benefit, such as a license, that is a substantive expectation, or simply that the individual will be heard before a decision is taken, that is a procedural expectation. Corbett CJ also notes that the two forms of expectation may even merge, Id. 758E.

[45] Id. 761E, 764A.

[46] See Daniel Malan Pretorius, Ten Years After Traub: The Doctrine of Legitimate Expectation in South African Administrative Law, 117 SALJ 520 (2000);

[47] The Past Ten Years: A Balance Sheet and Some Indicators for the Future' (1989) 5 SAJHR,

293, 298 - 299.

[48] Constitution of the Republic of South Africa 200 of 1993.

[49] See s24.

[50] Supra, para 136.

[51] 1993 (2) SA 276 (Tk).

[52] Appeal to race does not hide Hlophe's many flaws http://www.thetimes.co.za/PrintEdition/Insight/Article.aspx?id=1028441

[53] http://www.superiorcourts.org.na/supreme/docs/judgments/Civil/Waterberg-Minister.pdf.

[54] (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA) (12 January 2009)

[55] (CCT 22/08) [2009] ZACC 16 (10 June 2009)

[56] 1999 (2) SA 91 (CC)

[57] Id. at para 1.

[58] ( P317/2000) [2001] ZALC 47 (30 March 2001) http://www.saflii.org/za/cases/ZALC/2001/47.html

[59] 2000 (1) SA 1 (CC).

[60] Fedsure Life Assurance Limited v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), para 58.

[61] President of the Republic of South Africa v South African Rugby Football Union, supra, para 148.

[62] Pharmaceutical Manufacturers Association of South Africa; in re: Ex Parte Application of the

President of the Republic of South Africa 2000 (2) SA 674 (CC), paras. 89 and 90.

[63] De Lange v Smuts NO 1998 (7) BCLR 779 (CC), para 46, quoting the formulation of the rule of law of Mathews Freedom, State Security and the Rule of Law Cape Town, Juta and Co: 1986, 20.

[64] Dawood v Minister of Home Affairs 2000 (8) BCLR 837 (CC), para 47.

[65] 1995 (3) SA 391 (CC).

[66] At para 156.

[67] http://docs.google.com/gview?a=v&q=cache:HQf30S9d6p8J:www.isrcl.org/Papers/2008/Anderson.pdf+apartheid+internal+security+act&hl=en&gl=za

[68] Unpublished Paper. CALSSA: Cape Town: University of Cape Town. See, also, Receiving justice in your own language - the need for effective court interpreting in our multilingual society" April 2004 Advocate (The South African Bar Journal) 42;

[69] An urban slice of pie: the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act in South Africa http://www.unhabitat.org/downloads/docs/5403_20137_GRHS.2007.CaseStudy.Tenure.SouthAfrica.pdf

[70] See, John Michael Grobler v. Ben Msimanga, Case Number 05/29099, WLD, (Date delivered: 29 February 2008) R. Dulessis AJ and the cases cited http://abahlali.org/files/Grobler_WLD_2008%5B1%5D.pdf.

[71] http://209.85.229.132/search?q=cache:b8mCwA82-fIJ:www.undp.org/oslocentre/docsoslo/access%2520to%2520justice/Access%2520to%2520Justice%2520in%2520South%2520Africa.doc+Cape+killarney+v.+Mahamba&cd=23&hl=en&ct=clnk&client=safari

[72] "EVICTIONS; TOWARDS A TRANSFORMATIVE INTERPRETATION OF THE CONSTITUTIONAL REQUIREMENT OF CONSIDERING ‘ALL RELEVANT CIRCUMSTANCES' http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_5476_1189581687.pdf

[73] http://hdr.undp.org/docs/publications/background_papers/Liebenberg2000.html

[74] http://www.sabar.co.za/law-journals/2001/august/2001-august-vol014-no2-pp27-31.pdf.

[75] http://www.beyondjuba.org/Conference_presentations/Report%20on%20The%20Proceedings%20of%20The%20JLOS%20Transitional%20Justice%20Working%20Group%20Round%20Table%20Discussion.pdf.

[76] http://antieviction.org.za/2001/09/

[77] http://209.85.229.132/search?q=cache:c9ASiBgKRCsJ:www.transport.gov.za/library/docs/raf/s8-17.pdf+hlophe+%22SALJ%22&cd=62&hl=en&ct=clnk&gl=za

[78] http://www.iawj.org/jep/traverso.doc.

[79] Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC)

[80] See S v Makwanyane and A n o t h e r1995 (3) SA 391 (CC).

[81] The SOUTH AFRICAN LAW COMMISSION PROJECT 94 DOMESTIC ARBITRATION REPORT MAY 2001

[82] See, http://www.info.gov.za/speeches/2009/09070611451001.htm Keynote Address by His Excellency President JG Zuma at the Second Judicial Conference for South African Judges, Kievietskroon Conference Centre, Pretoria

[83] South Africa: Is Hlophe a Victim of Racism or is He a Loose Cannon?

Hugh Corder 9 April 2009 http://allafrica.com/stories/200904090275.html

[84] http://findarticles.com/p/articles/mi_qa5391/is_200512/ai_n21384280/pg_3/?tag=content;col1

[85] http://www.polity.org.za/article/sa-needs-to-be-an-effective-developmental-state-zuma-2008-12-01

[86] S Shetreet "Who Will Judge: Reflections on the Judicial Process and Standards of Judicial Selection" (1987) 61 ALJ 776. Professor Shetreet is not alone in subscribing to the principle of fair reflection: see The Judiciary in England and Wales, 1992, JUSTICE, London, pp 23-24; Report of the New Zealand Royal Commission on the Courts, New Zealand, 1978, para 665.

Click here to sign up to receive the free Politicsweb daily headline email newsletter