The judicial process in perspective

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Fikile Mbalula

“The new dawn that engulfed the country in 2018 did not miss Eskom Holdings SOC Limited (Eskom). It brought life to Eskom in that in January 2018, Eskom’s old and inactive leadership was replaced by new leadership with new life to undo years of maladministration and corruption within the organization.”

One would be forgiven for mistakenly attributing this statement to a political analyst, a faction in the ANC or some other political observer. But the quote above comes from none other than the full bench (three judges) of the Gauteng High Court. In doing so, the Court gave a judicial imprimatur to a political notion of the new dawn. The notion of the new dawn is still a matter of debate. It belongs to the same lexicon of Ramaphoria, Ramageddon, Ramaruin. 

It would probably shock the Court to discover that President Ramaphosa was assigned as early as 2014 with the task of developing “turnaround strategies for state-owned enterprises to enable these enterprises to play a meaningful role in contributing towards South Africa’s growth and development.” Far from the rosy picture painted by the full bench, since 2018, the economy has been shedding jobs, the promised economic growth of 3% has not materialized, instead the opposite has happened. And the economic outlook remains weak.

As early as March this year, a newspaper sympathetic to Ramaphosa noted its disappointment with economic performance. It pointed that “economic growth in 2018 came in at a paltry 0.7%. Not only is this far from the levels of about 5% that are needed to make inroads into the country’s unemployment crisis, it is only just more than half the rate achieved during Zuma’s last year in office, when the economy expanded 1.3%.”

Clearly the (dis)honorable judges must have been in a state of hallucination when they wrote the judgment. Evidently the Court displays the same intellectual laziness that has gripped the country as it seeks to separate Ramaphosa from the Zuma presidency of which he was part. Even  more worrying is its total disregard of the Constitution which assigns individual and collective accountability to members of the Executive. But that would be too much to expect from partisan judges.

This signals something more than just judicial ineptitude. It shows deliberate subversion of our law to support political agendas.  It shows that we are at risk of judicial corruption and indeed the capture of the judiciary by private individual for political gains. This is nothing new. Not long ago, the Supreme Court of Appeal outdid itself by suggesting that a High Court had found that there was a “generally corrupt relationship” between the former President Jacob Zuma and his financial advisor. The trial judge Squires pointed out that this was not the case.

Some in the judiciary have fallen victim to the virulent epidemic that Mcebisi Jonas warned about during his appearance before the Zondo Commission on State Capture. “The danger, I would still argue, with the process of state capture — can I use the term to ‘over-zumanise’ it? To think that it was about Zuma, that would be the biggest mistake. It is bigger. It is structural. It is systemic. You will miss the point if you do that.”

The above examples simply point to the fact that judicial officers are easily influenced by the public discourse. These judges, as Advocate Paul Ngobeni recently opined, align themselves to a politically driven narrative by allowing “vicissitudes of political controversy, their policy preferences, shaped by an amalgam of factors that include their race, and most importantly, ideology or partisanship to determine court judgments they issue”.

Such judicial officers do a great disservice to the course of justice. Indeed, we have been socialized to believe that Lady Justice is blind. That is true in theory. The reality is different. As with all human pursuits and endeavors, we need to have sober and cautious attitude towards the judiciary. It should also be subjected to ruthless criticism. This is even more so given the impact its pronouncements have on society. 

We need to disabuse ourselves of the notion that the judicial process is an exact science. Far from it.  The judicial process is presided over by imperfect creatures – human beings. So the notion of having your day in court does not necessarily mean that justice will be served. Sometimes judges, influenced by vicissitudes of political controversy do err. In doing so, those innocent are found guilty and vice versa.

It is precisely for this reason that democracies have adopted certain legal and constitutional precepts that are meant to minimize legal errors of omission and commission. Among these, the most prominent include, presumption of innocence until proven otherwise, justice delayed is justice denied, the doctrine of clean hands, and that in criminal cases guilt should be pronounced only when reasonable doubts have been expunged.

It would seem that adherence to such precepts are inconveniences when it comes to the likes of Jacob Zuma. Not only has the Office of the Public Protector found that his rights were violated, but no less than three judges, Herbert Msimang, Vuka Tshabalala and Chris Nicholson found the State’s conduct abominable. Msimang went even further to indicate that the case has been limping from one disaster to another.

The fact that the former President has adopted the so-called Stalingrad approach is neither here nor there. Every accused is entitled to take any measures constitutionally available to defend himself. There is nothing illegal about that. This is what one must do when faced with courts that have become embroiled in factional politics. There are too many instances that show that the Zumafication of our politics have also affected and infected our judiciary. 

With such a mindset, nothing short of the conviction of Jacob Zuma will satisfy both the judiciary and the prosecution. Even if it means undermining the constitutional precepts which we hold dear. God save us!

Sipho Seepe is a political commentator.