Courage of their conviction
When African National Congress deputy president Jacob Zuma appeared in the Johannesburg High Court on rape charges earlier this year, the three top black judges of the Transvaal provincial division had recused themselves from the case. In one case, the recusal was justified on political grounds; in another, the excuse was that Zuma had impregnated the sister of the judge in question 30 years previously, in exile. In the end, Zuma was tried by an apartheid-era white judge.
He now has to appear in the Pietermaritzburg High Court on Monday to face fraud and corruption charges, with KwaZulu-Natal Judge President Vuka Tshabalala yet to announce who will preside over the case. Already there are rumours that one of the top black judges may recuse himself because his family has a close historical association with the ANC.
The key criterion for recusal is whether there is a perception of possible bias by the presiding officer. But a worrying perception that is starting to emerge is that black judges are resorting to the device too easily and are reluctant to take on high-profile, politically-sensitive cases — presumably because they may alienate one or other powerful faction. The perception is that they prefer to pass on such cases to old white judges who are out of the political firing line. Indeed, it is hard to think of a single politically sensitive case since 1994 that has been tried by a black judge: Schabir Shaik, Tony Yengeni and Allan Boesak were all tried and convicted by white presiding officers.
It would be unfortunate if the perception has any factual basis. It would suggest, in the first place, that certain black judges do not have the independence of spirit required for their crucial office. In the impartial and fearless administration of justice, they should be willing to court unpopularity. But evasive strategies also potentially undermine the standing of the judiciary, by exposing court rulings to racial attacks. After Judge Hilary Squires found Zuma’s associate Schabir Shaik guilty of fraud and corruption in June last year, he was impugned as an ex-Rhodesian racist by Zuma’s supporters in an effort to tarnish him and discredit his judgement. Those who made such statements, a bare-faced assault on the integrity of the judicial arm, should not have been allowed to get away with such disgraceful tactics.
South Africa prides itself on the strength of its Constitution and supporting institutions that promote and reinforce our constitutional democracy. An independent judiciary is critical, both as a democratic counterweight to the executive arm of government and in enforcing compliance with the Constitution.
Most prominent black South Africans were involved in the fight against apartheid, and it is almost inevitable that they will run into one another in different sectors of the society. Should shared involvement in the liberation movement be reason enough for judges to stand aside? We think not. There has to be a demonstrably close link between individuals in a case, which convinces both the prosecution and the defence that the presiding officer may lack impartiality.
All that judges should have in their line of sight is justice. Worry about their careers should not come into the picture. And who may be the future president must be of no concern to them at all.
Drain without gain
A quiet battle is being waged in the African National Congress over the powers of South Africa’s nine provinces, with a sizeable body of opinion coming to the realisation that they represent a huge drain without much gain.
Look at the figures. In the past seven years, provinces have underspent — yes, underspent — by R4,7-billion. This, in a country with the largest wealth gaps in the world and where half the population lives on or below the poverty datum line. Chronic underspending expresses itself every day in hospitals that limp along, and in schools without textbooks or teachers; in periodic crises in the disbursement of welfare grants. In myriad other ways, the provinces are a weak link in the governing chain, while consuming close to half the national budget. It is this level that controls the operational aspects of education and health — the two most vital areas of development.
This week, for example, Gauteng was gripped by a crisis in school transport, with the provincial education minister, Angie Motshekga, locked in a dispute with bus operators. Getting a child from A to B is not rocket science. But even this seems impossibly complex for the province’s administrators.
Provinces have so botched welfare payments, which keep the poorest communities afloat, that these have been centralised in the nationally run Social Security Agency.
We report this week that the ANC is once again considering the reconfiguration of provincial powers. It comes not a moment too soon. Because the provinces are key spending centres they are also the level at which the most corrosive forms of cronyism and corruption take place. It is a widespread and growing trend for provincial ministers and legislators to own businesses, many of which do business with provincial government.
The ANC should move swiftly on this issue, rather than sponsoring interminable, inconclusive debate. The provinces have already acquired a self-perpetuating inertia as providers of official salaries, status and patronage. If they are allowed to calcify even further, it will be nigh impossible to shift them without creating massive political instability.