The timely and important intervention by Professor Hugh Corder highlighted the manner in which Jacob Zuma, Dali Mpofu SC and Western Cape Judge President John Hlophe have been key participants in undermining constitutional values to avoid personal responsibility and its justifiable consequences or, as in the case of Mpofu, assisted in the avoidance thereof.

The only difference between these three contributors, so correctly highlighted by Corder, is that while the Struggle history of Zuma and Mpofu is well known, it was only last week that we learned, by way of a speech at UWC, that Judge Hlophe was also a key player in the struggle against apartheid!

That the constitutional model developed by Oliver Tambo and led by the ANC in the 1980s is under huge threat in contemporary South Africa, regrettably, is the responsibility of a range of institutions and individuals which extends far beyond the three highlighted. 

The Cabinet

Let’s begin with the Cabinet. 

The minister of tourism, Lindiwe Sisulu, who has served as a Cabinet minister for more than 20 years, has attacked the Constitution as being, in effect, a neoliberal Constitution with foreign inspiration and has written that “in the high echelons of our judicial system are these mentally colonised Africans, who have settled with the worldview and mindset of those who have dispossessed their ancestors”.

Despite a number of similar speeches which have sought to undermine the Constitution and the judiciary, Sisulu remains in the Cabinet and will doubtless be there for years to come.

The President has sat on the recommendation of the Judicial Service Commission (JSC) to suspend Judge Hlophe for some three months. Asked to explain this delay, the presidential spokesman responded with a real corker: the President wishes for a fair process! Fair process? The JSC has found Judge Hlophe to be guilty of gross judicial misconduct. Three months ago it recommended to the President that he suspend Judge Hlophe. 

That Judge Hlophe was entitled to provide reasons as to why he should not be suspended is clear. So what more does the President require before making a decision? Another task team? That he has delayed the suspension is in and of itself a cause of constitutional delinquency.

The Judicial Service Commission

The JSC is another institution that is responsible for the present crisis. The conduct of recent hearings for judicial appointments has been an affront to the objective of fair and impartial hearings and it is thus not surprising that sufficient candidates for a constitutional vacancy did not apply following the latest call for nominees. 

While the Judicial Conduct Committee has recommended that yet another hearing must be held to determine whether Judge Hlophe has committed yet more acts of judicial misconduct, it took more than two years to make this decision — hardly a case of expeditious justice! 

In the latest round of hearings, certain members of the JSC now punt the line that parliamentary sovereignty should replace constitutional democracy, itself a disturbing move for members of a body mandated to appoint judges, as opposed to developing constitutional policy.

Talking of Judge Hlophe, another set of institutions that must bear some responsibility are the National Association of Democratic Lawyers and the Black Lawyers’ Association, two legal bodies whose mandate and important history indicate a commitment to the much-needed transformation of the legal system and profession, but that have placed the cheerleading of Judge Hlophe above accountability. 

The latest referral by the Judicial Conduct Committee concerns allegations of the assault of one colleague and the abuse of a woman colleague deemed sufficiently plausible to justify a hearing. Surely the integrity of the judicial system requires all concerned to support a suspension until the judge is cleared of the charges.

The Legal Practice Council

Next in line is the Legal Practice Council (LPC). When the idea of an LPC was mooted, there were grave concerns expressed that instead of transforming long-standing legal bodies, the LPC would prove to be a costly but useless experiment. Judging by the way it handled the complaint against Mpofu’s conduct before the Zondo Commission which prompted a strong rebuke from Chief Justice Zondo, the concerns were justified. The consequences of the lamentable decision that it took in this case are now apparent from the conduct described by Corder in his article.

The Public Protector

And then there is the Public Protector. Besides the welter of evidence led before the Section 194 committee at Parliament which follows upon a library of court judgments that have found her to have failed lamentably to perform in the manner expected from so important an office, the country has now learnt of significant sums of taxpayers’ money paid by Busisiwe Mkhwebane to one Paul Ngobeni, who, it should be noted, does not appear to be registered to practise law in this country, and who has also been disbarred by the US Supreme Court from practising before it. 

At least R87,000 was paid to Ngobeni to write articles in support of the Public Protector and critical of Cabinet ministers and further sums appear to have been paid to him to attack the judiciary. A case of taxpayers’ money being spent to promote hubris.

Visit Daily Maverick’s home page for more news, analysis and investigations

The courts

The courts, including the Constitutional Court, which has been excellent in part, are not blameless. To allow arguments to waste the courts’ time and effectively delay access to deserving litigants, and which arguments have zero legal merit, on the best possible interpretation, could be prevented if, in an appropriate case, costs de bonis propriis were awarded against counsel who peddle absolute legal nonsense. 

And then there is the Constitutional Court’s entertainment of rescission applications which are no more than a further appeal to the same court dressed up as a rescission application. Most recently, although dismissing a petition designed to allow Zuma to appeal against his failed attempt to challenge the standing of Billy Downer SC to prosecute him, a court again opened the door to further appeals, thus eschewing the idea that piecemeal applications should not take place and that in limine points should await the end of the trial. More potential legal wood on the Stalingrad fire.

The RET faction and the EFF

Ultimately, the war against law has to be sourced in the populist politics of the Radical Economic Transformation faction and the EFF. Whatever the electoral support that they may enjoy, they punch way above their weight and have had a major effect on the public discourse. Theirs is a model of authoritarian statism which, unfettered by a written Constitution, will usher in a turbocharged Chapter 2 of State Capture. 

Either enough people of goodwill defend our constitutional model, however imperfect it has proved, or the alternative will be an authoritarian populism that makes the Zuma years feel like a Sunday picnic. Constitutions do not survive because of majestic promises contained in the text. They survive because people fight for their continuation in the manner millions fought to defeat the racist authoritarianism that preceded 1994. DM