In the past two weeks Deputy Chief Justice Dikgang Moseneke, Judge Dennis Davis and advocate Gilbert Marcus SC have reflected in the M&G on our constitutional democracy after 15 years of the Constitutional Court’s existence. In this final contribution to the series advocate Michelle le Roux assesses the strength of our constitutional enterprise
Recently retired chief justice Pius Langa observed that “storms come and storms pass”; in this case the storms caused by the developments in the State v Zuma and related high-profile cases.
In these storms judges were “counter-revolutionaries” — although I note the ANC’s correction that the party’s secretary general, Gwede Mantashe, did not use this language in relation to judges and blamed the media for failing to distinguish between “those forces that are counter-revolutionary and those whose actions had placed the ANC under siege”.
Judges were, additionally, “not God” and “not above the law” — but also “custodians of our Constitution”, “the weakest arm of government” that was “threatened”, “under unrelenting attack”, “on a collision course with the executive”, facing “chaos”, “calamity” and a “constitutional crisis”. This militarised and belligerent rhetoric framed the saga surrounding the Jacob Zuma cases so that it was viewed as the courts on one side, in opposition to the executive and the party, the leader, on the other.
When I refer to the Zuma cases, I mean several separate but related pieces of litigation:
- The criminal case against Zuma;
- The conviction, parole and possible pardon of Schabir Shaik;
- The pending review of the decision by acting National Prosecuting Authority (NPA) head Mokotedi Mpshe to drop the charges against Zuma;
- The expected litigation around the leak of the recordings of conversations between then-NPA head Bulelani Ngcuka and then-Directorate of Special Operations (Scorpions) head Leonard McCarthy that played a pivotal role in Mpshe’s decision;
- Businessman Hugh Glenister’s futile effort to prevent the disbanding of the Scorpions;
- The saga-within-the-saga of the complaint and counter-complaint by the Constitutional Court judges and Western Cape Judge President John Hlophe; and
- (Arguably), the litigation around the removal of Vusi Pikoli as NPA head and the Ginwala commission that investigated his fitness to hold office.
What can be distilled from this litany of litigation? First, the full menu of available legal options being exploited — trials, motion proceedings, reviews and appeals, commissions. Second, in many of these cases, the courts were asked to look behind the facts and see an animating conspiracy at work or an ulterior motive at play.
Third, this conspiracy discourse itself became both accepted and central to how the courts dealt with this litigation — yet we get no closer to uncovering the truth regarding many of the allegations made.
The first viewpoint from which to reflect on all this is based upon the idea of “lawfare”, the term coined by distinguished anthropologists John and Jean Comaroff.
As they have written: “Lawfare [is] the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure — [I]t becomes most readily visible when those who act in the name of the state conjure with legalities against some or all of its citizens — [I]t always seeks to launder brute power in a wash of legitimacy, ethics, propriety.”
This I call the dark side of lawfare — like politics, lawfare is not inherently “good” or “bad” in character but entirely dependent on the use made of it. The Zuma saga could be seen as an example of “bad lawfare” — that is, law employed against political opponents, as we now know from the McCarthy tapes.
The second useful viewpoint is that of our history or histories.
First up is the history of our Constitution-making process — and efforts to conceive of a society that would be the antithesis of apartheid South Africa and prevent a repetition of the worst institutional abuses of that era. Hence the need for independent, autonomous courts and prosecutors — constitutional guarantees inserted into the text to prevent a repetition of the abuse of these powerful institutions by one political faction.
However, some commentators see the Zuma cases as evidence that these institutions have once again been captured (for example when the policy of cadre deployment to state office is criticised) despite the structural guarantees set out in the Constitution.
Another relevant historical perspective is the different ways in which our histories, personal and national, affect individual judges and the judiciary more generally.
Which brings me back to the question of why this conspiracy discourse flourished. I propose that the answer may lie in the combination of at least three of these factors — the dark side of lawfare, our history of the centrality of law to South African political disputes and of the historic use of political trials.
All three provide fertile soil in which conspiracy theories bloom. And we saw that the judiciary was not immune from this discourse — the judgments by Judge Chris Nicholson in the Pietermaritzburg High Court and Judge Louis Harms on behalf of the Supreme Court of Appeal both deal with it, albeit in starkly different ways.
The former addresses the conspiracy allegations expressly, but the latter’s insistence on formalistic outcomes (especially in light of the political context at the time) is no less political an approach — it could be read as an attempt to manoeuvre the judiciary out of the political firing line. In any event, we saw this discourse employed by supporters of ex-president Thabo Mbeki as a counter to the competing conspiracy theory propagated by supporters of President Zuma.
Which brings me to the final historical comparison, made by many of the talking heads, that the Zuma saga paralleled the constitutional crisis of the 1950s.
I disagree with this, not least because the attacks then targeted government policy and the individual occupiers of judicial office. No matter the level of the volume of the recent rhetoric against the courts during this saga, no attempt was made to subvert the independence of the Bench, as had occurred during the 1950s.
However, the traction this comparison achieved in popular discourse is itself significant. There is therefore one aspect in which I do think the two series of events can be validly compared: in their ability to reveal the fragility of our constitutional enterprise, particularly when the judiciary is called upon to adjudicate the outcomes of lawfare.
This is an edited and abridged version of the lecture given by advocate Michelle le Roux at the University of Cape Town’s Summer School on January 20.
For an audio recording of the full lecture, go to www.mg.co.za/lerouxpod