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The entire ANC must clearly and forcefully endorse independence of the judiciary

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

Given that it was the Zuma coterie of rent-seekers who were instrumental in the degradation of key institutions of state that were bent to aid their nefarious purposes, it is not surprising that the former president and his acolytes are now determined to destroy the one constitutional institution that stood against their State Capture project other than the Public Protector under Thuli Madonsela – the judiciary.

As illustrative of the attacks, Jacob Zuma has recently claimed:

“No amount of intimidation or blackmail will change my position as I firmly believe that we should never allow for the establishment of a judiciary in which justice, fairness and due process are discretionary and are exclusively preserved for certain litigants and not others… Many in our society have watched this form of judicial abuse but choose to look the other way merely because of their antipathy towards me.”

Not to be outdone, Julius Malema, who significantly is the EFF representative on the Judicial Service Commission, claimed the following:

“We cannot continue to bury our heads in the sand against growing and now believable allegations that some prominent members of the judiciary are in the bankroll of the white capitalist establishment.”

What makes this statement even more outrageous than even its extravagant, unsubstantiated claims, is that the EFF had access to the so-called CR17 campaign records on which Malema appears to base his claim, which according to reliable reports contains no such evidence.

Zuma not only attacked Deputy Chief Justice Raymond Zondo, who one should note was appointed as the DCJ during Mr Zuma’s term of office, but also trained his bile on Judge President of Gauteng Dunstan Mlambo by claiming that the judge breached the principle of separation of powers between the executive and the judiciary. He further claimed that Judge Mlambo could flip-flop on the same principle simply to punish him.

These are scandalous allegations against two distinguished members of the judiciary.

That Mr Zuma finds himself on the losing side of a series of judgments of courts and rulings of the Zondo Commission is solely attributable to his having no case in law either for ignoring the rulings of a judicial commission that he appointed, or the countless judgments that have found against his utterly groundless legal arguments before countless courts. In this Mr Zuma is doing a fine impersonation of Donald Trump and his sidekick Rudy Giuliani and their self-serving justifications for losing some 64 US court cases concerning tendentious claims of voter fraud.

Justice Zondo has conducted his commission with great diligence and commitment to process. Needless to say, he has not issued any final decision on the merits of the allegations of State Capture, yet the Zuma camp, fearing the inevitable, has moved into high speed to generate as much fake news as possible.

Judge President Mlambo has proved to be a truly outstanding leader of the Gauteng High Court. He has ensured that the court is an efficient institution, has encouraged the appointment of countless judges who have radically altered the demography and the commitment of the court to jurisprudential transformation, all of which marks him as a superb judicial leader who’s deeply committed to the vindication of the ideals of the Constitution.

Many in the legal community feel Judge President Mlambo should become South Africa’s next Chief Justice.

And while that is not certain, what is clear is that he should be celebrated for his achievements as opposed to being defamed for delivering careful judgments and exhibiting judicial leadership of the highest order. By all means, criticise the merits of judgments, but that of course is not the Zuma project.

The project is to undermine the entire institution in order to remain above and beyond the law. As the Minister of Justice Ronald Lamola so commendably said in response to the Zuma-Malema axis:

“An independent judiciary is a cornerstone of our constitutional democracy. Attacks, allegations and conspiracies against the judiciary can erode the confidence of society in the judiciary if not followed up with facts and conclusive investigations.”

This column has warned on a number of occasions that the model of constitutional democracy remains under significant threat, notwithstanding that Mr Zuma is no longer president and that he has been replaced by a constitutionalist, Cyril Ramaphosa.

Mr Lamola’s principled stance notwithstanding, both Secretary-General of the ANC Ace Magashule and his deputy, Jessie Duarte, have expressed contrary views in the recent past, referencing the idea of an ANC leadership that overrides constitutional tenets

 The ANC, as a collective, has yet to show it is committed to constitutional democracy, as its leader Mr Ramaphosa doubtless is, or that it is prepared to risk the ire of the rent-seekers within its ranks. Nor will it unequivocally condemn the conduct of Mr Zuma in his attempt to be placed beyond the reach of the law and to that end to destroy the legitimacy of the key institution that is the custodian of the rule of law – the judiciary. Continue the silence as an organisation and the inference that its commitment to party above the law will be irrefutable. DM

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All Comments 8

  • How very true this article, and well written. But with two factions fighting for supremacy, this simply will not happen. Those guilty of crimes, and those within the ANC supporting the criminals, will keep on attacking the judiciary. The other faction will continue to support the judiciary, at least in the public eye

  • Mudslinging and ad hominem are, and always have been, the last refuge of those devoid of any valid argument, cogent reason, or plausible evidence.

    It is a delusion to think that the ANC collectively “is committed to constitutional democracy.” Its every action and inaction is selective, betraying escalating contempt for the principles of constitutional democracy, and virtually every ostensible anti-corruption sentiment expressed by any ANC member, bar a tiny and irrelevant minority, is hypocrisy, wrapped in lip service, inside doublespeak.

  • All those involved involved in state capture should be trailed for high treason, they broke their oath of office and have trampled on the constitution. They have betrayed the people of South Africa on an extremely deep level and to an unprecedented scale. Their actions are hard evidence of a total lack moral and ethical conscience. To undermine the judiciary is further evidence of their depravity and evilness. Their total lack of decency, and disregard for the impact of their actions on our country, expose their rottenness to all who is willing to face the truth.

  • Thank you for an informative article.
    About five years ago I remember reading that we have three institutions preventing South Africa from descending into a failed state. (Richard Calland) They were the free and independent media, the Public Protector (under Thuli Madonsela) and the independent Judiciary.
    The quality of investigative journalism in South Africa has been exceptional and has exposed a mountain of damning evidence against wrongdoers. They deserve our thanks, and may they continue the good work.
    We all know that Jacob Zuma very effectively neutralised the office of the Public Protector with the appointment of the current incumbent, so until she is declared unfit and replaced by a person of the calibre of Thuli Madonsela, we can regard the Office of the PP to be one that tends to work against good governance.
    The most important remaining ‘dyke’ between a prosperous and successful country and collapse into a failed state, is the independent judiciary. I believe we all owe (most of) our judges a huge debt of gratitude because without their competence, integrity and firm stance on so many occasions we would already be a failed state. This does not mean there aren’t cracks in this ‘dyke.’ Any South African with a reasonable knowledge of current affairs will know that JP J. Hlophe has been involved in far too many controversies to meet the standards of ethics, competence, and impartiality necessary for a judge, let alone JP. The fact that he remains in this position is very concerning. Then there was the Seriti Commission debacle. When a judge abandons his judicial principles in order to arrive at a pre-determined outcome, as it appears was the case in that instance, I believe there should be personal consequences for the judge.
    The NEC of the ANC is currently supporting the Zondo Commission and The Constitution. However, the ANC (and their subsidiary the EFF) have made it abundantly clear on numerous occasions, that they will always put the party ahead of the state (despite their oath of office.) I also suspect that many senior ANC members don’t understand the difference between party and state. Should any aspect of the Constitution conflict with the objectives of the ANC, it would not be too difficult to form an alliance with the EFF to change the problematic component, even if such change was detrimental to the people of South Africa. Just as long as it benefits party cadres. I suspect we shall see such a move shortly with EWC even though numerous global economic studies prove that there is a positive correlation between strong property rights and high GDP per capita (which is a clear proxy for good living standards.)

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