Judicial independence under threat
Zacob Zuma, in his successful attempt to become South African president, employed a dogged, block-by-block campaign to pursue every possible legal opening, to spoil and delay, and to unleash his allies on the judiciary. Whenever an unfavourable ruling was handed down his dogs vilified the judge involved and threatened the judiciary as a whole. When he happened to receive a favourable ruling, the judge was lauded as a comrade judge, a progressive thinker in a sea of judicial conspiracy. Finally, the prosecutors were brought into line using an illegally obtained spy tape and a hopelessly flawed and plagiarised legal argument.
Zuma’s actions made it clear he didn’t give a jot about the constitution and its institutions. However, during the election campaign the ANC repeatedly said they respected the constitution and that they had no intention whatsoever of changing it. They had held a two-thirds majority before and never used it to change the constitution.
Well they lied. As Pierre de Vos points out, they want to change the constitution to place the state above the law.
This amendment thus attempts to place the state above the law and the Constitution. It demonstrates a shocking lack of respect for a judgment of the Constitutional Court and for the independent and impartial judiciary and sends a signal that the ANC government will amend the Constitution if it does not like a judgment of the highest court.
So what next? Will the ANC-led government now attempt to remove the provisions in the Constitution that subject the President to the Rule of Law? Hey, who needs to follow the law or the Constitution if you were elected by 2400 delegates at Polokwane? What about the right not to be arbitrary evicted from your home without an order of court? After all, those pesky poor people continue to challenge arbitrary evictions by our heartless and anti-poor government.
This is an extremely worrying and dangerous development. One cannot have a supreme Constitution if the governing party changes the Constitution willy-nilly to overturn decisions of our highest court.
After all the anti-constitutional activity by Zuma and his acolytes/puppet masters, should one have expected anything less? For those who haven’t got it yet: the ANC government cannot be trusted. And it will act with the arrogant knowledge that its voters will support it no matter no matter how much it tramples on their hard-won rights.
The independence of the judiciary appears to be Zuma’s most pressing target. The ongoing barrage of words against this constitutionally guaranteed independence has given way to a new, insidious battle. The recent court cases involving John Hlophe have unfortunately shown that judgements in the High Court have tended to split along racial lines. The judgement given in Hlophe’s first case in the then Transvaal High Court was a judicial mess and the honourable justices seemed to be bending over backwards to find in favour of Hlophe. It was correctly slapped down by the the Appeal Court. The judges in this case all happened to be black. In his latest action against the Judicial Service Commission (JSC), the majority opinion once again appeared to be highly accommodating to Hlophe, going so far as giving him more than he even asked for. Once again the majority happened to be comprised of black judges.
This has got to be heartening to Zuma. To him – and to many others – it must look like black judges will be more friendly to fellow black judges and politicians. So, surprise surprise, the new Justice Minister and Zuma acolyte Jeff Radebe has persuaded the “independent” JSC to delay all interviews for judicial appointments. Why?
“The minister of justice requested a postponement to consider the
following: the enhancement of the independence of the judiciary (and)
the vital question of the transformation of the judiciary in terms of
the constitution with regard to race and gender representivity in order
to facilitate meaningful input in the appointment process.”
This sounds just so Orwellian. The constitution already directs the JSC to consider issues of transformation when it make appointments. The overriding impression left from this action is that Zuma, through his lapdog Radebe, wants to pack the Court with more friendly faces – probably black faces.
The attack against the independence of the judiciary is accelerating. Zuma’s young attack dogs are no longer spewing insults at member of the bench. It’s got a lot more serious.
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