To say justice has become a means to other ends, and not an end itself, is not a semantic quibble but a serious moral point. When courts of law appear to be there to protect the establishment’s interests, the opportunity to liberate South African jurisprudence from its tormented past diminishes.
The paradox associated with justice and freedom in South Africa requires a truly blind Lady Justice. With a justice system in which historically officials would wait for legislation to be drafted so that people could be charged, notions of the rule of law and the supremacy of the constitution have rendered most of South Africa’s judicial officers refugees in a system in which they are expected to be pathfinders.
The most important role of an independent judiciary is for its judicial officers to respect, promote, protect and fulfil the bill of rights. Judicial independence should be about handing down lasting and era-defining precedents. The separation of powers principle, the surest way to prevent dictatorship, informs judicial independence.
This means state authorities should resist the temptation of overreach. History reveals that an abundance of benevolence towards society’s leadership, such as our present government of national unity (GNU), can lead to dictatorship, and this can be orchestrated by an unaccountable legal elite with the power to hand down binding judgments.
In the vortex of the MK Party’s establishment, those previously marginalised in the political system became part of the opposition.
On December 16 2023, when Jacob Zuma announced he would campaign for the MK Party, he became a game-changer in South African politics. Almost all political parties and leaders knew about the possibility of a Zuma retaliation in response to what he considered his torments — hence the wenzeni uZuma call in his native KwaZulu-Natal. But many believed he would execute a political plan that would prove to be the first existential threat to the liberation movement — and potentially the country’s constitutional order.
General discontent at how the “system” had treated some of the leading minds of the post-apartheid era, notwithstanding the abhorrence felt for what they had been accused of, created a polyvalent solidarity constituency that arose because of the absence of consistency in the system, where like scenarios were not treated alike. This constituency coalesced around the MK Party in response to a system perceived to be hostile to them.
Using the courts to bend the rules of the new constitutional order to pursue establishment interests meant access to justice would be an elite affair that would depend on whether one was able to afford high-quality legal services. With its roots in an oppressive past, the justice system instinctively promotes the interests of the establishment or those who are economically dominant.
The system has perfected its ability to find ways of hiding its capacity to realise the promise of liberation enshrined in the constitution when things start to go wrong for the establishment.
The election of MPs to the National Assembly is one of the most crucial elements of our democracy. Once these individuals are sworn in, their participation in the “system” is based on constitutional provisions that entitle each MP to serve in all parliamentary structures.
Beyond prescribed codes of conduct, elected representatives also have parliamentary privilege — rights and immunities enjoyed by MPs without which they cannot discharge their constitutional duties. This privilege also extends to other parliamentary tasks.
MPs serve on committees that have a substantial impact on parliamentary activities, as well as executive autonomy and the composition of the judiciary. There are ethical criteria that need to be satisfied for MPs to serve on some of these committees. At no stage did the constitution’s drafters contemplate the possibility of an impeached judge becoming an MP and being appointed to the Judicial Service Commission (JSC).
Given that the bigger issue is justice, how jurists and legislators reach a compromise will define South Africa's justice system and constitutional order for years to come.
In the vortex of the MK Party’s establishment, those previously marginalised in the political system became part of the opposition. The MK Party vote restored a measure of agency to those relegated by the establishment to being outside the “power tent”.
The appointment of JohnHlophe to the JSC is paradoxical. Until there is a pronouncement on this matter, either by the Constitutional Court or parliament, it will remain a polarising issue.
Allowing him to act as a JSC commissioner because he is an MP, on the one hand, and disqualifying him from being one because he is an impeached judge, on the other, are antithetical positions. Only the courts can resolve which of these standpoints is correct, taking into account the interests of justice.
Lady Justice will need to be blindfolded and made to act without knowledge of Hlophe’s circumstances, taking into account the complexity of his potential appointment. Excluding Hlophe from the JSC in the absence of a constitutional provision setting out criteria for appointment to this structure would prejudice him. However, appointing him to the body based on respect for the separation of powers and disregarding his personal situation might undermine the impeachment process the legislature has concluded.
Stability and change may be opposites, but so too are inhaling and exhaling when they are viewed in isolation from one another and outside a living organism. In fact, they are interdependent functions and opposites that complement each other.
The degree to which the same is true of ethical conduct is at the heart of the paradox. Given that the bigger issue is justice, how jurists and legislators reach a compromise will define South Africa's justice system and constitutional order for years to come.
As Schroeder-Saulnier says, “Paradoxes don’t only come in pairs. As the complexity of the situation increases, so does the complexity of paradoxes.” Legislators must define the criteria to serve on the JSC. The drafters of the constitution simply did not envisage that an impeached judge could become the leader of an opposition party and thereby be eligible to be a JSC commissioner.
Mathebula is a public policy analyst, the founder of The Thinc Foundation, and a research associate at Tshwane University of Technology
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