The Courts Are Under Siege – But The Core Problem Is Hidden

 By: Steven Friedman

FOR the first time since 1994, questions are being asked about the one element of South African democracy on which everyone seemed to agree – judges and the courts. But, as so often happens, most of the questions are not those which need answers.

Since democracy arrived, the honesty and credibility of the courts has never been questioned. This respect for the judiciary was remarkable. The country is deeply divided and the contending parties like to fight their battles in the courts – former deputy chief justice Dikgang Moseneke feared that the courts might not bear the weight of being asked to settle so many political disputes. Until 1994, the courts enforced laws which served only 10% of the people and oppressed the vast majority. Despite all this, losing parties have always accepted the judgements. When the courts overruled government actions, it accepted this without complaint.

In other countries judges are accused of being bought or of pursuing political agendas. Here, they were never, after 1994, even accused of bias. They reached their pinnacle of admiration when, in 2016, the constitutional court ruled that then President Jacob Zuma had to obey a ruling by the Public Protector that he pay back money spent on his Nkandla homestead.

Courts enjoyed surprising respect across the spectrum because of a paradox. On the one hand, a frequent complaint against apartheid was that it did not allow independent courts to do their jobs. What Parliament said was law and there was nothing judges could do about it except – if they rejected the law – find technical loopholes. So, independent courts were seen as one cure for apartheid. On the other, the minority who benefited from the system saw the law and courts as a sign of ‘civilisation’.  The apartheid rulers, when they violated people’s rights, carefully followed the form, although not the substance, of a respect for law.

A Sharp Contrast

Now, the contrast with this past could not be sharper.

Judges and courts are at the centre of so many conflicts and challenges that it is hard to list them all. The most publicised, but probably least believed, is Zuma’s evidence-free claim that many judges are bought and his refusal to obey court orders. More serious although less noticed is an affidavit before the Zondo Commission claiming that a former Cabinet minister and Zuma ally worked with judges to ensure judgements favourable to the former president.

The Judge President of the Western Cape, John Hlophe, has been found guilty of gross misconduct by the Judicial Conduct Tribunal, while the Chief Justice, Mogoeng Mooing, is appealing against a ruling by a Judicial Conduct Committee headed by former deputy chief justice Phineas Mojapelo that he must apologise for taking Israel’s side in its conflict with Palestinians. To add to the brew, Mogoeng implied at a meeting of the Judicial Services Commission that cabinet minister Pravin Gordhan had tried to influence him to favour the appointment of Judge Dhaya Pillay to the Supreme Court of Appeals (SCA).

Not only are judges’ image tarnished. Those doing the tarnishing, either because they have made accusations or are accused, include a former president who is waging war on the law, the Chief Justice and a provincial judge president. The judiciary seems to have shifted from seeming beyond reproach to a punching bag.

This is obviously a problem for democracy. A credible independent judiciary is essential in constitutional democracies such as South Africa not only because courts must ensure justice for all but because they decide whether laws should be allowed to stand. A society in which everyone’s freedom is protected is impossible if courts are not seen to be honest and fair.

The Tide of Faction

So, why has the judiciary suddenly found itself under pressure?

With the exception of the Chief Justice’s remarks on Israel and Palestine, all the judiciary’s problems are products of factional ANC politics. Hlophe was found guilty of trying to influence judges to favour Zuma, the affidavit before Zondo relates to an attempt to fight factional battles in court. While these two examples are years old, the others stem from a current attempt by Zuma and his faction to resist a legal net which is closing around them.

Zuma is facing trial, as is his highest-ranking ally in the ANC, secretary-general Ace Magashule. More charges against members of the faction seem likely. Zondo has heard a litany of allegations against Zuma and his allies. The ANC national executive committee (NEC) has voted to force Magashule and others charged by police to step aside, weakening their faction further. A ‘fight back’ campaign is under way and the judiciary, which has repeatedly found against Zuma and his allies, is a target. Zuma’s war against the courts is an obvious example.

To make matters worse for the courts, judges, since they are human, have political sympathies and so some support Zuma and his allies. Hlophe is the most obvious example but the Chief Justice may also have nailed his colours to this mast. His claim that Gordhan tried to influence him seems weak – both agree that, during a meeting on other issues in 2016, Gordhan asked him whether Pillay, a friend of his, had ‘done well’ in her interview for an appointment to the SCA. Mogoeng acknowledges that Gordhan did not ask him to favour her. There is no comparison between this claim and the allegations against Hlophe, which they seem designed to mimic. And, if the Chief Justice felt Gordhan was trying to influence him, it is not clear why it took him more than four years to report this.

Mogoeng raised the issue when EFF leader Julius Malema, who has his own factional battle with Gordhan, opposed Pillay’s appointment because she is a friend of the minister. Pillay is also a target of the Zuma group because she found against Zuma when he was sued by former minister Derek Hanekom. This context suggests that the Chief Justice has chosen sides in the factional battle, just as he has in the Israel/Palestine conflict.

Because it is directly related to factional battles, the attack on judges’ credibility is unlikely to get very far. A slew of judgements show that the vast majority of judges are unsympathetic to the arguments of the Zuma faction. Recent decisions of the ANC NEC shows that most ANC leaders are too. So, it seems, are most voters: deputy president DD Mabuza dropped his opposition to Cyril Ramaphosa’s candidacy in 2017 because the numbers showed that the ANC would sink below 50% if the Zuma faction won. While the Chief Justice’s entry to the fray is as a huge problem, as is his claim that he owes his loyalty to a higher law than the constitution, his term is nearing its end and his successor may have a different view.

Puncturing a Myth

While the turmoil will probably die down, the fact that it is a product of ANC battles punctures one of the myths of post-1994 South Africa, which has been fostered by judges themselves – that they cease to hold political views when they don their judicial robes. This fiction makes judges less accountable because rulings are presented as technical legal decisions which those of us who have not studied law have no business challenging. If we recognise that they also express political views, we have every right to question them. It may also encourage the view that judges are beyond criticism and so are entitled to pronounce without challenge on anything from the rights of Palestinians to the safety of vaccines.

And yet, also because it is the product of a factional battle, the cloud over the judiciary hides a deeper issue. The courts and judges do have an important credibility problem, but with the citizenry, not factional politicians. While attention was focussed on the top-level drama, in Mpumalanga, people gathered outside the courtroom where four farmers appeared, charged with the murder of two brothers who had come looking for work. They demanded that bail be denied – one held up a sign asking the ‘corrupt courts minister’ to hear their concerns.

This means, of course, that local people believe that the farmers are guilty, even before the trial has started. They also believe the system is corrupt because, in their view, it shields the guilty. This is no isolated incident – these sentiments are common in cases where people are victims of violence.

There are complicated reasons why people feel that the courts are standing in the way of justice. But, while no-one in particular is to blame, it does show there are more important threats to the courts than factional politics. No legal system is strong if citizens do not see it as a source of protection, not least because people who believe it does not work for them may feel that there are more direct ways than a trial to seek justice. Ensuring that grassroots citizens trust the courts is more important to the health of the judiciary than the schemes of politicians.

Prof Steven Friedman is a research professor, faculty of humanities, politics department, University of Johannesburg. He writes in his personal capacity.