Refusal to be held accountable for wrong-headed decisions, unconstitutional policies and corruption is the main reason for persistently loud attacks by politicians on the judiciary. While the judiciary is neither perfect nor above criticism, the barrage of attacks on it is in many cases without merit, aimed at covering up misbehaviour and scoring points to seek mass popularity.
Former president Jacob Zuma, under investigation for state capture, has consistently attacked the judiciary, trying to intimidate judges to go soft on him.
He has tried to discredit the judiciary, using populist rhetoric, either claiming they are too white, supposedly following "Western" law, and that he should be judged by what he calls "African" law, as if South African law is not African, and as if traditional law is not part of South African law, and furthermore as if corruption is fine under traditional law.
Many populist leaders in the ANC, the EFF and other parties also regularly attack the judiciary. They wrongly believe that the president, the executive and a governing party's leadership cannot be held accountable by the judiciary. They are opposed to the principle of constitutional review of executive, parliamentary and democratic institutions' decisions.
Others say judges make decisions based on political and personal motivations. Yet, judges interpret the law and the constitution, not their personal, political or religious opinions. Judges' interpretation of the law is public. It can be contested by lawyers and citizens.
Many say the judiciary is encroaching on politics. Some leaders of the governing ANC behave so unaccountably, corruptly and without moral scruples within the ANC, the government and in public that ordinary citizens, civil society and other ANC members often have no other choice but to take them to court to hold them accountable.
Parliament, because of our closed party-list system, with party leaders hand-picking pliant elected representatives, often defers to the president and the executive. Many democratic oversight institutions, watchdogs and chapter 9 institutions, established in terms of the constitution to guard democracy, have also been packed by equally docile leaders, leaving ordinary citizens unprotected against callousness by government leaders, the executive and greedy corporations also.
Over the past two decades it has been politicians who have tried to politicise the judiciary by trying to pack the bench with their favourites
It is often misunderstood that SA is a constitutional democracy, not a presidential or parliamentary one, where the Constitutional Court plays the bedrock oversight role, holding the executive, the government, business, civil society and citizens accountable to the values of the constitution.
Over the past two decades it has been politicians who have tried to politicise the judiciary by trying to pack the bench with their favourites. Former deputy chief justice Dikgang Moseneke was deliberately sidelined for the top judicial position because he was seen as critical of the ANC government.
Although the higher courts are mostly above reproach, the magistrates' courts, which ordinary citizens generally encounter, are often inefficient, indifferent and corrupt - which clouds ordinary people's views of the judiciary. The magistrates' courts will have to be brought to the same exacting standards as the higher courts.
It is very important that members of the judiciary behave with decorum and maturity and stay clear of publicly expressing polarising political, religious and ideological views.
Chief justice Mogoeng Mogoeng's rift-causing public views on Israel and his claims that the Covid-19 vaccine is the "devil's work" undermine not only his credibility but that of the judiciary. In such circumstances, the Judicial Service Commission (JSC), the peer oversight body of judges, should act quickly to publicly censor errant judges - which it has.
It is unacceptable that it has taken the JSC over a decade to decide what to do about Western Cape judge president John Hlophe since the first complaint of misconduct was lodged against him.
The Constitutional Court's recent directive that Zuma should provide an affidavit on what penalty the court should impose if it finds him guilty for contempt of court undermines the authority of the court. It creates a perception that the court is giving him special treatment and that the judges fear Zuma and his supporters' threat of violence if he is jailed. This undermines the principle of equality before the law.
Politicians are part of the JSC. Politicians who are under investigation should resign from it. The number of politicians on the JSC should be reduced and civil society representatives should be included.
• Gumede is associate professor, School of Governance, Wits University, and author of Restless Nation: Making Sense of Troubled Times (Tafelberg)
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