An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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