The seeds of the current political assault on the judiciary were sown in 1994, when the ANC used race to bring the judges to heel, former DA leader Tony Leon said this week.
Leon was talking to the Mail & Guardian following the release of his weighty memoir, On the Contrary.
”It became obvious [in 1994] that the ANC used race as a way to get control over the judiciary,” he said. ”It is this hegemonic impulse and compulsion to control, and we are seeing the results of that now.”
However, the difference was that Nelson Mandela gave his support to the judiciary. ”Even under [President Thabo] Mbeki you got the sense that he implicitly is on the side of the judges.”
In On the Contrary, Leon points to the ANC’s 1994 agreement to consult opposition parties on the appointment of judges, contrasting it with the stand-off between him and Mbeki’s legal adviser, Mojanku Gumbi, who merely informed him of the appointment of [now deputy chief justice] Dikgang Moseneke to the Constitutional Court.
”I experienced, at first hand, deployment under Mbeki. The ritual of consulting the opposition leadership on judicial appointments was much reduced,” Leon writes.
He said fears of political appointments to the Bench were allayed by judges such as the Constitutional Court’s Kate O’Regan, who despite her ANC background, has written judgements unfavourable to the ruling party.
However, there was a clear increase in the number of ANC-aligned members of the Judicial Services Commission, to which he alerted Mbeki. ”As usual, [he] paid no heed to my warning,” he writes.
Leon’s answer to the political turmoil sparked by the looming change in government and attacks on the judiciary is to build South Africa’s democratic institutions.
”We have too much hope in the good tsar. We must have faith in our institutions and build them up, rather than waiting for a leader to save us.”
He advised his successor, Helen Zille, to continue striving to make inroads in the black vote.
”I spent more time campaigning in black areas than in white areas, but the dividends were poor. Whites were the low-hanging fruits — easy pickings because they were politically available.
”But the party should never give up on the quest for black votes. Every black-led opposition party in this country has gone backwards. Some of it is historic, but a reconfiguration needs to take place.
”There should be a breakthrough [with black voters] soon, even if it is a modest one. The Progressive Party [the DA’s predecessor] took 40 years to get through to Afrikaans voters.”
Leon said he had few regrets about the DA’s ”Fight Back” slogan in the 1999 election campaign, widely criticised as a pitch to white fears.
”The ANC would have demonised us just the same. It was then very difficult for people to take on the ANC, but now it is easier.”
He said he inherited a ”bankrot boedel [bankrupt estate]” when he took over the Democratic Party in 1994 after Zac de Beer surprised everyÂÂone by stepping down as leader following the party’s dismal performance at the polls.
”There were no expectations; everyone predicted the end of the party. That turned out to be our biggest advantage.”
He admitted his ”overbearing political zeal” might have put some people off, but was adamant it had helped him to grow the party from its 1,7% of the vote in 1994 to the official opposition in Parliament, with 12%.
He said his most important legacy is to have created space for an opposition, recalling that he had been tempted when Mandela offered him a seat in the Cabinet.
”I asked Madiba: What do I do when I disagree? He answered I would be listened to, but in the end we will face the world as a united front.”
This was the deal-breaker: ”If I took this up, there would have been no opposition at all.”
Leon called on Zille to ”keep trying” to forge electoral alliances. Although the DP-New National Party alliance was much-maligned, it did result in a consolidated opposition, he argued.
The electoral alliance with the IFP was a dismal failure, however, falling apart shortly after the 2004 elections. ”It was viable for the party but not for the electorate.”
Electoral alliances were the way forward for opposition parties, and sensible post-election arrangements crucial to their success.