Opinionista Lawson Naidoo 30 March 2017

Heady times for the judiciary in South Africa

While the brazen burglary at the Office of the Chief Justice (OCJ) has sent shock waves across the country, when seen in the context of other issues relating to the judiciary it is perhaps even more alarming.

That the security of the offices of the head of one of the three branches of state was breached apparently so easily must call into question the efficacy of our intelligence services. It is akin to the office of the President or the Speaker of the National Assembly being broken into. Surely that is one of the primary reasons we have the Department of State Security as well as the Crime Intelligence division of the SA Police Service (SAPS)?

They are there to protect us, and especially our key institutions from hostile forces. They have failed us dismally, and the Minister of State Security ought to resign in an acknowledgement of this abdication of responsibility. But this is the Zuma administration, and accountability is not part of its vocabulary.

The burglars appeared to know exactly which computers needed to be taken – they took 15 computers from the human resource department that contains private and personal information of 25o judges and many hundreds of court officials, but ignored many other computers. The fruits of the heist lie in the information contained in those computers, rather than in the hardware.

That kind of sensitive information in the wrong hands could potentially be used to try and blackmail judges and their families, selectively leak information about them or to run smear campaigns. This would have the impact of undermining public confidence in the judiciary and their independence, thereby weakening respect for the rule of law. That in turn weakens the very foundations of our constitutional democracy. Such an outcome suits those who see the Constitution and the rule of law as an obstacle to their plundering of the state. A dysfunctional system of governance facilitates looting and the diversion of state resources.

Many people have pointed fingers at elements within the state, including the security services as having a hand in the burglary. That so many readily jump to the conclusion that the state is involved, underlines the lack of faith we have in these institutions, and perceptions of their complicity in illegal deeds.

The announcement last week that three people had been taken in for questioning and then charged (with offences unrelated to the burglary) was intended by SAPS to convey the message that this was the work of ordinary criminals, and to deflect the public focus from the security services themselves. It is for this reason that the Council for the Advancement of the South African Constitution (Casac) has called for independent oversight of the police investigation.

SAPS simply cannot be trusted to investigate impartially and to provide accurate information to the public. There is no mechanism in our system for such supervision of an investigation but extraordinary times call for exceptional measures. Given that whoever oversees a police investigation must understand their processes and methods, it is perhaps a role for the Independent Police Investigating Directorate (IPID) headed by Robert McBride. A civilian oversight body would probably be given the run-around and be flummoxed by the cops.

These have been heady times for the judiciary in South Africa. They have had to consider and make rulings in several important cases dealing with whether government has acted in accordance with the Constitution. In almost all these cases the courts have ruled against government. This has exacerbated tensions between the executive and judicial arms of the state. Examples include the Nkandla case a year ago; the unsuccessful appeal to the SCA in the Omar al-Bashir matter; the court ordering the release of the Public Protector’s State of Capture Report; the declaration that government’s intended withdrawal from the International Criminal Court was invalid; the setting aside of the appointment of Berning Ntlemeza as Head of the Hawks as irrational; and the castigation of the conduct of Minister of Social Development, Bathabile Dlamini, in the social grants fiasco by the Constitutional Court. This came after both the minister and the President denied that there was any crisis.

These judgments constituted major body blows against a rogue government. There is a frustration among some in government that they are unduly constrained by the Constitution and the courts. This has led to a yearning for a return to parliamentary sovereignty at the expense of constitutional supremacy. Some have called it a “funny democracy”!

In the aftermath of the al-Bashir court ruling in 2015 that government should have prevented the wanted Sudanese President from escaping South Africa, an unprecedented meeting took place between leaders of government and the judiciary at the request of Chief Justice Mogoeng Mogoeng. Its aim was to ease tensions after attacks on the judiciary by members of government and ANC Secretary-General, Gwede Mantashe. As usual there was little follow through and the respect for the judiciary that was proclaimed in a joint communiques was transient at best.

Mogoeng has also ensured that the institutional autonomy of the judiciary, establishing the OCJ as a separate institution of state outside the clutches of the Department of Justice was completed. It now exercises autonomous administrative and financial control over the courts. This means that government no longer has direct access to the kind of personal information that was stored on those stolen computers.

Nevertheless if the aim was just to obtain that confidential information, it would surely not have been beyond the scope of even our spooks to hack the IT system. The physical and overt act of the burglary might therefore have been deliberately intended to intimidate and sow fear. As the mayor of London, Sadiq Khan, said in the aftermath of the Westminster attack last week, “we will not be cowed”. But we should be vigilant – democracy is the target of both types of attackers. DM

Lawson Naidoo is the Executive Secretary of the Council for the Advancement of the South African Constitution (www.casac.org.za)

This article first appeared in The Post.

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