The judiciary has become a threat to our democracy

Picture: Timothy Bernard African News Agency (ANA) - Office of the Chief justice of South Africa in Midrand.

By Professor Sipho Seepe

In what can best be described as a wicked conspiracy against the Republic, fate has determined that two controversial judgments are delivered on the same day. In its “wisdom” the Constitutional Court ordered that the convicted murderer Janusz Walus be released on parole. For its part, the Supreme Court of Appeal has ordered that the parole of former president Jacob Zuma be revoked.

The painful irony was not lost on many. A comment that this is a case in which “a killer of a freedom fighter is forced to be granted parole, while the parole of a freedom fighter who had not done anything is deemed to have been unjustified and thus illegal” incisively sums up the two judgments. Henry Wadsworth Longfellow’s infamous quote, “Whom the Gods would destroy they first make them mad” could not have found a perfect example.

“Diabolical” is how Chris Hani’s wife Limpho described the ruling as she issued a fatwa on the entire Constitutional Court. Her sentiments are shared by ordinary folks who seem to have a warehouse of colourful words to describe Chief Justice Raymond Zondo. The SACP described the Constitutional Court judgment as “an injustice against South Africa’s people”. Its General-Secretary Solly Mapaila threatened “mass mobilisation so that we reconstitute our legal framework to represent the interests of the people”. The penny has finally dropped, hopefully. The SACP sang a different tune when the same court introduced the infamous “detention without trial” through the back door when it ordered the incarceration of Zuma. It argued then that “the Constitutional Court must exercise its independence against any person who thinks that they are above the law and anyone who defies its judgments action must be taken in the same vein”.

The ruling by the Supreme Court of Appeal comes as no surprise. The ruling flows from the same travesty of justice meted out to Zuma by the Constitutional Court. For as long as Zondo remains the Chief Justice in this country, the former president should resign himself to the fact that no ambitious judge would rule in his favour.

Damning remarks regarding the Constitutional Court by Professor Ziyad Motala at Howard Law School in Washington DC are worth repeating. Motala argued that the court’s recent judgments “smack of personal predilections and politicking…Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench” (Sunday Times, 19/08/2021).

The damage to the entire judiciary is incalculable. Motala contends that “making up of stuff from thin air based on the personal predilections of the judges, like the Constitutional Court is haemorrhaging into lower court decisions.”

Both rulings of the Constitutional Court and the Supreme Court of Appeal are an assault on the concept of justice. The echo chamber has been quick to shout that this is about the rule of law. This is not what the country signed for. Laws should preserve justice. Apartheid, slavery, and colonialism invoked the same nonsensical argument. Applying laws unjustly is also not the answer. As they say “law without justice is a wound without cure “.

Justice Mbuyiseli Madlanga addressed this very question when he appeared before the Judicial Service Commission (JSC). Madlanga quipped that the “law does not always coincide with justice.” When faced with such a conflict, Madlanga says he relies on the instinct within him. Madlanga argued “(what) guides me in the adjudicative process is an instinct that I feel is motivated by an innate sense of justice within me. And I believe that assists me in those instances where the law may not coincide with justice… That innate instinct for justice, motivates me to say, is all that we can do in these circumstances.”

Fortunately, judges do not have an exclusive monopoly on that innate sense of justice. South Africans have fought against injustice before. They can smell it from afar. They should do so again when it rears its ugly head, even when it is perpetrated by the courts. The judiciary is doing a good job of discrediting itself. According to the 2018 Afrobarometer survey, a publication of the Institute for Justice & Reconciliation, 32% of South Africans are of the view that members of the judiciary are involved in corruption. In 2002, the level of mistrust was 15%.

To understand the decision of the Supreme Court of Appeal, one must go a step back instead of simply relying on the miscarriage of justice that was perpetrated by the Constitutional Court. In his book “All Rise”, the former Deputy Chief Justice Dikgang Moseneke cautioned.

“The judicial role calls for unfailing attention to detail. First, the facts must be understood in their proper context and sequence and care must be taken to make findings supported by credible facts. A judicial officer must know the law… and apply it to the properly proven facts in the dispute. Even more important is for the judge to decide on an outcome and formulate an order which the facts and the law permit and which is fair and just.”

The majority judgment failed in all respects – facts, context, sequence, and application of the law. The dissenting judges were scathing and argued that the main judgment “leaves in its wake a law that is not only bad but also unconstitutional.” The country paid a heavy price as a result of this lack of judicial discernment.

First, it needs re-emphasising that the matter before the Constitutional Court related to a quarrel between Zuma and the chairperson of the now infamous State Capture. The usual excuse that Zuma appointed Zondo is just plain nonsense. Once a judge becomes embroiled in a dispute on matters of fact involving him or her, s/he ceases to be a neutral arbiter.

Instead of recusing himself, and despite an application being launched to review his refusal to recuse himself, Zondo rushed to his friends in the Constitutional Court. But that would have been too much to ask for a judge who later embarrassingly contradicted his previous statements. Zondo performed so poorly that the JSC could not recommend him for the position he holds. Incidentally, all judges that competed with Zondo argued that judges should recuse themselves when faced with a conflict of interest.

The disturbing trend in which courts cannot be relied upon to dispense justice is a consequence of the politicisation of the judiciary on the one hand, and the judicialisation of the politics on the other. Nothing captures this more sharply than the comment by an excitable full bench of Gauteng Court which argued that the “new dawn that engulfed the country in 2018 did not miss Eskom Holdings SOC Limited (Eskom). It brought life to Eskom in that in January 2018, Eskom’s old and inactive leadership was replaced by new leadership with new life to undo years of maladministration and corruption within the organisation” (Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others (22877/2018).

The truth is clear to everyone. The “new dawn” has plunged the country into a state of perpetual darkness. A self-reflective judiciary would hang its head in shame. We should disabuse ourselves of the notion that the judiciary is constituted by only honourable men and women who represent the best of us.

Deputy Vice-Chancellor of Institutional Support at the University of Zululand.