Our Constitution faces a full-frontal attack, and the corporate community must step up and fight back

By Anthony Norton, Anton Roets, Michelle Rawlinson and Nina Greyling

9 Oct 2024

This is a wake-up call for all South Africans. It is unacceptable that some of the most important cases in defence of our Constitution are being fought by under-funded NGOs.

A full-frontal assault is currently being waged against the institutions and individuals designated to uphold the Constitution. At the forefront of this attack are certain political parties and various of their office bearers and supporters.

The uMkhonto Wesizwe (MK) party has not hidden its dislike for the Constitution and its desire to replace it with a form of parliamentary sovereignty. Its party manifesto makes it clear what its intentions are in this regard: “Moving our country away from constitutional supremacy toward unfettered parliamentary supremacy.”

It is no surprise that the MK party and certain of its key members have such a palpable dislike for the Constitution, given the fact that a number of the senior members, including the leader of the party, Jacob Zuma, have fallen foul of constitutional principles and the courts, being the primary institution tasked with interpreting and enforcing the Constitution.

Two recent matters have brought the approach and attitude that the MK party and certain representatives of the EFF hold in respect of the courts and underlying constitutional principles into clear focus.

The first case relates to the attempts by the MK party to have impeached former judge, John Hlophe, appointed to the Judicial Service Commission.

Depressing irony

There is of course a depressing irony in a party attempting to have an impeached judge appointed to the very body that is tasked with appointing judges. Its attempts to do so were challenged in the Western Cape Division of the High Court by two non-governmental organisations, Freedom Under Law and Corruption Watch, as well as a political party, the DA.

A full bench of the Western Cape Division of the High Court interdicted Hlophe from sitting on the Judicial Service Commission until the completion of the review of the decision to designate him to sit on the commission. The court held, on a prima facie basis, that the decision to designate him to the Judicial Service Commission was flawed, including that it was irrational and unreasonable for the National Assembly to have designated Hlophe to serve on the commission.

Shortly after the judgment was released, the MK party issued a press release titled “Statement on the judgment of the Western Cape High Court in favour of the continued lynching of Dr Mandlakayise Hlophe”.

The press release included a number of highly contemptuous statements, including:

“The MK party notes the incompetent, irrational, absurd and blatantly political judgment of the Western Cape High Court, which is regrettable but not surprising.”

“This constitutional stalemate is deliberately created by the incompetent, politically driven and compromised judiciary. This horror judgment will be subject to an immediate appeal.”

“The same DA, now colluding with Freedom Under Law and Corruption Watch – racist agents of white monopoly capital masquerading as civic organisations – who want to usurp the power of the Legislature using the judiciary...”

The statements are mere assertions – entirely unsubstantiated diatribes about the “judiciary” (in general) being “politically driven” and acting “deliberately”, parties “colluding”, and NGOs being “racist agents”, “masquerading” etcetera.

It is difficult to conceive of more contemptuous statements and a more blatant attack against not only the judiciary, but also against the NGOs that are seeking to vindicate constitutional principles.

Similar statements were made by the MK party’s spokesperson in interviews with various media houses following the handing down of the judgment.

The MK party’s tactics are transparent. They are designed to intimidate not only judges and the courts, but also civil society organisations that dare to challenge the MK party. Its strategy is to label as “racist” anyone who seeks to oppose its unconstitutional conduct; and to label as “incompetent” and “blatantly political” any judge who dares to find against it.

The MK party knows full well in resorting to these tactics that to be described as a “racist” in South Africa is to create a terrible stain on an individual’s reputation and that this should serve as a disincentive to those who seek to challenge it.

The second case demonstrates that this approach is not unique to MK.

In another recent matter, the Supreme Court of Appeal struck from the roll a deeply flawed attempt by the former public protector, and now member of Parliament for the EFF, Busisiwe Mkhwebane, to appeal against a decision of the high court in which the court dismissed her application for declarators that certain decisions of the parliamentary committee that considered whether she should be recommended for impeachment were unconstitutional.

In reaction to the judgment, Mkhwebane, according to media reports, allegedly said: “I appealed with the hope of seeking justice and clarity. However, it was evident that Judge Ponnan, leading the judgment, displayed noticeable arrogance and dismissiveness throughout the proceedings. My ongoing struggle has consistently involved key figures, predominantly of Indian descent, who have positioned themselves as my persecutors. Judge Ponnan’s attitude further underscores the challenges and biases I have faced in my quest for justice.”

Ongoing struggle

According to media reports, Mkhwebane went on to indicate that her ongoing struggle against impeachment had involved figures predominantly of Indian descent and that she had singled out, in particular, the late minister Pravin Gordhan, the evidence leader in her impeachment enquiry, Nazreen Bawa SC, and Parliament’s Chief Legal Adviser, Zuraya Adhikarie.

It is no coincidence that in two important cases involving MK and EFF members of Parliament, both of whom happen to have been impeached, the decisions of the courts that ruled against them have been the subject of such vitriol.

In the more recent iteration of the MK party’s failed attempt to interdict the Judicial Service Commission from proceeding with its hearings scheduled for 7 October to fill numerous vacancies to the bench, the commission decided by a majority to oppose the attempts to halt its proceedings. Media reports suggest that Julius Malema, the leader of the EFF, was opposed to the Judicial Service Commission contesting the MK party’s abortive application.

It is disappointing that none of the major organisations and associations that represent the legal profession in South Africa have issued any formal statements in relation to the MK party’s press statement.

It should be of grave concern to every South African that the courts, judges and civil society organisations are being attacked in this fashion. It is also deeply concerning that certain of the bodies tasked with key functions in upholding the legal system in South Africa have been so ambiguous in their responses to these attacks.

It should be pointed out that it is not for the most part large corporate organisations and high-profile public figures (whether from government or the business community) that are holding the line in upholding the Constitution and preserving the integrity of our key judicial institutions.

Instead, it has been a collection of civil society organisations that have stood against the attempts to subvert our constitutional framework.

Small, under-financed and under-resourced NGOs, such as Freedom Under Law, the Helen Suzman Foundation, the Treatment Action Campaign, EarthLife Africa, Media Monitoring Africa, and a number of similar organisations have been at the forefront of challenging issues such as the manner in which the contract to supply social grant payments was awarded; the rollout of HIV/Aids medication in South Africa; the attempts to award nuclear contracts to Russian entities; the decision to switch off analogue television in South Africa; and the manner in which the Judicial Service Commission appoints judges.

Each of these issues involve fundamental constitutional rights and affect large numbers of South African citizens.

Heroes

The heroes at the frontline of defending constitutional principles and upholding the rule of law are generally speaking a small group of civic-minded organisations. Often that means being forced to litigate to hold the constitutional line.

Such litigation is time consuming, often urgent, and has required the support of an equally small group of lawyers who have prepared cases and argued them in the courts primarily on a pro bono basis.

This is a wake-up call for all South Africans. The Constitution and the institutions designed to uphold it are under threat. It cannot be the case that some of the most important cases in this regard are being fought by under-funded NGOs.

There has to be a shift of public sentiment and greater involvement by the corporate community in supporting these important initiatives, without which the very bedrock of our society will be at risk. DM

Anthony Norton, Anton Roets, Michelle Rawlinson and Nina Greyling are with law firm Nortons Inc. They write in their personal capacities.

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Depressing irony

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