Our judiciary's becoming a joke

Rhoda Kadalie says the JSC's obsession with race means the bench is being packed with lowest common denominator judges

I watch the case of Judge President of the WC, John Hlophe, with fear and trepidation for the future of this country. This man and his henchmen will single-handedly destroy the independence of the judiciary if only to exact revenge. Their wounded egos are more important than safeguarding one of the most sacred institutions in our young democracy.

That the two major witnesses, Constitutional Court judges, Chris Jafta and Bess Nkabinda, refuse to appear before the Tribunal exposes this trial for what it is - a race war the source of which is/was to protect both the president and Hlophe. Hlophe's relentless pursuit of settling scores against those who expose his misdemeanours, not least his questionable relationship with Oasis Investment Company, is also to protect his longevity on the court.

This infuriating saga portrays in microcosm what is being played out at the International Criminal Court, absolving African leaders from forms of criminal liability thus creating a rampant culture of impunity for which the continent has become so well known.

The first female Chief Justice of California, Rose Bird, wisely stated, decades ago that "The judiciary must not take on the coloration of whatever may be popular at the moment. We are guardians of rights, and we have to tell people things they often do not like to hear." Hlophe more than anyone should know, that that also includes the president. The law is no respecter of persons, but here in the SA some of our new judges have made it an industry to protect black power, black self-enrichment, and blackness itself. Their vested interests have become more important than their vocation as the guardians of rights and the rule of law.

And so our judiciary is under threat of becoming a real joke. I for one do not take it seriously and my trust has been eroded a long time ago, not least when the Judicial Services Commission (JSC) acted so comically with the appointment of Judge Mogoeng Mogoeng in full view of the public. Not to mention the JSC's obsession with race- rather than merit-based appointments to the Judiciary, making us the laughing stock of the world and reducing our august institution into a collection of lowest common denominator judges.

Worse, there is not one mediocre judge who rejected a post in favour of those better qualified than they. This lack of self-doubt is what is wrong with SA and is the reason this Hlophe versus the-rest-vendetta has been going on for 5 years.

Blackness, under the guise of transformation, is being seen by the powers that be as the only necessary and sufficient condition for appointment hence municipalities are littered with people who cannot do the job, and who lack the technical, engineering and artisanal skills. Even they know that they are political appointees when confronted with the realities of providing sanitation, infrastructural development, waste management, and the provision of water and electricity and get up to all kinds of mischief to hide the incompetence, hence the corrupt consultant industry.

Hlophe's judicial bun-fight mirrors almost exactly what goes on in many institutions and layers in South Africa. Everywhere little and big race battles supplant issues that matter and have crippled many institutions from functioning effectively. A weakened judiciary produces a state in which the rule of law becomes increasingly fragile and it slowly induces a fear in the minds of the public that the rule of law in SA is indeed fragile. Maintaining checks and balances on the power of the Judiciary Branch and the other two branches is vital to sustain a constitutional democracy. But here the checks and balances themselves are tainted.

This article first appeared in Die Burger.

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