The mindset of the judiciary

3 November 2021

During the past weeks there has been an important exchange of views in the Afrikaans Sunday newspaper Rapport on independence of the courts and the continuing credibility of our constitutional democracy.

On 26 September, two recently retired Constitutional Court judges, Edwin Cameron and Johann Froneman, wrote an article in which they insisted that the courts had not lost their integrity. The retired judges took issue with the contention of “Afrikaans legal academics” that court judgements are inevitably determined by the dominant group in society - which, in the case of South Africa, is the ANC elite.

Judges Cameron and Froneman did not question that “the dominant political group can play a role in the normative outcomes of the courts’ judgements.” “But we reject the simplistic suggestion that this is a mechanical and necessary consequence - or that this makes the explicit provisions of the Constitution meaningless. And we reject the insinuation that individual judges subject themselves to ANC interests in the promotion of the present (ANC) domination.”

The judges insisted that the view of the Afrikaans law academics was contradicted by “dozens of judgements over the past quarter of a century and the recent past, especially judgements of the Constitution Court (CC), that have on many occasions castigated and set aside the ANC-Government’s decisions and failures and have strongly reprimanded Parliament and the executive for corruption and failure to do their duty.”   

In their view, “… the CC has held its head high in the struggle to give effect, impartially and independently, to the promises in the Constitution. And the words and spirit of the Constitution are time and time again decisive.”

Three weeks later, Prof Koos Malan of the University of Pretoria - the most prominent of the Afrikaans legal academics to whom the judges had referred - fired off a broadside in response.

He insisted that the CC and the Judicial Service Commission (JSC) have been undermining their own integrity and reputation for many years.

Contrary to the judges’ assertions, “the highest courts, together with the ruling party and formations in its circle, are an integral part of one and the same ruling elite and are closely committed to the realization of common partisan ideological goals. They are the judicial branch of the ruling elite, which justifies and defends its ideology in legal terms.”

This was also evident in the JSC’s consistent appointment to the courts of “transformationist candidates despite often well-founded doubts about their professional suitability.”  

The transformationist approach had been evident in key judgements including Barnard; Glenister III; the Pretoria Street Name case; and the Free State University and Stellenbosch University language cases. In the last three cases, Judges Froneman and Cameron had themselves written minority judgements that “showed discomfort with the majority’s bias in favour of transformationism.”

Prof Malan is right.

The ANC’s intention to influence the courts and the courts’ commitment to transformationism is self-acknowledged and incontrovertible.

It has its roots in the clearly stated intention in the ANC’s Strategy & Tactics documents to seize control of the levers of power - including the judiciary - as soon as possible after 1994.

On 8 January 2005, the ANC’s National Executive Committee called - not only for the demographic transformation of the judiciary - but also for the transformation of its “collective mindset “. The statement contained the extraordinary proposition that the judiciary should see themselves as being part of the masses “who had engaged in the struggle to liberate our country from white minority domination” and that they should “be accountable to them, and inspired by their hopes, dreams and value systems” - and evidently not by the Constitution and the law.

On the other hand, Judges Cameron and Froneman are correct: the courts have frequently handed down judgements that have caused the ANC government intense displeasure. Indeed, their judgements played a central and indispensable role in saving South Africa from state capture and in assuring the demise of President Zuma and his faction.

In its scathing judgement in the Nkandla case the CC found that by failing to comply with the Public Protector’s order, President Zuma had failed to “uphold, defend and respect” the Constitution. It declared that the conduct of both the President and Parliament were inconsistent with their constitutional obligations. This was hardly the behaviour of judges who slavishly carry out the instructions of the ANC elite.

Also, to their credit, ANC governments have consistently - if sometimes grudgingly - complied with judgements - even when they were diametrically opposed to their wishes and interests. This indicates, contrary to Prof Malan’s view, that the supremacy of the Constitution and the rule of law can still prevail.

So what we have is a judiciary that, on the one hand, has often applied the Constitution, courageously and independently, on questions of governance. On the other hand - and contrary to the claim of Judges Cameron and Froneman, the courts have not, on most transformation issues given effect, “impartially and independently, to the promises in the Constitution” - and especially not to the indispensable constitutional promises of non-racialism and non-discrimination.

Far from carrying out their responsibility - crucial in all multi-ethnic democracies - of protecting minorities against majoritarian domination. The courts have all too often given legal sanction to the majority’s programme of limiting progressively the legitimate interests of a minority on the basis of its race.

Where does this leave us?

Prof Malan evidently puts very little faith in the Constitution. He envisages, instead, a “new substituting order in which communities take care of themselves and each other” that will arise from the “rubble of decay”. But who will legislate and provide judges for this new order - and within the parameters of what constitution? What recognition would the new order enjoy from the national government and from the international community?  

Battered and besieged as it may be, the Constitution still represents the moral and legal high ground nationally and internationally. Civil society organisations and political parties continue to rely on its provisions and make use of the courts in defending rights and freedoms and in combatting abuses.

They are often successful - even in some recent cases involving transformation issues - such as the exclusion of white-owned tourism businesses from COVID-19 benefits and the use of Afrikaans by UNISA. The Constitution and the courts still present the best option to challenge expropriation without compensation, the NHI and the whole raft of potentially catastrophic bills that will soon be considered by Parliament. 

The problem does not lie in the Constitution. Much rather, it lies in the danger that the adoption by the courts of a transformationist mindset will erode their clear duty - under section 165(2) - to apply the Constitution and the law “impartially and without fear, favour or prejudice”. Such mindsets can have very serious consequences - particularly for minorities.

In its 1896 Plessy v Ferguson, the US Supreme Court circumvented the 14th Amendment that assures all US citizens of the equal protection of the law, by adopting the doctrine of “separate but equal”. For the next 60 years this doctrine sanctioned the repressive “Jim Crow” segregation laws of southern states on the spurious basis that segregated facilities could ever be equal. This situation prevailed until the Warren court’s 1954 judgement in Brown v Board of Education which opened the way for the civil rights movement.

In 2004 the CC - in Van Heerden - circumvented the foundational value of non-racialism and the prohibition of unfair discrimination in section 9(3) - on the spurious grounds that racial discrimination, harming the interests of South Africans, solely on the basis of their race, was necessary to promote the foundational value of equality. The result has been the severe dilution of non-racialism and the ancillary rights of white South Africans - with no gains whatsoever in equality.

We are not going to get a better constitution than the one we already have. The challenge is to redouble our support and defence of the Constitution before the bar of national and international opinion; to claim vociferously the rights and freedoms that it ensures; and to call to account politicians who breach its provisions and judges who do not apply the Constitution and the law impartially and without fear, favour or prejudice.

Dave Steward, Chairman of the FW de Klerk Foundation.