Unsteady pillars of justice

William Saunderson-Meyer writes on the rule of law under threat in South Africa


Surgeons and judges. Both professions where one shudders at a compromise on standards. 

In extremis, on an operating table. Or head bowed, awaiting judgment in the dock. You, your child, your spouse or your parent. 

It’s a potentially life-changing, life-taking moment. That’s when everything depends on the brilliance and integrity of the person determining your fate.

And that’s the crunch test of your belief system. Not much enthusiasm, right then, for affirmative action or demographic quotas. Those are for mechanics and paper shufflers.

This is the moment that you almost certainly hope and pray that the person wielding the scalpel or the gavel was appointed on merit, not on the basis of race, gender, political affiliation, or family ties.

It’s fortunate for the health sector that surgeons can mostly bury their mistakes. Medicine’s Mafia-like code of silence can hide incompetence. 

No such luxury for the judiciary. Every judgment, every word in court, faces scrutiny. Every flaw, inconsistency and absurdity may elicit public scorn.

And it takes no more than a cursory examination to know that the state of the South African judiciary is not a happy one. Our daily chanted mantra of reassurance — “At least the Constitution holds fast; at least the judges are honest.” — rings hollow after almost three decades of dubious appointments and the shielding of rubbish judges, magistrates and prosecutors. ___STEADY_PAYWALL___

Routine judicial housekeeping is falling by the wayside. Reserved judgments go undelivered for years. Either because of excessive workloads on good judges or, on the part of bad judges, laziness and (let’s be frank) an inability to draft a coherent, appeal-proof rationale for their decisions. 

Allegations of bias and corruption, improper relationships, bribery and favouritism are not uncommon but are rarely properly addressed. Eighteen years since the first detailed claims of serious misconduct by Western Cape Judge-President John Hlophe surfaced — allegations of bias, racism, conflict of interest and unwarranted interference in important cases — he remains unscathed. The politically tainted and morally flexible Judicial Service Commission has just been too scared to seize the nettle.

Given the frequency with which court findings are later overturned on the basic points of law, it’s apparent that ignorance and incompetence are widespread among presiding officers. The situation, if anything, is worse in other state agencies that rely on those running them having unchallengeable personal integrity and a deep knowledge of the law.

Key Chapter Nine institutions such as the Public Protector and the Human Rights Commission (SAHRC), have become tools to shape the political, social and economic landscape — not according to the constitutional mandates that are meant to guard our democracy but rather to advance the ideological agenda of one or another faction of the ruling African National Congress.

A case in point is Busisiwe Mkhwebane’s disastrous appointment as Public Protector in 2016. 

Mkhwebane got the job in preference to several highly competent contenders not because of her abilities— her almost illiterate Curriculum Vitae detailed her most important career accomplishments as proficiency with PowerPoint and a departmental award for merit at clerical efficiency — but because she won the ANC’s career trifecta. She ticked the boxes of ethnicity, gender and political affiliation. 

That Advocate Mkhwebane is now the subject of a parliamentary inquiry on her fitness to hold office perhaps has less to do with her astonishing ineptitude — at least nine of her reports set aside by the courts at a cost of R147 million in legal fees — but because she was using the Office to advance the cause of the wrong ANC faction. If she had been backing President Cyril Ramaphosa, rather than his disgraced rival, Jacob Zuma, she would still be in the job.

Mkhwebane recently described the R4 million that the parliamentary committee has set aside to fund her remaining legal costs, as the hearing moves to closure in three weeks, as “unrealistic and absurd”. So far, the proceedings, which she has prolonged for 10 months using various stratagems, have cost taxpayers R26 million in fees paid to her lawyers. For the moment, the hearing is stalled.

But the political shenanigans around the likes of Hlophe and Mkhwebane are relatively insignificant in the bigger picture.  

More insidiously damaging to South Africa’s future is how some judges and state agencies like the SAHRC seek to appease influential constituencies, such as the social justice warriors, the ANC, radical politicians and militant groups.

There has been a rash of recent judgments, including one a few weeks back guaranteeing free medical access to undocumented pregnant women and their young children, which are wonderfully “progressive” but unheeding of the potentially enormous real-life consequences that they might have.

Last week, in another well-intentioned but out-of-touch ruling, the Gauteng High Court in Pretoria ruled that all hospitals, clinics, schools, police stations and other public facilities should be exempt from electricity load-shedding. Judge Norman Davis ordered that the government should take “reasonable steps” to ensure an uninterrupted supply of electricity “within 60 days”.

Such judicial overreach is pretty meaningless. It’s not only that the government will appeal but the order is to all intents unenforceable. Uninterrupted power supply in 60 days? Eskom hasn’t been able to achieve it for eight years. 

Far more concerning is the judicial wokery-pokery taking place around contentious matters like racism. In this regard, desperate attempts are made by the judiciary and the governance oversight agencies to accommodate inflammatory statements by powerful people, while the banal racism of the stupid and powerless is harshly punished.

In 2016, Penny Sparrow, an elderly white racialist with self-evident psychological problems, likened black beachgoers to monkeys in a Facebook post. The SAHRC took her before an Equality Court where she was found guilty of hate speech and ordered to pay R150,000 to a foundation set up to honour ANC stalwarts, Oliver and Adelaide Tambo.

Criminal prosecution followed. After pleading guilty to crimen injuria, Sparrow was sentenced to a R5,000 fine or 12 months in jail. In addition, she was sentenced to two years’ jail suspended for five years, as well as having to make an appropriately grovelling public apology. 

Luckily for her, justice was tempered with mercy. Since Sparrow had been fired from her job and was eking an existence on a R1,500 pension, she was allowed to pay the fine over five months.

Contrast the consequences to Sparrow to the impunity with Economic Freedom Fighter leader Julius Malema — along with an increasing number of radical firebrands — has repeatedly threatened the white, coloured and Indian communities with violence. 

But the SAHRC and courts are unapologetic about the double standard. SAHRC Commissioner Priscilla Jana explained it a few years ago. The SAHRC was purposefully lenient to black offenders in racial incidents “because of the historical context”, as well as to counter the fact that racism from whites towards other races was more pervasive than black racism towards whites and other minorities.

The Sparrow incident came to mind because the SAHRC was last week back in the racial warfare trenches. The FW de Klerk Foundation and AfriForum have brought an application asking the Gauteng High Court to review the 2019 SAHRC decision to let Economic Freedom Fighters leader Julius Malema off the hook for hate speech. This followed Malema telling a 2016 political rally that “we are not calling for the slaughtering of white people, at least for now”. 

“No white person is a rightful owner of the land here in South Africa and in the whole of the African continent,” he said at the time. “This is our continent, it belongs to us ... You are a visitor. Visitors must behave.

“White minorities be warned, we will take our land. It doesn’t matter how. It is coming unavoidable, it is coming inevitable. The land will be taken by whatever means necessary.”

In defence of its original ruling, the SAHRC falls back on the viewpoint articulated by Jana. At the nub of it is a belief that is in danger of becoming an absolute legal tenet — that black racism is tolerable because of what happened in the past, whereas white racism is not only intolerable because of what happened in the past, but is dangerous to the country’s constitutional order.

One must hope that this important judgment, which was reserved, will be delivered soon and not left to languish in legal purgatory. t will signal whether the worrying drift towards a country where race is the deciding factor in whether someone should be prosecuted for hateful and threatening behaviour, and what their punishment, if any, should be if convicted. 

After all, South Africa’s been there before.

Follow WSM on Twitter @TheJaundicedEye