Mpumelelo Mkhabela

SA's dial-a-judge democracy

2019-01-24 08:18
Chairperson of the Commission of Inquiry into Allegations of State Capture, Deputy Chief Justice Raymond Zondo. (Alon Skuy/Gallo)

Chairperson of the Commission of Inquiry into Allegations of State Capture, Deputy Chief Justice Raymond Zondo. (Alon Skuy/Gallo)

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South African judges have never been so busy. They have become go-to men and women. They have become the conscience of the nation on the most basic things, writes Mpumelelo Mkhabela.

South Africa has become a dial-a-judge democracy.

Want to confirm that the tax-collector-in-chief at the South African Revenue Service (Sars) is up to no good and what should be done about it? Call a judge.

Want to find out how the state has been captured and looted by thugs in nice suits calling themselves business people and public representatives? Dial a judge.

Want to find out if university education should be provided free of charge? Call a judge, even if you don't take seriously his conclusions if they don't suit your agenda.

READ: How Bosasa's bribery mutilated South Africa's Constitution

Want to investigate if a state-run fund manager has enriched politically connected friends and cronies with pension money that belongs to civil servants? Simply call a judge.

Want to confirm the obvious about the incorrigibly inept prosecutors at the National Prosecuting Authority? Call a judge.

Want to circumvent the possibility that a corrupt president can manipulate an investigation that points to his misconduct? Call a top judge.

Want to know whether a fugitive from justice who visits our country can be arrested? Well, go to the court and ask a judge.

Want to know who lied about contracts between a minister responsible for social grants and the bureaucrats in her department? Don't stress, just dial a judge.

Expecting those implicated in theft of public money at an inquiry presided by a judge to resign from Cabinet and Parliament? No, no! They haven't been found guilty, remember. It's not whether the revelations are true or not that matters. They are waiting for a judge – if it ever ends at that point – presiding in a criminal court to tell them they are indeed thieves who stole from the poor.

You think you can get some governing party officials and opposition leaders to return the loot accrued to them from the VBS heist? You must be joking. They are waiting for a judge in a criminal trial – if the matter ever gets there – to tell them that which they know very well. 

South African judges have never been so busy. They have become go-to men and women. Their duties go beyond adjudication of disputes and interpretation of the law. They have become the conscience of the nation on the most basic things. 

In a way, we have what one can call dial-a-judge democracy. It's an indication of a serious ailment in our constitutional democratic system.

Don't get me wrong: I am not for a moment suggesting judges have no role in our public morality. In fact, when such morality cannot be set by failing elected public representatives in Parliament and the executive, the judiciary becomes the last line of defence. 

Parliament and the executive have abdicated. Under pressure from politicians, some bureaucrats have retrenched ethical conduct at critical moments in the life of our democracy. We seem incapable of producing enough Thuli Madonsela type of public officials.

The judiciary is the only branch of the state capable of taking decisions with the necessary moral weight in the eyes of the public. Trust in the judiciary is at its peak. Yet, it doesn't campaign for votes.

No known truth is the truth until a finding is made by a judge. In other words, "discovering" the truth is nothing more than merely officially confirming what is already known as the truth. Judges are called upon to unearth the "known knowns". 

We want a judge to confirm that for a Christmas meal we had lamb chops which we washed down with expensive whiskey delivered to us. We know the purchasing order was written "political influence". But nothing will happen before a judge has said whether this was wrong or right from the technical perspective of the law. Morality is now a matter of technicalities.

While we bask in the wisdom of judges, except the one who presided over the arms deal investigation and the other one who admitted to fumbling on a Sars rogue unit matter, we should not lose sight of the risks. Giving moral, social and political responsibility to judges could cost the judiciary its moral capital. 

We may be far from what happened in Ghana where top judges were bribed brazenly. But it chills the spine to think it could happen to us. 

The way to avoid this gloomy scenario is to ensure all public institutions and those who preside over them perform their tasks as prescribed by the Constitution. 

We must recognise the truth for what it is and act on it without placing reliance on judges to make a ruling about lamb chops. This dial-a-judge practice seems good in the absence of an immediate alternative. But it will destroy our democracy in the long run.

- Mkhabela is a regular columnist for News24.

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:    npa  |  sars  |  judges  |  judiciary  |  commission of inquiry
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