Throughout the world, constitutional democracies are under threat. The wave of Constitution-making which resulted from the collapse of the Soviet Union in 1989 and the arrival of freedom in southern Africa overwhelmingly endorsed the constitutional democratic model as the preferred form of public governance.
Key to this model are a written Constitution, the entrenchment of fundamental human rights, and the doctrine of the separation of powers. Inevitably, the role of the judiciary as the third branch of government is elevated as the ultimate interpreter and guarantor of the vigorous, independent, and impartial enforcement of the provisions of the Constitution.
As we know, South Africa’s Constitution is a wonderful example of this approach to the exercise of public power by government at all levels, and its values infuse all relationships under law, public and private.
In general, the judiciary, led by the Constitutional Court and the Supreme Court of Appeal (SCA), has shown remarkably intelligent, nuanced and resilient commitment to its assigned role in government, despite some challenges within its ranks and in the face of unprincipled, indeed outrageous, vilification from party-political quarters sporadically.
It is clear that there are many in the latter group who resent being held to account for their unlawful and unconstitutional conduct, notwithstanding the benefits which they enjoy from participating in a governmental system based on the rule of law. This manifests particularly in their frequent resort to litigation through the courts to achieve what party politicians cannot through political organisation and campaigning.
However, the resentment also expresses itself through other means of undermining the independence and impartiality of the judiciary, most obviously in attempts, both blatant and subtle, to influence the appointment of judges.
The behaviour of some Members of Parliament (MPs) who serve on the Judicial Service Commission (JSC) is a particularly outrageous example. Sadly, such behaviour has not been confined to MPs, some members of the legal profession having indulged in similarly shocking misconduct.
Faced by these threats to the foundation stone of any constitutional democracy, what forces in society act as protectors of the judiciary, which has no independent source of funding other than the national budgetary allocation, nor any physical force to ensure its security and enforce its judgments?
The answer lies in the concept of “popular legitimacy”, in the sense that a strong majority of the citizenry must trust the judges and treasure their independence.
Such public confidence in the administration of justice must in turn be earned and nurtured at both lower- and superior-court levels through operating in open session, deciding legal disputes expeditiously and fairly, and giving rational and logical judgments in justification for any decision made.
Independent and informed public media function as indispensable allies in educating the public about the judicial process.
South Africa since 1994 has been generally well served in this respect, assisted to some extent and in a patchy manner by the “State Institutions supporting Constitutional Democracy” or the Chapter 9 institutions.
Most prominent among these over the past 14 years has been the Office of the Public Protector (PP), being praised and vilified in almost equal measure over time. Then president Jacob Zuma nominated, and Parliament (with a 60% majority) appointed, both Thuli Madonsela and Busisiwe Mkhwebane as Public Protectors. Their diametrically contrasting styles and understanding of their roles show how vital it is to choose the right person to fulfil such key duties, and how wrong the choice sometimes is.
The consequence of appointing someone to the office of judge or Chapter 9 member who proves to be unfit for office (for judges, styled as being guilty of gross misconduct or being grossly incompetent or suffering from an incapacity – for the Chapter 9 office bearers, the degree of “grossness” is not required to be present) – can seriously destabilise and rapidly erode public confidence in the institution, so it is vitally important that those (few) who are alleged not to be up to the exacting standards expected of a judge be dealt with fairly and without undue delay.
In this regard, the record of the JSC (sitting without the political representatives who are its members) is notoriously defective. The circumstances surrounding Cape Judge President John Hlophe and Judge Nkola Motata have been in the public domain for about the past 15 years, and there is neither excuse nor justification for these delays.
So, it is deeply significant that in both cases the stage has been reached at which the JSC has recommended a vote to determine impeachment (this must reach the two-thirds majority level in the National Assembly) and that the Justice Portfolio Committee in Parliament appears to be proceeding with expedition to finalise the matter before the end of this year. (Similarly, Mkhwebane’s term as PP was cut marginally short of the seven-year mark, after an exhaustive, demeaning and expensive process of inquiry by a committee of Parliament.)
If the National Assembly votes to impeach Judges Hlophe and Motata, this will be the first occasion in the history of this country since Union in 1910 that a judge has been so dismissed.
The only precedent in our wider constitutional history is the sacking by President Paul Kruger of Chief Justice JG Kotze and two other judges of the ZAR Supreme Court in 1897 for daring to question the validity of a resolution of the Volksraad.
It is entirely appropriate that such occurrences should be extremely rare: judges wield great authority, especially within a constitutional democracy like ours, and we need to be able to expect from them the highest levels of integrity, trustworthiness and commitment to the values of the Constitution.
Like the tortuous process which ultimately led to the dismissal of PP Mkhwebane, the removal of a judge from office marks a traumatic moment in our constitutional experience, which should only occur after exhaustively fair process and anxious consideration, elements which have been present in abundance in respect of both Judges Hlophe and Motata.
Indeed, given what has happened over the past 15 years, it is high time that both these major concerns on the judicial landscape are resolved decisively. This is not a moment to celebrate, but rather to close a chapter, to learn from it, and move on.
In sum, the anticipated conclusion of the judicial disciplinary matters in Parliament marks a significant signpost strengthening the state of our constitutional democracy.
Those in political and judicial authority (and indeed civil society) who have resolutely pursued this end deserve high praise and the strong endorsement of all who hold dear the vision of transformative constitutionalism so boldly embodied in the values and text of the Constitution.
Public confidence in the judiciary will be advanced, strengthening it in the times of tension which inevitably lie ahead. DM