In my book, Two Minutes to Midnight — Will Ramaphosa’s ANC Survive, I quote Ronald Dworkin when he states that, “American politics are in an appalling state. We disagree, fiercely, about almost everything. We disagree about terror and security, social justice, religion in politics, who is fit to be a judge, and what democracy is. These are not civil disagreements: each side has no respect for the other. We are no longer partners in self-government; our politics are rather a form of war.”

And he could have been talking about us, in South Africa.

Observing some of the shenanigans that went on at the recent Judicial Service Commission (JSC) interviews, and how the EFF representatives were drilling these prospective judges, tearing into them politically, their conduct was nothing short of disparaging, subjecting these individuals to such obvious opportunistic political power plays. Quite sickening, if you ask me. 

It became clear to me that a multi-pronged strategy from the forces of darkness, under the leadership of Ace, Zuma and Malema, is at play. It seems clear now that these carpetbaggers will do all they must to avoid going to prison, even if it means taking the whole country down with them.

And so, the JSC must be politicised. Why? To instil doubt in the minds of the ordinary citizen. Perhaps judges are part of a bigger political ploy, is what they want us to believe. Anyone who, during the interview process, wants to ascribe to the objective mandate of the process, will be looked at askance. You only have to read Zuma’s diatribe in his 21-page letter to Chief Justice Mogoeng Mogoeng to see the strategy at play, actively wanting to cast doubt on our judiciary and its supposed bias and political motivation in his cases.

Judge President in the Western Cape, John Hlophe, is also adding his bid to save his own skin with the very contentious Bongo ruling. Hlophe himself has also been found to want to influence judges negatively. And finally, an innocent question from Pravin Gordhan about his friend [Judge Dhaya Pillay] is now becoming a political football, suggesting interference on his part. Why Chief Justice Mogoeng implied some form of wrongdoing, we will perhaps in time find out.

The danger and end result of this strategy do not concern these opportunists. They don’t possess the intellect to see that the repercussions of such a strategy will have long-term negative consequences for our country. To undermine our judiciary and actively suggest that they are biased and politically motivated smacks of the actions of political illiterates. 

As I have written before, they will also continue to undermine the Fourth Estate, so that they, in a manner of speaking, can control the political narrative. 

Now they must undermine an independent organ of our state, the judiciary. Cast aspersions on our judges, our courts and the entire judicial system and suggest it is biased and political. Soon they will attack the character of Shamila Batohi and Hermione Cronjé at the National Prosecuting Authority.

The truth is that post-1994, we have a proud history with regard to our courts and our apex court in particular in defending the poor and marginalised, and putting paid to apartheid legacies. Now is not the time to play petty politics or to fall victim to manipulation from politicians. 

We’ve come a long way to transform and rehabilitate our judiciary from the apartheid days, and we will not allow anyone to take us back there — especially not ones who themselves face criminal charges for crimes against our people. 

The lesson here is simple: if you don’t want to end up in jail, don’t steal from the public purse. Don’t steal from the people. Don’t break the law as public representatives.

To our judiciary, we say, as judges, the court is not your court — continue representing the people’s courts. Continue with your brand of “judicial activism”. 

Lest we forget, it was the judiciary that insisted on a commission into State Capture. In other words, it was the judiciary that rescued our democracy. At a time when the legislature (Parliament) woefully neglected its oversight duties during Zuma’s presidency, and given the supine attitudes of the executive branch, it was thankfully the judiciary that stepped up.

According to Prof Tom Campbell at Melbourne University, “we enter the controversial ground of philosophical jurisprudence. How ought judges to determine cases that come before them? What is the nature of judicial power? This in turn is meshed in the wider discipline of legal and political philosophy which deals with what sort of legal system we want to have and how this relates to our preferred political system.” 

In the end, contrary to your narrative that our courts are hellbent on sending you to jail, you and only you are responsible for ending up in jail. Take that and let it sink in — you are the ones that ensured you end up in jail, no one else. 

It is not our courts that have been caught doing wrong, it is you.

Again, according to Annette Singh and Moreblessing Bhero from the University of KwaZulu-Natal, “due to the oppressive history of South Africa, the public confidence in the judiciary was tarnished considerably and it was only with the introduction of the Interim Constitution that the judiciary’s work in changing this perception started taking effect. 

“However, the responsibility of the courts to develop a just and coherent constitutional jurisprudence and to foster public confidence in the judiciary does not lie solely with the judiciary. 

“This duty has to be regarded as a shared responsibility amongst legal academics, scholars, practitioners and ordinary citizens who must participate in ‘constructive dialogue with the courts, other persons and institutions about which interpretations of the Constitution will best realise its transformative purpose’.”

This is what Ace and Julius want to erode. How sad.

Singh and Bhero continue, “The correct interpretation of section 39(2) of the Constitution mandates that the courts are to promote the spirit, purport and objects of the Bill of Rights. This, it is argued, is a cue for the courts to engage in judicial activism, but only for as long as it protects or promotes the rights contained in the Bill of Rights. Judges do not have an unlimited discretion, but one that is likened to the hole at the centre of a doughnut by Dworkin.”

Lest we forget, it was the judiciary that insisted on a commission into State Capture. In other words, it was the judiciary that rescued our democracy. At a time when the legislature (Parliament) woefully neglected its oversight duties during Zuma’s presidency, and given the supine attitudes of the executive branch, it was thankfully the judiciary that stepped up.

In a recent piece, Yonela Diko states that, “Magashule and his gang of RET forces have managed to position themselves as the real champions of black interests. They know that more importantly than anything else, black people want economic power to finally shift in favour of marginalised groups, Africans in particular, and black people in general. 

So, again, let me warn you opportunists — breaking into offices and leaving bullets on the table with the aim of intimidation is but the first step. We get it, but it won’t work. These faceless people will do everything in their power to stay out of prison, so don’t be surprised if the next step is to begin to kill significant persons involved in these curious matters… witnesses, journalists or would-be political contenders. 

“Black aspirations now find themselves defended by the most corrupt, creating a conflict in the minds of many, for all need transformation urgently and boldly, and here is Magashule, dripping with all manner of sins, standing in the gap as a would-be hero. 

“Magashule and ilk, however, are committed to radical economic transformation only insofar as it helps them hoodwink and bamboozle the masses into believing they are being prosecuted for such ANC resolutions.”

They are the poor victims. 

“They have absolutely no interest in them or their implementation. Only that they may give them cover for political survival.”

And, “Magashule, like Zuma, wants to push the ANC into a state of paralysis, pitting supporter against supporter, a mass pretence of a non-existent ideological battle, counting on an implosion of the ANC where the separation of the good guys is more difficult, all for the protection of his economic interests and his own political survival — now drifting away with each day, with no hope of a way out.”

So, again, let me warn you opportunists — breaking into offices and leaving bullets on the table with the aim of intimidation is but the first step. We get it, but it won’t work. These faceless people will do everything in their power to stay out of prison, so don’t be surprised if the next step is to begin to kill significant persons involved in these curious matters… witnesses, journalists or would-be political contenders. 

For far too long we have collectively been ignoring the harsh realities of political killings in our beloved country.

But I digress: engaging in judicial activism can be controversial and can strain the relations between the judiciary and other branches of the government. However, as Murray Wesson and Max du Plessis state, “all these challenges and controversies should be considered with the realisation that in all democracies in which the judiciary is empowered to review and set aside government conduct, policies and laws, the judiciary invariably shares, at times, a tense relationship with the other branches of government”.

The ruling class knows they can never defeat one another without the revolt of the masses and so I concur with the sentiment that “the hope is for a tipping point to be reached where the ANC branches will have no choice but to call for an early conference where Ace hopes for a shot at real power and, like Zuma, use his presidency or that of his allies to spare himself the humiliation of prison and his inevitable disappearance into political oblivion. 

“What is evident is that it is crucial for the development of our constitutional democracy that the courts engage in judicial activism. 

“Further, such powers are granted to the judges in terms of section 39(2) of the Constitution. The application of section 39(2) has resulted in a new value-based jurisprudence, as opposed to the legal positivism that prevailed prior to the Constitution,” write Wesson and Du Plessis. 

To the judges, we say: do not get distracted with these minions’ attempts to discredit you. They have no regard for the future of this republic. However, we the people have the utmost regard for you. Keep up the activism to ensure justice. DM