/ 4 October 2023

We increasingly need the courts to defend justice

Concourt Judges Blog Post 870x490
None of the four candidates for a vacancy at the apex court were in favour of merging it with the supreme court of appeal

South Africa’s biggest newsmaker of September was our courts. Increasingly, people are turning to them to uphold justice at a time when trust in the government is sinking to new lows.

In my database of 124 top September online news articles from IOL, News24 and TimesLive, the word “court” was mentioned 209 times, twice as often as the next most-mentioned political actor, the ANC, at 104 mentions.

As can be expected, most of the words associated with the courts in the news come from legal jargon. Despite this, they tell an illuminating story, highlighting various sagas playing out in the corridors of justice.

The word with the strongest association with “court” in October’s news is “contempt”. This refers mainly to the fact that the Democratic Alliance (DA) wants ANC secretary general Fikile Mbalula to be jailed for contempt of court after the ANC has refused to make public the records of its cadre deployment committee, as ordered by the supreme court of appeal. This is after the Zondo commission of inquiry into state capture found that cadre deployment is illegal and unconstitutional.

The ANC said it would appeal to the constitutional court to keep the cadre deployment records private but missed the deadline.

So another word associated with “court” in this story is “client”, as used in a letter from the DA’s attorney to the ANC’s: “In terms of the court order, your client was obligated to file the documents within five days of the court order. Your client’s failure to do so renders your client in contempt of court.”

The ANC eventually appealed to the constitutional court three days later. They must argue that the late submission should be condoned for Mbalula to escape the possibility of contempt of court charges.

The cadre deployment case was one reason why “constitutional” and “appeal” were strongly associated with “court” in the news. Still, there were plenty of other stories about appeals and the constitutional court.

One was a round-up of fired public protector Busisiwe Mkhwebane’s failed legal action.

News24 counted that 73 judges ruled against Mkhwebane during her disastrous term of office, and she had tried, and failed, to have 14 of them impeached. “Apex” showed a strong association with “court” because News24 sometimes used “apex court” to refer to the constitutional court in stinging indictments such as this one: “But, apparently unwilling to concede that she should not seek legal advice from someone who remains unable to practise law in South Africa [Paul Ngobeni], Mkhwebane doubled down — and laid a completely unjustified gross misconduct complaint against Justice Chris Jafta over the apex court majority’s dishonesty finding against her.”

Even a seemingly dull word associated with the courts, “papers”, demonstrates the extent of Mkhwebane’s lawfare against our judges, literally at the country’s expense: “In court papers filed as part of her application to seek unlimited state funding of her impeachment defence costs, Mkhwebane explained that she would lodge a [Judicial Services Council] complaint against [the constitutional court] bench because it had taken too long to deliver its ruling.”

While the higher courts have been defending our rights in essential cases affecting the way we are governed, like the cadre deployment case and Mkhwebane’s vexatious litigation, lower courts have also continued the routine work of serving justice in high- and low-profile cases of flagrant corruption and criminality, as highlighted by the strong association between the word “magistrate” and “court”.

The word “satisfy” showed a strong association with “court” because of Nandipha Magudumana’s bail hearing. Magudumana, who is accused of fraud as well as of helping rapist and murderer Thabo Bester escape from prison, was denied bail because, in magistrate Estelle de Lange’s words, she did not “satisfy the court that the interests of justice permit her release on bail.” This is unsurprising after she skipped the country with Bester earlier this year.

Meanwhile, the small town of Hendrina in Mpumalanga, close to an Eskom power station, came into the spotlight as another strong association with “court” because of one of many cases where people have defrauded the utility. The Hendrina magistrate’s court heard that an Eskom senior buyer, Thandeka Innocentia Nkosi, allegedly conspired with two brothers, Patric Patrese Jones and Godfrey Jason Jones, their mother, Rabela Sarah Jones, and a girlfriend of one of the brothers, Maria Cantelo, to steal R14.7 million from the utility in 2013.

The most poignant of the words closely associated with “court” in September’s news is “turned”. This word appeared close to “court” eight times, with five of those in the phrase “turned to the … court”. This illustrates how people have been approaching the courts for justice. In one example, a boy was injured after touching a dangling live power line while playing in a village near Mthatha. Her mother “turned to the Makhanda high court in the Eastern Cape in a bid to hold Eskom liable for the damages”.

This court may soon cease to exist. The Moseneke commission has recommended that the seat of the high court in the Eastern Cape be moved from Makhanda to Bhisho, a move that latest estimates show would cause the loss of 9 400 jobs, or almost 40% of the city’s jobs. The court would also move away from the resources of Rhodes University’s Law Faculty, including its substantial library. Ultimately, the move would threaten the future of Rhodes University and cost an estimated R1 billion in taxpayers’ money.

Our courts could be far better. The wheels of justice grind exceptionally slowly, and the cost of legal representation still puts them out of reach of many of our citizens. Judges are fallible people who make fallible decisions. 

But September’s news demonstrates how they are a crucial check to the government’s power, as in the quest to end cadre deployment. It shows how they rein in abuses by powerful officials, as in Mkhwebane’s cases. It also shows how we need them to give relief to vulnerable people, like the mother suing Eskom on behalf of her injured child. Our courts are precious, and we need to defend them.

Ian Siebörger is a senior lecturer in the department of linguistics and applied language studies in the faculty of humanities at Rhodes University