The Government, the Constitution and the Law: A response to the continued attack on the judiciary.

July 2 2015

In 1972, the then Prime Minister, B J Vorster, appointed the Schlebusch Commission to investigate four anti-apartheid civil society organizations. There was no charge sheet, witnesses were unaware of other evidence given, and people being summoned to appear before the Commission did so without being afforded any of the Common Law niceties. In 1974, the National Union of South African Students and in 1975 the Christian Institute were declared ‘affected organizations’ and their foreign funding cut off.

Is history repeating itself?  Not exactly, since we now have the Constitution, which we did not have forty years ago, and with which everyone has to comply – executive, legislature and judiciary. And it prohibits many of the practices of apartheid. But the political mobilization against parts of civil society - an unaccountable and untested report of an investigation into five organizations, and a threat about cutting off foreign funding all look remarkably similar. 

And make no mistake about it, some of the justification of the new developments are as absurd as the politics around the Schlebusch Commission. The concept of a ‘judicial coup’ is a case on point. A coup is the seizure of executive power, and there is no evidence whatsoever that a conspiracy of judges is being formed for that purpose. Moreover, there are no reasonable grounds for complaint if the judiciary is simply doing its job. Should a particular judge err in her or his judgment, then there are appeal mechanisms up to the Supreme Court of Appeal as well as the Constitutional Court.

The fact is, rather than the judiciary abusing its powers, the executive is starting to ignore court decisions. We, at the Helen Suzman Foundation, have observed this in relation to public interest cases in which we have been involved. City Press of 28 June reported:

The al-Bashir decision is similar to an order that he [Gwede Mantashe] live on top of Luthuli House for two weeks. “It can’t be implemented!”

On Planet Mantashe, thus “court orders like this will from time to time be disregarded.”

Of course, the al-Bashir court decision could have been implemented. It simply wasn’t. The announcement from the Secretary-General of the ruling party of its intention to disregard court orders from time to time is a major assault on the rule of law. And very alarming.  Lawlessness is a major problem in South African society and political leaders who announce more of it are irresponsible in the highest degree.

Others are taking up the cudgels. LegalBrief Today of 29 June reports:

The SACP and ANC Youth League have added their voices to criticism of ‘bias’ and ‘prejudice’ against the judiciary, notes Rapport. It quotes SACP deputy secretary Solly Mapalla as saying his party would hold a special congress next month to draw up a detailed plan to tackle the judiciary. And the Youth League is planning to march to the KN High Court this week to demonstrate against judges.

Another foolish and pernicious notion is that legal action against the State prejudices service delivery. It does no such thing. On the contrary, absence of the rule of law will entrench authoritarian and corrupt patrimonialism, lethal for economic development and service delivery alike.  

A third foolish move is to portray the problem as being one of ‘transformation‘. To what exactly? Transformation is often taken to refer to race and gender representivity. But that is not what is at stake for Mr Mapalla:

Mapalla said judges ‘are interpreting the law as if they are operating from an island outside the  country…It is our belief that the executive, judiciary and parliament should work with the same mission for the country…but you have the feeling that others don’t want to do this.’ [Gaps as in the  LegalBrief report]  

And that amounts to transformation to political conformity.   

Three points are pertinent here.

1. There are many people who think that constitutional democracy is unfettered majority rule. The Secretary General of the Communist Party expressed this view clearly in his address to the Young Communist League in December 2014:

So the agenda is simply that where the ANC is the majority, the opposition must rule through the courts, the Public Protector, etc; and where all this fails, the opposition must resort to hooliganism and disrupt institutions legitimately led by the ANC.  

That is not the form of democracy we have, nor is it desirable. To mount a political attack on the judiciary when it fails to deliver results to one’s liking, disrespects the separation of powers between the executive, legislature and judiciary essential to the functioning of democracy as embodied in the Constitution.

2. Part of the problem is simple incompetence.  It should have been realised that al-Bashir would be subject to arrest, in terms of South African law, if he came to South Africa and that no purported exemption by the AU would change this. The government got itself into a muddle, and is now compounding it by threats to withdraw from the International Criminal Court system.  If that comes to pass, it would amount to another nail in the coffin in international respect for South Africa’s human rights record.

3. Fear is at work here, as it was in the time of the Schlebusch Commission.  The fear is of losing power.  The situation here is akin to that of Oedipus who, in seeking to avoid the fate predicted for him, actually brought it about.  South Africans have fought for their rights and will not easily take to their erosion.

Issued by Francis Antonie, Director of the Helen Suzman Foundation, and Charles Simkins Senior Researcher, July 2 2015