Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
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.BACK TO TOP