Judiciary is last line of defence against government

Chief Justice Mogoeng Mogoeng and President Jacob Zuma at a meeting following attacks by senior members of the ANC against the courts. (Moeletsi Mabe, Gallo)

Chief Justice Mogoeng Mogoeng and President Jacob Zuma at a meeting following attacks by senior members of the ANC against the courts. (Moeletsi Mabe, Gallo)

Nearly six months ago, South Africa’s most powerful judges had an extraordinary meeting with President Jacob Zuma and seven members of his Cabinet. The meeting was the first of its kind in South African history.

It had been requested by Chief Justice Mogoeng Mogoeng, after ANC secretary general Gwede Mantashe launched a scathing attack on two of the country’s most influential courts, stopping just short of calling its judges treasonous.

“There is a drive in sections of the judiciary to create chaos for governance; that’s our view,” Mantashe said. “We know if it doesn’t happen in the Western Cape high court, it will happen in the Northern [sic] Gauteng – those are the two Benches where you always see that the narrative is totally negative and create[s] a contradiction.” 

Mantashe’s motive for the remarks was glaringly obvious, and he did not seek to disguise it.

Just days before, government had failed to act on a Pretoria high court ruling by a full Bench that South African authorities had a duty to arrest Sudan’s president, Omar al-Bashir, who is wanted by the International Criminal Court for genocide and war crimes.

But the judges’ ruling had no prospect of being enforced. As lawyers involved in the court application took a brief break in their arguments, a plane carrying Bashir took off from the Waterkloof air force base. 

When he was asked by the court about Bashir’s whereabouts, government advocate William Mokhari said the president’s name had not been on the plane’s passenger list. As he uttered those words, Bashir flew out of South African air space.

That moment reverberated like an earthquake across South Africa’s legal landscape. In a country where the term “crisis” is used to describe almost every aspect of public, economic and political life, it was not surprising that the Bashir debacle was greeted with alarm.

The Bashir case, it seemed, demonstrated that government would only respect the rule of law when it was politically convenient to do so.

ANC targets the judiciary
In response to the furore, the ANC went on the offensive. The party’s target? The judges who had ordered Bashir’s arrest in the first place.

“You have South Africa hosting the [African Union] summit, [and]you say: ‘Arrest a head of state,’ Mantashe said in an interview on Carte Blanche. “Obviously when you take that decision you are contradicting the interest of the state versus [the] judiciary.

“People forget that, in this country, we took a decision, consciously, not to arrest leaders of the apartheid regime ... Why would the judiciary today want to relegate South Africa into a pariah state on the continent?” 

Mantashe’s comments underpin the state’s attempt to challenge the high court’s decision in the Supreme Court of Appeal. Government maintains that Bashir had come to South Africa as a guest of the AU, not as a guest of the country.

It insists, therefore, that South Africa had no authority to arrest him. Government will, however, struggle to explain why it seemingly did not believe that the high court would come to that conclusion – and allegedly orchestrated Bashir’s exit while the high court was still making a ruling. 

The ANC’s attack on the Bashir judges could arguably be interpreted as an attempt not only to explain the state’s apparent contempt for the court, but also to intimidate the judiciary.  Ironically, perhaps, it appeared to do the opposite –  and prompted the judiciary, led by Mogoeng, to engage with Zuma and his government publicly.

Without ever directly identifying Mantashe as the source of judicial disquiet, Mogoeng requested a meeting with Zuma over “unwarranted attacks” on South Africa’s judges.

The verbal attacks against the courts followed a high court ruling that President Omar al-Bashir be arrested while in SA to attend an AU summit. (Zohra Bensemra, Reuters)

At a press briefing after that marathon meeting, Zuma stated that government and the judiciary agreed that “court orders should be respected and complied with”.

“We also underscore our responsibility to the people of South Africa to uphold the Constitution of the republic,” Zuma said. 

Gauteng Judge President Dunstan Mlambo, who had led the three-judge Bench that ordered Bashir’s arrest, sat quietly in the press briefing room of the Union Buildings as Zuma read out his press statement. 

“The meeting agreed on the following: 1) our respect for the separation of powers and the integrity of the two institutions [executive and judiciary] 2) to exercise care and caution with regards to public statements and pronouncements criticising one another. Failure to do so will undermine the global status of the republic as a bastion of democracy, tolerance, human rights and the rule of law.

“The arms of the state should not be seen to be antagonistic towards one another, in public,” he added.

Mogoeng responded to Zuma’s 15-minute statement with just a few well-chosen words.

“I just want to reaffirm our collective commitment as a judiciary to executing our constitutional mandate only in a manner required of us by the Constitution and the law,” he said. “The constitutional reality is that it is the responsibility that rests on the shoulders of the judiciary to interpret the Constitution and the law. That will never change.  It would be arrogant to say that no one but a judge could question that process ... that has never been our position. Our position is that it is how you question that matters to us.”

After that meeting, the ANC appeared to back out of openly attacking judges. In a year when courts are deciding on the politically loaded Nkandla case, whether Zuma should have been prosecuted for corruption and the Bashir case, that silence may be seen as encouraging.

The role a judge’s politics plays
Although the Bashir debacle brought the relationship between the judiciary and the state to the brink, it seems both sides realised that plunging off the precipice would be suicidal. 

Mogoeng has continued his push for judicial independence and has systematically fought for the judiciary to control its own budgets and administrative affairs.

The man whose appointment by Zuma was greeted with predictions that he would be nothing more than a government lapdog has defied his critics, both in his rulings and in his refusal to avoid direct – but ultimately polite and measured – confrontation with the state. 

Mogoeng’s deputy, Dikgang Moseneke, believed by many to be the right judge to succeed Pius Langa as chief justice when Langa retired in 2013, will leave the Constitutional Court this year. He is regarded as a brilliant legal mind, and has authored some of the court’s most important judgments. 

But Moseneke embodies one of the most profound threats to true judicial independence in South Africa: the realisation that judicial career progression may be very powerfully linked to the politics of the judge involved – whether those politics are real or perceived. 

For Moseneke, it was a comment he made at his 60th birthday party 10 years ago that would draw the outrage of the ANC and ultimately shape his career prospects.

“I chose this job very carefully. I have another 10 to 12 years on the Bench and I want to use my energy to help create an equal society,” Moseneke was quoted as saying.  “It’s not what the ANC wants or what the delegates want; it is about what is good for our people.”

The comment was met with outrage by both the ANC and its youth league, which demanded that Moseneke apologise. The league claimed former prosecutions head Bulelani Ngcuka had attended Moseneke’s birthday party, and suggested that this was clear evidence that Zuma would never get a fair trial. 

At the time that Moseneke made his career-altering comment, Zuma was fighting against his corruption prosecution in multiple courts – including the Constitutional Court – and repeatedly blamed then-president Thabo Mbeki for orchestrating the case against him. Moseneke, a lifelong member of the Pan Africanist Congress, was appointed by Mbeki.

The corruption case against Zuma was ultimately aborted, but Moseneke’s comment would continue to haunt him. Despite being considered the perfect candidate to replace Langa by many in the legal community, he was overlooked. 

After the death of Langa, his close friend and colleague, I asked him what the most emotive moment he had shared with the chief justice was. Without missing a beat, he answered: “When he came to my house very late at night with tears streaming down his face and said to me: ‘The president has chosen not to make you my successor.’”

It was one of the first and last times Moseneke ever spoke about not being appointed chief justice. 

The last line of defence
He and Mogoeng, despite apparent early tensions in their relationship, have since become powerful comrades in the battle for judicial independence. When Moseneke is replaced on the Bench, the majority of the Constitutional Court’s justices will be Zuma appointees.

As Mogoeng has proved, that does not mean that South Africa’s highest court will be populated by pro-government judges. But it does mean that those who are outspokenly critical of the state are arguably less likely to have a shot at serving in the country’s most powerful court. 

And that is concerning. 

South Africa has increasingly become a country where challenges to the state’s unlawful and irrational decisions and policies are routinely decided in the courtroom. And that’s what makes the judiciary so incredibly important. 

It may not be right or fair, but the country’s judges have become the last line of defence against poor state decision-making, government abuses and failure to comply with the Constitution. 

It may not be right or fair, but the state has very often responded to that antagonism, not by re-evaluating how it makes decisions or enforces policy, but by attacking and insulting the men and women tasked with applying the law. 

That battle very often forces judges into wielding legal knobkerries over a defiant state – in circumstances where simply acknowledging fault and correcting mistakes would be far easier, less time-consuming and expensive.

That battle presents conflict between the judiciary and the state as inevitable. It never had to be, but it is just as well that it is for the sake of South Africa’s citizens. The Bench is the last line of defence.



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