When political strife plays out in the courts

In March 2016 the SCA confirmed a ruling by the North Gauteng High Court that the government had acted unlawfully in failing to arrest the Sudanese president, Omar al–Bashir, when he visited South Africa in June 2015.

All indications were that the South African government had not complied with a Pretoria High Court order granted on June 14, compelling authorities to keep al-Bashir in the country, in his ruling Judge President Dunstan Mlambo said:

“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.”

The State responded by withdrawing from the International Criminal Court. Last week the High Court in Pretoria ruled that government’s decision to withdraw from the International Criminal Court (ICC) was unconstitutional and invalid.  Deputy Judge President Phineas Mojapelo ordered President Jacob Zuma and the Ministers of Justice and International Relations to revoke the notice of withdrawal.

This decision will no doubt re-ignite the debate about the proper role of the Judiciary. Justice Moseneke was severely criticised for making comments at a social function in 2008, stating that; “It’s not what the ANC wants or what the delegates want; it is about what is good for our people.”  It was widely speculated that these comments led to the President overlooking him as Chief Justice and appointing Justice Mogoeng instead.

Times change. Last year Justice Mogoeng was widely praised for stringent criticism of the Executive, which included calling for “functional” leadership that struggle stalwart Oliver Tambo believed in and strived for. “You must be very afraid of any leader who is prepared to do anything to become a leader… We must avoid becoming positional leaders‚” said Mogoeng.

The position of the Judiciary in enforcing an open and accountable State has become even more clear in the intervening years since 2008. The tension between the Judiciary and the State has continued, with a summit being held in November 2015 between the Executive and the Judiciary after comments from the Secretary General Gwede Mantashe, and SACP General Secretary Blade Nzimande that judges have been guilty of over-reach for trying to order the arrest of Sudanese leader Omar al-Bashir.

Since the Nkandla hearing and judgment, however, the Chief Justice has been without significant criticism. In fact, the robust actions of the Judiciary have been the subject of positive comment in the discussion around the downgrade of the sovereign credit rating. Moody’s noted the strength of South African institutions that support the investment grade rating, citing the public prosecutor dropping charges against Pravin Gordhan and the public protector’s State Capture report as positive developments. Both of these have of course been at the sharp edge of court applications and orders.

However, a warning which all litigants should heed, Justice Moseneke said in a recent speech;

“Plainly, courts have become sites of resolving disputes on political power and rivalry absent other credible sites for mediating political strife. A properly functioning democracy should eschew lumbering its courts with so much that properly belong at other democratic sites or the streets.

We will over time over-politicise the courts and thereby tarnish their standing and effectiveness.”

There is significant pressure being placed on the courts. The courts substitute for effective deadlock breaking mechanisms in the political space. The increase in cases forces the courts to hand down more judgements challenging the State, which in turn drives more criticism of the Judiciary, and more pressure to appoint executive minded judges. This can, over time, potentially cause more division between judges on the appropriate balance to strike.