Attacks on judiciary imperil SA's future

30 August 2015 - 02:00 By Vusi Pikoli

We have to celebrate the achievements of the last 20 years, although these achievements should not dull our sense of vigilance or lull us into a false sense of achievement and prevent us from being critical of government performance. A constitutional democracy not only serves to fulfil the wishes of the majority but also seeks to protect the minority. This is when you start having tension brewing between the various arms of government. This tension is not new or only applicable to South Africa, it is old and universal; it is there even in established democracies. This tension can actually be healthy. It requires a mature leadership to manage.story_article_left1Our current chief justice, Mogoeng Mogoeng, has said that "criticism [of the courts] should not be vague, more importantly, criticism should be specific and clear. General, gratuitous criticism is unacceptable."This statement accepts that judges are not infallible - they can and do make mistakes and perhaps even overstep the mark. If this happens then there should be a civil manner of addressing it because it would be more an exception than the rule.The chief justice was responding to the latest attacks on the judiciary. Please note that I am calling these "attacks", and not "criticism of the judiciary", because this is what they are.How else does one categorise utterances like "Judgments of certain regions and judges are consistently against the state, which creates an impression of negative bias by elements within the judiciary who meet with characters to produce certain judgments".One trade union leader was quoted as saying: "We have seen how our hard-won advances secured since the democratic breakthrough continue to face threats from our own judiciary, which zigzags from making progressive rulings which assert the new democratic dispensation, [to] making rulings which clearly protect apartheid privileges ... in many cases constituting judicial overreach and undermining the doctrine of separation of powers."The raising of these concerns should not be seen as an attempt to suppress another important right, that of freedom of expression and of speech; far from it.block_quotes_start A fearlessly independent judiciary is our last beacon of hope. Let us rise in unison and defend it block_quotes_endBut where is this "judicial overreach and undermining of the doctrine of separation of powers" when:Parliament prescribes legislation on minimum sentences, taking away a court's discretion. Courts allow it because parliament can do it and judges do not criticise parliament for passing such legislation because the constitution does not prohibit it. Judges might not like it but they cannot do anything about it;The executive through its institutions grants parole to sentenced offenders, some of whom get questionable medical paroles;The president is empowered by section 84(j) of the constitution to pardon or reprieve offenders and to remit any fines, penalties or forfeitures. The judiciary accepts this because the constitution allows it; andThe executive has in a few instances disobeyed court orders and nothing happens. Is this not hypocrisy?mini_story_image_hright1I have yet to hear any comments on the landmark judgment by the Constitutional Court that gave back mineral-rich land to a community in North West, rather than to the traditional authority that was favoured by the Department of Rural Development and Land Reform. In this case, the community had to sell its cattle to raise funds for legal costs.The unanimous court judgment said: "For decades restitution of land was the rallying point for the struggle against colonialism and apartheid. Regaining land ownership was the primary object of that struggle. It is therefore not surprising that the constitution guarantees land restitution and reform."The court, in registering its displeasure at the conduct of government officials, awarded costs against the minister and the director-general in both the Supreme Court of Appeal and the Constitutional Court matters.This was a landmark judgment for our democracy which should be celebrated. But there is a stony silence about it, although it was a massive victory for the rural community.Our constitution-making process was a long and slow one because we wanted it to be all-inclusive.We first had the 1993 interim constitution, which ushered in the 1994 democratic elections. The current constitution was adopted two years later in 1996 after compromises led to unanimity. To now attack the judiciary for doing what the constitution allows it to do is a repudiation of the constitution.If these gratuitous attacks continue, the courts will be delegitimised, the country will descend into anarchy and the government itself will lose legitimacy because it would have lost all control.Let us examine the case of the president of Sudan closely, without emotions. The South African government would not be facing this criticism if it had not signed and ratified the Rome Statute that established the International Criminal Court.Putting aside the substantive legal argument on the validity of immunity of sitting heads of state, the question to be asked is, how does a government that is founded on the supremacy of the constitution and the rule of law be seen to have failed to obey a court order?story_article_left2The court clearly ordered that Omar al-Bashir should not be allowed to leave the country pending the finalisation of the substantive issues. The court at that time had not yet ruled in favour of the applicants. One does not create a "crisis" and then plead "crisis" in defence.The subsequent statements by some ministers following the unlawful departure of Bashir from our shores were in violation of section 165 subsections 4 and 5 because they poured scorn on the courts. These are the people who took an oath to uphold the constitution and the laws of the Republic of South Africa.The weaknesses of the ICC is a separate matter which should not be conflated with international legal obligations. South Africa cannot hunt with the dogs and run with the hares.Firm and principled leadership is sorely needed; bowing to the comfort of unsustainable popular politics is not only undesirable but also self- defeating.Even if South Africa were to withdraw its membership of the ICC, the damage has been done; we have proven to be an unreliable partner in matters of international criminal law.We have failed to respect our own courts, constitution and law. A government that intentionally breaks its own laws and defies court orders cannot expect its citizens to respect the courts and obey the law.What seems to irk the executive and parliament is the fact that judges are not elected but appointed by the executive. The last thing we want in South Africa is another executive-minded judiciary reminiscent of the old South Africa. The government should not applaud and publicly support only those decisions that suit its interests.What we need is unwavering and unconditional support for the judiciary as an institution. Court judgments are not seasonal garments that you put on in winter and discard in summer. Court judgments are for all seasons. While civil society should defend our courts, the primary defender of our courts and individual judges (provided there is no serious misconduct or incompetence) should be the minister of justice.mini_story_image_hright2Our courts have often shown restraint and reluctance to interfere in matters falling within the sphere of the executive or parliament, at times to the annoyance of those who favour judicial activism.Judges must not and should not allow their personal and subjective views on policy matters to influence their decisions. The South African judiciary seems to have won on this score.The biggest threat to our democracy is a corrupt civil servant, a corrupt businessperson and a corrupt politician who form a dangerous team.A fearlessly independent judiciary is our last beacon of hope. Let us rise in unison and defend it.I salute the initiative of our chief justice in calling for a meeting with the executive and parliament to address these tensions. Tensions can be healthy, as long as they are not antagonistic and irreconcilable.Let us act now to save our democracy before we are all consumed by a fire of conflict.Advocate Pikoli is a former national director of public prosecutions. This is an edited extract of the 9th annual Helen Joseph Memorial Lecture, which he delivered at the University of Johannesburg on Thursday...

There’s never been a more important time to support independent media.

From World War 1 to present-day cosmopolitan South Africa and beyond, the Sunday Times has been a pillar in covering the stories that matter to you.

For just R80 you can become a premium member (digital access) and support a publication that has played an important political and social role in South Africa for over a century of Sundays. You can cancel anytime.

Already subscribed? Sign in below.

Questions or problems? Email or call 0860 52 52 00.