Over the past few weeks Jacob Zuma, and his two legal henchmen, have made a series of questionable statements and decisions on the judiciary. Each, on its own, does not amount to much, but together they raise serious questions about the new government's attitude to the courts.
The first bad sign was, of course, Zuma's choice of henchmen. First off, he chose Jeff Radebe to replace the well-regarded Enver Surty as Minister of Justice. Despite his legal training in the German Democratic Republic, Radebe's understanding of South African legal principles appears poorly grounded (see here and here). Moreover, while serving as Minister of Public Enterprises he found himself at the sharp end of an independent judiciary. Back in 2003 the high court ordered that Transnet pay R57m to a losing bidder, after he had meddled in a tender contract.
As the Mail & Guardian reported at the time: Radebe had told "Transnet to hand a privatisation tender to a company that was patently unsuited to the job, but in which the ruling African National Congress had an alleged financial stake. Now, after a drawn-out court battle over the tender award, the transport parastatal has to pay R57-million in damages to a bidder it knew to be better qualified, but which it dropped after Radebe's intervention."
In more robust liberal democracies such scandals generally lead to ministers losing their jobs, and ruling parties their majorities. It was Radebe's good fortune that ANC dominance meant that he did not have to face the repercussions that usually follow from such exposure. Of course, if the relationship between the executive and the judiciary had been run on more sensible lines - as in the old GDR and other People's Democracies - Radebe would have been spared such indignity and embarrassment at the outset.
Then, former Limpopo premier Ngoako Ramalthodi was appointed chairman of the parliamentary portfolio committee on justice and constitutional development, and also made Zuma's ‘point man' in the Judicial Services Commission. Like Radebe Ramatlhodi has good reason to fear and distrust an independent judiciary.
According to the M&G the Directorate of Special Operations believed that they had a strong enough case to prosecute Ramatlhodi on corruption relating to tender fraud in Limpopo. But as would later happen with Zuma, the acting NDPP, Moketedi Mpshe, overruled their decision in November 2008 after "Ramatlhodi made representations to him."
Quite remarkably, given these previous entanglements with the law, these two henchmen have started trying to lord it over the bench. Ramatlhodi described Chief Justice Pius Langa as a source of "irritation" to the ANC, for a ruling the Constitutional Court made against Zuma.
Then on Monday this week Radebe intervened in the JSC to put the judicial appointment process on hold. He justified his decision by stating that "we need to have time to make an assessment of the constitutional imperatives of the racial profile and the gender representivity of the judiciary, so that by the time we do these interviews we have the whole context of what has been happening since 1994." A number of senior high court judges who were due to be interviewed for vacancies on the Supreme Court of Appeal that day were sent packing.
Such conduct is suggestive of an underlying contempt for the institution and its incumbents. In his reply to the debate on his state of the nation address, the following day, Zuma did respond to opposition concerns about his commitment to judicial independence. He stated:
"Amongst the key principles in the Constitution is that of the separation of powers between the legislature, the executive and the judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness. When we speak about the pace of transformation in the judiciary, Honourable Members, it is not because we want to infringe on its independence, which we uphold and will always defend. The transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country."
Notwithstanding the lip service paid to judicial independence, there was a sinister undertow to these statements. The judiciary is now completely multi-racial and to cite ‘demographic representivity' as a compelling concern smacks either of racial vindictiveness or a hidden agenda. It is not clear why Zuma, who seems without racial animus, and who has gone out of his way to reach out to Afrikaners, should suddenly cite this noxious principle as some kind of self-evident truth.
In its earlier efforts to bring "all levers of power" under party control in the late 1990s the ANC often used ‘representivity' as an excuse for removing limitations on its powers of appointment, blocking independent minded-candidates, and appointing party loyalists in their stead. Such misdirection worked very well, for a time, in distracting attention from their real goals. It is very possible that the new ANC leadership believe this trick will work a second time.
Even if one accepts that the intentions of the new ANC are basically benign, and Radebe and Ramatlhodi are just a kind of Tweedledum and Tweedledee when it comes to the judiciary, this does not mean there is no cause for concern.
The ANC of Mbeki's shelving back in 1998 of the ‘ability to do the work' as the primary consideration in the appointment of judges has, ten years down the line, led to much institutional rot. As Judge Carol Lewis of the Supreme Court of Appeal noted in an address last year many lower courts are suffering from a severe skills shortage.
This means that a small number of judges have to assume an ever increasing workload when it comes to complex commercial matters. A lack of experience on the part of many high court judges has also resulted, in criminal matters, in "horrifying convictions and equally horrifying acquittals where judges have simply not understood the fundamental rules of evidence or of criminal law."
Public confidence in the judiciary is dependent not on its precise racial complexion, but rather on the honesty, integrity and professionalism of judges. Zuma, of all people should know this. The ANC president may have grown frustrated at the courts ruling against the speculative points thrown up by his legal counsel during their efforts to kick his corruption charges into touch. But when he was facing the comparatively ill-founded rape charges his concern only was to have his case tried, as quickly as possible, by the most competent and impartial judge available.
The day after his acquittal on those charges he told the world: "an independent High Court of our country found me innocent. There can be no doubt that Judge Willem van der Merwe acted independently, and applied the law impartially and without fear, favour or prejudice." Would he have been able to make the same claim with such confidence - or been believed - if he had been acquitted by a judge Hlophe?
The truth is that if the integrity of the judiciary is to be maintained, it cannot afford any further political (or judicial) buffoonery. The institution needs a justice minister and JSC that understand the value of an independent judiciary, and recognise what steps are needed to repair it.
As Judge Lewis argued last year, the time has come to "accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty."
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