Since May 2008 South Africans have watched an unseemly and often confusing legal wrangle between what appear to be sectional interests in the legal profession. Initially the matter centered on accusations by Constitutional Court judges that Judge John Hlope tried to influence their decisions in the case against President Jacob Zuma. The legal battles and public debates that have raged since then seem to have to little to do with whether Hlope did try to influence the judges or not, and a great deal to do with whether citizens can trust the independence of the judiciary. Over time the very public spat between judges has becoming increasingly shrill and polarised.
This comes hot on the heels of the decision by the National Prosecuting Authority (NPA) to drop charges of corruption against President Zuma, after a painful four-year process characterised by increasingly arcane legal challenges by Zuma to which the NPA responded in kind. The NPA's decision to drop the charges against President Zuma was a vindication for ANC supporters who had long argued that the NPA had acted unfairly in the manner in which it brought its case against him. On the other hand it was vocally criticised by those who argued that the fact that the former head of the NPA, Bulelani Ngcuka, together with the NPA Directorate of Special Operations, Leonard McCarthy, had sought to influence the timing of the trial to undermine Zuma's chance of being elected President of the African National Congress and ultimately of South Africa, was not sufficient basis on which to drop the charges against him.
Nevertheless very serious questions were raised by the fact that the evidence of McCarthy's indiscretion was obtained by Zuma's legal team from the National Intelligence Agency. These, still unresolved, questions included why the National Intelligence Agency had been monitoring the head of the NPA's telephone calls and how and why Zuma's legal team had been informed about and granted access to the taped conversations.
Between these events that severely undermined the public's confidence in a range of important democratic institutions came what appears to be yet another blow to the rule of law. Shabir Shaik, who was convicted of fraud for buying political favour to determine the outcome of tenders in a massive arms deal, was granted medical parole. While there is every reason to extend medical parole to any desperately or chronically sick inmate of prisons in South Africa, the rules simply don't allow that. They allow medical parole to be granted only in the case of an inmate who is in the final stages of a terminal illness. For ordinary citizens whether or not Shaik is terminally ill ceases to be the most important aspect of the parole board's decision. The most important aspect is the strong perception that was created that Shaik was granted medical parole because he is a friend of the President.
Let us return for a moment to where this article started, with the matter against Judge Hlope. In the Hlope matter the public debate is no longer about the merits of the allegations for or against Hlope, rather it is about the threat to the separation of power between the judiciary and the executive; the public's faith in the legal system; and the transformation of the judiciary.
It is about the threat to the separation of powers because in the process of weighing the case against Hlope the Judicial Services Commission was stopped in order for the President to change the lawyers appointed to the commission at his discretion. The timing couldn't have been worse. Not only did the change coincide with the scheduled interviews and appointments of Constitutional Court judges, but also with the JSC's reconsideration of the Hlope matter. The timing of the new appointments raised the spectre of executive influence. The subsequent decision by the JSC to drop misconduct charges against Hlophe only adds to this perception.
To a citizen attempting to understand this legal and political soup one thing seems clear - the judiciary and legal profession is fraught with tension and judges seem to have lost faith in the integrity of each other.
Let us consider so far the institutions which have been undermined in the processes described above: The integrity of the NPA has been tarnished, some may argue even irreparably; the integrity of the Directorate of Special Operations (also know as the Scorpions) was so severely tarnished by the Zuma case that it was closed down and replaced by the Hawks; the NIA appears to have bowed to political influence in both monitoring the head of the NPA and handing the tapes to the man who at the time sought to be the country's next President; the Judicial Services Commission's conduct in the Hlope matter has been called into question; and there is a perception that if you are a friend of the President the laws simply don't apply to you (as in the Shaik case).
For there to be a rule of law citizens should be confident that in any matter that comes before a court, the decision taken by the judge will not be influenced by the status, gender, race, or political influence of those presenting the case for, or against the accused. The incidents referred to in this article have all had the effect of undermining the confidence of citizens in the justice system to deliver justice impartially. So what happens when citizens no longer believe in the independence and integrity of the justice system?
An environment is created in which some criminals may think they can act with impunity, and where citizens may be tempted to take the law into their own hands to act against those who prey on them. This is only exacerbated when public servants are not brought to book for acts of corruption and fraud - the Auditor General's recent report highlighting the extent of corruption in the public service is a case in point. In addition, in a situation within which the judiciary is no longer held in high esteem we may find less incentive for advocates to leave private practice for the bench, thus limiting the pool from which competent judges can be chosen. As in any situation the picture is not only bleak. Offsetting the bad news are encouraging stories of commitment by public servants to curbing crime; the many cases that are justly dealt with in the courts every day and the many good decisions taken by the government on any number of issues. However, it is not an exaggeration to say that the rule of law is under threat and that leaders of unquestionable integrity who can be believed and trusted by all citizens are desperately needed.
Written by: Dr Chandre Gould, Senior Researcher, Crime and Justice Programme, ISS Tshwane (Pretoria)