SONGEZO ZIBI | History will judge us if we don’t challenge the JSC’s appalling views

On Saturday the Judicial Service Commission (JSC) recommended that the president appoint judge Mandisa Maya as SA’s new chief justice. Judge Maya is president of the Supreme Court of Appeal, the country’s second highest court.

The JSC was established in terms of section 178 of the constitution, and consists of 23 members. It advises the national government on any matters relating to the judiciary or administration of justice, including but not limited to the interviewing of candidates for judicial posts and then making recommendations to the president.

As with the other three candidates interviewed for the role, Maya is both highly accomplished and regarded by her peers and members of the legal fraternity. She also offered a clear-headed presentation of her vision. Should President Cyril Ramaphosa appoint her, I will be delighted.

The constitution does not compel the president to accept the JSC’s recommendation, but choosing a different candidate would be likely to result in significant controversy. I would advise against it even though I would have been comfortable with either of the four candidates as chief justice. They are all highly capable individuals whose individual and collective integrity has ensured that the judiciary remains the only trustworthy anchor of our tri-arm system of government.

Let me preface by stating that I am happy with the composition of the JSC and believe its core structure to be appropriate, though there could be fewer commissioners.

We were robbed of the incisive questions on constitutional and judicial philosophy that characterised such deliberations in the past.

The “interviews” were, as has become usual, an embarrassing farce. Not only was the chairing sometimes chaotic, the performance of some of the commissioners amounted to displays of intellectual dwarfism and naked dishonesty. It was also a display of a degenerate political culture that no longer has any sense of ethical norms or decorum.

As a result, we were robbed of the incisive questions on constitutional and judicial philosophy that characterised such deliberations in the past.

For instance, questions to Maya relating to her gender and whether “SA is ready for a woman chief justice” were an insult to her intelligence and impressive track record. How must she know whether the country is ready, unless she is expected to conduct a large sample survey in preparation for such an inane question?

That we live in a patriarchal world that oppresses women is not a pronouncement on the capabilities of women, so the question is not at all useful. For heaven’s sake she is already president of the Supreme Court of Appeal. There is no better pre-qualifier.

Some commissioners were fatally conflicted, such as EFF leader Julius Malema, who goes on trial in East London this month on a charge of contravening the Firearms Control Act. I defy anyone to show me any successful democracy in the world where one of the people interviewing candidates for chief justice was simultaneously on trial involving a serious criminal offence.

Malema is accused of discharging a rifle handed to him by his bodyguard, Adriaan Snyman (a white man, but more on that later), an incident that was captured on video and circulated widely on social media. Close by was a senior advocate and another pious member of the JSC, adv Dali Mpofu.

Even more troubling is that our own mental reflexes do not prompt us to think there is a conflict. Instead, many believe Malema’s mere election to parliament overrides any moral or ethical considerations. Such is the wretched state of our political values.

To be sure, there is no statute preventing anyone facing criminal charges from also choosing judges or the chief justice. We should not need one if we had any sense of values. After all, we would all recoil at the thought of someone facing charges of fraud and theft being elected treasurer in our membership association. Well, I hope we still have that in us as a people.

I defy anyone to show me any successful democracy in the world where one of the people interviewing candidates for chief justice was simultaneously on trial involving a serious criminal offence.

But I accept that it is too late to expect the JSC to be better than the political plane on which it exists. The soul of the country has been systematically and relentlessly corrupted since the ANC decided a man about to go on trial for corruption was fit to lead the country, with devastating consequences. It proceeded to gut every institution set up to ensure democratic accountability, including the JSC that became a total farce during Zuma’s term.

So here we are. The JSC is now the mountain creek on which judges meet their reckoning to account for why they did not acquiesce to the wishes of the politically powerful.

In a normal society, Malema should not have to be persuaded to place the integrity of the process above reproach. In any event, those who would suggest that he step aside would be attacked with a barrage of insults, violent language and false accusations presented as some nefarious white conspiracy.

In the real world, this is similar to a descent into fascism, which always has its many defenders who later become its victims when it turns on them.

South Africans may do well to acquaint themselves with an insightful observation made by a notorious historical figure, Adolf Hitler. In his book, Mein Kampf, he writes about the concept of “spiritual terror”.

“I understood the infamous spiritual terror which this movement exerts, particularly on the bourgeoisie, which is neither morally nor mentally equal to such attacks; at a given sign it unleashes a veritable barrage of lies and slanders against whatever adversary seems most dangerous, until the nerves of the attacked persons break down ... This is a tactic based on precise calculation of all human weaknesses, and its result will lead to success with almost mathematical certainty,” he wrote.

Whether they are against judges or journalists, we have become familiar to this spiritual terror being visited on those who are brave enough to speak out by those who are afraid of accountability, especially before the courts. This fear makes it necessary to denigrate and attack judges so their decisions lack the credibility they need to secure the support of all of society, and they did not begin at the JSC interviews.

Acting chief justice Raymond Zondo was even taken to task for defending the judiciary against such attacks, an extreme moral perversion but one that is all too familiar. Things did not end there but escalated further down the gutter.

One of the candidates, judge Dunstan Mlambo, was on the receiving end of lies and innuendo which bear some examination. At some point he was asked to respond to rumours that he sexually harasses his colleagues, with not a shred of evidence being offered. This was discussed for a long time before it was deemed inappropriate and expunged from the record.

Mlambo’s only “crime” is that the Pretoria high court of which he is president, more than any other court, presides over litigation involving the national government. The seat of the government executive is just a few kilometres from the court, so it makes sense, but it sounded like a novelty when one of the commissioners insinuated there was something underhanded.

The suggestion is that whenever a black and white person are acting in concert, the white person is intellectually superior and controlling the inferior intellect of the black person. It takes a particularly severe inferiority complex to arrive at such a conclusion, but it is common.

Later, he was asked whether he writes his own judgments or white judges do so on his behalf. Such questions reveal the perverted thinking of some of those who claim to be the high priests of everything black. Mlambo had to explain that he can write his own judgments and has done so for a very long time.

The suggestion is that whenever a black and white person are acting in concert, the white person is intellectually superior and controlling the inferior intellect of the black person. It takes a particularly severe inferiority complex to arrive at such a conclusion, but it is common.

These are people who feel entitled to the unquestioning acquiescence of black people, and whenever a black judge or prosecutor or political adversary does no such thing, they conclude it must be the naturally smarter machinations of the white people in their proximity. There is a particular venom reserved for black people who are secure in their intellectual and moral roots, and will not sway in fear or weakness simply because political egotists pressure them.

It is in this context that judges are called a deeply insulting term Malema unsurprisingly tried to justify. A “proper black”, it seems, is one willing to kiss the rings of egotistical politicians under the false pretence of advancing blackness.

These attacks are perpetrated by narcissists who surround themselves with men and women of weak character, who are prepared to lend their professional robes to lend credence to anti-democratic behaviour. This combination has existed throughout history, and is usually at the centre of how democracies die and fascist or dictatorial systems rise from their ashes.

Hitler and Hermann Goering had Josef Goebbels as their mouthpiece to amplify their fantastical, conspiratorial lies with such regularity and loudness millions began to believe them.

Judges are an almost automatic enemy because their constitutional obligation to apply the law means that where a perverted governing class is involved, court rulings will almost certainly go against it. Being so used to the public they supposedly serve prostrating itself before them as its “leaders”, this class gets shocked and offended when these “unelected judges” dare stop them in their tracks.

What happened to Mlambo and Zondo, in different ways, was a symbolic stripping naked in a manner not dissimilar to what the very colonialists they claim to oppose did to our forefathers. It is to instil “spiritual terror” on those judges who aspire to higher office in future, that there will be an undignified reckoning later if they dare apply the law as they are supposed to.

Our republic is in peril. We must not normalise abnormal behaviour and the continuing destruction of norms and institutions. We must not be cowards who express discontent in shy whispers, rather than speaking out loudly in defence of the democracy we take for granted.

As a famous Nazi-era German general who was part of various attempts to undermine and kill Hitler, Hans Speidel, said: “Fate does not spare the man whose convictions are not matched by his readiness to give them effect.”

In short, those of us who want a political system and democracy with a clear sense of moral and ethical purpose, and values decorum, must be active agents in its creation, or we will suffer the same fate as those who are ambivalent. We will be the oppressed in a system of our own making.

Songezo Zibi is chair of the Rivonia Circle and former editor of Business Day.