A fortnight ago, in an extensive interview with the Mail & Guardian, Chief Justice Mogoeng Mogoeng dropped a bombshell. The head of the judiciary had last year signalled that there were “very desperate attempts to frame me for criminal acts you can’t even begin to imagine”. Mogoeng’s former spokesperson also referred to attempts to “falsely accuse the chief justice of a crime”.
In the interview, Mogoeng said he had chosen to go public about the alleged smears, including a tale that his official vehicle was involved in an attempted hijacking and that he allegedly raped a sex worker, to counter any attempts to blackmail him in future. He also spoke of how three Constitutional Court justices had been falsely accused of being CIA spies, noting that the inspector general of intelligence, Faith Radebe, had been asked to investigate and had exonerated them.
Puzzlingly, there was little reaction, let alone outrage, from civil society, the legal profession, Parliament or the executive to Mogoeng’s startling claims. Since the chief justice went public with his allegations of a possible dirty tricks campaign, South Africa has been treated to a mind-boggling display of executive contempt for the judiciary.
Last week, the government thumbed its nose at an interim court order ordering it not to allow Sudanese leader Omar al-Bashir to leave South Africa, where he was attending the annual African Union summit.
A clear picture is emerging: President Jacob Zuma, Cabinet ministers and South Africa’s law enforcement agencies actively colluded in this flagrant violation of the court order and our own legislation, ensuring that al-Bashir was not arrested to face the charges of crimes against humanity, war crimes and genocide that have been brought against him by the International Criminal Court. South Africa is a signatory of the Rome Statute, which mandated the existence of the ICC; in fact, South Africa’s Parliament gave the statute a place in our own law books.
At one level, the actions of those who helped al-Bashir abscond gave expression to our rulers’ main concern: protecting fellow presidents rather than the ordinary Africans they have allegedly caused to be mistreated. They also exposed Zuma and other state agents as deliberate law-breakers. Our elected leaders chose to commit the crime of contempt of court. They gave the middle finger to our Constitution, the law and Parliament. These actions were in breach of their oath of office, which clearly states they will “respect and uphold the Constitution and all other laws of the Republic of South Africa”.
And then, in the tradition of an increasingly common practice, the ruling party’s secretary general, Gwede Mantashe, launched yet another attack on the judiciary, claiming that there was a drive by certain judges to “create chaos for governance”.
He moved on to an even more pointed slur: “We know if it doesn’t happen in the Western Cape high court, it will happen in the North Gauteng [high court] – those are the two Benches where you always see that the narrative is totally negative and [it] creates a contradiction.”
Mantashe appeared to echo his South African Communist Party counterpart and higher education minister, Blade Nzimande, who recently commented: “We are concerned that sections of the judiciary tend to somehow overreach into areas [where] one would expect, even in a constitutional state, [them] to tread very, very carefully.”
Nzimande, who speaks for the most Stalinist elements in the ruling alliance, added in a sinister affront to the whole concept of a Rechtsstaat: “At the heart of our concern is that we must be careful … [that] we must not define our constitutional state as standing in contradiction to majority rule. If we don’t debate this, we run the risk of Parliament matters and executive matters being run by the courts.”
Then on Thursday it emerged that the police minister had also bought into the conspiracy theories and duly attacked the integrity of some judges. He told Independent Police Investigative Directorate managers that some on the Bench were meeting and colluding “with characters to produce certain judgments”. He added it was becoming a common feature in the judiciary.
ANC chief whip Stone Sizani, meanwhile, has warned that continued scrutiny of parliamentary processes by the judiciary could lead to a “constitutional crisis”. It seems to have escaped Nzimande, Sizani and others that the foundation of the constitutional state is the hard-won idea that all South Africans – including the president and his Cabinet ministers – are subject to the Constitution and the courts that uphold it.
Their implicit, pernicious claim is that, because Parliament is elected by the majority (albeit a declining one) of the people, any move to question or contradict its actions represents an undemocratic subversion of the popular will.
The irony of course is that when the executive has its own reasons to avoid controversy it happily leaves difficult decisions to the courts. So, for example, it was a Pretoria high court judge who ordered the release of Clive Derby-Lewis on medical parole, a political hot potato the justice minister was eager to sidestep.
Between executive attacks on judges and the wholesale subversion of the judiciary (as in Zimbabwe) lies a slippery slope. The truth is that, given our compromised executive and dysfunctional Parliament, the Constitution and the judiciary are the main democratic bulwarks for freedom-loving, law-abiding South Africans.