Rob Rose Editor: Financial Mail
Picture: 123RF/STOCK STUDIO44
Picture: 123RF/STOCK STUDIO44

At each period of intense factional conflict in the governing ANC in recent years, SA’s judiciary has been the go-to whipping boy for besieged political leaders.

It was this way in the lead-up to Jacob Zuma’s presidency, when Gwede Mantashe, then ANC secretary-general, accused the Constitutional Court judges of being a “counter-revolutionary force”. And in 2011, SACP leader Blade Nzimande spoke of “judiciary dictatorship” after the courts found against Zuma.

It should be no surprise that now, as the wheel of accountability grind slowly and ANC secretary-general Ace Magashule and Zuma brace for judicial reckonings of their own, the sparring has resumed.

On Friday, ANC Women’s League (ANCWL) president Bathabile Dlamini gave an extraordinary interview to Newzroom Afrika’s Sbu Ngalwa in which she first protested that she didn’t want to speak ill of the judiciary — before doing exactly that.

“The best judiciary is the judiciary that listens to the people,” she said.

Really? Surely the judiciary’s job is to interpret and implement the law, Ngalwa countered. Dlamini, speaking with all the clarity of cauliflower soup, didn’t answer.

Asked directly how the Women’s League views Zuma’s decision to spurn a Constitutional Court order to appear at the Zondo commission, Dlamini spoke vaguely of Zuma’s “rights” and did her best to make it seem that it was the judiciary — not Zuma — that was in the dock.

“The judiciary must look into itself, and try to ensure that they are balanced, and they must restore the confidence we had in them,” she said later.

The irony of this is that the judiciary is the one arm of the state that has retained the public’s confidence. The World Economic Forum rankings consistently places SA among the top 40 countries in the world for judicial independence —  which is more than you can say for either the executive or the legislature.

Still, it was always going to be an awkward conversation for Dlamini, given that she was interviewed in Bloemfontein, where she’d gone to support Magashule during his court appearance for his role in an allegedly corrupt R255m asbestos tender.

Asked if she wasn’t outraged by the allegations of theft of the asbestos money, Dlamini said only: “We all know how the state apparatus has been used against some of us ... that’s why we have to support those that are going through what we’ve been through.”

Two days later, of course, it emerged why Dlamini might be feeling a touch equivocal about the courts: the Sunday Times reported that she’s defying a Constitutional Court order to pay the legal costs awarded against her in 2018. Her reason: the government has blocked her ministerial pension, which leaves her out of pocket.

But Dlamini’s disturbing sentiments about the judiciary accord with that of Zuma, who this week accused judges outright of corruption, with zero evidence.

Zuma said “some judges” had “assisted the incumbent President [Cyril Ramaphosa] to hide from society what on the face of it seem to be bribes obtained in order to win an internal ANC election”.

He went on: “We sit with some judges who sealed those records simply because such records may reveal that some of them, while presiding in our courts, have had their hands filled with the proverbial 30 pieces of silver.”

What Zuma is referring to is Ramaphosa’s legal bid to set aside public protector Busisiwe Mkhwebane’s report into the donations for his #CR17 ANC campaign. Mkhwebane has subpoenaed all the campaign’s bank statements, but Judge Aubrey Ledwaba had, upon request of the lawyers, sealed the record dealing with the bank statements.

However, as Franny Rabkin reported in the Sunday Times yesterday: “There has not been, in any of the court papers, any allegation of the corruption of judges or an intention to seal the record in order to protect them.”

Aside from the fact that there’s zero evidence for the claim, it’s also a remarkable accusation coming from Zuma — someone who, the evidence at the Zondo commission suggests, isn’t averse to pocketing the occasional 30 pieces of silver himself.

The Malema conspiracy

Perhaps he feels emboldened to peddle this conspiracy theory since he’s now being supported by someone else who would be dead keen for judges to “listen to the people”: EFF leader Julius Malema.

In parliament last week, Malema said there are “believable allegations that some prominent members of the judiciary are on the payroll of the white capitalist establishment”.

He said the claims that some judges received bribes through the State Security Agency (SSA), as well as from the CR17 donations, can’t be ignored.

Malema is alluding to the claims made at the Zondo commission by Sydney Mufamadi and others that state security money was set aside to bribe judges, supposedly to benefit Zuma. But again, there is scant evidence to back this up.

This weekend, Rabkin analysed 41 cases involving Zuma between 2014 and 2018, revealing that the former president prevailed in only eight of them.

“It may yet emerge that there was a judge who received money from the SSA. But looking from an outcomes perspective, the judgments of the period do not suggest that a project to sway the courts in favour of Zuma had any success,” she concluded.

Given that tenuous factual foundation, you’d imagine any parliamentarian would be pretty circumspect about raising these issues. Not Malema.

As the General Council of the Bar said, in a statement reported by News24’s Karyn Maughan, the statements by Malema and Zuma “lack any semblance of veracity ... the reasonable inference is that these statements are simply baseless rhetoric, issued for political or other personal ends”.

Not that it’s hard to see the game that both are playing.

Pierre de Vos, constitutional law expert at the University of Cape Town, tells the Business Day that it’s an obvious attempt to “delegitimatise any decision by the courts in future that will adversely affect them”.

And it would have the added benefit for both Malema and Zuma that any prosecution they might face could be written off as “politically motivated”. It’s a game both of them have played before, and won. So it’s no surprise they’re rehashing the game plan.

But many are able to see this tactic for what it is. As acting minister in the presidency Khumbudzo Ntshavheni said to Malema, when you stop just short of “calling for an uprising against the judiciary, we wonder what it is that you are afraid of”.

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