Two former judges of the Constitutional Court, Johan Froneman and Edwin Cameron (Regbank het nie sy integriteit verloor, Rapport Weekliks, 26 September 2021), have convincing grounds for concern about the deteriorating integrity and loss of reputation of the Constitutional Court (CC).
They erroneously suggest that the current predicament of the CC is a new thing. This is not the case, because the CC in conjunction with the Judicial Service Commission (JSC) have been undermining their own integrity and reputation over many years.
In their article the former judges began with two invalid assertions. They state that the CC's conviction and sentencing of former president Zuma for contempt of court was a “brave decision”. It is not so.
The court merely did its job on a legally simple case concerning an ex head of state and it did so, moreover, with the backing of the ruling party, which wanted Zuma to cooperate in the legal process - in this case that of the Zondo Commission.
Froneman and Cameron proceed to claim that the constitutional value of the rule of law triumphed when the civil society in particular calmed down the recent looting in KZN and parts of Gauteng.
Exactly the opposite is true. The looting was due to the vanishing of the rule of law, namely owing to the police being devoid of criminal intelligence, a shortage of weapons and ammunition, and being sluggish and out of their depth. After three months, moreover, there are hardly any signs of prosecutions - damning evidence of another increasingly failing constitutional institution, the prosecuting authority.
Very encouragingly, the public indeed took decisive action. But then we certainly expect better insight from former judges of the CC on what actually happened: the state on a massive scale relinquished its monopoly on lawful violence to the public, resulting in the state now more than ever before being less a genuine state. For the former CC-judges to perceive triumphant constitutional supremacy in the midst of a large scale break down of the law is to reveal a disturbingly distorted insight into whole concept.
Froneman and Cameron are correct in stating that the courts (and the Zondo Commission) are occasionally subjected to unfounded opportunistic attacks for example by Zuma & Co. But let us get to the essence of the matter: the core reason why the courts are perfectly justifiably reproached and why the constitutional order is sinking into the quagmire.
The highest courts, together with the ruling party and formations in its circle, are an integral part of one and the same ruling elite and are closely committed to the realization of common partisan ideological goals. They are the judicial branch of the ruling elite, which justifies and defends its ideology in legal terms.
In South Africa, where we are faced with the extremes of the ideology of transformationism, this role of the courts is even more prominent than elsewhere.
Here, the Constitutional Court in conjunction with the JSC (both within the ANC-led elite) are bound together by the ideology of transformationism. As the ANC oligarchy unravels the role of the court will also change. It will be fascinating to see how this plays out. At present, however, the court still largely marches in step with the ANC-led oligarchy.
The pattern of judicial appointments, especially to the CC, has long attested to this. As early as 2003, Johnnie de Lange, then chair of the portfolio committee for justice and member of the JSC, stated that judicial officers should be intellectually transformed and not frustrate the aspirations of the majority. Accordingly, it is the duty of judges to help create an ideologically transformed country.
Things went awry with judicial appointments as far back as that date and before. The (majority of) the JSC was justifiably blamed for their extreme affection for “transformationist candidates” despite often well-founded doubts about their professional suitability. On the other hand, more professionally skilled candidates were shown the door because of the JSC's apprehension that they might not be fully committed to toeing the line on transformationism.
This issue led to an open confrontation in the JSC in 2013 when Izak Smuts SC, a JSC member, confronted the transformationist majority on the JSC. Former judges Kriegler and Hefer, Professors Marinus Wiechers and Richard Calland, Paul Hoffman SC and several others supported Smuts.
A phalanx of transformationists under the leadership of Chief Justice Mogoeng so furiously attacked the person of Smuts that he resigned from the JSC. Mogoeng did not hold back. When appointing judges, he stated, it was not all about merit and added that the Constitution does not require that "the best of the best" be appointed. Transformationism, he emphasized, was just as important.
With this, Mogoeng stridently echoed an already well-established pattern going back to the writings of former Deputy Chief Justice Moseneke and former Chief Justice Langa in 2002 and 2006. These were in line with similar other judicial, academic and political positions articulated in favour of transformationism and the intimate role of the judiciary in it.
Transformationism is a comprehensive government-led project, as two Wits legal academics Cathi Albertyn and Debbie Goldblatt put it, and to which Langa and Moseneke approvingly referred, for the "complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines."
The courts must pull their weight in favour of transformationism. The ANC itself has declared for decades that it must exercise control over all levers of authority, including the judiciary. In keeping with this, the JSC is committed to ensuring the appointment of transformationist candidates, especially in the CC. In step with this, Moseneke’s call was for the courts to engage themselves with all organs of state and civil society in the project of transformationism. The judiciary, Moseneke declared, "is commanded to observe with unfailing fidelity the transformative mission of the Constitution."
Clearly there is no question that the CC should be impartial. With regard to the ideology of transformationism, the goal is that CC, as the judicial branch of transformationism, should be pertinently partial - and not impartial.
In 1982, a young law lecturer at Wits, Edwin Cameron, attacked the then Appellate Division for its partiality - "executive-mindedness" - towards the then government. Cameron, along with Froneman, became senior members of the judicial branch of the current ruling elite, and could thus observe at close distance how the CC discharged its responsibility by ruling in favour of transformationism in disputes involving aspects of this ideology.
So it was in the AgriSA case on the deprivation of mineral rights; (Renate) Barnard and Solidarity on representivity and affirmative action; in Glenister III in which the CC defended the transformative interpretation of South African history against the backdrop of a dispute over the abolition of the Scorpions; the Pretoria street name case; the Free State University language case, the Stellenbosch University language case and the like.
In these rulings, the majority of CC justices defended transformationism and ruled in its favour. However, as with almost all courts, there were minority dissents where the ideology was laid on a bit too thickly.
So too it was with Froneman and Cameron. In three of the above cases, they delivered minority rulings. In each of these they showed discomfort with the majority’s bias in favour of transformationism. Especially in their minority judgment in the Free State University language case, they did a good job in debunking the impartiality of the majority.
With their minority judgments it was therefore Froneman and Cameron themselves who provided decisive evidence of the CC's bias in favour of transformationism.
In their article, Froneman and Cameron tried to counter my explanation of the inherent impartiality of the courts, especially the CC. The attempt was doomed from the outset. The evidence is just too overwhelming, as evidenced, among other things, by the damning evidence they gave themselves in their minority judgments about the CC's ideological partiality.
Of course, there are judgments - good judgments - against the government and organs of state about corruption and maladministration, Zuma's antics, and about poor public services. There are also judgments that on close analysis are speeches rather than judgments (toesprake eerder as uitsprake) without legal consequence.
However, one should clearly distinguish these from cases dealing with transformationism where the CC consistently bolsters this ideology.
Finally, the current constitutional order is waning inexorably as organs of state are collapsing under the weight of the thievish ANC oligarchy driven by transformationism and incompetence and as the South African state increasingly assumes the character of a criminal state where impunity prevails.
Now, after so many had for so long and so passionately tried to deny the Constitutional Court's bias in favour of transformationism, this unpleasant truth is finally descending on us. Just here and there someone might still try to tell a little starry-eyed fairy tale about constitutional supremacy.
But let us not despair, because out of the rubble of decay our civic communities are resourceful and increasingly assertive, building a new substituting order, in which communities take care of themselves and each other. Soon the substituting dispensation will assume a solid structure.
Koos Malan is professor of public law at the University of Pretoria. Malan’s publications include There is no supreme constitution – a critique of statist-individualist constitutionalism Stellenbosch: African SUN Media.
This article is a translation of an article which first appeared in Afrikaans in Rapport newspaper.