The constitutional prerogative of the president to hire and to fire cannot be exercised at the expense of another section of the Constitution or irrationally; this cannot be argued with.
Given that the DA is not arguing constitutionality but rationality, which can easily be satisfied even at a hypothetical level, I believe the judge (in the matter of the Democratic Alliance’s successful application to force President Jacob Zuma to provide the reasons and record of decision for replacing former Finance Minister Pravin Gordhan and his deputy Mcebisi Jonas in the vast Cabinet reshuffle in March) should have demanded a lot more from the DA’s legal representations.
There is nothing wrong with judges using theoretical what ifs – what if the president’s reasons for the reshuffle was to bring more youth, or it was irreconcilable differences, or just to give other MPs a chance – nothing stops the judges from this line of questioning so as to at least demand some credibility from the DA’s objections to the reshuffle (vigilant of being a political pawn) or at least to demand some minimum evidence that the objection to the reshuffle is reasonable, careful not to be seen to suspend common sense, or as is the case, to avoid giving the DA false victories.
What the DA is effectively saying is that the president acted irrationally by reshuffling his Cabinet but they don’t have evidence of this, they are promising the judge the evidence will come once the president makes public his reasons for the reshuffle. So the courts are effectively being asked to open a trial without evidence – the courts must go and get this evidence. This in itself is irrational and effectively means the court is being asked to do the DA’s work.
There must be a minimum test that judges can use to check whether they are not being used for political point scoring and one of them is to put themselves, at least theoretically, in the shoes of the accused in order to test the ridiculousness of this. People cannot just walk out of a political battle into courts to fight the same battle by other means in full intellectual glare of the judges. This case will most likely be a complete waste of time but will have put Judge Bashier Vally at the centre of political populism unnecessarily. Is that what he wants? The question of judges being vulnerable to public opinions and playing to the gallery is a worry the world over.
Four years ago, a Rasmussen poll showed that public approval of the Supreme Court of the United States was at an all-time low. Only 28% of those surveyed gave the Supreme Court a “good” or “excellent” rating. A few years later this grew to about 30%. This meant Obama, a politician, for much of his eight years in office, had much higher approval ratings from the public than Supreme Court Judges (the Constitutional Court equivalent).
Criticism of the Supreme Court spanned the political spectrum, with some on the left denouncing the decision striking down part of the Voting Rights Act as the “return of Jim Crow” and some on the right condemning the decisions involving same-sex marriage as “politics, tarted up as constitutional law”. Others wondered if the Supreme Court was just a “super-legislature, deciding by majority vote what our constitutional rights are”.
In fact, in 2010, President Obama dedicated part of his State of the Union address to publicly chastise the court for reversing a ban on independent political expenditures by corporations and unions in Citizens United v. Federal Election Commission.
In South Africa, where judges have almost been bestowed with divine providence as the last line of defence against an executive and legislature that keeps testing the limits of the Constitution, criticising judges has become the ultimate act of treason. At the first sign of criticism of the Judiciary by Cabinet, Chief Justice Mogoeng, on 27 August 2015, requested a meeting with the president. His judges were concerned at what they call the “general gratuitous criticism” of the judiciary by members of the South African Cabinet.
In 2015, Richard Calland, an associate liberal professor in public law at the University of Cape Town, accused the ANC representatives at the JSC of increasingly being preoccupied with the separation of powers when interviewing judges, again perpetuating this narrative that judges objectivity is above reproach that even merely questioning their understanding of this separation of powers is tantamount to a euphemism for their growing preference for non-activist judges who will more likely defer to the executive.
It is however when you research how polarising and deeply dividing this question of vulnerability of judges to prevailing public opinions has been that you realise we may have created monsters of our judges, letting them get away with very little scrutiny on their judgments.
This particular case demands a proper reflection on the court’s image, emerging trends, and whether the court got the big cases right or wrong is warranted sooner, rather than later.
This ruling by Vally, that President Jacob Zuma must hand over all records explaining the reason why he reshuffled the Cabinet, has brought all these contradictions and complexities back to the foe. What were Vally’s personal views on the reshuffle, what were his braai and fishing friends’ views on the reshuffle, did he sympathise with the countrywide matches in the aftermath, was he influenced by both his own views and that of his friends and public reflections on his judgment? Did he follow the law to the latter or is it yet another case of politics tarted up as constitutional law?
Unlike in the US where experts meet yearly to evaluate all the cases of justices, particularly those by the Chief Justice, whether they are not subjective and biased, particularly on the basis of their own personal views, in South Africa criticising judges has been a no-go area, especially for politicians, and whether we have compromised democracy with that remains to be seen.
The truth is that judges are wrong for not wanting to be questioned by politicians as much as politicians are wrong for not wanting to be questioned by judges. If we can all accept that we all have a genuine concern, then we can chart a proper way forward.
Separation of powers means that at times, judges will feel the pain of that separation on issues they would like to pronounce on but are prohibited by such a separation. For a lawyer of the Executive to be subjected to explaining to a judge where a president derives his powers to reshuffle his Cabinet is not only arrogant but a test of the Executive’s patience.
It’s a slippery slope and one of these days judgment will fall on deaf ears, and when that happens, woe unto our democracy. DM
Yonela Diko is currently the Spokesperson of the African National Congress (ANC) in the Western Cape. Prior to assuming his role in the ANC, he worked in various companies in the private sector. Between 2007-2009 he worked for one of the Leading Retirement Fund Companies, NBC Holdings as an Employee Benefits Consultant. After that he joined the Corporate Strategy and Industrial Development (CSID), an Economic Research Unit housed under the School of Economics at Wits University. He did his BCom degree at the University of Cape Town majoring in Economics.