Davis likens ANC to Nats

The political climate, where “influential members of the ruling party” have labelled senior judges “counter-revolutionary”, resembles that of the nationalist government of 50 years ago, says senior Judge Dennis Davis.

In a new book, co-authored with advocate Michelle le Roux, Precedent and Possibility: the (ab)use of law in South Africa, Davis writes this should serve as a “salutary warning of a possible threat to the judicial institution”.

ANC attacks on the judiciary, he writes, recall the Nationalist campaign to disenfranchise Cape coloureds in the Fifties, when the government reacted to initial failure by packing the Bench with executive-minded judges. Two other judges, including the then chief justice, Albert Centlivres, a strong believer in human rights in the common law, eventually retreated and gave a judgement favourable to the government in the notorious Collins case.

Davis asks whether Judge Chris Nicholson’s controversial ruling in favour of ANC president Jacob Zuma should not be seen in the same light.

“The question that then arises is how history will judge the [Nicholson] judgment. Will it be recorded as a muscular assertion of judicial independence and protection of prosecutorial autonomy? Or will it go down in history in a similar fashion to the final judgment in the Coloured vote trilogy?

“Did the court retreat from compelling Mr Zuma to face trial in the face of incessant political pressure? More important, perhaps, is the question of whether those who shouted the loudest and threatened most menacingly will consider these to be acceptable tactics for compelling the judiciary to find in its favour in the future.”

The authors also point to the resolution passed at the ANC’s Polokwane conference, which sought to ensure the transformation of the “collective mindset of the judiciary”.

“Fifty years later and almost one decade into constitutional democracy, the ANC produced a statement which, save for the significant distinction that its conception of the will of the people embraced all South Africans, was stunningly similar to the National Party’s approach to the judiciary during the 1950s,” Davis writes.

Precedent and Possibility: the (ab)use of law in South Africa will be launched at Constitutional Hill in Johannesburg on Wednesday November 26