The integrity of the judiciary in South Africa
The integrity of the judiciary in South Africa has never been in question. Or so Judges Matter has thought. It has been our firm view that judges and a judiciary that acts without fear or favour have and has been the thin black line between South Africa and state capture and a collapse in governance in many parts of the state. Many, including President Ramaphosa, share this view. The consistent independence of the judiciary and the rule of law is one of the reasons cited by the President as being a factor which should encourage foreign investment:
“Together with robust legislation to protect foreign investments, an independent judiciary and the firm rule of law, our Constitution should allay any fears that investors may have of factories being expropriated.”
However, in a new survey by Afrobarometer the number of citizens in South Africa who say that “most” or “all” judges and magistrates are involved in corruption has doubled between 2002 (15%) and 2018 (32%).
This is obviously extremely troubling. Issues around corruption in the judiciary have been raised before, in particular by Judge President Dunstan Mlambo who for example in 2016 said that corruption had also made its way into courts. However, he made the point that he felt the corruption to be a factor in the moving parts of the justice system that surround judges, rather than judges themselves.
The Afrobarometer survey suggests something different. It suggests that a significant number of people believe that “most” or “all” judges and magistrates are corrupt. If you look at perceptions of the independence of the judiciary disaggregated into perceptions of judges and magistrates, we see that they are seen as virtually identical in terms of how they are seen.
What has caused this decline in confidence? One factor in the perception of a lack of independence in the judiciary may be the failure of the justice system to deal quickly with the legal issues surrounding President Zuma, including the failure to prosecute him in relation to the arms deal corruption allegations. Between 2012 and 2015, public perception of how often the president complies with the courts and the laws of the country dropped significantly. In 2012, two-thirds of South Africans said that the president never or rarely ignored the courts. Three years later, this number had dropped to less than 40%. Lawyers familiar with those cases against the President may argue that the system of finding the President accountable for his various actions is grinding on steadily if not quickly. However, the failure of the system to quickly finalise the ongoing legal battles may have dented our collective confidence in the judiciary. Confidence in all branches of government has declined since 2006, but the courts have fared better then the other two branches of government.
However we need to take any decline seriously. As the full bench of the North Gauteng High Court said in its judgment on the Al Bashir case;
“A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.”