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Judicial subversion part of political playbook but it’s critical that judiciary is eternally vigilant

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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 catalogue of relations and actions that could compromise the independence of the judiciary and give rise to the perception of judicial capture is extensive.

The South African Judges’ Conference which concluded on Thursday 7 December at Sun City, centred on the theme “Towards a single, effective, and fully independent Judiciary” and generated significant discourse over its three-day duration.

A noteworthy focal point emerged with discussion around the discredited claim — which it emerged originated from Aids denialist Anthony Brink — that the South African judiciary is compromised and captured, an allegation refuted by Chief Justice Raymond Zondo and Gauteng Judge President Dunstan Mlambo.

Both emphasised the necessity for concrete, verifiable evidence to substantiate such allegations. But our honourable judges should be the first to know that even in jurisdictions where the normative framework of the court establishes a robust foundation for a relatively high degree of judicial independence, it remains impractical to anticipate complete immunity from challenges.

Rather than perpetually lamenting this issue, it is crucial to assess the proactive measures judges and magistrates themselves undertake to reassure the public of their resilience in the face of attempts to compromise, undermine, or cast doubt over their independence. The discourse should centre on the actions and strategies employed by judges and magistrates to safeguard their independence and reassure the public.

Interestingly, Chief Justice Zondo at the conference also decried the lack of full independence by the Office of the Chief Justice (OCJ) which was established by former president Jacob Zuma through a proclamation in 2010 and called for President Cyril Ramaphosa to do more by changing the status quo. For those keen on delving deeper into the intricacies of judicial governance in South Africa and the government’s sluggish approach to addressing these issues, a compelling read is offered by Judges Matter in their aptly titled piece, Judicial Governance in South Africa.”

While Acting Chief Justice in 2022, Zondo said: “We might be here today, at some stage we won’t be here. But if we leave behind a judiciary that is truly independent then we can have peace that our democracy will be protected.”  

Questions on capture

The questions that we seem to be superficially dealing with with regard to this subject are many and include, for example, what relations or conducts are precursors for judicial capture and gradual deterioration of the independence and impartiality of the judiciary?

The catalogue of relations and actions that could compromise the independence of the judiciary and give rise to the perception of judicial capture is extensive. However, I wish to highlight four specific elements that merit profound contemplation within the current South African context. These factors should consistently evoke serious concerns for the judiciary:

First, the significant dependence of the OCJ on the Department of Justice for the supervision of court building administration and control over budgets for the appointment of judges and magistrates raises a notable red flag.

This situation brings to mind a speech delivered at the 2007 Rule of Law conference in Brisbane by Chief Justice JJ Spigelman of New South Wales, as quoted by Judges Matter, explaining the potential threat to judicial independence from the executive:

“The threat to independence from the Executive branch is, of course, particularly acute because the Executive is, in one manner or another, the ultimate source of power for the appointment of judges, for the administration of mechanisms for discipline or removal of judges and the source of funding for all aspects of the administration of justice. The most significant single aspect of the institutional arrangements for judicial independence is the need to insulate, indeed to isolate, the exercise of judicial power from interference or pressure from the Executive branch of government. To a substantial degree this is simply a manifestation of the need to ensure impartiality…”

Regrettably, the OCJ continues to operate within the confines of the public administration framework, inherently accountable to the Cabinet by its very design.

Secondly, the manner in which judges and magistrates interact with politicians, the executive, or entities likely to appear before their courts is a matter that should never be treated lightly. A noteworthy example is the observation that Judge Róbert Spano of the European Court on Human Rights (ECtHR) was involved with institutions and politicians intricately linked to cases either pending or forthcoming before the ECtHR during his tenure as the Court’s President. Additionally, he personally received an honorary doctorate from a university that had dismissed academics with pending cases before the ECtHR.

The moment South African universities start conferring multiple honorary doctoral degrees upon sitting judges and magistrates, it ought to raise a red flag. Best practices elsewhere discourage such honours, as they may contribute to the risk of judiciary capture.

For example, in its Resolution on Judicial Ethics of 2021, the  ECtHR in resolution IX states that “judges may not accept any decorations or honours during their mandate as a Judge of the Court.” How many South African universities, especially those grappling with substantial institutional challenges that may lead to legal proceedings, have bestowed honorary degrees upon sitting judges?

The Chief Justice should contemplate incorporating a provision in judicial codes that regulates or prohibits the acceptance of honorary doctoral degrees or professorships by judges and magistrates still in active service. Such a measure is important if we are genuinely committed to dispelling accusations of judiciary capture and eliminating any semblance of the judiciary being compromised.

Thirdly, when the process of the selection and appointment of judges is not entirely transparent, this leaves room for the exclusion of some excellent and most competent applicants. There is a need for a process that is firmly established on publicly available criteria.

A process shrouded in secrecy or not entirely open is a fertile ground for lobbying and political deals meant to influence the process, particularly in an environment like ours in South Africa where the Judicial Service Commission (JSC) is also composed of members of political parties. The issue of the presence of political parties’ representatives or affiliates as key participants in the JSC decision-making process is our Achilles heel.

Of course, some politicians will be quick to rubbish a proposal that they should be removed from the JSC, yet become the first to allege judiciary capture when they themselves may have captured it from within the JSC. Others may argue that the judiciary is — as has been argued about the US Supreme Court — on a power grab trip, and “currently in the process of amassing a striking amount of power at the expense of other governing institutions”.

And fourth, recently, the Council for the Advancement of the South African Constitution (Casac) voiced its disappointment and apprehensions regarding Chief Justice Zondo’s public remarks on the implementation of the State Capture report and the pending arms deal corruption trial involving former president Zuma, asserting that such statements undermine judicial independence.

“These comments, as well as the Chief Justice’s willingness to take media interviews generally, create the risk of perceptions that may compromise his and the judiciary’s independence”, argued Casac.

Lessons learnt from other jurisdictions or judicial organisations is that judges must observe a reasonable degree of self-discipline when exercising their freedom of expression. 

In its Resolution on Judicial Ethics of 2021, Resolution VI, the ECtHR  stated that judges:

“Shall exercise their freedom of expression in a manner compatible with the dignity of their office and their loyalty to the institution of the Court. They shall refrain from expressing themselves, in whatever form and medium, in a manner which may undermine the authority and reputation of the Court or give rise to reasonable doubt as to their independence or impartiality. This applies equally to the exercise of judicial function, representation of the Court, and to academic or other public or private activities outside of the Court. They shall proceed with the utmost care if using social media.” 

Time for soul-searching

As our judiciary intensifies its efforts to attain complete independence, it should concurrently engage in introspection and assess to what extent its participation in public discourses might compromise its pursuit of independence and impartiality.

A dismissive attitude towards potential warning signs of threats to judicial independence, on the one hand, and the notion of attempts at judiciary capture on the other, could be excused by the assurance provided by our Constitution in guaranteeing the independence of the judiciary.

Nevertheless, it is imperative to leave room for constructive discussions at the highest levels — such as judges’ conferences — to address issues related to threats to judicial independence and the potential for judicial capture.

While our Constitution may provide a safeguard, complete independence does not render the judiciary entirely impervious to political influence, a reality observed in judicial subversion across various nations. I rest my case. DM

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