CAPE TOWN – Acting Chief Justice Raymond Zondo and his judicial colleagues are sensitive souls quick to profess that they are “not beyond reproach or against criticism”, as long as that criticism is fair and based on facts.
They dislike politicians saying nice things to them in private, then turning round and using “accusations”, “unsubstantiated insults” and strongly unfriendly language in public platforms and the press.
It was not unexpected then when Justice Zondo, on behalf of the judiciary, blasted Tourism Minister Lindiwe Sisulu‘s actions, saying she wrote her opinion piece about the country’s judiciary like a young person with no facts.
Sisulu’s views were more than they could stand. I understand why. The opinion piece made a mockery of Zondo’s expressed confidence in the quality of Constitutional Court judgments and the healthy state of the judiciary despite widespread criticism of them, after presenting the 2020/21 judiciary annual report on Judiciary Day last December.
They are particularly upset by Sisulu doing this rattling of the judicial cage concerning some poorly articulated judicial matters she disagrees with. So upset to a point that they conclude that “it is very important that we draw the line about conduct… that is not acceptable”.
They are also upset by both President Cyril Ramaphosa and Speaker Nosiviwe Mapisa-Nqakula for not promptly taking disciplinary action against Sisulu, as evidenced in their duly elaborated need for the two to sanction Sisulu, expressed in measured words couched as virtual demands.
Bizarrely, Zondo explained the judiciary’s choice of a media conference to address the matter as being informed by the independence of the judiciary to choose its communication channels.
Questions linger; why were these concerns not delivered in a formal meeting instead, where Sisulu could be afforded an opportunity to explain herself and undertake guided remedial action?
And so, the impression created was that the judiciary’s message was primarily intended for the South African public, rather than the Union Buildings or the burnt-to-ashes Parliament.
And that message could hardly have been better crafted to infuriate Sisulu’s principals, both in government and in the ANC.
The tone was unambiguous about how both the president’s and the speaker’s lack of proactive action is putting the executive and the legislature ever more at odds with their closest governance neighbour, the judiciary.
We might wonder where the leadership of the judiciary Zondo spoke on behalf of spent their career cultivation to become so innocent of political reality that the polarised leadership contests in our country are tainting various aspects of our lives.
Could this mother-hen posture have anything to do with demonstrating solidarity at a time when the courts will be expected to strongly assert their independence in defending the Constitution and the rule of law ahead of another wave of leadership transition in the ANC?
Yet part of the answer could be that the substance of the judiciary’s complaint is true. According to Zondo, Sisulu’s controversial questioning of black judges, saying, among other things, they were “mentally colonised Africans who have settled with the world view and mindset of those who have dispossessed their ancestors”, has two dimensions.
One is the real human anguish from “an unsubstantiated insult” felt by the members of the judiciary needing political and practical resolution. The other is it’s dangerous exploitation in a shouting match for public and political consumption, taking place in the court of public opinion.
The same Constitution that Sisulu criticises enjoins and hopes for an effective, responsive, open and accountable governance from all organs of state inclusive of Parliament, the executive, and the courts. Courts must resolve disputes in accordance with the Constitution and the law, which includes African indigenous law and the common law.
Why Sisulu should have wanted to pen an opinion piece attacking members of the judiciary in this manner and expose herself to this controversy is a mystery.
It suggests a complete lack of discipline or competence in handling public debates of this nature and, we must assume, a collapse of liaison with Luthuli House, which would normally vet such a piece and cannot conceivably have approved it. No wonder, the party has since publicly distanced itself from Sisulu’s views.
The minister’s obsession with her ascendancy to the ANC leadership ahead of the party’s elective conference and her clumsy entering of a political thicket in the realm of the judiciary is not a route to effective public discourse, least of all on the eve of the announcement of the appointment of the new Chief Justice.
South Africa’s three branches of government are moving towards an ever more disadvantageous relationship with the rest of other social partners, on anti-corruption as on other facets of open and accountable government.
The “Thuma Mina” and “Ramaphoria” deflated enchantments have not, as Ramaphosa keeps assuring us, made our government stronger and our society better. Instead, they have made these weaker, as hopes for a better life for all fade.
That does not mean Ramaphosa’s government is ineffective. It remains a force on the scene of the people in all sectors of the nation. But it needs friends and allies, and should tread with care in dealing with situations that have a potential to distract our attention from the important tasks of nation-building at hand.
South Africa must urgently find a way forward in an era of persistent polarisation that doesn’t respect separation of powers or co-operative governance – because these challenges are unlikely to cease in the near future without our collective action as responsible citizens. They constantly invoke our patriotism and maturity.
Sisulu should reconsider her articulation of her opinions, retract her bombast comments on the judiciary, and join the president and the speaker in handling this predicament. She should look for solutions, not headlines.
Just now, as a potential president of the country, she has a particular need to find solutions together with an independent judiciary. So, what is the point in being rude to leaders of this important arm of the state?
Nyembezi is a policy analyst and human rights activist.