Our transformationist ConCourt (IV)

Koos Malan writes on why the separation of powers in SA is more apparent than real

This is the fourth in a series of articles on the South African Constitution, the previous article can be read here.

One of the foundations of a healthy political and constitutional order (in the book, this it is referred to as constitutionalism) is that it must have effective mechanisms for guarding against overt power centralisation. Once an individual, grouping or institution has too much power the risk of power abuse looms large – power abuse to the benefit the power wielders and their supporters and to the detriment of others. To guard against that, a constitution must not only have laudable ideals. It must also have effective controls over power, thus to act as a rampart against the abuse of power.

In consequence, power must not vest in a single centre, but in a multitude of power centres, each exercising mutual checks and balances over the other.

It is often proclaimed that South Africa’s constitution is close to perfect in this respect. There is a system of separation of governmental power between the legislature, executive and the courts (trias politica). Moreover, the courts have very broad powers of review over basically all acts of the two other centres of power and may declare such action constitutionally invalid. That even includes parliamentary legislation, thus rendering the South African judiciary, more specifically the Constitutional Court, one of the most powerful judiciaries in the world.

Moreover, it is pointed out that under the South African Constitution the Judicial Service Commission (JSC), an independent and impartial constitutional body, plays an important part in the appointment of judges. The composition of the bench therefore does not falls within the exclusive power of the executive (the president and cabinet).

It is also added that the South African Constitution provides for a collection of independent institutions - bodies supporting constitutional democracy. These are the institutions established under chapter 9 of the Constitution. Aside from their other responsibilities, they also exercise controls over aspects of the functioning of the executive (and implicitly therefore also over the governing party who is in control of the executive).

Thanks to these constitutional arrangements – more specifically the provisions on the independent, impartial and effective judiciary – it was widely believed that the South African Constitution was a sterling model of modern constitutionalism. The provisions about the judiciary ware one of the most important grounds for preaching the constitutional gospel with so much zeal.

But how independent, impartial and forceful is the judiciary really? The answer is: way less than what the constitutional gospel proclaims.

Let’s look at the actual position.

The appointment of judges

The Judicial Service Commission is the key institution in the appointment of judges. Aspirant judges appear before the JSC, which questions candidates and eventually makes recommendations to the president, who does the actual appointments, ordinarily following the recommendations of the JSC.

On scrutiny of the composition and workings of the JSC it soon becomes evident that the entire constitutional mechanism surrounding the appointments to the bench, is calculated towards achieving ideological partiality in favour of transformationism rather than judicial impartiality.

This is apparent already from the composition of the JSC. The JSC is composed in such a way that at least twelve of its 23 members are always guaranteed to be from the ranks of the governing party. (These twelve are the minister of justice or an alternate designated by the minister (1); three of the six members designated by the National Assembly from among its members – the other three are from the ranks of the opposition parties (3); four permanent delegates to the National Council of Provinces designated together by the Council (4); and four members appointed @ by the president (4): four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly (4). The other members include the chief justice, who acts as the chair of the JSC, and members from the ranks of the judiciary, the legal profession and academia. Some of them are clearly also members of the governing elite.)

Of even greater importance is the view of the majority of the Commission on which candidates qualify for judicial appointment. Already fifteen years ago, Johnnie de Lange – currently less prominent, but at that stage the deputy minister of justice – made it emphatically clear that transformationism is the decisive factor in the appointment of judges.

Transformation (transformationism) De Lange explained, consists of two aspects. Firstly, the judiciary has to reflect the national racial and gender profile. Secondly, De Lange explained, candidates must also be intellectually transformative.

The bottom line is that the judiciary must primarily be black and even more importantly, that judges must be committed to the ANC’s ideology of transformationism.

Precisely owing to this requirement, several aspirants – even well-known so-called liberal candidates with impeccable human rights records – yet with an impartial judicial orientation, were acrimoniously cross-examined by members of the JSC. They were required to account for their political convictions, while their juridical suitability received barely any attention at all.

Quite often, candidates who intellectually and in terms of experience, were clearly suitable for appointment, were unsuccessful for no other reason that the JSC was not satisfied that they were adequately transformationism-minded. This applied specifically to white male candidates. Noteworthy too is the fact that competent and suitable black jurists were also unsuccessful once again because the majority of the JSC were suspicious of their transformationist credentials.

Shortly after the Constitution stated to function the JSC’s censure of white male candidates already caused tension. This boiled over into a full-scale confrontation in 2013 between the transformationists and one critical member of the JSC, adv. Izak Smuts SC.

Smuts came to the conclusion that the majority of the JSC took doctrinal a transformationism-driven stance against the appointment of white male candidates. In consequence he wrote to the Commission, asking it to openly explain their view in this regard.

This unleashed the wrath of the majority of the JSC. The recently appointed Chief Justice, Mogoeng Mogoeng, severely attacked Smuts. Mogoeng emphatically demonstrated his, and the JSC majority’s commitment to transformationism and racial representivity. Transformationism and racial representivity were in fact so important to Mogoeng and his supporters that it trumped the need to appoint the best candidates. Mogoeng was emphatic about this. He stated that it is not required to appoint the best of the best and added that in the case of judicial appointments it is not all about merit.

There can hardly be a more unequivocal commitment to partiality in favour of an ideology than this. In this way Mogoeng dispelled any possible impression that he, as Chief Justice and the JSC subscribe to judicial impartiality. In spite of the constitutional formulations about judicial independence and impartiality, the judiciary according to the Chief Justice should be biased in favour of the ANC’s ideology.

In the face of acrimonious personal attacks against him, Smuts resigned from the JSC. Since that time the JSC has been carrying on promoting transformationism and racial representivity above all other considerations - as Mogoeng stated, also above merit.

The highest court an integral part of the governing elite

None of this should however, be viewed as particularly quaint. On the contrary, the modus operandi of the JSC, more specifically its preference for transformationism, should afford us the opportunity to grasp an important reality which is obscured by the misleading words of the Constitution about the independent and impartial judiciary.

This is that the courts – more specifically the highest courts, such as the Constitutional Court in the case of South Africa – are ordinarily, together with the dominant party in the legislature and the executive, an integral element of a single ruling elite. The legislature, executive and the judiciary are each organised in their own structures; each discharges its own specialised functions and each has its own personnel. Especially with regard to the judiciary this separateness is strictly applied, in that no personnel or function overlaps with the two other branches are allowed.

However, in the final analysis, this personnel, structural and function separation is no more than superficial. Below that lurks a much more fundamental reality. This is that the three branches ordinarily share the same ideological assumptions and are committed to a shared set of ideological goals. The highest courts – in South Africa’s case the Constitutional Court – is the legally specialised branch of this elite. Its most important responsibility in and for the ruling elite is to embroider this ideology in legal terms, and whenever any aspect of the ideology is challenged in litigation, to justify and defend it in legal terms and finally in its judgments to protect and promote this ideology.

In the vast majority of cases in which ideology may at best play a marginal role – private law, commercial, criminal law cases, etc – this ideological bias will not readily manifest. However, whenever a case comes up that involves an element of the ideology of transformationism, the court’s judgment can be foretold with a high degree of accuracy. Then the court will consistently deliver judgment in favour of the ruling elite (of which it is an element.)

It is precisely in order to secure that, that courts are and will remain a reliable ally in the ruling elite, that they will faithfully discharge their responsibility in favour of transformationism and that the JSC goes out of its way to ensure that judges are adequately transformationism-minded.

This is not an unusual phenomenon. On the contrary, in all states where the courts have the power to adjudge important ideological issues, the ruling elite in the legislature and the executive invest much energy in ensuring that they have a loyal ally in the courts. Where ideological differences are moderate or when the governing elite is not particularly ideologically-driven, this phenomenon will be less pronounced. Once ideological issues are deep and intense, the struggle for a loyal judiciary will gain prominence.

This is for example at the moment playing out in Poland, where the conservative government is pursuing profound judicial reform in order to ensure that it will not be overtly hamstrung by an antagonistic, liberal judiciary from a previous era. In the USA this is constantly important. Presidents always go out of their way to make judicial appointments to ensure a judiciary congenial towards the executive.

All this plays out in the presence of constitutional provisions for the separation of powers and avowing an independent and impartial judiciary. What has happened is that the South African public has been enticed by charming constitutional formulations into the belief that what these formulations proclaim is in fact really true.

However, a realistic assessment of the true state of affairs shows that when it comes to ideological matters, precisely the opposite obtains. In such scenarios the court is not a check on and balance for the executive and the governing party. Then it is the opposite: an accelerator and weight in favour of the ruling elite of which in the final analysis it is an integral ingredient.

Even though this is the case some might argue that we have the saving grace embodied in a set of well-defined constitutionally enshrined rights and that we can faithfully count on the courts to protect these rights. That will be the focus of the next article. We will look into the way in which the courts interpret these rights and how that, quite disappointingly, does not produce guaranteed protection.

The book on which this series is based is published by African Sun Media and is available, amongst others, in Protea Book Shop stores. It may be ordered directly from the publisher or from Takealot: Google BooksITSIFacebook ShopAmazon Kindle: or Pinterest.