Last week South Africa evidenced a Delta variant to the virus of lawfare that has engulfed our legal system since the legal woes of Jacob Zuma commenced. In seeking to appeal the detailed and reasoned judgment of a full Bench of the Gauteng High Court, dismissing the case brought by Ace Magashule against his own party, Magashule’s counsel, Dali Mpofu SC, accused the judges of being motivated by bias. He was then reported to have said:

“This issue of bias has been spoken about in dark corners in South Africa and I think we must bring it to the fore. I do not want to live in a country where people know the outcome of a case before the case happens simply because it’s so-and-so versus so-and-so.”

Well, some of us do not want to live in a country where the guardrails of constitutional democracy are continually assaulted with impunity. It is obviously permissible to mount a robust case for a client and then to appeal an adverse decision by way of a clear statement as to why the court’s judgment was fatally flawed. But when the line of defence is to accuse three judges of failing to meet the elementary standard of applying a judicial mind to a case and this after a detailed written explanation of the reasons for the court’s decision, a line has been crossed into territory that leads to the destruction of an independent judicial institution. 

It is hardly surprising that these continual assaults on the judiciary, invariably on behalf of a rent-seeking faction who wish for all restraints on their project to be dismantled, have impacted significantly on the legitimacy of the judiciary. A recent survey by Afrobarometer showed that the respondents’ trust in the defence force was higher than that of the courts!

Some of us would wish to live in a country where senior legal practitioners hold firm to the integrity of the judicial institution. That the soap opera that has characterised the manner in which the Judicial Service Commission (JSC) has dealt with the complaint against Judge President John Hlophe has devastated the reputation of the JSC, is surely obvious to all other than those who are prepared to defend the indefensible. Of course, this level of politics is now hardly unique to South Africa. After all, Donald Trump once claimed that he could shoot people on 5th Avenue in New York City and his support base would remain loyal! 

But those concerned about living in a constitutional democracy do not want to live in a country where reason is replaced by blind loyalty to the incomprehensible. Take the “reasoning” of the four who voted loyally for Judge Hlophe. To suggest that a judge of 13 years standing (at that time), and who was a Judge President for eight years (at that time), would not know that judges do not fly to other courts to discuss a case with judges from a different court is so blindingly an absurdity as to pose the question – is there anything that Judge Hlophe could do before it would be justified in bringing disciplinary proceedings? That the versions of Justice Chris Jafta and particularly Justice Bess Nkabinde could be analysed as improbable by the minority in circumstances where a judge who neither academically nor in judgments (based on a SAFLII search) has ever written about legal privilege but suddenly shows such uncharacteristic interest in the proceedings of the Constitutional Court is more the material of a prize for fiction than representative of legal reasoning.

Some of us do not want to live in a country where senior members of the Bar and the Legal Practice Council see nothing wrong in the conduct of that which was the subject of the complaint against Judge Hlophe. Small wonder that no action is ever taken against connected legal practitioners when they should be held to account. Similarly, some of us would not want to live in a country where the president takes so little care as to whom he nominates to be members of the JSC, for on this occasion two of the four votes obtained by Judge Hlophe came from presidential nominees. After all, the president may draw on representatives of civil society as well as a wide range of lawyers reflective of the demography of the country and who cherish the highest standards of judicial behaviour.

Some of us want to live in a country where the JSC is a body in which the public can have confidence. Spare a thought thus for Judge Jody Kollapen, one of the three judges accused of egregious conduct by Mpofu; this notwithstanding that Judge Kollapen has enjoyed a career of great commitment to legal transformation both prior to and following his appointment to the Bench. How is Judge Kollapen to expect a fair hearing, when he is re-interviewed by the JSC for a place on the Constitutional Court, when one of the interviewers has accused him of conduct totally unbecoming of a judge, without a scintilla of justificatory evidence for so serious a charge? And the same applies in the case of Judge Dhaya Pillay, who was so disgracefully treated by the JSC at the now impugned hearing and where the same composition of the JSC will again conduct the interview.

The South African Constitution of 1996 was never going to be the panacea for the ills caused to this country over the period of colonial and apartheid rule. But it formed a key part of the foundation on which a non-racial, non-sexist society united in its diversity could be built. To live in a country that embraces the values of dignity, freedom and equality for all and which is directed to the vindication of that aim, is a vision shared by many South Africans. Indeed, they vastly outnumber those who wish to live in a society where rent capture, rather than substantive redress of the millions who live a daily life on the margins, is facilitated by a supine judiciary and other institutions that are hollowed out for populist purposes. 

That a majority may so believe counts for little when key institutions are hollowed out, where claims of insurrection are met with a few arrests of unknowns and when the legal profession places populist politics above legal principle. DM