Analysis

Scales of justice could tip either way for judiciary in 2014

Serjeant at the Bar

Severe challenges for the judiciary and its continuing role as a key custodian of our constitutional democracy will come to the fore this year.

The decision to drop corruption charges against President Jacob Zuma will be raised in court this year. (Rogan Ward)

Later this year, the ongoing saga of access to the information relied on by the then national director of public prosecutions, Mokotedi Mpshe, to decline to pursue criminal charges against President Jacob Zuma in 2009 will continue in the Supreme Court of Appeal. With the likelihood of a national election looming, the political stakes could not be higher – both for Zuma and for the judiciary.

It is common cause that Zuma is viewed by opposition parties as an election liability for the ruling party. That the dispute concerning the merits of Mpshe's decision will be aired publicly in the year of the most contested election since the dawn of democracy will throw the spotlight on the key institutions of justice that have increasingly been influenced by Zuma's appointments.

As was the case not so long ago, when the judiciary under the leadership of former chief justice Pius Langa was assailed by Zuma supporters for being counterrevolutionary, this case has all the political fuel to create another incendiary attack on the judiciary and the potential to further embarrass the president.

The year may well see further litigation in another long-running legal soap opera, this time involving Western Cape Judge President John Hlophe and the proceedings initiated against him by the Judicial Service Commission (JSC). The review of these proceedings, launched by two Constitutional Court justices, Bess Nkabinde and Chris Jafta, will be heard in the high court. In the event that the two justices lose this application, it will be interesting to see whether they will take their case to the appeal court, thereby surely delaying the progress of the inquiry into 2015 or possibly ensuring its termination.

Whatever the outcome, once the saga recommences, the doubts about the objectives of the two justices and the alleged conduct of the most senior judge president in the country will resurface in the public discourse.

Beyond the court roll, there is the even more intriguing possibility of new appointments to the two highest courts. The appeal court, although now officially the intermediary court of appeal because of a recent constitutional amendment, remains an important institution. Over the past few years, a number of senior and respected judges have retired from this court, most recently judges Frans Malan and Robert Nugent, to be followed in the near future by the court's deputy president, Kenneth Mthiyane.

Their cumulative ability and experience leave a significant gap in this court. The nature of their replacements by the JSC will provide clear evidence of its appointment policy and hence its approach to the appeal court.

Of even greater importance to constitutional democracy are the potential appointments to the Constitutional Court. This year it is likely that there will be one vacancy as Justice Thembele Skweyiya retires.

Over its 20-year history the court has developed a model that a commentator described as one of judicial humility. The court has carefully eschewed the exposition and adoption of a deep, substantive vision of a just political order and has rather sought to create the conditions for effective democratic mobilisation. At times the court has felt compelled to do the heavy democratic lifting, particularly when the other arms of the state have failed to fulfil their constitutional obligations, but it has generally sought to maintain a distinction between politics and law.

In the wake of the most recent series of appointments from 2009 onward, there has been an increasingly apparent division in the jurisprudence of the court between those who have broadly developed the approach of humility and those, albeit apparently still in the minority, who favour an aggressive adherence to judicial deference to the other arms of the state.

Although one more appointment to replace a stalwart member of the former school, Skweyiya, may not yet disturb the balance of power, some observers consider that the deferential school will then be but one vote shy of a regular majority, in the event that Zuma makes the same kind of appointment as he has mainly done since his ascent to the presidency.

Divining divisions in the court is not an easy task. In the recent Allpay case dealing with public tenders, the court unanimously adopted an approach of strict scrutiny of tender decisions, in itself hardly a deferential act. But when the recent judgments dealing with public power and political questions are examined holistically, it becomes more apparent that the next two appointments will determine whether the current tradition of the court is ruptured and then followed by a Bench characterised less by humility and more by a timidness to power.

Viewed in this light, by year end South Africans will know far more about the state of the judiciary and its possible role for the next 20 years.

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