It has been reported in the media (African News Agency, 29/11/2019) that the Minister of Transport Fikele Mbalula crossed swords in no uncertain terms with the Judge President of the Western Cape High Court who has ruled that the Passenger Rail Agency (Prasa) must reinstate contracts with security companies it had terminated until it had finalised a new tender or put in place alternative security measures.
Mbalulu, when asked about the matter, reportedly replied by rhetorically asking of Judge Hlophe as to whether he knows ‘how to run trains? He must ask himself that particular question before he makes himself a Mickey Mouse and turns our courts into something that must not be respected”.
This is most unbecoming language and comment in relation to the Judge President that undermines the respect for the independence and integrity not merely of the judge in question but for the judiciary as a whole. The statement borders on contempt of court, in particular the use of the words ‘makes himself a Mickey Mouse’ which ridicules the judge in a most unbecoming manner. Rightly, the Democratic Alliance (DA) Member of Parliament, Chris Hunsinger called on the Minister to apologize to the Judge President for his insulting and unseemly remarks.
From time to time unbridled attacks are made on the judiciary when in particular, politicians and others persons are discomforted by judgement made by members of courts. Like those of Andile Lungiso, an ANC councillor in the Nelson Mandela Metropole, did about judges by his comment in Sunday Tribune (1/9/2019):
‘[t]heir prejudices are stronger than their fidelity to the spirit of justice. The prevailing philosophy seems to be that judging is about outcomes not process of the law. To be a ‘good’ judge is to pick the ‘moral’ litigants as chosen by the white-controlled media’.
When such attacks do occur they cannot go unchallenged. Furthermore, our judiciary has operated in an exemplary manner in during the democratic era and it is imperative that its independence and honour must be respected by all if South Africa is to operate as a constitutional democracy in politically challenging times.
Judicial independence has its origin in the United Kingdom by virtue of the Act of Settlement of 1701, which prohibited the monarch who appointed judges from dismissing them. The British introduced the idea and practice of judicial independence to South Africa in 19th century. However in our colonial and particularly the apartheid era from 1948, the extent to which this independence was compromised by an ‘inarticulate premise’ is a matter of controversy.
By the phrase inarticulate premise is meant that that judges of the Supreme Court of South Africa who were chosen exclusively from the white race inherently favoured the political status quo of white domination particularly when issues of race and the security of the state were involved. Unfortunately, the whole legal system was tainted by it. It must nevertheless be noted that there were a minority of erudite and liberal judges who boldly and fearlessly gave judgements against the state in certain cases, such as, inter alia, Schreiner, Leon, Centilivres for instance in the respectively Harris and Hurley judgments.
Judicial Independence in the Democratic Era
All this has changed fundamentally with inception of the new Constitutional order, initiated by the operation of the Interim Constitution of 1994 and spearheaded by the Constitutional Court. The composition of all the higher courts has been transformed very significantly in regard to both gender and race to far more accurately reflect the nature of the South African population. An examination of their judgements reflects in no uncertain manner that they give judgements without ‘fear, favour or prejudice’ in an independent way subject to the law and the Constitution only.
In a democracy, the judiciary its judgements, like the legislature and executive must be open to criticism. Judges are accountable in the sense that they must give written reasoned judgements which are published and therefore open to scrutiny and appeal. Although criticism can be cogent as befitting a democracy where freedom of speech is guaranteed, it must always be respectful and not insulting or disrespectful, as are the words used by respectively by Mbalula in relation to the Prasa judgement delivered by Judge Hlophe and those of Lungiso, referred to above.
South Africa has cause to be justly proud of its judiciary, which of the three branches of government, it is submitted, has performed the most favourably in the 25 years of our democracy. Its independence and integrity must be defended in a bold and uncompromising manner for the well-being and continuation of South Africa’s constitutional democracy.
George Devenish is Emeritus Professor of Public Law at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.