Liberal democracy in general and in South Africa, in particular, continues unabated to crystalize the tyranny of the judiciary since it continues to apportion the vocation of a judge something akin to the priesthood- i.e a belief that judges epitomise fairness, righteousness, and justice. That is not so, judgeship is not just and if we continue with the reasoning that they are demigods, the tyranny of the judiciary will continue in perpetuity. True to its concealed dictatorial underpinnings, liberal democracy has positioned the judiciary as a branch of government that is assigned the province of ‘independence and or neutrality’. Especially in coded constitutional societies, this characteristic has created thought and a norm that judges are ‘above’ politics – a vital guarantee of the separation between politics and the law. Liberalism insists that jurists and the law have a neutral character, a deportment that I think is faulty. This deportment is supported by Professor Oagile Dingake, a judge of the supreme court of Papua Guinea when he argued that “the pursuit of justice [read common good], lies at the intersection of philosophy, politics and law” (Dingake, 2019, p. 01). For me, it is the insistence of the separation of Philosophy, Politics and the Law that makes some judges perceive themselves as ‘untouchable’. Untouchable in the sense that they are accountable only to the constitution. Untouchable in the sense that they are “not” influenced by their internal and external biases [cultural, ideological, and political] but interpret the law, and untouchable in the sense that they are ‘above’ politics. It is this liberal creed that I posit creates a bountiful ambience for judicial tyranny rather than the quest for the common good not only in South Africa but in most liberal democratic societies. I contend that the judiciary is political, and this proclamation has been made evident in a marathon case of Mike Stainbank, the original owner of the now bastardized apartheid museum dispossessed by the Mandela administration and Krok brothers; secondly the litigation of a Canadian subsidiary Ivanhoe Mining, Ivanplats (Pty) Ltd by the Mokopane community of Limpopo, and thirdly the Xolobeni community in Eastern Cape also in South Africa.
With these veracities identified, how can the tyranny of the judiciary be circumvented? What must be done? Where do we find the answers? Can we even find them? I argue that we must first consider the revolutionary philosophical framing of our discourse then put those revolutionary actions to practice. The pursuance of our answers may be found in the intersectional juncture of Philosophy, Politics and Law rather than allocating the judiciary some demi-god status. This is how we must think, talk, and act on this subject matter.
During the beginning of this month in this settler colony that is characterised by a coded constitutional neo-liberal democracy known as South Africa, we have been astounded by many incidences and debates. Some were intellectual debates and at most time’s mediocre debates about matters of justice, law, and politics including the Land and the judiciary. A hotly contested debate was re-initiated by the African National Congress (ANC) National Executive Committee (NEC) member and Minister of Tourism, Lindiwe Sisulu. She penned a scathing article inclined towards the Africanist tradition of Mangaliso Sobukwe, Steve Biko and Motsoko Pheko. If read properly I argue, that opinion piece is the critique of the whole of South Africa’s political economy. In the “rebuttal”, the Acting Chief Justice (ACJ) of South Africa’s Constitutional Court Raymond Zondo entered the debate and seemingly sank it to a mere ‘attack on the judiciary’.
Came in Ronald Lamola, the Minister of Constitutional Development and Correctional Services, also an ANC NEC member, former ANC Youth League Deputy President during the Julius Malema presidency. He equally followed the same trail of thought by ACJ Zondo. In his open letter to Sisulu, Lamola argued that Sisulu’s ‘attack on the very institution (judiciary) that is to uphold the Constitution goes against the grain of everything that we wanted to change from before 1994’. He further claimed that the South African Constitution has been the most single document that was able to bring social justice to South Africa. Typical to legal practitioners who reason as if they are in a court, he charged Sisulu for failing to provide evidence to the claims she made in her published opinion piece regarding the judiciary and constitution. In essence, both Zondo (judge) and Lamola (politician) were defending the much ‘beloved’ South African Constitution and the Judiciary.
My attention to this debate was arrested by ACJ’s ‘attack and an insult to the judiciary’ sentiments regarding Sisulu’s opinions and it is in this limited scope that I confine my ideas as well. Moreover, in order not to be accused by lawyers of a failure to provide ‘evidence’, I will cite a few litigation matters as case studies to motivate my conclusion that most often than not, in South Africa we live with the tyranny of the judiciary demi-gods who are abusing the black majority rather than being practitioners of a moral principle-JUSTICE in its essence.
Judiciary as a non-independent actor?
To date, political scientists argue that ‘the significance of the judiciary has been enhanced by the growing importance of international law which is home to the International Court of Justice’ (Heywood, 2013). Liberal democracy as a hegemonic political system globally has apportioned prestige to the judiciary. As revealed previously, the judiciary is an institution of government that is endowed to decide on legal disputes and its chief distinctive is that judges are strictly independent and non-political actors. This is not entirely true I contest since the judiciary is born of politics and a political system that precedes the establishment of the law and its institutions.
Considering this development process, the law and the judiciary are therefore products of politics. Ponder on the motives for the creation of constitutions by the lawmakers in legislatures who are by the way politicians. In liberal democracies, South Africa included, a constitution was or is created to empower states, establish unifying values and objectives, provide government stability, and legitimize regimes (Heywood, 2013). The intentions advanced by liberal democracy proponents for the creation of a constitution for the interpretation by the judiciary are all political. Nowhere in the liberal democratic framework does the feature of justice as a common good is identified amongst principal reasons for constitution creation. If this is the case, at what point does the judiciary becomes independent, neutral, and or ‘above’ politics?
Cogitate on the South African constitution and how it frames justice. Mpofu-Walsh (2021) argues that it has impoverished justice to mean ‘social justice’ as if there are different scopes of justice (Mpofu-Walsh, 2021). This way of presenting justice in the South African constitution I maintain is in line with the liberal democratic paradigm to conceal the intentions of maintaining the subjugation of Africans status quo. It is to disguise what Mpofu-Walsh calls “the new apartheid”. My thinking is that the constitution creators were conscious of this impoverished conception of justice. They knew their created judiciary will be endowed to decide on legal disputes rather than moral questions. If we find judges that opt to engage moral questions, it proves my point that they are influenced by their biases and therefore not independent, neutral, or ‘above” politics. Honest judges will agree to this but many jurists will never admit to it.
In South Africa, we have witnessed these biases in the case of Mike Stainbank where he charges the so-called independent, neutral, and ‘above’ politics judiciary regarding his 1990 registered trademark The Apartheid Museum. Three superior courts in the country, instead of considering the morality of the questions raised and granting him what rightfully belongs to him, ordered for his imprisonment and unlawful dispossession of his property. Should we have expected this? I think we should have since an unjust institution and system cannot permeate justice? Am I saying that the law does not automatically imply justice? Yes. Is the judiciary fair, independent, neutral, and ‘above’ politics? No. In his affidavit, Stainbank indicts not only the judiciary for his trademark, but he also includes President Mandela and Krok brothers Solly and Abe. He transcribes, “The Krok brothers, emboldened by the global perception of Mandela as some or other demigod then corrupted media and every relevant organ of state that should have ended their criminal scam. The most serious violation of public trust, Stainbank alludes, remains with the judiciary”. To this day, the judiciary has not absolved itself from this tyranny against Mike Stainbank.
With the Mokopane and Ivanplats incident, we have witnessed mineral and mining rights being granted for capitalist accumulation to Ivanplats by South Africa’s Department of Mineral Resources (DMR). These mining rights allowed for the mining company to not only “grab the waters from the rivers but the underground water too. The mining company polluted the water source, dispossessed ploughing, cultural, spiritual including living heritage lands” (Zamchiya, 2019). A Canadian company that has no moral nor justifiable claim to the lands of the people of Mzumbane, ga-Magongoa, and Tshamahansi continue to be granted legal rights based on the coded laws by the judiciary. Interdicts and interim interdicts with reinterpretations of the laws become the order of the day but justice as a moral principle for people of Mokopane was not a primary consideration.
In the flow of Stainbank and the people of Mokopane against Ivanplats litigations and incidents, the intersection between Philosophy, Politics and Law is exhibited therefore confirming my assertion that the law and judiciary are not independent nor neutral as tabulated by liberal democracy. Due to the ‘independent and neutral’ façade, the tyranny of the judicial demigods continues against Black and poor people but most against women from the public ‘secret’ chambers of the courts. Zondo, Lamola and Pallo Jordaan want Sisulu and the public to leave the judges alone to continue with their tyranny under the guise of “independent judiciary” when there is no independent judiciary. If my hypothesis is to be acknowledged that the law and judiciary are not independent and neutral, then anybody irrespective of their convocation is entitled to discuss, question and critique issues of Philosophy and Politics as Zondo and Mogoeng Mogoeng have done albeit receiving backlash.
Some legal practitioners will feel aggrieved by this position of reasoning and will cite judges who have granted judgements in the direction of the “side of the people”. An example of this they would cite the Xolobeni litigations. Such judges, I regard as judges who are participating in ‘judicial activism. They do not always rely only on the legal prescripts as the final arbiter of their judgements, but they consider ‘other’ variables. These variables are what I referred to previously as internal and external biases because they can be ideological, political, and cultural. If this is the case, then these types of judges are living proof that the judiciary is not independent nor neutral or ‘above’ politics. With that acceptance, Zondo as a member of the judiciary was correct to ‘debate’ Lindiwe Sisulu.
Zondo, the judiciary and overreaching.
I find nothing disturbing about ACJ Zondo responding to Sisulu opinion piece even though he did that under the guise of defending the judiciary. The political questions by Sisulu are equally questions of law and there is no separation other than in the splits of liberal democracy. In my analysis, there is no overreach on the side of Zondo since constitutional law is just politics by another name and judges are ‘just a different breed of politicians’ (Dingake, 2019). To continue with the façade that the judiciary is independent, neutral, and ‘above’ politics is entrenching the tyranny of the judiciary. When Pallo Jordaan suggests that the judges or judiciary must be left alone, I agree with him that they must but be left alone even by him to discuss political, moral, and philosophical questions. Such a liberatory thought from the dictatorship of liberal democracy might eliminate the demi-godly discernment of the judiciary and its tyranny.
The tyranny of the judiciary is a creation of liberal democracy and has confused many to accept this legal abuse under the pretext that the judiciary is independent, neutral, and ‘above’ politics. South Africa, one of the most unequal societies globally continues to defend a political system that produced abusive coded laws and tyrannical institutions under the excuse of ‘defending hard-won freedom’. Lindiwe Sisulu has kindled a long-standing debate of South Africa’s political economy and she reflects that the path the country has taken since 1994 is not leading to any form of real liberation but perpetual subjugation. The judiciary is in the centre of that suppression though it presents itself as an ‘independent’ body. Judiciaries in a liberal democracy across the world and South Africa will never be institutions espoused to realize the common good because they deny the intersection of Philosophy, Politics, and the Law. Let us persuade out of the tyranny of the judiciary and seek the common good-JUSTICE.