Quote of the week

The judgments are replete with the findings of dishonesty and mala fides against Major General Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza.

Mabuse J
Helen Suzman Foundation and Another v Minister of Police and Others
26 August 2009

Has Gwede Mantashe and Co taken its toll on our judiciary?

The judiciary in South Africa (as elswhere in constitutional democracies) finds itself in a precarious position. It has enormous powers to declare invalid legislation and acts by the executive and is often required to intervene in highly contentious, politically charged, matters like the saga around the prosecution of President Jacob Zuma. When doing so judges must interpret and apply the often open-ended or even vague provisions of the Constitution and the Bill of Rights contained in it.

Yet judges usually only speak through their judgments which are not widely read (but are often reported on in the media – sometimes even accurately). Judges must sit quietly while individuals like Gwede Mantashe attack them, calling them counter-revolutionaries and questioning their integrity and independence.

The question is whether this onslaught has taken its toll on the legitimacy of the judiciary, which is an essential requirement for the proper functioning of the courts and of our constitutional democracy. A first reading of a survey, conducted by TNS Research Surveys, suggest that these scurrilous attacks might well have had an effect on the legitimacy of our judiciary.

Asked whether “judges in South Africa are independent of political interference” the response was as follows:

Agree – 44% (Blacks – 49%, whites – 34%, coloureds – 43%, Indians/Asians – 23%)
Disagree – 28% (Blacks – 23%, whites – 39%, coloureds – 29%, Indians/Asians – 36%)
Don’t know – 29% (Blacks – 28%, whites – 26%, coloureds – 28%, Indians/Asians – 42%)

In a similar survey in 2000 with slightly different wording, 49% agreed, 31% disagreed and 19% gave a don’t know response. This means there has been a 5% drop in the percentage of people believing that judges are free from political interference. The Constitutional Court seems to fare slightly better, because when people were also asked to agree or disagree with the  statement “I have confidence in the Constitutional Court”, the results were as follows:

Agree – 55% (Blacks – 64%, whites – 37%, coloureds – 50%, Indians/Asians – 37%)
Disagree – 25% (Blacks – 18%, whites – 42%, coloureds – 32%, Indians/Asians – 32%)
Don’t know – 19% (Blacks – 18%, whites – 21%, coloureds – 18%, Indians/Asians –31%)

What strikes me about these numbers, however, is the racial break-down of the responses. White South Africans seem far more pessimistic about  our judiciary than black respondents. In line with the general trend that white South Africans feel less optimistic about our country and its institutions, a full 39% of white respondents said they did not believe that the judiciary was free of political interference.

As I do not have access to the full results from the 2000 survey, it is not possible to say whether the recent attacks on the judiciary affected the attitudes of white and black South Africans towards the judiciary equally or whether it made white South Africans more pessimistic about the independence and integrity of the judiciary.

However, given the fact that several JSC members and members of the government have recently stressed the need to accelerate the racial transformation of the judiciary, these numbers are startling. It suggest that black South Africans have much bigger trust in the judiciary than white South Africans, despite the fact that almost half the members of the judiciary are white. Could it be that the speedy racial transformation of the judiciary is less important for the legitimacy of our courts than previously accepted? If this is so, is the racial transformation of the judiciary being used as a stalking horse to create a more pliant judiciary?

Perhaps these numbers suggest that white South Africans are just generally cynical and pessimistic about our institutions because of a deep-seated Afro-pessimism unrelated to reality. Or, depending on how these numbers have changed since 2000, it could suggest that attacks by Gwede Mantashe and others on the judiciary have affected the views of white South Africans towards the judiciary more severely than that of black South Africans.

Maybe I am too naive, but the fact that 64% of black South Africans said that they had confidence in the Constitutional Court – despite the court finding against President Zuma and despite the attacks on the court by Judge President Hlophe and various other politicians, give rise for optimism. It suggests that most (black) South Africans are not so easily swayed by self-serving and scurrilous attacks on our highest court. Pity my fellow white compatriots seem more hysterical and more easily bamboozeled.

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