When judges of the land said 'Enough!' to the ANC

It started, of course, with the ruling in the North Gauteng High Court that the President of Sudan, that evil dictator Omar al-Bashir, must not be allowed to leave the country, pending another hearing on whether he should be arrested and sent to the International Criminal Court. It started to gather momentum when Gwede Mantashe, the secretary general of the ANC, the body that used to boast that it gave us our Constitution, complained on Carte Blanche, "there is a drive in some courts to create chaos for governance". Things started to get a little more real when that court gave its reasons for the decision.

Then, the ANC-led alliance issued its "declaration" that expressed concern at the "emerging trend, in some quarters, of judicial over-reach". Deputy Chief Justice Dikgang Moseneke was mentioned, as note was taken of a speech he gave recently. Of course, once Blade Nzimande entered the fray, everyone involved knew worse as to come. On Wednesday morning, he told the SACP's Special National Congress, "We are not going to shut up".

Nzimande also said, "we liberated this country... We are never going to ask for permission from forces who were never with us in the trenches”. Coming from Nzimande, who spent the years before the end of Apartheid as an academic, this is surely an insult to, say Moseneke, who was in jail on Robben Island while still a teenager. Critics of the judiciary also look stupid when they claim it is "untransformed". None of the judges at this press conference were white.

There can be no denying the anger and frustration on the part of Chief Justice Mogoeng Mogoeng, and his colleagues. He called a meeting of the heads of court, everyone from the Supreme Court of Appeal to the provinces was there. All of the judges, around one table, in the surprisingly hallowed halls of the InterContinental at OR Tambo International, looking suitably sombre and grave.

In his prepared statement, Mogoeng responded directly to the criticism leveled against them. "Judges like others should be susceptible to constructive criticism. However, in this regard, the criticism should be fair and in good faith. Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable."

It's an important comment. The judges are not saying that Nzimande and Mantashe are not allowed to say what they've said. The judges themselves would protect their right to freedom of speech. What they are doing is saying, to the court of public opinion, you need to be properly specific in your criticism. This has the impact of putting these critics on the back foot. It means that these generic comments are out of bounds, you actually have to work at your criticism. This would mean, for example, in the al-Bashir case, that the ruling needs to first be read and understood, and then, specific parts of it need to be addressed. (No one can accuse anyone from the ANC of having done that.) But now someone with a law degree at Luthuli House is going to be tasked with trying to work out a legal criticism for ANC Today as quickly as possible. Good luck to them; it was the ANC who domesticated the International Criminal Court into our law, not some generic "untransformed" judge.

Then Mogoeng goes on to say, "There have been suggestions that in certain cases judges have been prompted by others to arrive at a pre-determined result. This is a notion that we reject. However, in a case in which a judge does overstep, the general public, litigants or other aggrieved or interested parties should refer the matter to the judicial conduct committee of Judicial Service Commission."

This is surely a reference to a story by EWN last month, in which it emerged that police minister Nathi Nhleko had told the provincial heads of the Hawks, in a closed meeting, that certain judges "colluded with people to produce certain judgments".

When asked if that was indeed what Mogoeng was referring to, he wouldn't be drawn, not wanting to go into specifics. He also wouldn't say this was about the al-Bashir case, but did drop a wonderful hint when he said that "It would not take a rigorous exercise to work out which court orders have not been obeyed." He's probably right to be cautious here, he won't want to get tangled in specifics, in public at least.

The upshot of all of this is that all the heads of courts have now mandated Mogoeng to request a meeting with President Jacob Zuma to discuss it all. He says it's "always healthy" to discuss these kinds of things, and yes, he will want it to happen behind closed doors.

This is probably the right strategy. It has the virtue of looking judicial and serious, of showing that you believe in the power of words and reason. It is also, surely, impossible for Zuma to deny him the meeting. That would look small and rude. As one of the few weapons judges have is the support of the public, it puts Zuma into a place where he has to see Mogoeng, and be seen to take him seriously. Should there be any kind of public statement afterwards, it will have to include Zuma affirming his commitment to the rule of law, even if the cynics will still be sniggering.

And of course, Mogoeng has done well by biding his time here. There was no rush to shout and scream after al-Bashir left the country. Instead, he made sure all the judges were behind him. This now looks like the entire judiciary, not just one person. And that's because it IS the whole judiciary.

But wait, there's more. In what is quite a cunning move, the Law Society, the Black Lawyers Association, and the National Association of Democratic Lawyers were there as well, and all eager to show their support for the Chief Justice. Suddenly, it's not just judges, it's everyone involved in the legal system that is now ranged against those who believe judges are "anti-majoritarian".

That's good politics.

It must be mentioned here that all of these people, whether they be the Chief Justice or just an ordinary attorney, have a huge stake in the power and independence of the judiciary. This is their system; if their system loses power, they lose power. From a purely objective power point of view, judges would always be expected to protect their turf. This is what they are now doing.

Zuma, and people such as Mantashe, will surely understand that. They will have to consider their next response carefully. To win this battle in public they will have to come up with specific legal criticisms, which will not be easy. Mogoeng and his fellow judges have probably successfully placed them under pressure. And the easiest way for them to escape that pressure is to simply shut up and keep repeating the commitment to respecting courts' decisions.

And perhaps, while they're there, they should simply ask themselves one question, would they still be so angry, and attacking the judiciary, if the court had ruled the other way on al-Bashir?

Twenty-one years into our democracy we are facing a crisis that could render our society dysfunctional. We're seeing the same people controlling the executive and lawmaking branches of government, and close to, or even over, the line of disrespect for the judiciary branch. In this turbulent and ever-changing space, Chief Justice Mogoeng's intervention might one day be seen as one of the courageous acts that saved South Africa's budding democracy. DM

Photo of Chief Justice Mogoeng Mogoeng by Greg Nicolson.