Background:

The Constitution:  

In the words of a South African Government web site and the South African Constitution, “Parliament and the executive must assist and protect the courts in order to ensure their independence, impartiality, dignity, accessibility and effectiveness”.

Attacks on Judicial Independence:  

Why then is there all this talk of Judicial Reform?  Is it because the Judiciary is somehow dependent, partial, undignified, inaccessible and ineffective?  Or is it perhaps that it is too independent, too impartial,  too dignified, too accessible and too effective for the likes of the current administration?

In December 2004, five judicial reform bills were introduced and rejected in response to widespread objections.  Again, in December 2005, the five bills, largely unaltered were introduced and withdrawn, again in the face of widespread opposition.  Then in late 2007 three of those bills, substantially amended, were again introduced,  ostensibly to improve court management and efficiency, rationalise court structures and promote transformation of the Judiciary but are widely seen as an attempt to undermine the independence of the Judiciary and to create a Judiciary that is compliant with government policies. (see Transformation and the independence of the Judiciary  in SA).

Not satisfied with these efforts, the ANC have now appointed, also in the face of widespread opposition, a fundamentalist Christian who believes he has a mandate from god to be Chief Justice, as  Chief Justice and head of the Constitutional Court.  In March 2012, the Chief Justice “invited senior justices to attend an evangelical leadership conference, despite his earlier assurances that he could divorce his religious convictions from his judicial duties.  

Needing to do more, as reported in the  Cape Argus (Feb 2012), the ANC Justice Minister Jeff Radebe wants a “national dialogue” on judicial reforms that have been on the table but been rebuffed for over 16 years.  We are assured the independence of the judiciary is not at stake.  According to Jacob Zuma, we don’t want “to review the Constitutional Court, we want to review its powers.”  Isn’t that “speaking with a forked tongue”?  (see Double Speak about Judicial Reform)

Clearly the ANC have their own agenda regarding the composition and judicial leaning of the Constitutional Court and, by association, the Judicial system as a whole.

The Direct Democracy Forum (the DDF) believe this to be a conservative agenda aimed at muzzling freedom of speech and individual rights and many of the rights enshrined in the constitution and subverting the power of the Judiciary to protect the Constitution, to clear the way for the application of ANC agendas that the Judiciary would find unacceptable..  The DDF believes we are seeing a consistent and persistent attack over more than sixteen years aimed at the independence of the Judiciary and the latest acts arise from a belief that if you have the Constitutional Court in your pockets you have the constitution in your pockets.  What they couldn’t do through parliament they seem to be attempting to do through the back door. 

Then of course there are all those stunning ANC acts in defiance of the rule of law, rooted in their disrespect for the Judiciary, its processes and decisions.   Here are some of those acts.

Shaik 

  •  In June 2005 the courts sent Jacob Zuma’s confidant and financial advisor, Schabir Shaik, to prison for fifteen years, after being found guilty of corruption and fraud. (See Shaik Judgement 2005)
  • On 3 March 2009 Shaik was released on ‘medical parole’ after serving 28 months of his sentence, much of that time in a private hospital ward, said to be suffering from depression and other medical conditions.  Who wouldn’t be depressed when facing 15 years in prison and how is that grounds for what amounts to a non-judicial remission of sentence? 

Zuma:

  • Following the June 2005 ruling where Judge Hilary Squires found Shaik guilty on all counts (see Shaik Judgement 2005), while Judge Squires wrote nothing about ‘a generally corrupt relationship between Shaik and Zuma’,  as variously alleged (Zuma was not on trial), the evidence and the content of the judgement and Judge Squires’ reasoning therein makes a pretty hefty case for that relationship  to have existed and makes compelling reading,  Zuma, the then Deputy President of South Africa, was dismissed from his post and the NPA investigated him, probably on the basis of the Shaik finding and other evidence arising from the Shaik case.
  • For four years or so, Zuma pulled out every legal trick in the book to stay out of court, at a cost to the taxpayers of more than R9 Million just for Zuma’s legal fees.  This was up from the R5 Million previously reported by Jessie Duarte, the presidency’s chief operations officer.
  • In 2009 the National Prosecuting Authority under Mokotedi Mpshe decided to drop charges against Zuma.  Why was that?  Well, the Democratic Alliance have obtained a Supreme Court of Appeal ruling to view NPA documents relating to that decision.  Good for the DA.  But this will probably still need to go to the Constitutional Court.

 Mpshe:

  • In 2009, acting National Director of Public Prosecutions Mokotedi Mpshe dropped the charges against Jacob Zuma, citing the timing of the bringing of charges against Zuma as being “an abuse of process by the former head of the Directorate of Special Operations (DSO), Leonard McCarthy” making it impossible to pursue the charges.  The word ‘spurious’ comes to mind when thinking of this.  How does the timing of the charges in an otherwise legitimate case make the case less legitimate and just?  As laypeople, we in the DDF just don’t buy it.   
  • In 2012 Justice Minister Jeff Radebe appointed Mpshe as acting judge in the North West Provincial Division after first trying to get him a post in the Western Cape.   What was this?  Payback or just an act of good will?

Selebi:

  • Then there was the Selebi prosecution.  This, it is alleged, was hampered by crime intelligence chief  Lieutenant General Richard Mdluli, who, it is said, ran interference on behalf Selebi, thus delaying the prosecution and his trial.  Now Mdluli is (or was) slated for Selebi’s old position.  Is this some sort of judicial horror story?

Pikoli:

  • The story of Advocate “Vusi” Pikoli could be sub-titled, ‘how not to get on in the National Prosecuting Authority’.  Adv Pikoli, as head of the National Prosecuting Authority was instrumental in the prosecution of Selebi and Jacob Zuma and for the investigation into the murder of Brett Kebble.  Advocate Pikoli was suspended by President Thabo Mbeki and subsequently fired by Mbeki’s successor,  President Kgalema Motlanthe.  Advocate Pikoli was of the opinion that had the Directorate of Special Operations not investigated the murder of Kebble, he, Pikoli, would not have been fired.  Consider this:
    • Selebi was a friend of Agliotti.  It was this relationship that led to Selebi’s downfall.
    • Kebble was linked to the disappearance of billions of rands worth of shares in Randgold Resources.
    • Agliotti was accused of the murder of Kebble but found not guilty for lack of evidence.  It was claimed anyway, that Kebble’s death was an assisted suicide probably linked to his fall from grace.
    • Kebble was said to have had strong business and political connections with President Jacob Zuma and the ANC Youth League.
  • Connect the dots.

General Remission of Sentence:

  • Both Shaik and Selebi have been granted an 18 month (10%) remission of sentence, as part of a general remission granted in honour of Freedom Day (27th April 2012) to thousand of South Africa’s criminals.  Never the less, this amounts to an interference in the rulings of the courts in both those cases, amongst others.  The DDF believes this should not be possible.

Medical Parole:

  • To add insult to injury, both Shaik and Selebi are now released on medical parole. The DDF beleive this is both favours for friends and a failure on the part of the state to fulfill its duties to carry out the sentences handed down by the courts because of a failure or unwillingness of the state, to provide appropriate ‘in-prison’ medical care for inmates. It is a remission of duty.

The DDF’s position is that our politicians should not be able to influence the composition or applications or the operations or the decisions of the Judiciary.  Clearly, our politicians are able to do just that.

Strategies: