Can the case be made that our judiciary wants to have and eat its cake ?

– Making sense of Retired Chief Justice Arthur Chaskalson’s rebuke  – 

George Orwell’s portrayal of a society that had been subjected to a revolution in which some ultimately claim a right above others is often one-sidedly advanced and used against politicians and political parties as a correct assessment.

Orwell said “…some are more equal than others”. It is my premise that the judiciary in Post- Apartheid South Africa claim a right above others, to reprimand and advocate without ever owning up.

Having followed and read the opinion pieces of former judges of particularly the Constitutional Court such as Kate O’Regan and the most recent piece from Arthur Chaskalson one can’t but conclude that judges do claim a right above others.  Yet we cannot deny our judges their views for such right we fought for.

To make matters worse as a precursor for the well publicized Arthur Chaskalson rebuke, we read of Judges berating the Justice ministry for arguing there is a need to subject judges and the judiciary to what Vavi call an asset audit and ownership audit. In simple terms a full disclosure of assets and business interests.  Justice Ngoepe and others considered the call by the minister as an “irrational intrusion” of their privacy.

To crown all of this Retired Judge Pius Langa in chairing the Commission on Press Freedom and a Media Tribunal as mooted by the ANC as one of the 2007 Polokwane policy developments, found himself clearly exposed if not proven bias as perpetuating the false theory of government as the enemy of the people or in the words of Mantashe “one of the threats in our society is allergy to parliament, that everything must be independent of the government and parliament”

This acidic concoction of judiciary expressions that advocates, warns, berates and comfortably dictates to government and politicians the parameters of what the constitution demands and how this protection of people is truly against the damned, vicious, politician or ruling party who really is the elected official or party warrants assessment.

Kate O’Regan like a Arthur Chaskalson both retired justices from the Constitutional Court took the liberty in media embrace to share their personal clearly strongly held and somewhat political opinions when they from the comfort of retirement makes their analysis, findings and views on the claim of judiciary encroachment on the executive as non existent ominously the pelting of those who lost in court and now seeks to find common fault with the judiciary. In both instances the politicians or ruling party is made out to be the ones who have  a propensity to complain when rulings were made against them. I must however admit between the pieces of O’Regan and Chaskalson I think O’Regan proved more circumspect, Chaskalson seems to act as the class master, then again he was the first CC Chief Justice, or can the case be made that testostorone sometimes gets the better of the male ego.

Our learned and esteemed judges makes the blunder of assuming the fault can and only is by nature on the part of the politicians who need I remind the judiciary have been entrusted by the masses in a democratic ballot when our judges are appointed by the very politicians.

Chaskalson was at pains to argue that to argue for an untransformed judiciary of apartheid making in post apartheid context is to be less considerate of  and he goes on and quote a litany if judges on all benches deemed black as the rebuttal for such for such claimed untransformed judiciary.

As much as we seek to grant Chaskalson this simplistic logic of an argument it must be said again to Chaskalson and others you cannot regard you nor a black judge as the barometer of transformation for black judges like white judges hold their own political persuasions and opines from such liberally. The error that Chaskalson makes is to say because the judiciary is 64% black it is transformed and cannot think from a class or elitist mindset prevalent in this society.

Just when I want to give Chaskalson credit for giving us in typical chilled instructive tone the proverbial “eureka” moment  for sharing with us what we apparently did not know, I have to contend with the views of an esteemed retired Justice Pius Langa who regardless to his claimed “blackness”, at this press freedom and looming tribunal, exposed his liberalist thoughts and fears of government as an enemy of the people. Langa exposed his open bias when he questioned the oversight envisaged by the ANC  would qualify the tribunal as independent. He went as far as asking if it was a good idea to suggest that parliament, in which the ANC held a majority should oversee the tribunal. One cannot but help seeing an obsession on the part of many judiciary members with the ANC majority, it almost as if this is an untenable situation for our esteemed judiciary.  The judiciary has implictly arrogated itself a right to act as balance of political power as a neutraliser for such ‘dreadful’ majority of ANC.  Perhaps its time to ask from where this obsession and in whose interest is the need to see the ruling party as a enemy of the people?  Maybe the judiciary must tell us for what team they bat and field  in the  proverbial IPL cricket tournament and at what price?

As if that was not enough the SA public has to hear an esteemed Justice Ngoepe remonstrate about an “irrational invasion” of their privacy, in a society where we have accepted corruption is becoming endemic. One had hoped that our judges would seize the moment and prove mature and open to claim a moral high ground to say we set the tone. It is clear for the esteemed judges that audits and disclosure is for everyone else such as politicians and civil servants, yet definitely not for the more equal than others elite group of society, namely our judiciary. For these are above reproach, immune to corruption, less tempted in the entrapments of mammon and even less open for political gerrymandering and lobbying, at least according to the esteemed judiciary.

As I pen this note in Spain a judge is currently facing the might of the law for having acted very unlawfully as is claimed. In South Africa we hear of magistrates being bought, sitting around braaivleis stands and finalising cases in-between a t- bone steak and who knows what in a briefcase. To Chaskalson and others we shall remind that during apartheid judges ruled on cases informed by politics and found legal premise for their findings no different to how a Dr. A. P Treurnicht’s doctoral thesis on Apartheid as Biblically defensible system advocated.  To act as if our judges in post apartheid context have undergone a cathartic of experience which absolves them from erring or proving politically bias, held hostage by political persuasions, cant be bought by money is to be sophistic in the least.

When one argues for a caution of the judiciary encroachment on the powers and roles of the executive as warned by a President Zuma, the secretary general of the ANC Gwede Mantashe and a Advocate Ngoako Ramathlodi and many others of which I am one, it is not out of fear  neither out of a deliberate misunderstanding of delineation of borders of separation and mutual accountability it’s out of an abundance of caution.

Nor is it out of having lost a case but out of seeing pervasive trends emerging wherein the courts including the court of courts are preemptively and even political used by some to run this country as we have said before from a lost ballot.

Your berating your veiled castigation your clear warning against politicians or parties justifiably though is only one half of the full truth. The other half is a judiciary that has claimed a hallowed spot from where they advance a dictum that the executive ought not to be trusted, should be watched as the imminent and by- design enemy of the people. The same people who adopted a constitution that empowers the judiciary as ultimate custodians of freedoms and rights.

A judiciary who amidst the establishment of a Civil Society driven “Corruption Watch” can arrogantly and selfishly protest “irrational invasion” in privacy. (One wonders who will rule in court embrace on such a dichotomy). A judiciary who comprise of people who opines their political views on a ruling party in a party atmosphere. A judiciary who consist of judges who had to rule on the extension or not of a Chief Justice Ngcobo extension when they themselves were contending for the post. A judiciary who like so many of our academics are held hostage in proving their worth as that which must be considered opposite to the establishment and anti ANC for when they rule in such manner they have attained independence, have earned the repute of prudence of thought and is respected by their white counterparts.

This was the challenge that American Harold Cruse raised in 1967 when he published THE CRISES OF THE NEGRO INTELLECTUAL’. Cruse proved scathing in his critique of the black intellectual as integrationists rather than nationalist. He said “This made them susceptible as well as submissive to the thought of white intellectuals especially Jewish intellectuals” (Wright 2007:3a)

Yes a judiciary who like Retired Justice Langa, errs when he clearly exposes the liberalist thought and misgivings of a government and parliament in oversight role to act as watchdog of a media who claims an inalienable right of self – regulation as an uncontested birthright and claims a right to attack anything or question as to the capacity of this self regulation as a claimed attack on press freedom.

It would help Chaskalson to understand our society better as society that is not just race based, colour coded but also class controlled where the elitists and their liberalist nuances even convictions attempts to prove larger than their assigned claimed spot be it in academic or judiciary context.

So Chaskalson your warning is to be heeded if you admit the context of our judiciary and not to make it a simple when it suits you black and white, politicians crying because they lost in court issue. For I dare assert any denial of the polarized context of society be it race, colour, class and opportunity defined is shortsighted and a claim of a right more equal than others is not afforded nor the inalienable right of a judiciary who may prove very soluble in political context.

I guess our judiciary regardless of colour do want their cake and it eat at the same time, and expect no one to question them for it is only correct to assume they are the only custodians of a Constitution for the people.

Respectfully submitted

Clyde N. Ramalaine, is a member of The Thinking Masses


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