Many democrats are wary of an unelected judiciary entering the political fray by deciding cases that have significant political implications. The judiciary is the one arm of state that has no direct or indirect claim to popular approval for occupying their positions on the bench, (although this has been modified with the introduction of interviews by the Judicial Services Commission, which introduces an element of indirect democracy into appointments).
In many cases, their isolation from the public used to be a source of pride in the legal profession because it was said that the judiciary ought to be insulated from the whims of “popular prejudice”.
Another way of seeing this is to understand judges as being out of touch with popular sentiments, with the popular, in the sense of the democratic, as relating to the will or needs of the people of the country rather than mere prejudice.
There remain judges who themselves make pronouncements in contemporary South Africa that demonstrate prejudice and a lack of sensitivity to the experiences of those who remain poor and lack reasonable opportunities in life and are also, fairly frequently with the complainants in rape and other cases of sexual assault.
Under apartheid some judges made decisions in cases -as a result of arguments by lawyers- that limited the harshness of apartheid security legislation and other arbitrary or oppressive laws. This was within a paradigm that many lawyers used, namely, that of preventing “executive mindedness” and advancing, instead, a defence of the rights of the individual. The scholarly analysis of this approach focused on individual judges and their backgrounds. The problem with the focus on whether a judge leaned towards the executive or the individual was that all judges swore an oath of office to apply the laws of apartheid South Africa. Those laws represented a framework that set limits on what judges could do in mitigating the harshness of apartheid, if that was their inclination.(See review of Hugh Corder’s early work Judges at Work, in South African Journal on Human rights 1985, pages 279-84, where this argument is elaborated).
Judges, whatever their inclinations, had a narrow margin of choice between defending an individual from arbitrary action or finding ways of confirming executive power. There are many, many cases where judges accepted confessions where it was alleged that these were obtained under duress or where they refused to invalidate acts of discretion, banning or banishing or in other ways limiting the freedom of opponents of apartheid. However, we need to respect the judges who did their best to find ways of interpreting the law that defended liberties, in the limited space that was available. (See also Dennis Davis and Michelle le Roux, Precedent & Possibility. Juta. 2009, pp 2-8).
The difference, today, is that the law is rights-based. Apartheid law was rights-based for whites and rights-denying or oppressive for black people, in line with the colonial character of apartheid. The present constitution is generally a framework for defending and advancing liberties for all. It goes beyond the formal liberties of liberal democracy and empowers the state and the judiciary to ensure that the constitution enhances the social and economic conditions of the poor, in regard to housing, health care and a range of other areas of social life. (See https://www.polity.org.za/article/how-do-we-understand-democracy-and-human-freedom-2019-05-06/searchString:Raymond+Suttner).
But realising this constitutional potential presumes actions in good faith by democratically elected leaders and the officials whom they appoint to carry out policies. Regrettably, in post-apartheid South Africa, not just in the Jacob Zuma era, this has not been the case. The (Deputy Chief Justice Raymond) Zondo and other commissions have heard that a range of state officials undermined the injunction to act to better the lives of those who were suffering from the aftermath of apartheid oppression or experiencing new conditions of oppression. Instead of using available state resources in order to alleviate their plight, funds and other resources were diverted into the pockets of civil servants and even high officials of government, allegedly including President Zuma.
When you steal, obviously you do not broadcast this to the world, but some were aware that there was thievery and other forms of corruption and wider forms of State capture. They colluded or themselves became included in the loop of beneficiaries. The appetite of some appears to have been insatiable and they demanded more and more from the businesses or individuals who provided them with largesse. In exchange they assured that their associates received contracts or were provided with information about specifications that were not allowed to be known by bidders, ensuring that they were able to have an unfair advantage over competitors and be certain of success.
Not only those in close contact with the person who directly benefitted helped enable and colluded in corruption and State capture. We know that many ministers, MPs, and ANC officials, (who have not at this point been shown to have derived financial benefits), and the majority of the national assembly itself, rose to the defence of illegality associated with President Zuma. Some deployed their logical and oratorical skills that had in previous times been employed in defence of freedom or to explain complex legislation, to rationalise the diversion of funds- that ought to have gone to poverty relief- for the building of the palatial Nkandla residence.
The same national assembly did little about the irregular expenditure in SASSA, one of the crucially important achievements of post-apartheid South Africa in relation to poverty alleviation.
It was the office of the Public Protector, a Section 9 institution, opposition parties, the courts and ultimately the Constitutional Court, that stepped in on Nkandla. The courts came to the aid of the poor and marginalised whose monies were being squandered by the insatiable greed of the immediate past president and his acolytes.
What is it that happened, in democratic terms? The constitution mandated the executive and legislature with advancing and defending democratic rights under the constitution. They were charged with playing an active role to achieve social justice. Instead of acting in accordance with this duty, they negated their constitutional obligations.
Paradoxically, it was the judiciary and to some extent the Public Protector, unelected individuals, with no direct popular democratic mandate, who came to the rescue of South African democracy, in these and other cases. This was not always the case, especially in the lower courts, but certainly there have been some momentous cases, where the judiciary made decisions that censured wrongdoing on the part of officials, which had in the case of Nkandla been condoned and approved by the very legislature charged with holding officials accountable.
Judges are reluctant to deal with politically charged cases because they ought not to be perceived to make political decisions. This is part of the “separation of powers” doctrine where the executive, judiciary and legislature have distinct roles and ought not to encroach on that of one another. (See Davis and le Roux, Precedent & Possibility, cited above. In his capacity as a judge, Davis has been very self-conscious about avoiding overstepping the mark and encroaching on the sphere of government). That is why when such cases come before them, courts try to limit their intervention and avoid what is describe as “judicial overreach”. It will be recalled that then ANC Secretary General, Gwede Mantashe more than once attacked the judiciary and accused them of judicial overreach, sometimes in insulting terms that led to a meeting between the ANC, government and the judiciary.
While judges have made decisions that defended democracy and went so far as to find that the head of state and National Assembly failed to act in accordance with their oath of office, not every dereliction of duty comes before the courts. The courts have made it clear that the scope of what they do is dependent on what cases are brought before them.
Former Deputy Chief Justice Dikgang Moseneke repeatedly said that he was still waiting to have a case brought before the courts in order to determine the meaning of the constitution, with regard to expropriation of land without compensation. That it did not happen related to the failure of political will on the part of the ANC. Instead of testing the limits of the law in order to try to alleviate land hunger through expropriation without compensation, for the needy in legitimate cases, the ANC governments have not provoked any such test case. There has been no attempt to see what could be done without succumbing to a populist demand to amend the constitution.
It is commendable that various political parties brought these important cases relating, inter alia, to Nkandla before the courts, enabling an authoritative decision to be pronounced on the legality of what happened. Nevertheless, it is important to recognise that judicial decisions ought to be a last resort, not only because it places judges in an invidious position. It should be stressed that court actions cannot be a substitute for what needs to be won politically. It is crucial that any party that wishes to win support of the electorate is not diverted by continual litigation in a way that leads to neglecting the hard slog of organising and building a constituency
The judiciary after Jacob Zuma
Zuma has gone as state president, but he still remains an active political actor, who is “up to no good” and his conduct may still result in the diversion of funds, via proxies, attempts to evade prosecution and the compensation of those who have been wronged. Not everyone in the ANC leadership is committed to a “clean up” and even some of the supposed supporters of President Cyril Ramaphosa are ambivalent, insofar as they themselves fear being implicated. The re-directing of political action towards what is required, ethically and constitutionally, may still encounter political obstacles. In this context, the judiciary will remain an important resource in safeguarding democracy from any new acts of illegality by its democratically elected representatives and other public officials.
Ultimately, however, one lesson that ought to have been learnt from this period is that the public should not rely purely on those whom they elect to defend their democratic rights. The public needs to retrieve their original rights as political actors and enter the fray, in defence of, and in advancing, their freedom.
Raymond Suttner is a former legal academic. Currently he is visiting professor in the Faculty of Humanities, University of Johannesburg, a senior research associate at the Centre for Change and emeritus professor at UNISA. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history, and social questions, especially issues relating to identities, gender and sexualities. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner