17 May 2017
This week, as the Constitutional Court listened to argument over whether the vote of no confidence against President Jacob Zuma in parliament could be by secret ballot, the Chief Justice Mogoeng Mogoeng made, almost as an aside, a highly alarming comment.
There were more serious dangers for judges than being removed from their positions, he said, “believe you me”.
Even more worrying is that this came on the back of a similar but more emphatic comment a few weeks ago when he opened the Conference of Constitutional Jurisdictions of Africa in Cape Town.
Governments could pose a threat to the judiciary, and judges should even be willing to die for the ideal of an independent judiciary and rule of law, Mogoeng told judges from across Africa.
When a judge of the weight and stature of Mogoeng Mogoeng starts making such chillingly grave remarks out loud in public, South Africans need to sit up and take serious note.
Such words by such a chief justice are not being said lightly. They are a distress flare sent up on behalf of a judiciary that recognizes itself as increasingly under siege.
For evidence look no further than Monday’s march in KwaZulu-Natal by the ANC which positioned itself in open opposition to a respected independent judiciary.
Apart from the case unfolding in the Constitutional Court another reason cited by the KZN ANC for their “disgust” over “judicial over-reach” was the order last week by the North Gauteng High Court Judge Bashier Vally that Zuma give reasons for sacking a performing finance minister.
Provincial ANC chairman Sihle Zikalala said the party was “saddened and disgusted” by Vally’s determination that presidential prerogative in the context of a constitutional democracy must be exercised in the same spirit.
He demanded that the ruling be reversed.
Zikalala would appear to believe that Zuma should be elevated beyond all accountability and be allowed to rule like a king of old.
Whether Zikalala actually believes what he is saying is irrelevant. He is what communists would call “a useful idiot”, a lackey who serves the purposes of a ruthless and avaricious leadership- and in this case one that is at odds with the judiciary because of its flagrant and frequent disregard for the rule of law.
Indeed, the judiciary that so “disgusts” Zikalala is the one that rose to defend the poor against Social Development Minister Bathabile Dlamini’s brazen attempt to hijack the social grants disbursement system.
It also stopped the government from bypassing procurement requirements and so fast-track Zuma’s nuclear agenda.
In fact, had the Western Cape High Court not insisted a few weeks ago that proper procurement processes be followed, this country would now in all likelihood be locked into an unbreakable deal with Russia for the roll out of far too many nuclear power stations and at a suicidally high price.
This same judiciary also resisted backdoor attempts by the government to terminate South Africa’s membership of the International Criminal Court, as well as it did this government’s appalling embrace of the genocidal leader of Sudan, Omar al Bashir.
And then of course this same judiciary also reined in the president for his personal enrichment bonanza at Nkandla.
There is no question here of who is doing their job and in whose interest – it is South Africa’s judges who are upholding their constitutional duty as an arm of the state to defend and protect the people. As a result they now apparently fear for their lives while what they actually deserve is much gratitude and all support.