Gwede Mantashe, Secretary General of the African National Congress, has, on occasion, dismissively described members of the judiciary as “counter-revolutionaries”. He has singled out the Gauteng North and Western Cape High Courts for his specific censure, given their propensity to find against the government in litigation brought to them by civil society public interest litigants or by individuals who are dissatisfied with the legality or constitutionality of the manner in which they are dealt with by the executive, the legislature or the public administration.
All of these criticisms miss the mark. The courts do not seek out the litigation that comes their way. Judicial officers are sworn to uphold the law and the Constitution. It is unfair to require of them that they behave in revolutionary fashion. Indeed, to do so, contradicts the tenets of the legal order established when SA became a constitutional democracy back in 1994. The two High Courts Mantashe singles out happen to exercise jurisdiction over the seats of parliament and the executive – hence the frequency of litigation against the state in their divisions.
It is also a principle of the Constitution that the other branches of government are required take steps to ensure the effectiveness of the judiciary. It does not behove Mantashe to snipe away at those whose function it is to adjudicate the disputes that serve before them “without fear, favour or prejudice”.
It is, however, indicated that a periodic review of the state of effectiveness of the judiciary be undertaken in the interests of monitoring whether the rule of law, which is regarded as “supreme” in our new constitutional order, still holds sway.
There is an unfortunate tendency in the administration of the courts which leaves careful and concerned observers with the impression that important urgent public interest litigation is not dealt with in an expeditious manner that objectively advances the effectiveness of the judiciary. A few examples will suffice to illustrate the vital nature of the effectiveness of the judiciary and the deleterious effect of delays.
In May 2008 all of the Justices of the Constitutional Court then in office laid a complaint against the Western Cape Judge President, John Hlophe, after he allegedly unlawfully, if not criminally, attempted to influence the outcome of a pending case against then private citizen Jacob Zuma. The disciplinary case against Hlophe has had a long and chequered history and it is still not completed in 2015. As a consequence of its languid progress back and forth between the courts and the Judicial Service Commission, a situation tailor-made to induce queasiness arose when the Chief Justice called for, and was given, a meeting between top members of the executive and the judiciary. The meeting was attended by Hlophe, the accused/respondent in the case; by the Deputy Chief Justice, a leading complainant in the case; by the Chief Justice, who attempted to act as mediator in the case at one stage; by the President, who may or may not have given Hlophe a “mandate” to interfere in the deliberations of the Constitutional Court; by members of the Supreme Court of Appeal, which must needs be the final court of appeal in the case; and by various members of the cabinet who serve at the pleasure of the President and are occasional litigants either in their official or personal capacities.
In the circumstances, it is no wonder that the meeting resolved that court orders “should be complied with” while the Constitution clearly stipulates that this must be the case. It provides that “an order … issued by a court binds all persons to whom and organs of state to which it applies.”
In April 2009 Helen Zille rushed to the Pretoria High Court on behalf of the Democratic Alliance to launch an urgent review application concerning the decision to withdraw 783 charges of corruption against then private citizen Jacob Zuma, the ANC candidate for president of SA in the general election then pending. Zuma is now well into his second presidential term, but the merits of the review have yet to be argued in any court, despite the passage of six years of obfuscation and delays, technical point taking and appeals of dubious nature, all of which have been administered and processed at a most leisurely pace.
In December 2007 the ANC resolved to replace the Scorpions with the Hawks. By March 2011 the Constitutional Court had struck down the Hawks legislation to the extent that it does not provide for the creation of an effective and independent anti-corruption entity that accords with the human rights and international obligations of the state. Parliament was given, and took, eighteen months to remedy the situation. Its replacement legislation was also impugned successfully and in November 2014 the Constitutional Court, in an unusual step, “edited” the remedial Hawks legislation in an effort to render it constitutionally compliant without referring the matter back to parliament for further remediation, as was done in 2011. Almost immediately the head of the Hawks, Anwa Dramat, attempted to flex his new found and constitutionally conferred powers, he was hounded out of office, only to be replaced by a functionary who has been found to be lacking in integrity and credibility by the High Court. The work rate of the Hawks has been on a steep downward trajectory over the years. In the financial year to 31 March 2011 Hawks made 14,793 arrests, last year that number had plummeted to 5,847 and in the period after the professional demise of Dramat, April to September 2015, the total of arrests is the emaciated figure of 1,038. This decline comes at a time when the Chief Justice rightly complains that corruption is rife in SA in the majority judgment which found that parliament’s efforts to pass remedial legislation were lacking.
In November 2015, an attempt by Freedom Under Law to obtain an urgent interdict designed to address the present state of disarray in the upper echelons of the National Prosecuting Authority, was postponed for want of urgency. No interdict was granted despite the fact that currently advocates with adverse credibility and integrity findings against them, who are facing disbarment proceedings, are allowed to continue to function in positions of great authority in the NPA. Their decisions are questionable, to put it mildly, but the courts allow various semi-parallel proceedings, relating to the dysfunction in the NPA, to trundle along at a snail’s pace to the detriment of the public weal.
Mindful of the axiom that “justice delayed is justice denied”, the founders of the Constitution made provision that the state must respect, protect, promote and fulfil the guaranteed right to a “fair public hearing before a court” or other tribunal. Those charged criminally have a right “to have their trial begin and conclude without unreasonable delay”. All of these constitutional obligations “must be performed diligently and without delay.”
It cannot be beyond the wit of those charged with the proper administration of justice to render the courts more effective by giving precedence to matters of urgent public interest on the court rolls so that the inordinate and prejudicial delays of the kind chronicled above are at least reduced, if not eliminated. The taking of steps to achieve this outcome would accord with the obligations toward the judicial authority recorded in section 165(4) of the Constitution which require the state to take measures to, inter alia, “assist and protect” the effectiveness of the courts.
According to Afrobarometer’s latest survey, two thirds of South Africans distrust the President. If he had been timeously acquitted on the 783 charges of corruption the NPA laid against him, this statistic would surely be less unfavourable to the President. If, on the other hand, he was not acquitted, he would be disqualified to be President. Instead, the country suffers under the leadership of a conflicted and compromised President, at least in part because the courts have not been able to get to grips with the serious and urgent issues that swirl around him, his appointees and his administration.
Paul Hoffman SC is a director of Accountability Now