Holy cow! It's a judge! - Thought Leader

In any country in the world, the leader of the ruling party is seen as the most powerful politician in the world. Even where this person is not necessarily the head of state or the head of government, the influence such a person has over the president or prime minister makes him or her very strong politically.

In South Africa, however, the ruling ANC decided to go for collective decision-making through its national executive committee (NEC) — its highest constitutional structure between national conferences. If my equation above is right, this makes this group of 86 people the most powerful politicians in the country.

But these people are constantly subjected to close scrutiny and often ridiculed, especially in the media — with Jacob Zuma having to bear the brunt of sometimes unfair criticism levelled against him. If we are to believe some journalists, Zuma wakes up at 3am and makes decisions for the ruling party. Even when the national conference decided on those 86, it was reported as if Zuma had a gun against the heads of more than 3 000 delegates in order to get his cronies elected.

This might sound gloomy, but it is actually a good thing. It shows that our democracy is working. Not even the ruling party is spared, and there are no holy cows.

Why, then, is it the opposite when it comes to the judiciary? Why are we so scared of speaking out against problems facing our lawmen and -women?

It is a simple fact, for instance, that we need racial transformation on the bench. For although we have Africans at the helm of our courts, the majority of our magistrates and justices are still white. And people have been talking about this for some time. But now that Parliament has introduced the Judicial Education Institution Bill to ensure more representativeness, we have found huge criticism!

Why are we so intent on putting these people on a pedestal and rendering them untouchable? After all, they are just people with an education in the law!

Recently I was extremely frustrated when the Constitutional Court forced Parliament to pass the Civil Union Act, which would give homosexual people the same rights and privileges bestowed on heterosexual couples under the Marriage Act. The court cited as the principle reason the Freedom Charter and the Constitution of our country, stating that “everybody is equal before the law”. Please understand me correctly: I am no gay-basher or anti-homosexuality (though I am as straight as they come). But I know that this was not what the writers of the Freedom Charter had in mind when they proclaimed this principle.

Also, I feel that the court did not take into account the traditions and cultures in South Africa. For, as far as I know, there is not a single culture in our country that really condones homosexuality.

Now, South Africa is a burgeoning country and we are still in the process of discovering the soul and spirit of the new South Africa. And as far as the law is concerned, we also need to establish a South African custom — look at common principles that span the current plethora of traditions and cultures in the country. Ever wondered why we are still tied to Old English law, as practised by our courts today?

The Constitution of South Africa states clearly that the government is divided into three parts: the executive (what we commonly refer to as government or the administration), the legislature (known as Parliament of the Republic of South Africa) and the judiciary. Now, we hear almost daily about the threat against the independence of the judiciary, but have we ever considered the constitutional imperative on the interdependence of government?

This means that there is a very fine line binding the three arms of government together. For the sake of this discussion I will highlight this relationship.

The judiciary does not make law. It has never done so, and it probably will never have the opportunity to do so as long as the ANC governs this country. The judiciary adjudicates the law made by politicians, both in the executive and the legislature. A crime is only a crime if there was contravention of a law — a law made by politicians. So, the politicians make laws for the judiciary to preside over. Fact is, even the laws governing the judiciary and judicial processes in South Africa are made by politicians — not the courts.

Another aspect of the judiciary is to advise the executive and legislature on the feasibility of laws, as was demonstrated in the Grootboom case in 2000 and most recently the referral back to Parliament of the Traditional Health Practitioners’ Act and the Choice on Termination of Pregnancies Act in 2007.

But our magistrates and justices are only people, as I said before. And therefore they are prone to make mistakes. I do belief that they make the best decisions in terms of what is presented to them, against what our laws state. But when someone whom the public or the media believe to be guilty is allowed to go free, everyone blames the police for bungling the investigation and/or the prosecution for not handling the court case properly. No one even thinks of questioning the magistrate or justice in terms of the possibility of that person misinterpreting the law and its application — we believe them to be highly educated people, unable to make that type of mistake.

I would not do justice (pun unintended) to this discussion if I do not make an example of Jacob Zuma (LOL). When Judge Hilary Squires sentenced Schabir Shaik on charges of fraud and corruption, the judge said that there was a “generally corrupt relationship between Zuma and Shaik”. Now I find that very hard to swallow coming from a man so highly learned in the law. I think it was most irresponsible of a man of his stature simply to say there was a generally corrupt relationship, without defining that relationship in terms of the law — thereby opening the stage for a legion of allegations, assumptions and accusations against Zuma. The thing is that the law is never that vague. It has set parameters against which the judge should have been able to tell us exactly what constituted that “generally corrupt relationship”.

I guess after today I will be known as a court-basher and an ultra-leftist who would like to see South Africa in a state of anarchy and general lawlessness. The opposite cannot be truer. I would like to see a South Africa where the law is defined by our common understanding thereof, and respect for the principles that bind us together as a nation. I would like to see a South Africa where our traditional courts are allowed to flourish, where our cultural practices are taken into account and all rights of all people are respected.

But I would also like to see our judiciary able to accept criticism, and where it allows politicians to do their jobs and make South Africa a country that truly belongs to all.