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The Sisulu-Zondo ‘discussion’ and why the democratic dispensation failed the people of South Africa

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The love-hate relationship between politicians and the judiciary has been a global phenomenon from time immemorial. In most instances, the balance of the relationship is skewed in favour of the politicians and executives, who can easily claim the constitutional right of freedom of speech and fair comment.

In an article titled Criticism of the Judiciary: The Virtue Moderation, Geert Corstens reported that in 2016 French President François Hollande labelled the judiciary as “…a cowardly institution, all those prosecutors and those high judges, they hide themselves, they act self-righteously, they don’t like politics (“Cette institution, qui est une institution de lâcheté… Parce que c’est quand même ça, tous ces procureurs, tous ces hauts magistrats, on se planque, on joue les vertueux… On n’aime pas le politique.”) Unfortunately, it is hard for the judiciary to respond to such harsh criticism that sometimes may in essence amount to personal censure of the judges.

The recent furore regarding the criticism of the Constitution and the judiciary by Minister Lindiwe Sisulu, and the polarised reception of the rebuke of the criticism as an insult by acting Chief Justice Raymond Zondo, bears testimony to this troubled relationship.

In order to avoid me delving into what has already been an exhausting debate following Sisulu’s criticism of the judiciary and Zondo’s retort, I am simply moving away from the criticism itself by borrowing from Geert Corstens’ article published by the Duke Law Center for Judicial Studies: “In criticizing the judiciary, the leitmotiv of politicians should be, as it is for the judiciary’s response to criticism: moderation.”

There are several issues that came out of this Sisulu-Zondo “discussion”. Standing out first for me is what Jan-Werner Müller, in the chapter Militant Democracy, in the book titled The Oxford Handbook of Comparative Constitutional Law, called the “democratic dilemma: the possibility of a democracy destroying itself in the process of defending itself.” For now, focus less on the term “militant democracy”, coined by Karl Loewenstein in 1937 referring to fascism and the preemptive restriction of civil and political freedoms. My main concern is whether as a country we have entered the period of the destruction of our democracy.

The second issue that warrants a focused debate is whether our democratic government is failing in all its three arms — executive (Cabinet), the legislature (Parliament), and judiciary (courts). This issue is an all-encompassing one that has an omnipresence in relationship to service delivery and the position the citizenry finds itself in after more than 25 years of democratic government.

In a research paper published in July 2014 entitled  A Cascade of Failures: Why Government Fails, and How to Stop It, Paul C Light poses critical questions about past government failures in the US, namely:

  • Where did government fail?
  • Why did government fail?
  • Who caused the failures?
  • What can be done to fix the underlying problems?

These questions resonate with the Zondo Commission report’s findings of the complicity of the government in failing to act on acute corruption.

The questions by Light also capture some key contentions by Sisulu on how the democratic dispensation failed the people of South Africa — devoid of her criticism of the judiciary. What is striking is that Light acknowledges and appreciates “that all government organizations fail from time to time, but that some fail much more visibly than others”.

If you are interested in knowing why a government fails, the observations below by Light (p.11) on causes of failures, which cannot be attributed to the Constitution as a ground law, should be of interest. To avoid watering it down I have restated the reasons for failures noted by Light verbatim:

  1. Policy: Government might not have been given the policy, or any policy at all, needed to solve the problem at hand; or the policy might have been either too difficult to deliver or delegated to a vulnerable or historically unreliable organisation.
  2. Resources: Government might not have had enough funding, staff, or the “collateral capacity” such as information technology, oversight systems, or technical experience to deliver consistent policy impact.
  3. Structure: Government might have been unable to move information up and down its over-layered chain of command, select and supervise its contractors, or resolve the confusion associated with duplication and overlap.
  4. Leadership: Government’s top appointees might have been unqualified to lead; could have made poor decisions before, during, and after the failures appeared;
  5. Culture: Government might have created confusing missions that could not be communicated and embraced, were easily undermined by rank corruption and unethical conduct or were beyond careful monitoring through performance measurement and management.

With the above five points by Light, you be the judge and reflect on the South African government’s successes and failures. DM

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All Comments 4

  • Most informative – based on the “causes of failure”, the government has been failing for a considerable period of time . . . all 5 failure evaluations are applicable! Imperative reality?

  • Very interesting and dealing with questions would make an interesting subject for a thesis in ploitical science. However, a quick response is that the ANC was flying so high after 1994 that it failed to recognise that there was no need to fix the parts that weren’t broken.
    1. Policy – there is no doubt that the policy to Africanise government was reasonable and the logical outcome of the “struggle”.
    2. Resources – the ANC inherited adequate funding, experienced staff (albeit of the wrong hue but largely willing to serve), working information technology, systems, and technical experience to implement the policy
    3. Structure – the legacy structure worked and could have been modified over a short period, say 10 years, to produce a working streamlined bureaucracy
    4. Leadership: Intead of retaining key leaders in departments such as Home Affairs and Internal revenue as well as SOE’s , Government’s top appointees were patently unqualified to lead and did (and still do) make poor decisions before, during, and after the failures appeared;
    5. Culture: Government has created confusing missions that were easily undermined by rank corruption and unethical conduct, which were beyond careful monitoring through performance measurement and management.
    Despite the desire of the vast majority of South Africans for the ANC to succeed in making South Africa the leading African State it has failed every one of us. An exercise in incomptence, ineptitude and sheer greed. So sad!

  • Surely, Professor, you are digging to deep for an answer here. The answer is so very simple, and it’s one of humanity’s oldest frailties: greed.

  • Excessive research into the obvious.
    Failure is due to ANC ideology, incoherence, incapacity and dishonesty.
    The “democratic dispensation” was a essential framework but was nutural as far as execution. Giving a man a car to transport himself does not mean the giver would be responsible for future acts of driving while intoxicated.