Minister in the Presidency Mondli Gungubele. (Photo by PRESIDENCY OF SOUTH AFRICA/Anadolu Agency via Getty Images)
Minister in the Presidency Mondli Gungubele said Tourism Minister Lindiwe Sisulu’s extraordinary attack on the judiciary had left him worried the government was not doing enough to protect it, because if faith in the courts and Constitution was lost anarchy would follow.
“If you look at the article, the reference it makes to the judges, it is highly degrading, degrading without facts. Sometimes I think judges have been attacked several times, and we have tried to defend them, but I don’t think we are doing well,” he told the Mail & Guardian on Friday. “I think as the government and society we can do more.”
Gungubele suggested that it should be asked whether the level of insult the minister directed at judges was within the limits of the law, but said he would also call for an educational campaign to remind all of the central role of the judiciary in a functioning democracy.
“Maybe we need to consider as South Africans the degree to which we can protect judges without suppressing the freedom of expression. Remember our Constitution is based on the principles of open democracy, freedom of expression but without infringing on the rights of others,” he said.
“I need to think if some of the insults that have been thrown upon judges have not actually crossed the line in as far as the limitation of rights is concerned with regard to those upon whom the insult is directed.”
The minister slammed as “very, very outrageous”, Sisulu’s use of the term “house negroes” in her suggestion that South African judges were enslaved to a colonial mentality that has meant that the constitution remains nothing but a palliative for the poor.
This was especially the case, he added, “when it is attributed to somebody who holds a high position in society, who has got responsibility to protect a particular decorum, especially in the context of how we deal with one another”.
He said all had a particular duty in the post-apartheid dispensation to uphold respect for the judiciary, given how it was eroded during in the era when courts enforced repressive laws.
“The South African judicial system has got a particular background, it is a judiciary system that over centuries adjudicated on behalf of apartheid. Post-1996, after adopting the Constitution, we adopted a law that is breaking away from that kind of system to one that is indiscriminate, that sails across ethnicity, across colour lines and all those things,” he said.
“Because of the history that the judiciary has under apartheid, all of us have got a huge responsibility to re-establish the credibility of the judicial system in a democratic South Africa.”
Gungubele stressed that the historic choice was to end apartheid through a peaceful transition to create a country where the law was central, and for this to hold the the credibily of the courts had to be protected.
“They have the final say in disputes and final say must be an outcome that enjoys the support of the entire society because the alternative to that is too ghastly to contemplate because you can only have the alternative in an anarchical state,” he said.
“If you are chipping away at their integrity you are creating a situation where democracy is on a slippery road and the consequences of that are dire.”
He said Justice Minister Ronald Lomala had consistently spoken out in support of the judiciary but it was perhaps inevitable that if judges were routinely attacked they would themselves feel the need to speak out.
“It is my view that the way judges are being attacked left and right, sometimes you can understand why the chief justice reacted.”
Referring to Jacob Zuma’s repeated attacks on the judiciary last year as he was charged with contempt of court for defying a constitutional court order that he comply with the Zondo commission into state capture, Gungubele said the former president should have raised his arguments in court.
“If the former president felt victimised, if any one of us feels victimised, there are processes in the South African system to test that, you cannot test that by not going to court, you cannot test it by not going to a commission,” Gungubele said.
Acting Chief Justice Raymond Zondo has been criticised by some in the ruling party, including former finance minister Tito Mboweni, for calling a media briefing where he condemned Sisulu’s remarks as the worst insult hurled at the bench to date.
Critics have cautioned that this risked embroiled the judiciary in politics, but several former constitutional court colleagues have echoed Zondo’s condemnation of Sisulu and the General Council of the Bar has come out in support of his statement.
Gungubele said ideally there should be no need for judges to defend themselves.
“Judges are human beings, they have families, they have an interest with regard to where this country is going but they have opted to serve the country in the judicial space,” he said.
“But now if those who are in power conduct themselves in a manner that makes judges feel unsafe in their pursuit of independence, of course there will be consequences that will lead to them being embroiled in societal conflict and I wish to not reach that point.
“I wish society would be so alert with regard to the centrality of the law that a situation where judges have to defend themselves does not exist,” he added, saying he would therefore argue for a government communication programme that spoke to the role of the judiciary.
“I think we can no longer delay, during the course of this year, I think I will speak to my team and discuss with them how we put together an educational programme on the significance of the judiciary for a stable prosperous society.”
Gugubele said he had tried to contact Sisulu without success but added it was not for him to say whether President Cyril Ramaphosa should ask her to withdraw her remarks.
Meanwhile, the Democratic Alliance has urged Ramaphosa to demand that she does so.
“We will also call on the minister to appear before parliament’s ethics committee where she will be asked to explain how, as a member of parliament, she reconciles her attack on the judiciary with the Parliamentary Code of Conduct,” DA leader John Steenhuisen said.
The ANC has been hard pressed to emphasise that Sisulu was expressing her own personal opinion. In a recent interview, ANC chairperson Gwede Mantashe told the M&G that her views were not that of the ruling party.
“There are many people who belong to the ANC, that does not mean that their view is that of the ANC,” Mantashe said.
But Sisulu’s spokesperson, Steve Motale, told the M&G that she wrote the article as an ANC national executive committee and national working committee member, as well as in her capacity as chairperson of the social of transformation subcommittee.
Motale said the minister had had a productive meeting with ANC deputy secretary general Jessie Duarte on Sisulu’s column and that she would not need to answer to the ANC’s leadership because the party encouraged robust debate and freedom of speech.
Some pundits and ANC leaders have speculated whether this was Sisulu’s attempt to launch her campaign for ANC president.
In a recent interview, party veteran Mavuso Msimang questioned the timing of the column, adding that Sisulu would do anything to be ANC president, EWN reported.
Motale said Sisulu felt targeted, especially on patriarchal grounds.
“Fortunately, she did receive a lot of support from the public and ANC structures and she is truly humbled by the support she has received … The feedback has been greatly positive, especially from the poor and the ANC rank and file. Party leaders assured her of her rights to freedom of speech,” he said.
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