Trust in the judiciary: South Africa's crisis of confidence

Prof. Sipho Seepe

South Africans live in hope. For seven nerve-wracking days, they waited patiently for President Cyril Ramaphosa to address them on one of the most pressing crises the country has faced since 1994.

A week earlier, Lt. Gen. Nhlanhla Mkhwanazi had placed the entire criminal justice system on trial. Mkhwanazi implicated the Minister of Police, Senzo Mchunu, top brass, correctional services, senior politicians, and members of the judiciary in an intricate web of crime syndicates and drug cartels. The allegations put the country on the knife-edge. This is the stuff that collapses governments.

When Ramaphosa finally faced the nation, the address was characteristically and predictably underwhelming. All opposition parties took potshots at Ramaphosa. Those who were disappointed in Ramaphosa’s utterances have themselves to blame.

First, Ramaphosa is not a man of courage. He has no backbone. Placed in a prickly situation, his instinct is to choose ANC’s interests over those of the country.

Second, Ramaphosa and the ANC have demonstrated that an oath to uphold and protect the constitution is politically meaningless.

Third, Ramaphosa does not come with clean hands. The Phala Phala farmgate scandal must have weighed heavily on his mind. The independent parliamentary panel, comprising luminaries in law, found Ramaphosa to be possibly guilty of serious misconduct of violating section 96(2)(b) by acting in a way that is inconsistent with his office. Ramaphosa was also found to have violated section 96(2)(b) by exposing himself to a situation involving a conflict between his official responsibilities and his private business.

The panel concluded that. “Viewed as a whole, the information presented to the Panel, prima facie, establishes that (1) There was a deliberate intention not to investigate the commission of the crimes committed at Phala Phala openly.” The damning findings by the former Chief Justice Sandile Ngcobo-led panel have not triggered the usual knee-jerk reaction that we have come to expect from the self-appointed custodians of constitutionalism. If anything, they have been conspicuously silent and absent.

Confronted by the ever-lingering prospect of possible impeachment of Ramaphosa over the farmgate scandal, the ANC did what it does best. It closed ranks and squashed parliament’s attempt to establish a Multi-Party Committee to investigate its leader.

An annoyed Thabo Mbeki wrote. “Are we [the ANC] saying that we suspect or know that he (Ramaphosa) has done something impeachable and therefore decided that we must protect our president at all costs by ensuring that no Multi-Party Committee is formed?...... We acted as we did [as if] there was something to hide”.

There is no way that Ramaphosa was going to throw Mchunu, one of his supporters, under the bus without facing serious political repercussions. The establishment of a judicial commission of inquiry was the only safe route open to Ramaphosa. It enables Ramaphosa to postpone addressing a tricky political question of dispensing with Mchunu’s services.

Be that as it may, the inquiry should not prevent the police from conducting criminal investigations against those implicated in the alleged commission of crimes. Neither does the commission absolve parliament of its oversight responsibility.

With a president burdened by allegations of possible criminality, it would be foolhardy to expect that the recommendations of the Madlanga Judicial Commission of Inquiry will be taken seriously.

That the country can be held in suspense by a President who has proved to be a constitutional delinquent reflects the pervasive sense of lack of accountability, paralysis, and resignation that grips the nation. South Africans deserve Ramaphosa. No self-respecting country would allow this.

South Africans have expressed a sense of inquiry-fatigue. They have witnessed far too many commissions without any of them leading to discernible positive effects. Some commissions were demonstrably weaponised to target certain individuals disliked by the establishment.

Ordinarily, had it not been for the fact that Mkhwanazi implicated judges in the commission of corrupt activities, the establishment of a judicial commission would be unquestionable. Matters become complex if one considers the fact that the very judiciary had decided that South Africans cannot be entrusted with information relating to who funded President Ramaphosa’s 2017 ANC presidential candidacy.

Mkhwanazi’s allegations lend credence to the speculations that the reason the CR17 files are sealed is that they may implicate some members of the judiciary or their family members.

Ramaphosa is lucky. Each time he asks the courts to seal matters that relate to him, the courts oblige. This raises several questions. What happened to transparency being the lifeblood of democracy? If Ramaphosa is innocent as he pretends, why rush to the courts for cover? Who are the funders and beneficiaries of the CR17 funds?

The tendency to obfuscate issues whenever Ramaphosa is involved played itself out at the Constitutional Court. Instead of zeroing in on the bigger picture, the country’s esteemed jurists inordinately debated whether the parliamentary panel had established a prima facie or sufficient evidence. Their colleague, Justice Owen Rogers, would have none of it.

He contended. “A person loses 8.7 million Rand, they would want to know who the investigating officer is, and has it been reported to the police. Is there a case pending? It is a common cause that there wasn't… There was a deliberate decision because the president wanted to keep secret the source of the money; that's the background to where the panel was coming from.”

This invariably raises the perennial question: Who judges the judges?

The former Chief Justice Mogoeng Mogoeng answered that question when he contended that “one of the things we needed to do as judges is to give reasons for our decisions that an ordinary man can understand. You must be worried when you read a judgment, and you are struggling to make sense of it.... We ought to know that partly, we account to the public through our judgments. Now, if you write in such a way that the public can't even understand what you are doing, what kind of accountability is that? We don't write for lawyers. We don't account to lawyers only; we account to every South African citizen.”

The question becomes pertinent given society’s growing mistrust of the judiciary. According to the 2018 Afrobarometer survey, 32% of South Africans suspect that judges are involved in corruption. In 2002, the level of mistrust was 15%.

Responding to the 2021 Afrobarometer report on the society’s loss of confidence in the judiciary, Chief Justice Mandisa Maya argued that “the judiciary itself needs to do an introspection and check if we are to blame for this change of attitude towards the institution.”

The chair of a commission of inquiry must be beyond reproach for the commission to enjoy legitimacy and credibility.

For now, we can only speculate. And the picture is not rosy.

* Professor Sipho P. Seepe is an Higher Education & Strategy Consultant.

** The views expressed do not necessarily reflect the views of IOL, Independent Media or The African.