Chief Justice Mogoeng Mogoeng recently exhibited courageous and principled leadership so lacking in other areas of South African public life when he asserted the importance of the judiciary to the development and preservation of democracy.
His statement, at his press conference called to rebut the spate of attacks on the judiciary by government and ANC spokespeople, was by far the most sustained and tenacious defence of the judicial institution by a sitting chief justice, which is itself of significance, given the vicious criticism Mogoeng had to endure on his appointment as chief justice.
That the judiciary has found a brave leader in its hour of need is grounds for optimism. But this conclusion must be tempered by the context in which the press conference took place.
Attacks on the judiciary by senior members of government have a long history. That most courteous and reflective of jurists, with a history of commitment to progressive jurisprudence, Chief Justice Pius Langa was accused outrageously by members of the ANC of being a “counter-revolutionary”.
President Jacob Zuma warned judges at a judicial conference in 2011 they should not encroach on the executive’s prerogative to make and implement policy, thereby omitting any consideration of the effect of the very Constitution the ANC was instrumental in drafting from the contours of social and economic policy.
In 2012, the present minister of mineral resources, Ngoako Ramathlodi, wrote about the fatal flaws in the Constitution, which gave far too much power to the judiciary. This promoted retired chief justice Arthur Chaskalson not only to mount a defence of the judicial role but also to request of ANC critics that they inform the public with precision which clauses of the Constitution should be repealed or amended in order to accommodate their criticisms of the judiciary.
This brief chronology reveals the fury accompanying the North Gauteng High Court judgment in the Sudanese President Omar al-Bashir case wasn’t unique.
The point is there are powerful members of the ruling party who hold strong views, at best, in favour of a Westminister system of government, in which majority rule trumps legal constraint, or, at worst, unfettered rule by the tripartite alliance.
The two secretaries general, Gwede Mantashe of the ANC and Blade Nzimande of the SACP, clearly entertain some political antipathy to the constitutional project, in which the implementation of all policymaking is subject to the rule of law.
Of course, these two advocates of a “second revolution” focus their attention on what they argue is judicial “overreach”, whereby activist judges encroach on executive space, conveniently forgetting the Constitution governs all law and conduct that holds public implications.
Judges, such as Judge President Dunstan Mlambo, who found that the government was obliged by law to arrest Al-Bashir, follow their constitutional mandate to apply the applicable law. The critics wanted the court to take a range of extraneous political considerations into account. It was the court’s refusal to defer to this preferred political line rather than to any obvious legal principle that produced the political storm.
And that brings us to the clear divide between those who believe in constitutional democracy, in which the courts police the legal boundaries, and those like Nzimande who, in essence, argue that the government should have free rein to pursue its chosen political path.
This represents a major political and legal divide, which will not disappear, notwithstanding promises of meetings between Zuma and the chief justice or a sober speech by Deputy President Cyril Ramaphosa, a key architect of our constitutional design, in support of the critical role of the judiciary in the construction of our constitutional democracy.
It would be better if citizens were the beneficiaries of public candour. Nzimande, Mantashe and Police Minister Nathi Nhleko, so fiercely critical of the judiciary, should spell out with clarity precisely the model of governance they advocate.
In turn, the citizenry will then have a basis upon which to make the ultimate decision: Do we want to continue under constitutional rule or do we want to provide unfettered powers to the ruling party?
Those too quick to favour the latter should read the Western Cape High Court’s recent judgment, which ruled against the practice of garnishee orders so cynically exploited by lenders against poor and vulnerable people.
This judgment again shows the manner in which courts can ensure that the legal system protects the poor and marginalised. Ironically, this pro-poor judgment comes from one of the courts singled out for special criticism by Mantashe.
When all the bluster is removed, South Africans have a choice: to have a legal system that holds power accountable, or to place our trust in the good faith of politicians to implement their chosen policies.