OP-ED
Disturbing claims against the judiciary undermine our constitutional order
We should be concerned when those in prominent positions in society make statements that show a disdain for the basic principles of our Constitution. Of particular concern are recent claims – without evidence – that some judges are pursuing interests other than the cause of justice.
On Sunday, as Commander-In-Chief of our country’s armed forces, I officiated at the annual celebration of Armed Forces Day in the Castle in Cape Town. This important event is held each year on the anniversary of the sinking of the SS Mendi in 1917, in which more than 600 black South African soldiers and 30 crew lost their lives.
On Armed Forces Day, we remember the men and women who have lost their lives in the service of our nation. We are also reminded on this day of the responsibility that the defence force has to protect our democracy.
The Constitution asserts that the primary object of the defence force is to defend the Republic, its territorial integrity and its people in accordance with the Constitution.
While the defence force is the only lawful military force in the country, the responsibility to defend our democracy and uphold our Constitution rests with each one of us.
Our democratic Constitution is the product of years of sacrifice and struggle. Many South Africans endured great pain and hardship, and many lost their lives, so that we could live in a democracy where all may enjoy equal rights.
The values, principles and rights contained in the Constitution are neither trivial nor abstract. They directly affect the daily lives of millions of people, preventing the arbitrary use of power, providing protection to the vulnerable, and advancing the access of all people to shelter, water, health care, education and social support.
The Constitution is also vital to maintaining a system of checks and balances to prevent the abuse and concentration of power to the detriment of the people. The three arms of the state – the legislature, the executive and the judiciary – each have a role to play in ensuring accountability and adherence to the rule of law.
Without these checks and balances, without each arm of the state fulfilling its responsibility, without adherence to the Constitution, our democracy is vulnerable and worthless.
We should therefore be concerned when those who occupy prominent positions in society make statements that demonstrate a disdain for the basic principles of our Constitution and the institutions established to defend our democracy.
Of particular concern are recent utterances directed at the judiciary, in which some judges are accused, without any evidence, of pursuing interests other than the cause of justice. Judges have been accused of political agendas and some have even been accused of accepting bribes.
Such claims are deeply disturbing, for at least two reasons.
First, if such claims were true, it would mean that there are some within the judiciary who are failing to uphold the values and principles with which they have been entrusted.
Fortunately, our Constitution makes provision for such a possibility. The National Assembly is empowered to remove judges who are found by the Judicial Service Commission to be guilty of gross misconduct. The Judicial Service Commission is a carefully constituted body, which includes representatives from the judiciary but also the legal profession, academia and Parliament. There are clear processes established in law to deal with allegations of misconduct against members of the judiciary.
Anyone who has evidence of any wrongdoing by any judge should make use of the avenues provided in our Constitution and in our law to ensure that appropriate action is taken.
The claims that have been made against the judiciary are disturbing for another reason.
Without the presentation of evidence to support these claims, and unless referred to the relevant authorities, all that such allegations do is to undermine the judiciary and the important function that it performs in our democracy.
Of course, South Africa is a free country, with a Constitution that guarantees freedom of expression and opinion. However, when some in positions of responsibility choose to use those freedoms to undermine our constitutional order, they should be reminded of the possible consequences of their utterances.
One of these possible consequences is the erosion of trust in the judiciary and our constitutional order.
As former Chief Justice Sandile Ngcobo said in an address in 2010:
“[W]ithout public confidence in the ability of the courts to dispense justice, there can be no faith in the rule of law. Without faith in the rule of law, valuable relationships of trust within society begin to break down.
“Citizens can no longer be assured that their rights will be respected. Businesses can no longer be assured that their contracts will be honoured. Victims of crime can no longer be assured that justice will be served in court. Public confidence is therefore vital.
“That is why courts must not only be independent and effective; they must be seen to be independent and effective.”
We should therefore not take attacks on the judiciary lightly. Such attacks shake the very foundations of our constitutional democracy. Unless supported by evidence, such claims undermine confidence in our courts, and weaken our constitutional order.
In all our actions, we need to take heed of Section 165(3) of the Constitution, which says: “No person or organ of state may interfere with the functioning of the courts.”
We interfere with the functioning of our courts and weaken the rule of law when we attack the judiciary. Our failure to implement our courts’ injunctions weakens our constitutional democracy.
The soldiers who we honoured on Sunday during Armed Forces Day have taken an oath to dedicate their lives to protect our democracy. Like them, we all have a responsibility to defend the Constitution upon which our democracy is founded.
We have a responsibility to the generations of our forebears, many of whom gave their lives so that we may have a democratic Constitution.
We have a responsibility to the millions of South Africans who look to the Constitution for protection and relief.
And we have a responsibility to future generations who will look to this Constitution as the foundation of a stable, peaceful and just nation. DM
This is the president’s weekly letter to the nation released on Monday.
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Bla Bla Bla …. just get your own anc ‘troops’ in line and all your challenges will be a lot less cumbersome to address?
Mr President, you speak with forked toungue. When private property rights, one of the cornerstones of a democracy, enshrined in the constitution, does not suite you and your ANC, you change the Constitution. I s’pose that is not called disturbing the constitutional order!?!? I thought so.
Totally agree Cyril… So what are you doing about it???
At the risk of pointing out the manifestly obvious, what undermines our constitutional order far more rapidly and insidiously is the near-total absence of swift, decisive, stern, and public action against transgressors of the law, especially by those from within the ruling elite.
When, if ever, will the ANC acknowledge this elementary fact? And if it ever does so, will commensurate policy be implemented?
Given the ANC’s long and comprehensive failures in this context, I think not and never. Waffle, however soothing, is waffle no less.
For once I honestly enjoyed this letter by the president. It really gives me a bit more hope, especially after the remarks and actions by Magashule and Zuma last week, in the last month, in the last year, and in the last decade. This was indirectly a dig at these two and some other NEC members, but also Julius Malema. This to me come more across more as the Ramaphosa that spoke at his rally’s prior to his election as ANC president and president of this country. No doubt there will again be many, many sceptics. But he put is feelings on paper, and I also believe that he believes in it. Remember he was one of the key members involved in writing the constitution.
I agree Coen. This article from the president took some courage to write and is very directed.
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Agree 100% Mr President! The crisis in SA has reached such critical, damaging and alarming proportions that you have to abandon the fickle notion that unity of your wayward party (I’m being kind and polite here)as being your first and foremost priority. We are fast getting to the point of no return. Put the interests of the country first – just about all its citizens are behind you. Whether you appease the wicked criminals in your party or not, they will still stab you in the back anyway. This country needs strong and firm leadership now! Appeasing the vacuous and evil RET faction, headed by zuma, magashule etc. will just embolden them. They take it as a sign of weakness!
It seems pointless to comment anymore except that there is strength in numbers. The numbers suggest you are speaking only to the converted Mister Prez.
So, attacking the judiciary without proof is like yelling fire! in a crowded theatre. What happens to someone who yells fire! in a crowded theatre?
Well said Mr President! This was the type of leadership we imagined with the “New Dawn” but gradually that dawn became an “NDR Sunset” with most financially astute South Africans (significant taxpayers) making alternative residency arrangements as plan B. I have no doubt that an OVERWHELMING majority of South Africans agree with the sentiment and content of your article, except possibly some members of your party – no doubt to whom it was directed.
It is not too late to save South Africa but you are going to have to abandon:
1. Dishonest, incompetent and corrupt team members,
2. Economic principles that have failed everywhere and every time they have been tried.
Glad you noticed Mr President. It is indeed worrying, especially as several of these individuals you take care not to name are senior ANC members, including fired ex-minister Bathabile-Dlamini and fired ex-president Zuma. We, the people, hope that you take appropriate action. Such undermining actions deserve more than a slap on the wrist or a mere mention in a weekly letter. We, the people, are also highly relieved that our Judicial Services Commission has been jolted awake to take appropriate action against delinquent judges. Hopefully they will be more effective than they’ve been with Judge Hlophe. Can you believe more than a decade has passed since the first charges leveled against him? Yes, Mr. President, time flies… Well, looking forward to your next letter addressing the next matter of concern. Never a dull moment, eh? Regards,
The problem of Justice Hlophe in Capetown and the misguided rant by the Chief Justice on Vaccines are examples which:
1. Make the common man wonder about the suitability of appointees, and
2. Question the wisdom of the fraternity and its willingness to keep its own house in order.
Swift and reasoned judgement is not necessarily an oxymoron, unreasonable obfuscation and delay adds to the undermining both in appearance and fact
Ramaphosa makes a platitude or two here. If he was or had been serious, we would have seen many prosecutions. If he was serious about the constitution he would have made note, publicly, of the threat to home-owners who have fully paid their bonds, under the dispensation allowed them from The Constitution 1994, and that there should never arise this threat of losing one’s castle! Now that a face-to-face reality confronts we readers, let’s continue with further reality. Justice Hlope’s “issues”-pack has been around for almost a decade – and if that is not a threat to the judiciary and the Constitution then what is? Which would be the worse loss: the Constitution or the judge (small ‘j’), or your paid-up home? AND, pray tell, what must one think of C Ramaphosa who was a stated quasi-Marxist, who simultaneously spent millions on buffalo, one buffalo, who drove the cause of trade unionism yet is worth R6,4 billion in many estimates, who voted FOR Jacob Zuma at least eight times under the crucial no-confidence motions and will still not say one public word against his actions all the while forking his tongue in articles such as the above.
And, he will not push for the rise of Independent Radio and TV News broadcasts.
YES, we all agree to much of the above, but, we agree to it because it is dire stuff. CRamaphosa however, uses this (Article) as a platitude to appease those who he perceives are getting a stronger voice in the public domain, and are making a stronger point, against the dis-united mob-led ANC.
BE clear people, mindfully, so that you are able to tell your colleagues and acquaintances: the mob-led ANC is unfit to govern – simple!
Dear President,
The Judiciary need to keep their own house in order, which will give those wishing to undermine the Constitution wit no ammunition they can use to achieve their objective. The current situation in the Western Cape stains the whole Judiciary!
Time to put pen paper again on Monday Mr Pres and explain Hlophe protecting the ANC in this latest Bongo judgement….sitting on the fence does not cut it ……or maybe it is cutting your ?????