JUST when the keenest observers of the tensions between the executive and judiciary thought the vicious attacks on our judges had quietened down in the wake of the timely intervention of Chief Justice Mogoeng Mogoeng and 26 of his senior colleagues, Sdumo Dlamini of the Congress of South African Trade Unions (Cosatu), who is beyond the discipline of the Cabinet, has piped up loudly.
At the recent Cosatu congress in Johannesburg, Dlamini echoed the sentiments of the likes of African National Congress (ANC) heavyweights Gwede Mantashe, Blade Nzimande, Ngoako Ramatlhodi and, more recently, Nathi Nhleko. He accused the courts of reversing the gains of “the revolution”.
The usually restrained Legalbrief Today described his speech as a “tirade against the judiciary” in which he went so far as to claim the judiciary had become a threat to SA’s democracy. Dlamini is quoted by Legalbrief as saying: “We have seen how our hard-won advances secured since the democratic breakthrough continue to face threats from our own judiciary, which zig-zags from making progressive rulings — which assert the new democratic dispensation — and making rulings that clearly (protect) apartheid privileges and in many cases (constitute) judicial over-reach and (undermine) the doctrine of the separation of powers. The result of this has been to undermine the majority rule and to impose setbacks on development which favour the majority of South Africans.”
Dlamini’s criticism comes ahead of today’s meeting between Mogoeng and President Jacob Zuma to discuss “gratuitous” attacks on the judiciary by the ANC and its allies. His utterances, and those in similar vein that preceded them, speak of a great deal of mistrust on the part of the governing alliance when it comes to our courts. Both the government and the alliance find themselves in court with increasing frequency by reason of what has pithily been described as “executive under-reach” by the Open Democracy Advice Centre’s Alison Tilley.
Clearly, a government that governs in a manner consistent with the law and the Constitution will always win in court. The alliance’s record of success in court is inversely proportional to its level of trust of the judiciary. The state is obliged to respect, protect, promote and fulfil the rights in the Bill of Rights. If it does not, anyone is at liberty to challenge it. The courts are honour-bound to uphold the Bill of Rights, including its socioeconomic rights.
A recent editorial in The Times contains a timely warning against any failure to end the mistrust between the alliance and our judges. The mistrust is engendered when court rulings are not what the alliance critics of the judiciary want them to be. The trouble is that these disappointments occur with increasing frequency because some politicians are under the false impression they can do as they please because they command a majority. They expect the courts to follow the “party line”. Party political partiality is not how constitutional democracy under the rule of law works. Laws and conduct inconsistent with the Constitution are invalid, and when challenged it is up to the courts to strike them down.
Our courts are subject only to the law and the Constitution, not the whims and fancies of politicians or trade unionists. For as long as the misconceptions of ANC-aligned politicians continue, the mistrust and concomitant undue tensions will be with us. The mistrust can be resolved if all involved embrace the principles of the Constitution and wholeheartedly acknowledge the supremacy of the rule of law.
It remains to be seen what will emerge from today’s meeting. At his last interview by the Judicial Service Commission, Mogoeng said he did not know what the national democratic revolution was and fudged his answer to MP Koos van der Merwe’s teasing question: “Are you a counter-revolutionary judge?” This was a reference to Mantashe’s criticism of the judiciary.
Naturally, all of the judges who are true to their oath of office are counter-revolutionaries. There is nothing revolutionary about upholding and protecting the Constitution. Acting in accordance with the Constitution and the law involves acknowledging the supremacy of the rule of law as set out in section one of the Constitution. The rule of law is foundational to the new order that replaced the apartheid regime.
In section 165(2) of the Constitution, matters are placed beyond all doubt. It reads: “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
Dlamini would do well to pay attention to the next provision, in section 165(3): “No person or organ of state may interfere with the functioning of the courts.”
It is obvious that criticism of the courts from within the Cabinet has fallen silent because its members have been advised of the importance of this section. As the executive branch of government is an organ of state, section 165(4) is of particular relevance to disappointed or distrustful Cabinet members: “Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”
Conduct inconsistent with these precepts is invalid under section two of the Constitution. If challenged, such conduct, which would include Dlamini’s “tirade”, could be struck down or interdicted, or form the subject of criminal proceedings for contempt of court.
It is fervently hoped that when the leaders of the executive and judiciary meet today, it will be possible to negotiate an agreement to disagree that has due regard for the provisions of the Constitution referred to above. It is to be expected that there will always be healthy tensions between the executive and judicial spheres of government. The matters of which Mogoeng has rightly complained do not fall within the healthy category of tension.
As good politicians, the executive will be aware that when Mogoeng called for the meeting, he was not only backed by all of his most senior colleagues, but also by the Law Society of SA, the Black Lawyers Association and the National Association of Democratic Lawyers.
Learning to live with the consequences of a dispensation that places the Constitution in its supreme position is an adjustment for all who grew up under the yolk of the sovereignty of Parliament. The new dispensation is preferable by far. It constrains the tyranny of the majority, it contains the checks and balances necessary to mediate the exercise of power, it entrenches the separation of powers and it requires all of us to conduct ourselves within the parameters of the rule of law, the Bill of Rights and the values and principles of the Constitution.
In the final analysis, the Constitution means what the courts say it means. This is as it should be, and long may it last.
• Hoffman SC is a director of Accountability Now