Events have a way of conspiring to jolt us into recognising the arrival of perilous moments.
This week provided several such warnings with regard to the judiciary – one of the cornerstones of our constitutional order.
The first event was the leak of an audio recording of ANC deputy secretary-general Jessie Duarte’s remarks during the party top six’s meeting with Jacob Zuma about the former president’s defiance of the Constitutional Court and the Zondo commission.
In the audio, Duarte took aim at commission chair Deputy Chief Justice Raymond Zondo, whom she accused of dealing with Zuma in an “antagonistic” way, of turning the inquiry into a court of law and having an “almost prosecutorial attitude towards people who come to give evidence”.
She wildly blamed the commission for the arrest of her “friend” Vincent Smith, a former MP who has been criminally charged for his allegedly corrupt relationship with Bosasa shortly after having testified at the commission.
While she rightly called out Chief Justice Mogoeng Mogoeng for stuffing his religious zealotry into the faces of South Africans, she dangerously attacked North Gauteng Judge President Dunstan Mlambo.
Alleging bias on the part of Mlambo and favourability on the part of Western Cape Judge President John Hlophe, she made this remarkable and disturbing observation: “Why is it that whenever we go to the North Gauteng High Court, we know that we will lose the case? It’s almost a given that if we go to Dunstan Mlambo, we will lose a case. It’s almost a given that if [Judge President John] Hlophe in the Western Cape listens to a matter, the ANC will come out better.”
Defending herself later in the week, Duarte said she was free to speak her mind in the confines of a party meeting and that the only problem was the “snooper” who leaked the audio.
This was the same Duarte who earlier this year wrote that what is “worrying is that democratic centralism is now the subject of a commission led by a judge, who, with respect, practises his craft based on the narrow parameters of existing laws.”
Another disturbing event was the latest salvo from Zuma who, in a letter telling the Constitutional Court to do its damndest and jail him for contempt, claimed that there was “inexplicable judicial antipathy” towards him.
In a dark warning, he said his “imprisonment would become the soil on which future struggles for a judiciary that sees itself as a servant of the Constitution and the people rather than an instrument for advancing dominant political narratives [would be fought]”.
This statement was similar to one he issued less than a month ago when he warned that “when people rise up against this judicial corruption, our young democracy will unravel and many democratic gains will be lost in the ashes that will be left of what used to be our democratic state”.
The most worrying development of this week, however, came out of the sitting of the Judicial Service Commission (JSC), where judges were being interviewed for 35 positions at various levels of the courts.
These hearings are supposed to be robust but civil affairs where the strengths, abilities, principles and other qualities are gauged to determine the suitability of judicial candidates.
The hearings, however, turned into a political melee, where candidates were treated with hostility and palpable disrespect by members of the interviewing panel.
With EFF leader Julius Malema at his grandstanding best and several other commissioners seemingly not wanting to be outshone by him, the hearings turned into an inquisition rather than an exercise in selecting the best minds to sit in our courts.
Mogoeng, no stranger to grandstanding himself, was appalling in his leadership role. He not only allowed the humiliation of candidates to continue unabated, he poured fuel on the fire.
His revelation about the highly questionable behaviour of Public Enterprises Minister Pravin Gordhan, which he had for some reason kept hidden for five years, was a self-serving exercise that exposed him more than the candidate he was trying to put on the spot.
A line is being crossed. Powerful elements in the governing party, as well as the dominant stream of the second-biggest opposition party, are uniting behind the cause of weakening the judiciary.
They are doing this by using the blunt instrument of threatening and undermining the judiciary, and the more sophisticated and deadlier weapon of manipulating the JSC’s appointment process to weaken and ultimately bend the judiciary.
And with the leader of the judiciary self-absorbed, this erosion is made all the easier.
Let us not wake up one day to find our judiciary is as broken as the other arms of government. The courts have been a bulwark during the 27 years of our democracy. Without a strong judiciary, we will be naked.