We live in an abnormal constitutional democracy

Note to editors: The following speech was delivered in Parliament today by the DA’s Shadow Minister of Justice and Constitutional Development, Adv Glynnis Breytenbach MP, during the Budget Vote on the Office of the Chief Justice and Judicial Administration.
We live in a time when the debate on vote 22, the Office of the Chief Justice, again attracts more attention than would have been the case had we lived in a normal constitutional democracy. But then, of course, we do not.
We live in a constitutional democracy described by the President, who should be one of the ultimate guardians of this constitutional democracy, as a “funny” democracy. And he is the only one laughing! Particularly when he displays his total inability to understand the role of the judiciary in scrutinising all exercise of public power.
But he, of course, is not alone in this inability. It is clearly an extremely contagious affliction that has spread not only through his entire cabinet, or what remains of it, but through his entire party.
In his speech on this vote on 19 May 2015, the Honourable Minister of Justice stated as follows:
“Today’s maiden budget vote debate of the Office of the Chief Justice marks an important turning point in the 21 years of our democracy. The independence of the judiciary is crucial in view of the role it plays in a constitutional democracy within the context of separation of powers.”
He then went on to quote, with approval, former Chief Justice Ngcobo who remarked:
“The role of the judiciary in a constitutional democracy is an expansive one. Decisions of judges affect many people. Courts have the power to overrule even the most popular decisions of the other arms of the state if they believe they are contrary to the constitution. The acceptance and support of these and all court decisions by society depends upon public confidence in the integrity and independence of the judiciary”.
Maybe the President is correct in saying that we live in a funny democracy, because, what would have been funny if it was not so terribly sad, is that on every occasion since then where the courts have performed exactly this function, they were roundly criticised and derided by the President and members of his cabinet in a manner that can no longer be seen as merely a discussion of court rulings, but which can only be seen as an attempt to intimidate the judiciary.
Chairperson, then from left of the stage, entered yet more “thieves”, this time of the allegedly common and garden variety, or at least that is what the Acting Commissioner of Police wanted the country to believe, when he rounded up three unfortunate passers-by and tried to pass them off as criminal masterminds of the calibre of George Clooney and Brad Pitt in a South African version of Ocean’s Eleven.
What, however, remains unanswered, is exactly how the real thieves, who remain undetected, gained access to a building that should be totally secure, whether a CCTV camera system was operational at the time, and if so, how it was circumvented, as well as the progress, or lack thereof, in tracking down these real thieves.
Chairperson, in all seriousness, it was with a great measure of discomfort that we learned that the budget allocation to the Office of the Chief Justice will not allow this department to strengthen security measures through their own resources.
If the President, and his colleagues within the ANC, are really serious about the practical implementation of the separation of powers, it must follow that the Office of the Chief Justice should not be dependent on another of the arms of state for its safety measures.
Chairperson, on the right of stage, and present there since before this department was established in 2015, and afforded its own budget vote, remains of course, the issue of a judicially-led court administration model. From the outside, looking in, it would seem that the Minister of Justice approaches this issue with the theory that if he turns a blind eye to it for long enough, it will simply go away – like we sometimes wish he would.
The stance of the judiciary on this matter is clear, and since nothing real has happened to address the standoff since this debate last year, we re-iterate:
The Democratic Alliance supports a model through which the judiciary be allowed, in a manner similar to that of the Auditor General, to negotiate directly with Treasury regarding its budgetary allocation.
Accountability in regard to how this budget would be spent should be enforced by a Parliamentary Committee set up specifically for this purpose, rather than the Portfolio Committee for Justice and Correctional Services.
This unwillingness to constructively deal with the issue must be read against the backdrop of the continuous and continued criticism of the President, members of his cabinet and others within his polluted inner circle.
From accusations that the collective mindset of the judiciary is in need of ‘transformation’, to statements that certain divisions met with what was called ‘characters’ before producing counter-revolutionary judgements to a more specific accusation that specifically the Western Cape and Northern Gauteng benches assisted efforts by opposition parties to govern through our courts – we have heard it all.
After the Nkandla judgement, scathing attacks were launched on the judiciary by many in the ANC, particularly those that rushed, predictably, to the defence of the President, the hand that feeds them.
After the judgement in the matter of Al-Bashir, cabinet ministers openly attacked the judiciary. In particular, Minister Mbalula and Minister Nzimande were most outspoken in their criticism of the judiciary.
When the President addressed the House of Traditional Leaders, he told them that the judiciary was not to be trusted, that judges found one guilty for stating one’s case, even when one was innocent.
The attacks on the judiciary were of such an alarming scale that the Chief Justice was moved to request a meeting with the president in order to address the attacks and the effects thereof.
The meeting took place, and a stone-faced Chief Justice, and a predictably giggly president, told the nation that the proverbial hatchet had been buried, and that a new understanding had been reached, re-affirming the importance and the independence of the judiciary.
For as long as this budget does not facilitate complete independence of the judiciary, the DA cannot support this budget.

BOKAMOSO | Zuma’s mafia turns to intimidating the judiciary

Justice Malala recently wrote: “These are dangerous times indeed. The state and its leader have gone rogue”. The break-in at the office of the Chief Justice on Saturday shows just how true his words are. This is a direct attack on the judiciary by Jacob Zuma’s state security thugs. The Constitution is what stands between Zuma’s mafia state and the ability to loot with impunity. We would do well to defend it with all our might.

 

The timing of the break-in is no coincidence. It happened the day after our courts delivered two judgements that dealt significant blows to Zuma’s state capture agenda. The Constitutional Court ruled that Social Development Minister Bathabile Dlamini, a key driver of Zuma’s succession agenda, displayed gross incompetence in fulfilling her duties to ensure that South Africa’s poorest continue to receive social grants.

 

On the same day, the North Gauteng High Court ruled that Major General Berning Ntlemeza’s appointment as head of the Hawks was irrational and invalid. The Hawks is a specialist police unit, specifically tasked with fighting corruption. Despite two previous court rulings that Ntlemeza is unfit to head it, Police Minister Nhleko, another of Zuma’s lackeys, insisted on retaining him. The fact is, our state has been captured by a crime syndicate that cannot tolerate an independent corruption-busting unit that actually does its job. This is why Nhleko is now appealing this ruling, at taxpayers’ expense.

 

These rulings are major setbacks for the Zuma mafia’s state capture agenda. The checks and balances in a constitutional democracy are specifically designed to protect ordinary citizens from the abuse of power. When you control the executive, and have a supine ANC caucus in the legislature, then only the judiciary is left as an obstacle. Our legal benches are filled with independent thinkers who understand objectivity, believe in the rule of law and who defend the Constitution without fear or favour. And it is both fear and favour that Zuma’s mafia is now trying to extract from the judiciary.

 

The only plausible inference from this bizarre story is that the break-in at the offices of the Chief Justice was deliberately staged in order to intimate judges into submission. Fifteen computers holding the personal information of South Africa’s 250 judges were stolen, from the second floor of a building with dozens of other computers and other valuables in it, all of which were left untouched. The message to judges is clear: oppose us at your peril. If this sounds alarmist, consider that on Monday the house of Zane Dangor, who resigned as Social Development Director General earlier this month in opposition to Dlamini’s handling of the social grants matter, was broken into by two men looking specifically for his laptop. They didn’t get it, because he had it on him and he wasn’t home, but they assaulted his son. The message is clear: talk, and we’ll come for you.

 

On Wednesday, in a pitiful attempt to portray the break-in at the Chief Justice’s office as a burglary, the Acting National Police Commissioner, Khomotso Phahlane, announced that three arrests had been made. This was a poorly concealed setup: one of the three “suspects” was released the same day with no charges against him, and the charge sheets for the other two contained no mention of the break-in.

 

A politically intimidated or captured judiciary could leave us in the predicament that Zimbabweans and Venezuelans now face, and that the majority of South Africans faced during Apartheid South Africa: with no-one to turn to for protection from a hostile state. One step the DA would take to prevent this ever happening in South Africa, would be to allocate funds for a security budget for the judiciary. The judiciary shouldn’t have to rely on SAPS for protection, because SAPS answers to the executive.

 

The fact is, the judiciary is a direct threat to Zuma’s state capture project and he is using all available levers to fight it. For the Zuma mafia, nothing is sacred. They are taking a scorched earth approach to secure their survival. Very soon, those within the ANC who treasure our constitutional democracy will have to choose between their party, or a prosperous, free South Africa governed by a diverse group of people, bound by their steadfast commitment to the Constitution and its rule of law.