It is a tired fact that our society is drowning under the scourge of corruption. Numerous institutions have made countless findings about the extent of graft across sectors of society. Many examples that the scourge is out of control present themselves daily. Nothing outrages us any more. The private sector is equally corrupt, as examples of white collar crime also abound. Recently the banking sector came under the spotlight when the allegations of collusion to devalue our currency came to light, militating against proper global trade and therefore economic growth.
Amid this spiralling corruption, the justice system that functions is our only refuge. We keep hoping, clearly against hope, that some big fish will be prosecuted instead of mere foot soldiers. Until we prosecute the big fish we can forget about winning the big fight against criminality. Our legal fraternity needs to support the National Prosecuting Authority in prosecuting the crooks.
The strange demand for judges to only speak through judgments and ‘steer away from political debates’ is in direct variance with the Bill of Rights.
But what made me focus on crime is the noise the Council for the Advancement of the South African Constitution (Casac) made in the ear of the chief justice last week, basically telling him to shut up and speak through judgments only after his utterances in a television interview. This call to censor the chief justice is misplaced and hypocritical and cannot go unchallenged. This scourge of graft is so bad that we need every sensible voice across society to speak out.
The chief justice is the leader of a crucial pillar of the state. The judiciary he leads is crucial to hold the other two pillars of the state accountable. They can’t possibly do this only when matters are brought before them, they also have to do this in ongoing public discourse. The strange demand for judges to only speak through judgments and “steer away from political debates” is in direct variance with the Bill of Rights, that does not discriminate against any citizens where freedom of expression is concerned. In the case of justice Raymond Zondo, the whole corruption fiasco of the ANC government as accused number one (Ramaphosa’s characterisation not mine) was before him for more than three years with a billion rand to boot. According to the logic of Casac and parliament, the chief justice is supposed to turn a blind eye to the implementation of his recommendation, despite this waste of his time and waste of public resources?
Recently the chairperson of the ANC also entered the fray, accusing Zondo of being both judge and executioner of his own recommendations. This is highly misdirected, as Zondo is simply pointing out that fingered people such as Gwede Mantashe are yet to face consequences of his state capture-like conduct. No wonder Mantashe is hot under the collar.
Quite frankly, Zondo is simply exercising much-needed conscientious leadership the same way as judge Edwin Cameron and judge Mogoeng Mogoeng did before him. It’s an archaic approach to think judges must pretend not to have views on moral questions facing society. Otherwise they would never be speakers at seminars and conferences. We know this is not the case. Judges must partake in public discourse through the media so that their wisdom can reach more people than a handful in court. If you refer to Mogoeng’s Nelson Mandela lecture, you would agree with me that the matter of judges speaking only through their judgments and staying away from politics was misguided. Mogoeng states that the current leadership needs a moral compass that Mandela used to display.
Casac is therefore hypocritical as they are only making a noise now because the judge dared to contradict their favourite head of state. The CJ should speak without fear in and out of the courtroom. If this was not so, then judges would not be asked to chair commissions which are seriously political. Many commissions since 1994 have had their recommendations ignored, and in this way became a waste of money. It behoves those who were entrusted to chair these types of commissions to follow up and push for their recommendations to be implemented. Otherwise why were they trusted with such mammoth tasks.
Desmond Tutu was highly critical of how the TRC recommendations were undermined by the ANC. He was told by Thabo Mbeki himself that he was not an ANC member, as if it is a badge of honour to be one. So Zondo is not alone. Once you tell the truth you can easily become a target of ridicule and marginalisation. One wonders why, if we don’t like his voice, have we appointed him a chief justice against the better judgments of the JSC? Was it a tactic to silence him? I am glad he is not falling for it and should continue to speak the truth. Our democracy can benefit from a public discourse enriched by jurists and other academics, instead of confining their theory to halls of courts or universities, where their inputs remain in inaccessible ivory towers.
Dr JJ Tabane (PhD) is adjunct Professor of Media Studies at the University of Botswana and Unisa SBL. He is editor of Leadership Magazine and an anchor at eNCA
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