South Africa is lauded the world over for its robust constitutional order and a progressive Constitution. All that is good unless your name is Donald Trump, who believes in the figment that a genocide is underway against a group of white citizens in this country.
As the recent G20 Leaders’ Summit showed, it is possible for a project to be successful even when there are fewer attendees, in this case, one dissenter.
The problem occurs when the list of objectors grows. This is where the Constitutional Court is unfortunately steadily creeping towards – significantly growing the list of dissenters.
A few days ago, Chief Justice Mandisa Maya made a bad decision in defending her court’s failure to deliver judgment on Phala Phala, almost a year later, and she sounded like a smooth politician.
Recently, Maya told the nation that she couldn’t suspend Gauteng Deputy Judge President Aubrey Ledwaba after he became embroiled in allegations of judicial bribery because he had to ask for a leave of absence or something to that effect.
But while South Africans were distracted by the goings-on in the parliamentary committee probing allegations of the justice system’s capture, newspaper headlines screamed, “Maya puts judge Phahlane on special leave”.
Of course, Maya is not responsible for media headlines, but the impression created in the public’s mind is that the decision to suspend one judge and not the other was political.
A judiciary monitoring group, Judges Matter, released a statement, calling on the Judicial Service Commission (JSC) to urgently advise President Cyril Ramaphosa to suspend Phahlane. It asked that the commission invoke section 19(1)(b) of the JSC Act by requesting that the chief justice, read Maya, appoint a judicial conduct tribunal, while also advising the president to suspend Phahlane.
The point here is not to adjudicate the appropriateness of the group’s call but to highlight why citizens could end up believing the judiciary has become political.
First, Judges Matter seems to believe that Maya can suspend a judge or cause a judge to be suspended, and second, why Phahlane and not Ledwaba?
The young among us won’t remember Judge Nkola Motata. To cut a long story short, Motata was impeached last year even though he had long retired.
Then rewind a year: a judicial conduct tribunal on which Maya sat found that KwaZulu-Natal judge Anton van Zyl could not be impeached because he had already retired and “left office”, despite the fact that judges are paid a salary for life.
Closer to the Phala Phala ConCourt affair, also in 2023 the JSC requested that the chief justice appoint a Judicial Conduct Tribunal to investigate complaints against judges Tshifhiwa Maumela and Nomonde Mngqibisa-Thusi for their failure to deliver judgments within three months. This is the same offence the ConCourt is now guilty of, but the JSC won’t go after the highest court.
It was Maya herself who said, “this… occurs at a time when public confidence in our courts is already under strain, as recent statistics indicate a decline in the public’s perception of the judiciary…”.
Maya and her court are on the precipice, and if they fall, democracy fails.
