The rule of law is one of the Constitution’s founding values (section 1(c) of the Constitution). It depends on a judicial authority that is subject only to the Constitution, which it must apply impartially and without fear, favour or prejudice. To achieve this, the state is required by section 165(4) of the Constitution to “protect the courts” and to ensure “their independence, impartiality, dignity, accessibility and effectiveness.”

It is accordingly most disturbing to learn, from a recent survey of the Democratic Governance and Rights Unit (“DGRU”) at the University of Cape Town (“UCT”), that one-third of magistrates were threatened or harmed in 2021/2022, with some reporting they had experienced such threats “a few times”.

We depend on an independent, secure and respected judiciary for the protection of our basic individual rights – the most significant of which are enshrined as justiciable rights in the Bill of Rights. Without it, things very quickly fall apart. People take the law into their own hands – as they did in Ekurhuleni, where four technicians responding to an electricity outage were tragically murdered by an angry mob who mistook them for cable thieves.

Without the rule of law and a strong and independent judiciary state, officials think they can abuse their power with impunity as they did in July 2023, when members of Deputy President Paul Mashatile's security detail brutally assaulted members of the public (“the blue light assault victims”). It is gratifying that the victims have now gone to a civil court to enforce their rights and claim damages from their assailants. (The criminal prosecution of the security detail members for assault has been rescheduled for May.) It shows, once again, how important a strong and secure judiciary is in the protection of our rights.

No one is above the law – neither vigilantes nor those in positions of power. The rule of law is an essential safeguard against anarchy and the abuse of state power, by holding everyone accountable for their actions – from the lowest ranking to the highest echelons. 

This is why the threats to magistrates reported by DGRU at UCT are so disturbing. Ensuring the safety of our country’s judges and magistrates is imperative. Failure to protect them will have a direct and detrimental impact on South Africa as a whole as the rule of law deteriorates and more instances of mob justice and abuse of state power take hold. To this end, the Foundation calls on the Government to take immediate and effective steps to carry out its responsibility in terms of section 165(4) to protect our judges and magistrates.

 

Issued by FW de Klerk Foundation