Many statements have been made in the news media regarding the independence of the judiciary. There are some who have said that the ANC is threatening the judiciary. Statements were previously made by some political activists to the effect that they did not believe that Jacob Zuma could expect a fair trial in our Courts. They eventually came to the conclusion that Zuma's case was not a legal but a political trial. The Public Protector once pronounced that Zuma's rights had been severely infringed, and nobody disputed this. On many occasions when Zuma came before the Courts, the National Prosecuting Authority (NPA) was unable to proceed to trial. This resulted in Judge Msimanga striking the case off the roll, Nicholson ruling that there was political inteference and Mpshe ultimately deciding to withdraw charges after these had been reinstituted. 

For a man who had been investigated since 2002, is it not strange that his prosecutors were not ready to proceed to trial? Who in the legal history of South Africa, indeed that of the world at large, has been under intense investigation for seven years, but has never been brought to trial? Yet in the interim, leaks were being made to the press about Zuma's guilt, corruption and everything else. Bulelani Ngcuka himself admitted that he did not have what he called a 'winnable' case against Zuma, although he claimed he had prima facie evidence against him. He then called editors of South Africa's media and proceeded to assassinate Zuma's character. Zuma, it became clear to all of us, was going to be tried through the media, in the 'court of public opinion', not the law courts. 

When Zuma appeared before a judge, Judge van der Merwe, on a charge of rape he was declared innocent. Judge Nicholson too agreed with Zuma's lawyers that his conclusion that the NPA went after him as a result of executive influence, was reasonable. This matter became a subject of appeals both by Thabo Mbeki and the NPA to the Constitutional Court and Supreme of Appeals respectively. In the case of the former the ConCourt found that it was not in the interest of justice to hear his case and then approached the SCA. In the case of the latter the SCA upheld the appeal and it is history now that soon thereafter the NPA realised their mistake.

Zuma's supporters need to analyze what has happened here very carefully. We have alleged then that we do not believe that Zuma can have a fair trial in our Courts. Yet when Zuma appeared on a rape charge before Justice van der Merwe, he got a fair trial and was acquitted. Judge Msimanga in Pietermaritzburg got so exasperated with the antics and shenanigans of the NPA, bringing Zuma to court and then saying they were not ready to go to trial, that he struck the case off the roll. Finally, Judge Chris Nicholson sitting alone, concluded that Zuma was correct in his surmise that there was a political, not a legal motivation to bring him to trial. What does this tell us? For me it says that it was possible for Zuma to get a fair trial in our courts, depending on who is presiding. This takes us, I believe, to the heart of what is meant by the independence of the judiciary. 

What do we mean by the independence of the judiciary?

In my layman's view the judiciary is that institution in a democracy that is charged with the task of upholding the Constitution, wherein is contained the Bill of Rights, and defend the rights of the individual or group against an unfair and unconstitutional infringement of their rights. In the exercise of this role, the judiciary is required to resist every influence on its role by any external factor or power, and base its findings only on the principles of justice and law. The judiciary is an institution, but the people who occupy positions in this institution, the judges, are people like myself. They have beliefs, prejudices, paradigms and biases, and these can reveal themselves in the decisions they make. Here, I am trying to separate the institution called the judiciary from the incumbents of positions in the judiciary.

Richard Calland, a British trained barrister, in his book 'The Anatomy of South Africa' quotes a legal affairs journalist, Carmel Rickard, who said: 'Most members of the judiciary now fall into one of two camps, each with a distinct collection of political baggage - one had strong connections with the previous government and its philosophy, the other with the present regime.'(Calland, page 205). Calland then refers to a report that was penned by Judge President John Mandlakayise Hlophe in 2004 which he submitted to the then Justice Minister, Brigitte Mabandla. In it, Judge Hlophe makes a startling allegation:

'I believe that the Cape Bar is very reactionary. I would even say it despises black judges. It is my submission that this is a calculated attempt to undermine the intellect and talent of black judges, in particular by some white legal practitioners, who clearly want to keep the Bench as white as possible. As long as these racial practices continue, we will never be able to transform the judiciary.' (Calland, pages 205-206).

I believe personally that this statement he made marked the beginning of Judge President Hlophe's woes. He had lifted a lid on a drum that white racists wanted to keep firmly shut. The Black Lawyers Association (BLA) backed Hlophe's claim, saying racism was not only rampant in the Western Cape Bench, but throughout the country. Some figures from Calland's book reveal a disturbing feature of our judiciary. Justice Pius Langa in his report to the parliamentary portfolio committee on justice and constitutional affairs in March 2006 pointed to both racial and gender imbalances on the Bench. Of the 218 judges in the country 184 were male, pointing to the gender imbalance. Of the 218 judges 115 were white, 102 of whom were white males and 13 white women, again pointing to racial imbalance. (Calland, page 209). In light of these scary statistics, is it unreasonable therefore for the new Minister Jeff Radebe to ask the JSC to rather halt the interviews pending an assessment of the status quo in the judicial make up?

I think not, for these figures reflect the ideology of the white supremacist government of the Apartheid years. The National Party ensured that only white men were appointed to the Bench, to hand down legal decisions that supported the status quo. Was that an independent judiciary? Has the South African judiciary ever been independent? Judges are political appointees, and Calland poses an interesting question on the subject. 'What is the nature of the judges and politics?' (page 211). He refers to a book written by a London School of Economics professor, John Griffiths, 'The Politics of the Judiciary'. In this book Griffiths says that judges cannot act neutrally, but are compelled to act politically, (page 211).

I have come to believe that the people who attack the ANC by saying it is threatening the judiciary seem to be mistaking the judiciary, an independent institution of democracy, with the judges who occupy positions within the judiciary in this country. Judges are allocated an independent position as members of the judiciary, but it is clear that some of them will act in their role according to the political beliefs they hold. That is why some judges, members of this very racially and gender unbalanced judiciary, could still have given Jacob Zuma a fair trial. That is why a certain judge found that Wouter 'Dr. Death' Basson was not guilty of all 56 charges. Where then does the independence of the judiciary lie? It lies in the personal character of the judge in question.

If a judge possesses a character that enables him/her to look at the facts of a case as they are, and not allow political or racial considerations to influence the decision, then that judge is a true member of the judiciary, an independent judge. Individual actions of judges cannot be defended on the grounds that they belong to an independent institution, the judiciary. I grew up believing that judges were never drunk because of an adage which said 'as sober as a judge'. I have lived long enough to see a judge sitting behind the wheel of his car, asleep, after knocking somebody's wall down!

Judge Mandlakayise Hlophe won a case in the Johannesburg High Court, where he accused judges of the Constitutional Court of violating his rights. Judges of the Constitutional Court, the highest Court in the land! Is Judge Hlophe attacking the judiciary? But he is a judge himself! To make matters worse, just recently another junior court finds in his favour against judges of the highest court in the land and the JSC! Does this not prove my point, that a difference needs to be made between the judiciary as an institution and the actions of judges as individuals? In other words, the institution is as independent as the actions of the judges who are appointed to positions of judgeship.

So, when Blade Nzimande (that furious man of the SACP) says some judges are counter-revolutionaries, he cannot be accused of attacking or threatening the judiciary. He is attacking the behaviour of judges like Pius Langa and Dikgang Moseneke who make statements that reveal their political biases. Just before Zuma went to Pietermaritzburg to seek justice, Chief Justice Pius Langa made an address where he said judges should not allow people to appeal indefinitely because that would have a delaying effect on the dispensation of justice. In other words, judges should not allow people like Zuma to appeal their cases even though they felt they had not been given a just hearing. Thabo Mbeki and the NPA once sent their appeals to the Supreme Court of Appeals, and yet Chief Justice Pius Langa did not think that appealing indefinitely in their case would delay justice.

I am reminded of a day when I found myself in the eminent company of the Chief Justice Arthur Chaskalson (retired) and Chief Justice Pius Langa. It was at a seminar on Racism. The meeting came to the conclusion that racism no longer manifests itself in laws, bye-laws and segregated facilities, but in the economic circumstances of the beneficiaries of racism and those who were disadvantaged by it. The beneficiaries of racism are either well-off or plain wealthy, and they are white. The black are landless because the 1913 Land Act took eighty-six percent of all arable land in South Africa and placed it under white ownership. That has not changed, even if we say South Africa is free. I then stood up and asked Judge Chaskalson a question, which the poor judge was unable to answer. This was the question:

Thula: 'Judge Chaskalson, is it possible to build a moral system of law when the foundation of that system itself is criminal and therefore immoral?'

Judge: 'Do you mind elaborating a bit Mr. Bopela so that I can understand your question properly? What are you talking about?'

Thula: 'I am referring to the murder and robbery the whites carried out in South Africa in order to possess land and livestock. They did not purchase our land they took it by force. After that, they made laws which legalized and protected their ownership of that land. First rob and murder, then make laws to sanitize your crime? That is where my question is coming from Judge.'

Judge: 'What are you saying Mr. Bopela? Are you saying that we should abolish rights to property?'

Thula: ' I am not saying anything of the kind judge. I am asking you whether it is possible to build a moral legal system on a criminal foundation? You are the lawyer, I am not, so you should be able to come up with a suggestion. We agree that racism now manifests itself, not in the statute but in the wealth and the poverty of those who benefited from it and those who were disadvantaged by it. Your title is Chief Justice which justice? Apartheid is gone yes, but where is justice in this country judge? Those who plundered and murdered are rich and their spoils are protected by law. Is that what you call justice sir?'

Judge: 'Pius, I think you should assist me here. What do you think?'

The current Chief Justice, an African, shook his head and indicated that he had no interest in discussing the question. I noted his indifference to the plight of landless blacks, stood up and left their presence. I had a premonition that I was not seeing Chief Justice Pius Langa for the last time. He lost a case against a black judge who accuses him of a gross violation of his rights. If judges are violating each others' rights, what is going to happen to John Drinkwater like myself?

We have, therefore, a justice system in this country that is not just. We have a judiciary that is in the throes of a 'racial and political tug-of-war'. That does not mean that there are no upright judges who try to apply principles of justice within a legal system that is fundamentally flawed.

Thula Bopela is a Wankie Veteran, who was part of the Luthuli Detachment and works for Parliament

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