Over the past few months it has become clear the judiciary, and in some cases, individual judges, are coming under attack from political elements. Until now, it appeared that those doing the attacking were people with something to fear of a fully functioning criminal justice system.
But last week a broadside has come from a surprising source and it is likely to be used against both judges and the perpetrator of the attack, Old Mutual chairman Trevor Manuel. This illustrates how, as political divisions in the country sharpen, judges will be caught in the middle, which could weaken their legitimacy and lead to much greater problems in the longer term.
If there is a battle raging in any field, sometimes the most dangerous attack can be one that comes from someone deemed an ally – an attack that comes as a surprise. This appears to have been the case with Manuel on Friday 13 September.
The press conference he called was no doubt intended to change the balance in the PR war in Old Mutual’s fight with its currently suspended (or not…) CEO, Peter Moyo. Instead of doing that, Manuel trended on social media for a particular comment he made about a judge who ruled that Moyo must be reinstated.
Manuel said this of the ruling: “If you take a board imbued with the responsibility and accountability and you get that overturned by a single individual who happens to wear a robe, I think you have a bit of a difficulty.”
It was strong criticism of a judge. And the reaction was not just because few people would have expected Manuel to be so critical of a judge, but possibly also because of his tone. Manuel may have come across as haughty, even arrogant. Certainly, judging from the video clip, he gave the impression of being dismissive of the judge and the judge’s view.
Unfortunately, the timing could not have been worse.
Also on Friday afternoon, Chief Justice Mogoeng Mogoeng held a press conference to respond to claims that some judges are corrupt.
There have been various claims about this on Twitter, mainly unfounded. However, former Free State economic development MEC Mxolisi Dukwana did tell the Zondo Commission last month (while under oath) that ANC secretary-general Ace Magashule had lodged legal applications in Bloemfontein because he did not believe he could lose there.
Mogoeng said there was no proof of any wrongdoing by judges and that anyone with such proof could deliver it to his office. As he is also chair of the Judicial Service Commission, any hard evidence could result in the dismissal of a judge.
Meanwhile, also last week, more claims emerged on Twitter to the effect that National Prosecuting Authority head Advocate Shamila Batohi had received money from the CR17 campaign.
The SABC’s Sakina Kamwendo had to ask her about this (any journalist interviewing Batohi last week would have had to do the same, I would certainly have asked exactly the same question). Batohi was in the difficult position of either refusing to give the claim any legitimacy (which would end up with her opponents saying she hadn’t denied it) or responding to it and thus lending it credibility.
It appears this is how many fights are going to be fought. A claim will be put on social media and journalists will have to ask about them, thus giving credibility by association to claims that have no legitimacy at all.
It is well known that certain people operate like this. The EFF and its leader Julius Malema have made damaging comments about judges without providing any evidence. They have also, so far, failed to take these claims to the JSC. (Interestingly, Malema is the EFF’s representative on the JSC.)
It appears Manuel, being the former long-serving finance minister that he is, may have helped those who have an interest in weakening the judiciary. Whether he was doing this through frustration or whether it was simply inadvertent might not matter, the damage may have been done.
Meanwhile, the judiciary could find itself in a difficult position.
A variety of political cases could soon be heading their way. Should the NPA start charging people, possibly judges will have to hear cases involving Magashule, Malema and former president Jacob Zuma. These may be difficult enough.
But even harder cases, political cases, could follow. Issues concerning National Health Insurance and the expropriation of land – and the technical details they bring up – will probably be brought before the courts, as our politicians appear unable to reach decisions they can all live with. In turn, this is the result of constituencies in our society being very far apart and appearing to want different things.
Judges might have to hear cases that pit different classes of our society against each other. Should this happen, it would be important, as a starting point, for them to have as much legitimacy as possible. Imagine for a moment the difficulties created should it be claimed judges ruled expropriation without compensation was unconstitutional because they received money in return.
It is a common cause among the chattering classes in our country that it was the judiciary (and the media…. – Ed) that prevented South Africa from sliding down an abyss over the last decade. When he was still deputy president, in February 2017, Cyril Ramaphosa said the judiciary had been one of the “shock-absorbers” of our society. Those shock absorbers may well find themselves in very bumpy territory soon.
Manuel may live to regret his comments, should it be that he has contributed to damaging the judiciary. DM