Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
28 February 2012

Why so little trust in the judiciary?

In 2006, several years after the disastrous invasion of Iraq by the US military, a survey found that almost 50% of Americans believed that Iraq had weapons of mass destruction when the U.S. invaded that country. This belief was false as no weapons of mass destruction were ever found. In the same year Rick Santorum, who is running neck and neck with Mitt Romney in the nomination for the Republican Party’s Presidential candidate, also claimed that the US had found weapons of mass destruction in Iraq after its invasion of that country.

A poll of South Carolina voters conducted by Winthrop University last year showed that only 24 percent of Republicans and Republican-leaning independents in that state believed President Obama was “definitely” born in the United States. (Obama was born in Hawaii which became part of the US about 60 years ago.) Only one in three of those same voters correctly identified Obama’s religion as Christian. Nearly the same proportion, 29.5 percent, believed that Obama is “Muslim.”

It should therefore come as no surprise that South African’s views on the impartiality of the judiciary and its transformation are, at best, mixed. Like its US counterparts, large numbers of South African voters seem to be ignorant and superstitious. The survey, conducted by TNS, found that only 31% of respondents in metro areas of South Africa believed that the judiciary is impartial and unbiased while 31% felt exactly the opposite. A very large number of respondents – 38% of them, in fact – indicated that they did not know whether the judiciary was impartial and independent, suggesting a large amount of ignorance or at least uncertainty amongst South Africans about the judiciary.

It is perhaps also not surprising that 38% of respondents agreed with the statement that “judges were biased towards the government”, while only 27% disagreed. The “don’t know” response was again very high at 36%. Given the relentless attacks on the judiciary by some members of the ruling party (and, it must be said, given attacks by Helen Zille on the credibility of some judges) and given the fact that the government often loses cases before the courts because of criminally bad legal advice or even worse legal representation, and given the electoral dominance of the ANC, I am surprised that the number of people who believe the courts are biased against the government is not higher.

People who do not follow the finer technical legal points of judgments and never read court judgments – depending on the SABC or on The Voice for its information about the judiciary instead – would be forgiven for equating the many legal defeats of the ANC-led government (or the DA-led Provincial government in the Western Cape) with “bias” on the part of the judiciary. In the absence of reasoned analysis about why a law was declared invalid or why an act by the President, Premiers or cabinet ministers were declared invalid, and without a deep appreciation of the principle of constitutional supremacy, a ruling against any ANC or DA politician or ANC or DA-dominated body could easily be confused with “bias” on the part of judges.

I find it surprising that only 38% of respondents indicated that they believed the judiciary was biased. This means that many supporters of both the ANC and the DA who might be upset that “their” government has lost yet another case nevertheless believe that the judiciary is impartial and independent.

Unfortunately the survey did not distinguish between the Constitutional Court, High Courts and magistrates’ courts. Previous surveys were interesting in this regard as it indicated a much higher level of trust in the Constitutional Court – especially amongst black South Africans – than in other courts in South Africa. It is therefore unclear whether attacks on the Constitutional Court by members of President Zuma’s inner circle and by supporters of Judge President John Hlophe as well as the ugly spat about the appointment of a new seemingly under-qualified Chief Justice have not taken a toll on the credibility of the Constitutional Court.

I would guess that these attacks and controversies might well have taken its toll on the image of our highest court. This is because ordinary members of the public do not study the many pro-poor and pro-transformation judgments of the Constitutional Court and might be unaware of the fact that the Constitutional Court often rules against the powerful and in favour of the socially and economically marginalised. It also does not help that the SABC and other news media do not always report in sufficient depth about these rulings.

For example, a few months ago in the Blue Rout Trading case the Constitutional Court ruled in favour of inner-city residents of Johannesburg who were going to be left homeless after eviction by a private company. This made the City Council of Johannesburg very unhappy but was an unashamed pro-poor and pro-transformation judgment, suggesting that the anti-transformation impulses in this case emanated from the ANC-led Municipality and not from the Constitutional Court.

Interestingly, the issue of transformation yielded a 42% “don’t know” response with 34% of metro adults feeling that there has not been enough transformation in the judiciary and 24% feeling that there has. The question is of course what the respondents understood with the concept of transformation. Did they understand the term to mean a change in the racial (and – as an afterthought – the gender) composition of the judiciary or did they understand the term to mean the appointment of judges infused with progressive values enshrined in the Constitution?

If respondents understood transformation in its first meaning, then their perception was clearly mistaken. All leadership positions in the judiciary are now filled by black judges and only about 40% of judges remain white. Of course, in High Courts and on the Supreme Court of Appeal there are many judges (black and white, male and female) who are deeply conservative, pro-big business and anti-gender equality, so if one has a broader understanding of transformation the respondents to the survey who felt that there was insufficient transformation on the bench might well have a point.

Despite these explanations, it must be worrying that so many South Africans either have no opinion or believe that judges are not impartial and independent. This suggests that any attempts by politicians to interfere with the powers of the judiciary or to interfere with its work will be less unpopular than it should be in a functioning constitutional democracy. Judges have no army or police force and neither do they have the power of the purse. Judges are also not elected and do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

But without support from the broader public for an independent and impartial judiciary that is free from interference by the other branches of government or from big business interests (like the Oasis company), it is not clear that the judiciary in its present form will survive an onslaught by the tenderpreneurs and their political backers who see the judiciary as a threat to their kleptocratic interests. Both members of the judiciary (with the Chief Justice in the lead) and members of the media therefore need to reflect on how they can better inform the public about the way in which the judiciary operates and how it protects the rights and interests of ordinary citizens – including the social and economically marginalised members of society.

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