They seemed set to be implacable enemies for the rest of time. Now the executive and the judiciary are all nodding in unison – and nobody is being called counter revolutionary.
Government (and the ANC) pulled out all the stops yesterday when saying goodbye to the four departing Constitutional Court judges. Justice Minister Jeff Radebe former deputy Justice Minister Johnny de Lange, National Assembly Speaker Max Sisulu, even acting National Prosecutions boss Mokotedi Mpshe all pitched up to make sure that the judges had a fond farewell.
Everybody is usually polite at a funeral, it’s true, but there seems to have been a fundamental shift in mood. You’d expect Radebe to say Government will respect judicial independence, but you might not have expected that those who were most worried about government interference would be agreeing with him. That is a major change to comments just a few months ago, when Chief Justice Pius Langa told me that the price of democracy is eternal vigilance. His predecessor Arthur Chaskalson, who’s been following the Hlophe affair closely, said yesterday, “I don’t think we need to worry”.
Albie Sachs, who is stepping down from the court and is probably the most outspoken person the court will ever have, was looking very confident, talking about how the court is in a good place. Just a few months ago, at a press conference, Sachs spoke about the damage inflicted against the institution by concerted attacks upon it. He was referring to ANC Secretary-General Gwede Mantashe’s claim that “Constitutional Court judges are counter-revolutionaries”. Something has certainly changed his mind.
It seems pretty clear that at least part of the change is due to the result of last week’s Judicial Service Commission sessions. For the current judges it must have been pretty scary to see Hlophe let off the hook, and then seemingly protected by ANC JSC members during those hearings. What would they do if he suddenly came to Constitution Hill? But then it became clear the ANC was letting Hlophe go – and didn’t want anything to do with him. Not only was he allowed to be put to cross-examination, he wasn’t even considered for a position on the court.
And Radebe was also pretty honest about some of the things that had happened in the past. The retiring judges had “admirably protected their independence” during the differences that emerged between them and the President last year, he said. That’s a reference to the court’s rejection of an application by President Jacob Zuma relating to search warrants involved in his corruption cases.
So is a new breeze drifting through Constitution Hill? Zuma has always said he wants to build the institutions of democracy. That’s been met be a chorus of “whatever!” from his critics. It is possible that Radebe is blowing hot air around the place, but some of the most important movers and shakers sure do seem to be buying it.
By Stephen Grootes
(Grootes is EWN reporter, www.ewn.co.za)