EDITORIAL: Doing justice to the constitution
Whatever the extent of Zuma’s machinations in his apparent state capture project, they have failed when it comes to the judiciary
Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully." That statement by Dr Samuel Johnson, the 18th-century man of letters, might usefully be adapted to apply to the judiciary in society. If a man knows his income and position are safe from interference from any other person or institution, he is likely to develop a remarkable independence of mind.
In the US, supreme court justices are appointed for life. This can have drawbacks if a judge becomes mentally enfeebled, but society has decided that this is a small risk when balanced against the value of encouraging judges to rule independently.
Our judicial system also aims to guarantee this protection. Judges are appointed to serve until the age of 70, after which they may be requested to continue on the bench. Once appointed, judges — unlike most other state employees — cannot be removed administratively. Constitutional court judges can serve for 15 years.
A few other officers of the state have similar protection, though they are appointed for shorter fixed terms. The Reserve Bank governor serves for five years and can be reappointed. The auditor-general and public protector each serve a single seven-year term and may not be reappointed.
The framers of our constitution were wise in their understanding that such offices are so important that their incumbents must be protected from political interference and the vagaries of policy and ideology, while knowing that their income is safe. When judges retire, their pension is the equivalent of their final salary level.
Whatever the extent of President Jacob Zuma’s machinations in his apparent state capture project, they have failed when it comes to the judiciary. Even though the Judicial Service Commission, which appoints judges, is constituted so that the government of the day has the final say, it is clear that this is no guarantee of enduring loyalty.
The chief justice, Mogoeng Mogoeng, has confounded expectations (presumably shared by Zuma when he appointed him) that he would be pliant and beholden to the executive. Mogoeng’s independence has been vigorous and stimulating. He must be a disappointment for the president.
So the apparatchiks of the state capture project have had to resort to plan B: intimidation of judges, trolling, smearing and threatening.
This was seen last week when Judge Bashir Vally ruled that Zuma must provide documents showing his reasons for firing Pravin Gordhan as finance minister.
The judge was promptly targeted, with the ANC Youth League demanding that he be investigated. The KwaZulu Natal ANC organised a march protesting against "judicial overreach", though it is clear to all that the constitutional court is acutely aware of maintaining the boundaries between the courts, on the one hand, and the legislature and executive on the other.
More broadly, there are snide comments about judges being unelected and therefore unaccountable, and of being unrepresentative of society.
The point of it all happening now is to intimidate judges, in particular because the constitutional court has been hearing argument on whether there can and should be a secret vote when parliament decides on a motion of no confidence in Zuma.
Thanks to the constitution they interpret, they and other judges are beyond the tentacles of patronage, and have the freedom to concentrate their minds on the merits of each case.
It is a position we must zealously protect from the venal clutches of the ANC Youth League.