Guest Column

OPINION: Why the EFF's threat to the judiciary is a threat to our democracy

2019-08-19 09:28
EFF leader Julius Malema at the party's Women's Day event in the Northern Cape. (Supplied)

EFF leader Julius Malema at the party's Women's Day event in the Northern Cape. (Supplied)

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We as a nation should not allow threats to our democracy to continue without rage and disdain. We should not allow populists to shape our understanding of that which protects us most, writes Bouwer van Niekerk.

Despite sporadic declarations to the contrary, Julius Malema and the EFF have never had either a firm understanding of, or much respect for, the notion of a democracy, let alone a constitutional democracy. This has been proven time and again by their incitement of violence, calls for appropriation of land by way of self-help and without legal foundation and openly racist derisions of white and Indian people.

Usually, the (primarily) outbursts by the EFF's "commander-in-chief" have increased either close to elections, or when the risk appeared real that the public at large was about to realise that this specific political party's ideologies were nothing more than recycled socialist dogmas that all failed horribly. Luckily, so far not much has come from these intermittent rants, and our legal system has throughout been charged to keep the press-, non-black-, Pravin Gordhan-hating Julius Malema and his sycophants in check.

However, Malema's recent attack on the judiciary is cause for real concern. It has been reported that Malema, speaking at a Women's Day event in the Northern Cape, accused South Africa's judges of being "traumatised old people", and threatened to "go into the bush" if the judiciary continues to be biased.

Such an attack should not be taken lightly. It is one thing if such a threat came from an obscure outfit such a BLF. It is quite different when it comes from the leader of a political party that garnered nearly two million votes in the recent elections.

But it is the content of the threat that is most disturbing. It is a very thinly veiled threat from a political party (and a very litigious one at that) that suggests that, should judges not rule in its favour, its supporters will have no other option but to "go into the bush"; a clear reference to employing some kind of guerilla tactics that inevitably will involve violence of some form.

In considering this threat, it is important to understand that we live in a constitutional democracy. But what does this mean?

Our nation's ability to successfully pass legislation is dependent on the majority of the votes cast in Parliament, which consists of the National Assembly and the National Council of Provinces. The individuals tasked with passing new laws are known as the legislature. In practice, this power lies with the party that holds the majority of the seats in Parliament. These honorable members are elected as such by the political party that they represent subsequent to the result of a democratic election; they are thus democratically elected (or at the very least deployed) on the basis of one person, one vote. 

In turn, the executive authority is tasked with the day-to-day running of our country. The executive consists of the president of the Republic of South Africa, the deputy president and Cabinet, who consists of the ministers and deputy ministers.

However, the legislature and executive's authority are not absolute. Their decisions and actions must pass constitutional muster. If they do not, they are open to constitutional review by our courts. In this context, our courts are known as the judiciary, with the Constitutional Court being the highest court in the land. 

These three authorities – the legislature, the executive and the judiciary – make up the separate powers of the state. The rationale behind separating these powers is axiomatic: The executive is tasked with running the country, but it must run it in accordance with the laws of the land and, in doing so, must uphold the Constitution. It must also answer to Parliament. In turn, every piece of legislation that Parliament passes must be consistent with the Constitution.

Should Parliament fail to bring the executive to task in not fulfilling its obligations, or fail to pass legislation that stands up to constitutional scrutiny, it is up to the courts (and, eventually, the Constitutional Court) to intervene and correct these wrongs.

Taking cognisance hereof, for a powerful politician to threaten the judiciary with violence is as good as to threaten the continuance of our separation of powers, and by extension one of the pillars of our constitutional democracy. In contemplating just how serious such a threat is, it is important to consider just how important a role the judiciary has played in the tumultuous last ten years that have been stained with political self-enrichment (this specific politician included), state capture and the pilfering and systematic ruin of state-owned enterprises. How much further down the line would we have been had it not been for an independent judiciary?

Consider the following. Without the judiciary, we would have had a president who would not have given a second thought to repaying some of the millions of rands spent on improving his personal homestead. Without rational judges, the Gupta family could have interdicted banks from walking away from them and their dubious banking practices.

Without access to courts, we would have had a toothless Public Protector in Advocate Thuli Madonsela. Without the intervention of the judicial system, we would have a Public Protector in Advocate Busisiwe Mkwebane that could singlehandedly order the National Assembly to amend the Constitution to change the mandate of the Reserve Bank without further ado. And sans the judiciary, we would have a red beret-wearing politician who could continue to indiscriminately defame ministers (both former and current), excel in hate speech and threaten those who work tirelessly to ensure our access to a free press.

We as a nation should not allow such threats to continue without rage and disdain. We should not allow populists to shape our understanding of that which protects us most. Rather, we as a people should insist that those who represent us in the hallways of power should spend their time on strengthening the foundations of our specific brand of democracy. After the last ten years, we deserve it, and we deserve better. If nothing else, this is what the judiciary has taught us every time when executive autocracy has tried to rein free.

- Van Niekerk is a director at Smit Sewgoolam.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24. 

Read more on:    eff  |  julius malema  |  judiciary  |  constitutional court
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