Opinionista Professor Balthazar 2 September 2019

In a most pernicious strain of attack against constitutional values, judges are accused of being captured

The present political struggles for the assertion of constitutional values of accountability, transparency and good governance have taken an ominous turn. There is now a clear assault on institutions designed to protect and promote the Constitution, in particular – and most recently the target is the judiciary.

The recent episodes of lawfare began with the specific selection of prominent figures or investigation and the subsequent reports of the public protector. It should have been expected, indeed demanded, of the office of the public protector that the main focus in the post-Zuma era would be to concentrate precious resources on the plethora of plausible allegations relating to the plunder of state resources at the expense of the reconstruction of South Africa which the Constitution promised as necessary to secure a better life for the vast majority of 57 million people.

Instead, the almost exclusive focus of the office of the public protector has been on President Cyril Ramaphosa and Pravin Gordhan in cases which, on even a generous reading and on any reasonable basis, in order of importance, are of far less rank than the wholesale looting of state coffers.

Instead of embracing her critical role in restoring good governance where it matters most to the vast majority of South Africans, or ensuring that investigations into the disgraceful Vrede Dairy case were meticulously conducted without fear or favour, the public protector has spent precious resources on legal canards rather than critical cases.

This approach and the consequent recommendations made by the public protector have been exploited by a motley coalition against the constitutionalist in government. Unsurprisingly, this group has taken a lesson from history. It has flipped the position that existed under the previous public protector, Thuli Madonsela, where those seeking to restore good governance to the country pointed to the reports of the public protector to bolster their campaign against State Capture.

The difference is, however, stark – this time it is to bolster campaigns to restore a regime of mismanagement and corruption; that is, to perpetuate State Capture until, presumably, no state resources are left to rebuild the country.

In all of the previous nefarious assaults on the dreams for a better country as envisaged in the Constitution, the courts have stood firm as a bulwark against attacks on the constitutional ramparts. In case after case, constitutional values were vindicated by the judiciary; most recently, when the public protector vastly exceeded her legal remit. Hence, it is not entirely surprising that, as the judiciary has restored constitutional order to the workings of the public protector, new forms of attack have now been launched against the judiciary.

Assaults against the institution of the judiciary are not new. Over the past decade in particular, when the Constitutional Court and the Supreme Court of Appeal asserted constitutional sovereignty over actions of the Zuma government, the judiciary was attacked as being a bunch of counterrevolutionaries. Even the then-Chief Justice, the saintly Pius Langa, was not spared from this venom.

However, the new strain is far more pernicious – judges are now accused of being corrupt. Calls are now made for the Zondo Commission to expand its already expanded inquiry in order to deal with the alleged capture of judges.

All of these attacks are made without a scintilla of credible evidence, which does not prevent the confidence by which they are articulated at the Zondo Commission or in newspapers, mainly from the oddly named Independent stable.

But in an era of trolls and fake news, the consequences can be devastatingly successful in the promotion of the desired objective: to undermine the one constitutional institution that has shown consistent fidelity to the Constitution and its values.

That astute political commentator Professor Steven Friedman has suggested recently that judges need to eschew their traditional reluctance to explain their role in society by insisting that they speak only through their judgments. Friedman acknowledges that the Chief Justice has been a consistent spokesperson on behalf of the judiciary but considers that more judicial voices need to be heard.

There is merit in this argument. The judiciary in this country does not have the luxury of being the custodians of a democracy built over centuries, although British judges, who have previously enjoyed that position and hence have comported themselves in a monastic mode, may now have second thoughts thanks to Boris Johnson.

The point remains – as constitutional custodians, judges may need to explain better and in lay terms to the public, they serve why they have decided cases and the reasons as to why the disgruntled side lost. In this connection, one is reminded of the heroic public commitment of Justice Edwin Cameron when, as a sitting judge, he spoke truth to then-President Thabo Mbeki’s power concerning the government’s neglect of the Aids epidemic.

It appears that some within our society are sufficiently desperate that they are prepared to destroy all the pillars that prop up our democratic model. And while judges should do their part, unless civil society performs its role, those who now attack the legitimacy of the Bench may well destroy it more than even they envisage. DM

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