Our fifth democratic election is over. As expected, President Jacob Zuma will occupy the Union Buildings for a second term and the ANC will be in the majority in Parliament and most legislatures.
Yet the health of our constitutional democracy will not rely only on how Parliament and the executive fare, but also on the state of our judiciary. The independence of the judiciary has been a vital safeguard against the excesses of our elected representatives and the attempts by the ruling party to evade the kinds of accountability demanded by the constitutional as well as other restraints on executive power.
The question is whether it will continue to do so. Zuma’s second term will see a Constitutional Court that, for the first time, will contain a majority of judges appointed during his presidency.
The chief justice himself, Mogoeng Mogoeng, was appointed by Zuma, and in two years Deputy Chief Justice Dikgang Moseneke will retire from the Bench. That means Zuma will be appointing a successor to a man regarded as one of the court’s progressive legal minds – but also one who declared that his loyalty was to the Constitution and the people of South Africa, not the ruling party. There is well-informed speculation that Zuma will want to appoint a new deputy chief justice who is indeed more executive-minded.
The frequently activist nature of the Constitutional Court has been a major bugbear for Zuma’s ANC. The president and several senior leaders have made it clear that, from their perspective, this needs to change – and fast.
There is, therefore, deep concern in sections of the legal community that, during Zuma’s second term, a more executive-minded Bench will dominate the highest court of the land. This has not necessarily been borne out by recent judgments, such as in the Allpay case, but with more Zuma appointments to the apex court the pendulum may well swing.
Moreover, there is the ascendancy of a conservative bloc led by Mogoeng, a bloc that includes justices Raymond Zondo and Chris Jafta. This has created unease in legal circles, who fear a move away from a progressive, activist Constitutional Court. With Justice Thembile Skweyiya having recently retired, and justices Moseneke and Johann van der Westhuizen set to follow, the composition of the court will for the first time include a majority of apparent conservatives.
Yet does this mean that the court will be more pro-executive and less independent? Fears have been expressed that conservative judges mean a court less willing to challenge the executive. Such fears were raised when Zuma appointed Mogoeng as chief justice, but those fears appear, at this stage, to have been unfounded. Mogoeng has been at the forefront of transforming the judiciary’s administration to make it truly independent, pushing for the office of the chief justice to have its own budget and not to be at the mercy of the department of justice.
As a senior counsel noted this week, this is the new terrain of struggle for a truly independent Bench.