Shaking the foundations

Pat Sidley, IBA Southern Africa Correspondent

Recent developments in South Africa have raised concerns over the strength of rule of law and democracy in the country. Global Insight assesses whether the appointment of Justice Raymond Zondo can bring some welcome stability.

South Africa’s President, Cyril Ramaphosa, has appointed Raymond Zondo as Chief Justice. The appointment, which took effect on 1 April 2022, has been widely welcomed, but also caused controversy following hearings by the Judicial Services Commission, which is charged with appointing judges and disciplining them. It follows a lengthy delay after the previous Chief Justice Mogoeng Mogoeng left the post, taking a long leave of absence before his retirement in October last year.

Judge Zondo presided over the State Capture Commission’s investigation into large-scale government corruption involving billions of pounds of public money, much of it allegedly involving leading figures in the African National Congress (ANC) – the ruling party – and the government, including allegations of involvement by former President Jacob Zuma. Zuma, who has always denied any wrongdoing failed to give evidence at the inquiry and was sentenced to a jail term of 15 months last year for contempt of court.

The Commission has handed all three large volumes of its report to the President and Judge Zondo is currently writing up his findings and recommendations, which are due in June.

Unstable foundations

The announcement has also been welcomed by those who have viewed recent events as cause to question the stability of both the Constitution and the rule of law as foundations of South Africa’s democratic system of government.

REUTERS/Siphiwe Sibeko

South African Deputy Chief Justice Raymond Zondo attends the Judicial Commission of Inquiry into Allegations of State Capture, where South Africa’s former president Jacob Zuma was summoned to face a state corruption inquiry, in Johannesburg, South Africa, 15 February 2021. REUTERS/Siphiwe Sibeko

On 2 January, the country awoke to the disturbing vision of the historic Houses of Parliament in Cape Town burning down. Some have greeted this as symbolic of the old colonial system, and the apartheid system of enforced racial segregation, going up in flames. The government has been forced to rent premises in Cape Town for parliamentary sessions to take place. An investigation into the fire has not yet taken place. In the days after the fire, police arrested 49-year-old Zandile Mafe and charged him with arson and theft and then added terrorism to the charges. He has appeared in court but was then sent to a psychiatric hospital for evaluation – a move later successfully challenged by his lawyers. He has pleaded not guilty to the charges. The charges indicate that the police believe there was a political motive to the starting of the fire. But alarmingly, there have been charges of serious neglect on the part of the government in the running of the parliamentary premises.

According to the National Education, Health and Allied Workers Union (NEHAWU), which represents employees at Parliament, there were no security personnel present at the time of the fire, because they were allegedly told there was insufficient funding to pay for weekend and public holiday work. A report from Cape Town’s fire department has also said Parliament’s sprinkler system was not working. The Minister of Public Works and Infrastructure, Patricia de Lille, has said she will wait for the investigation to take place, although much of this will be tested at Mafe’s trial.

For those who were worried about a political motive, a few days after the fire, the bulletproof doors of the Constitutional Court were smashed with a hammer. This was wielded by a man now charged with the offence and breaking the National Key Points Act, a security law. The National Prosecuting Authority spokesperson, Phindi Mjonondwane, said they viewed it as a direct attack on the rule of law.

The same month, Lindiwe Sisulu, a senior ANC cabinet member, launched an extremely controversial attack on the judicial system and the rule of law, which was published by a local news organisation. She wrote: ‘Apartheid was “legal”, Jim Crow laws in the United States were “legal”, colonialism was “legal” […] So what does it mean to have the rule of law? And whose law is it anyway?’ She questioned the constitution and asked what it had done for the victims of the rule of law, except ‘act as a palliative’. ‘It seems today we have legitimised wrongdoing under the umbrella of the rule of law.’

It seems today we have legitimised wrongdoing under the umbrella of the rule of law

Lindiwe Sisulu
Senior member of the South African cabinet

In a staggering attack on judges, she said: ‘The most dangerous African today is the mentally colonised African. And when you put them in leadership positions as interpreters of the law, they are worse than your oppressor. They have no African or Pan African inspired ideological grounding. Some are confused by foreign belief systems.’

She added: ‘Today in the high echelons of our judicial system are those mentally colonised Africans, who have settled with the world view and mind set of those who have dispossessed their ancestors. They are only too happy to lick the spittle of those who falsely claim superiority.’

This was met with silent disbelief and after the President declined to comment on the article, Judge Zondo, in an unusual move, went on television to castigate her. He said the comments were unsubstantiated and lacked analysis and were ‘an insult to the justices of the Constitutional Court, the judges of the Supreme Court of Appeal, the judge presidents of the High Court and all African judges who serve this country with distinction’.

Sisulu has been associated with former president Zuma and is rumoured to be considering running for the post of president of the ANC and the country. Zuma’s own controversial attitude towards Judge Zondo, the courts, the constitution and the rule of law has drawn support from a reasonably large group forming a faction within the ANC known as the Radical Economic Transformation (RET) faction, named after a term ironically coined by Bell Pottinger, a now-defunct firm of UK public relations consultants. Sisulu has some support in the RET faction.

Politicising the rule of law

Worryingly, the Premier of KwaZulu-Natal province, Sihle Zikalala, argued for the Constitutional Court to be subordinate to Parliament. This appears to put him into the RET camp.

All these words precede an important ANC meeting at the end of the year, which may unseat President Ramaphosa from his post as party head and therefore president of the country, thus making way for a shift back to the Zuma years.

The difficulties at the start of the year come with a backdrop of violence which affected large parts of the country in July 2021, prompted by the imprisonment of former president Zuma and his supporters. The violence took the lives of over 350 people and included rioting, looting and vigilantism, as well as xenophobic attacks and the torching of many trucks and buildings. It left a ‘sense of instability’ according to a Report of the Expert Panel into the July 2021 Civil Unrest, which was ordered by President Ramaphosa. The violence, seen by the President and most of his cabinet as an attempted insurrection, was attributed to ‘factional battles within the ANC’ and was described in the report as ‘a matter of serious concern’. The report laid out problems within the security bodies of the government like the police, defence force and intelligence structures and said the security services were uncertain of how to address ‘the convergence of criminal conduct and mainstream politics’.

The report points to socioeconomic conditions in the country, which are among the widest levels of inequality in the world according to the International Monetary Fund (IMF). The IMF cited the Gini Index and said that the socioeconomic inequality was a major cause of instability. The IMF said that inequality ‘manifests itself through a skewed income distribution, unequal access to opportunities, and regional disparities. Low growth and rising unemployment have contributed to the persistence of inequality’.

Poverty and violence

The violence rocked the country, but it has remained simmering in the sea of poverty left in its wake. It has been followed by xenophobic attacks by, among others, a large and organised vigilante group. Recent violence in Alexandra, a township on the outskirts of Johannesburg, as well as in inner city suburbs, has included systematic attacks on the market stalls of migrants with their owners pushed out and evicted from their homes. Recently there have been pitched battles in the Western Cape between migrants from Lesotho and Zimbabwe looking for jobs. Police have not, it appears, been able to contain the xenophobic violence. The government’s response – which takes into account a poor showing at recent local elections, in which the issue of migrants was flagged by most parties as a problem – has been to deny xenophobia. However, at the same time, the laws affecting migrants are being tightened up.

Vigilante justice is extensive in the country, according to analyst and author John Matisonn. He completed a tour of the country after the violence in July, taking in KwaZulu-Natal and Kliptown in Soweto, the large township to the south-west of Johannesburg. Both areas are victim to violence and vigilantes. He says the people that he encountered in both places said the communities no longer go to the police when there is trouble. Instead, they resort to street justice. Looking at the larger picture of violence, he says: ‘There is no public order policing – and we are not learning from our mistakes. We are leaving the rule of law extremely unguarded.’ He believes that, after 28 years, the strain on South African democracy is showing. He says the culture of constitutionalism remains but is fragile.

We Africans fought against discrimination and enshrined it in our constitutions

Sternford Moyo
IBA President

IBA President Sternford Moyo, who is based in Zimbabwe, says: ‘Democracy depends on the observance of the rule of law. There should be a climate of legality.’ There should not be ‘a general state of lawlessness, destruction of property and injury to people’. An essential element of democracy, he says, which would seem to be missing in such circumstances was the rule of law. He criticises the looting of property, the injury and attacks on people and the xenophobia, which he says had its genesis in discrimination. ‘We Africans fought against discrimination and enshrined it in our constitutions.’ Moyo says the violence is ‘undemocratic’ and the activities that have taken place are a threat to democracy.

Referring to Sisulu’s article he says: ‘Criticism of a judges’ personal conduct and a critical evaluation is healthy in a democratic society.’ He notes that ‘judges wield enormous power in a democracy’ and it was necessary that decisions and conduct be subject to criticism. But he says it had to be ‘based on fact, tempered and respectful’. He was critical of any attempt to coerce judges. He says forcefully ‘Why should we be judged to a different standard? We the people of Africa championed human rights struggles’. He says Africans had translated philosophies into practical law. ‘Why should we discard them as being “foreign”?’

Richard Goldstone, Honorary President of the IBA’s Human Rights Institute, is a former justice of the Constitutional Court of South Africa. He plays down the attacks on the constitution and the judiciary, saying they constituted a small minority within the ANC and was aided and abetted by a small radical party known as the EFF – Economic Freedom Fighters. He points out that there have also been attacks on the constitution from the extreme right.

REUTERS/Sumaya Hisham

Zandile Christmas Mafe, a suspect accused of breaking into Parliament when the fire started, appears in the Cape Town Magistrate Court, in Cape Town, South Africa, 4 January 2022. REUTERS/Sumaya Hisham

Constitutional Court Judge Jody Kollapen, who spoke at a recent conference on constitutionalism and democracy, says South Africa’s constitution had, for many people, fallen short. But he says: ‘Supremacy of the constitution should not be a system against the state.’ He says it should be a system for the democratic state to guard against falling into anarchy.

While the constitution is supreme, it may not provide all the answers, all the time

Jody Kollapen
Constitutional Court Judge

Kollapen does not, however, take issue with the constitution but points to areas which some have questioned. ‘While the constitution is supreme, it may not provide all the answers, all the time.’

‘Few of us imagined how dominant a place the role of the constitution would play in our lives.’ But he says, for many, the constitution ‘remained an illusion far on the horizon’.

The claims of the majority may come into conflict with the constitution. ‘If you wish to build a democracy, the tyranny of the majority must have a counterweight’, Kollapen says.

He questions the situation in the country where basic constitutional rights have not been met, citing a case in which a non-governmental organisation had to go to court to compel the government to give promised textbooks to school pupils.

Judge Kollapen, whose background is human rights, says ‘massive inequalities’ in the country had been perpetuated and had to be addressed. Equality before the law was undermined by a lack of resources for many, while some were able to buy their economic rights, rights to health and education, among others. He says, during his time as a High Court judge, he came across people who lost their homes daily. While the judgments were in accordance with the law, this was happening to people who did not have the resources to assist their situations.

Pat Sidley is a freelance journalist and can be contacted at pattykate@icon.co.za