The future of the rule of law in South Africa is bleak, depressingly so

The country learnt recently that the (mercifully) outgoing Commissioner of Correctional Services, Arthur Fraser, had informed President Cyril Ramaphosa that he was to override the recommendation of the Parole Board and grant medical parole to Jacob Zuma. That the President, according to reports, which have not been denied, went along with this decision, is compelling evidence that when it comes to the interests of the ruling party, even the President is prepared to forgo the rule of law in favour of his party. That alone is cause for great concern.

Two months after the violence which engulfed KwaZulu-Natal and parts of Gauteng which prompted the President to tell the nation that there had been an attempted insurrection, no one of consequence has been arrested. Again the question raises: was the President ill-advised when he made this claim, is this case of incompetence on the part of the Police and/or the National Prosecution Authority (NPA) or is there is reluctance to proceed against members of the ruling party who may have been involved?

Whatever the answer, this failure to hold the plotters to legal account would alone be cause for great concern.

Last week Parliament was informed by retired Constitutional Court Judge Bess Nkabinde that, “It is indeed a matter of great concern that there seems to be unceasing unlawful interception of communication of private and public officials. These matters are, in light of the constitutional imperatives and the rule of law, most disturbing and cannot be left unchecked by the relevant ministry/department or agency implicated. Lying under oath is a criminal offence. Appropriate steps need to be taken against officers with such proclivity, whose conduct results in violation of the privacy right of others without reasonable justification, whatsoever.”

Judge Nkabinde found that there were no safeguards to minimize intrusion into the privacy of targeted individuals. That State machinery is employed to invade the privacy of citizens without any regard to the relevant law is about as egregious a breach of the constitution as the State can commit, save of course for the disappearance of citizens who resist the State. Is this now far behind once such unlawful conduct is regularly performed? On its own, this would be cause for concern.

This week the President announced that there would be an opportunity for the public to nominate for the position of Chief Justice. Some breathless Pollyanna commentators called this a ‘ brilliant move’ as if a nomination accompanied by a further nomination by a professional legal body is a substantive opportunity for meaningful public participation, as opposed to a fine excuse to defer a decision that has been on the cards from the day that Mogoeng Mogoeng assumed office, some 10 years ago.

As is typical of the dysfunctional office of the Presidency, like Rip van Winkel, someone in the office woke up – ten years later. The upshot is that is there will be no new Chief Justice for some time after the departure of Mogoeng CJ on 11 October. By then there will be but six permanent judges on the Constitutional Court. Thus this egregious neglect and concomitant failure to make a decision has compromised the judicial institution at a critical time. There would be little quibble had a panel to advise the President been constituted two months ago to leave time for the mandatory consultation with opposition parties and an open hearing of the Judicial Service Commission.

That brings this column to the composition of the panel. For starters the inclusion of the current Minister of Justice who sits on the JSC which must advise the President is unnecessary. That there two persons who have held the Ministerial position and not one retired judge, particularly a retired Constitutional Court justice, is astounding. Those who appointed the panel have ensured that there is no one who has the foggiest idea about how a judiciary should be led and administered. Again, this ineptitude is cause for  great concern.

And then there is Judge President John Hlophe. It is hardly surprising that he seeks to review the JSC and it is even less surprising that his affidavit is a concoction of self-serving arguments which reproduce his earlier attempts that met with failure before the JSC. The most obnoxious of his arguments is his attack on members of the JSC who are senior judges, while conveniently forgetting that he nominated a junior member of his own Bench to sit on the JSC  in his place.

This must be read, of course, with the apparent lack of objection to the composition of the JSC when he made representations to that body as to why he should not be impeached. Having been found to have committed misconduct in his personal attack on Chief Justice Pius Langa and Deputy Chief Justice Dikgang Moseneke, he showed total contempt for this finding by repeating the insults, this time directed against senior judges who were members of the JSC.

To those who seek to support Judge Hlophe, one can hope that they will not insult the intelligence of the nation by claiming that Judge Hlophe is in the vanguard of transformation. They should consult the 20,000 poor people whom Judge Hlophe had no trouble evicting and who were saved by the Constitutional Court led by Pius Langa and Dikgang Moseneke, both of whom unlike John Hlophe had played very important roles in the anti-apartheid struggle.

It is concern enough that it would be unwise to bet against Judge Hlophe surviving this impeachment.

Each of these issues should give us pause about the future of the rule of law in this country. Taken together it is hard to see the long-term future of the rule of law in South Africa unless civil society rises to defend the principle and with it the idea of constitutional democracy. DM