Judicial and politics intersect as new judges sought for apex court

There was much of the profound in this week’s interviews with candidates to fill two vacancies on the Constitutional Court, but inevitably there was politics too, enough to help those undermining the judiciary get home in the court of public opinion — for now.

Three of the applicants for vacancies at the apex court have in the past penned judgments that went against former president Jacob Zuma — justices Rammaka Mathopo, Bashier Vally and Dhayanithie “Dhaya” Pillay.

This is par for the course in a country in which the courts regularly adjudicate political disputes, and, increasingly, criminal matters involving individual politicians.

Pillay last year issued a warrant of arrest for Zuma when he failed to appear in the high court hearing his corruption case. The former president filed a defective medical certificate as justification. And in 2019, she ordered him to apologise for defaming former minister Derek Hanekom as a “known enemy agent”.

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In that case, Pillay said she knew the real issue was a deeper one she could not resolve in law — hinting at the courts’ limitations in meaningfully settling political battles.

So did Mathopo, when he recalled hearing an urgent application on the leadership battle in the Congress of the People (Cope) after trying in vain to bring the protagonists to resolve the issue among themselves. He commented that it was here that “Cope lost its hope to live” as a viable political party.

It was an aside, in response to a question on the need to deal with matters promptly, in an interview where he dwelt on how discriminatory briefing patterns played out against female and black lawyers, which meant that transformation remained a dream deferred.

“We should not be having this debate; we had this debate 25 years ago, and it is wrong and remiss of us to be still having this debate,” said the appeal court judge, who has served two acting stints at the apex court, and was recommended by the Judicial Service Commission (JSC) for appointment.

Pillay, who is currently acting at the Constitutional Court, directly confronted the peril the political climate posed for the judiciary in her introductory remarks to the members of the commission.

She is one of the judges Zuma singled out for attack in an invective against the Constitutional Court last month after it heard arguments from the Zondo commission that he be incarcerated for contempt.

On Tuesday, a day before Zuma snubbed the court’s final injunction to file papers in reply, Pillay spoke of a constitutional crisis and defined it as a situation in which “keeping disagreements within the ordinary bounds of political discourse becomes impossible”.

She said this had resulted in politicians refusing to obey court orders, in breach of the constitution.

Pillay provided a global context, in which constitutions were under pressure as the momentum of digitalisation meant courts were tested on new frontiers in matters of privacy, dignity and security. In South Africa, she cautioned, this shift was compounded not only by the Covid-19 pandemic, but also a history that had long consigned the majority to manual labour, which meant even greater economic exclusion was now at play.

“The current economy is going to entrench those inequalities and the pressure is going to be on the courts again for those parts of the population for whom the Constitution is meant to exist — how do we deal with that?” she asked.

It was an important point from a judge vying for a seat on a court that has to manage the interplay of rights in the Constitution in a manner that ensures a more just equation.

This tension has been termed a paradox by the likes of prominent advocate Tembeka Ngcukaitobi — the constitution holds the promise of access to land and other resources for one sector of the population, whereas another relies on it to preserve the status quo

It was interrogated at some length in the interview of Alan Dobson SC, a former land claims court judge, who noted that restitution lay at the intersection between constitutional rights and the rights of private landowners, and argued for discrete legislation to free the process of past constraints.

In the end, Dobson was not among the five judges whose names the JSC elected to send to President Cyril Ramaphosa to choose two to fill vacancies; nor was fellow silk David Unterhalter, who is considered one of the finest legal minds in the country.

The latter in particular faced questions from the Economic Freedom Fighters (EFF) leader Julius Malema as to why he sought to impose himself, given his privileged background, or as he put it, “your beautiful education”.

Pillay also lost out. She was cornered by Malema on her friendship with Public Enterprises Minister Pravin Gordhan. Malema predictably charged that she abused the bench to pursue factional battles. But this was followed by an extraordinary intervention from Chief Justice Mogoeng Mogoeng, in which he implied that Gordhan had five years earlier sought to advance her promotion to the apex court.

Mogoeng said Gordhan had asked to meet him to discuss an issue around the tax ombudsman and ended their discussion by asking how his friend, Pillay, had fared.

If Malema’s political agenda is palpable, Mogoeng is not allowed one. The fallout was swift. EFF deputy leader Floyd Shivambu laid corruption charges against Gordhan and the minister wrote to the JSC explaining that there had been  pressing cause to discuss the ombud, and that his question on Pillay’s candidacy was “purely incidental”.

Political analyst and law professor Richard Calland said he believed the candidature of a thoughtful judge, who would have been an asset to the highest court, was torpedoed by an ill-timed intervention by the head of the judiciary.

It was hardly the earliest opportunity Mogoeng had to raise Gordhan’s remark, which Calland termed unwise, but not, as many social media commentators rushed to suggest, deeply inappropriate.

“Context is everything. [Mogoeng] must have known how the politics of the day always enters into deliberations on appointments to the bench and that he was vicariously advancing the attack on her by Malema.”

The JSC includes 10 MPs and if politicking is ever present, Malema has taken it to a new pitch. The Council for the Advancement of the South African Constitution has asked speaker Thandi Modise to act on his attacks on judges in recent weeks, prompting her to distance the legislature from his views.

Mogoeng’s insinuation against a minister falls into another realm, and cannot be repudiated by his peers.

“Why step into that arena when Pravin Gordhan is the primary target of the EFF and the proponents of their brand of nationalism in the RET [radical economic transformation] faction?” Calland asked.

The chief justice’s term ends later this year, which will also see the retirement of justices Sisi Khampepe and Chris Jafta. It means that there will be five new appointments to the Constitutional Court in coming months, but how this will shape it for years to come, only time will tell.

Part of the answer will lie in who succeeds Mogoeng. The obvious choice would be Deputy Chief Justice Raymond Zondo, though whether he will have the appetite for the position after his onerous chairmanship of the state capture inquiry is unclear. Those fixated on Zuma’s defiance of the court have warned ominously of a crisis that menaces the legal order.

More measured minds agree with Pillay’s assertion this week that the situation was perturbing but far from one of constitutional rot in which faith in institutions, including the courts, was lost.

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