The Justice Maya furore, what should be the issues. We thinking!!

         In theory, a country like South Africa should possess a range of state power management tools for its success and global competitiveness; a sophisticated leadership cohort and a Cabinet team of long term thinkers and scenario planners, an intelligence service that insulates the country from unscrupulous fishers of state influence, a political party (ANC) infrastructure and system which the national interest would have shaped to rally its members behind the vision of South Africa as articulated by the preamble of the Constitution, and strong state machinery with which its bureaucratic leadership could use in defining into posterity South Africa's legacy amongst peers. The country should have the might of the state as an institution to pull through its vision. But to anyone paying attention to how South Africa as an institution of societal leadership in the last 15 years has fared, it is obvious that its cohort of leaders, notably in government, had been relying on one power management tool above the rest, the adjudicative power of the State. The use of this type of power draws in, and inadvertently so, the potential abuse of the criminal justice system to pursue political objectives rather than it 'without fear or favor' mantra promises, as well as the development objects that society holds on as the liberation promise.

The adjudicative power of the state, or as the Constitution puts it, the judicial authority of the Republic, vests in the courts. Courts are a domain of a cognitive legal elite composed of judicial officers regulated by a maze of procedural codes and regulations whose impact ultimately reconciles if not arbitrates the generally conflicting interests of society. In its composition the judiciary is made up of humans that come out of a society they are expected to adjudicate its conflicts of interests in a manner that makes the courts 'independent' from whence they are arranged as part of the polity. This, it is expected, they should be able to do, through a series of precedences, case law, legal practice, and the authority of both law, intellect, and values officials therein would have amassed through training and experience. 

Used as a political power management tool, the adjudicative power of the state can be a measure used by those with the executive authority, and trade and commerce authority, of the state to disrupt the political dynamics in a society whose control can define the outcome of who ultimately gets to win the prize of politics, government, and its attendant allocative power. The struggle for 'liberation' in South Africa was conducted in a way that made political power, to the exclusion of understanding other aspects of state power, the main prize of the struggle system. With government as the most active agent of the state, and mainly operating in the executive authority and legislative domain of a state, having been the trophy of the struggle contest, 'the rule of law' and 'supremacy of the Constitution' became the new terrain of contesting how the 'majority rule defined' executive and legislative authority or power of the State would be subjected to the judicial authority of the courts, and thus the legacies of law and the power of those with requisite legal cognition to regulate the cadence of liberation. 

The South African Constitution, whose supreme law status defines the entire edifice of the legal system is the platform upon which all matters state power or otherwise are contested. Anyone out of variance, seen to be out of variance, defined as being out of variance, including 'perceived' to be out of variance with what it provides, will be subjected to the judicial authority of the independent courts. This means the ultimate in all power relations of the post-apartheid state is dependent or vulnerable to the interpretative prowess of those the judicial authority of the Republic vests in. Economic transformation, property ownership patterns in society, restitution backlogs, and the transacting power of legal persons and entities, all of whom define what undergirds human livelihoods in any society, are all subject to the adjudicative power of the state.

Except laws made in Parliament, the next and arguably more powerful than the elected representatives in Parliament institution that can change the course of public policy is a court judgment on a contested matter. The authority upon which such a judgment is made becomes the legacy from which the resolution of disputes in society will be etched and legally imagined. Worse, in South Africa, and as a result of the imperative to 'democratize' or rather review the principles undergirding past practice to accommodate new arrangements with which society has agreed to govern itself, those with whom the judicial authority of the Republic vests, have, and in addition to the authority of law, the authority derived from their intellect and values, to also adjudicate with.

The complex of judicial officers, the authority of precedent emerging out of judgments they make, the cognitive legal orientation of judicial officers, and the disposition of those in leadership to the substantive issues influencing what they would be adjudicating is a new area of interest for long term thinkers and hegemony protection activists. The generosity of theoretical influence on future jurists will at all material times be inextricably linked to the efficacy of influence upon its senior justices. Such efficacy starts with the alumni networks and thus undergirding doctrines the graduating university dished out to cohorts of graduates, the editorial power the university subjected itself to and thus directed its students there, stable of pupilage these justices went through as they prepared themselves for being admitted as advocates, and the path to senior council they subjected themselves, including the history of briefs they got to legitimate them as part of the establishment. 

The discourse or others around the recommendation of Justice Maya to be the next Chief Justice should not be allowed to just being about her gender, blackness, and the JSC processes of interviews, it is very much about the value of the judicial authority which vests in the office she would be occupying. The mainstream depiction of the 'liberatory' rule of law we have embraced as South Africa is distorted and selective, in fact, it seems to be hellbent on ignoring the underlying and established power relations and the qualitative social relations that the very 'law' has in the past institutionalized. These truths about our legal system have indeed 'laid the foundations for a thoroughly non-Afrocentric, and yet colonial, understanding of jurisprudence made to be seen as universal to the extent that its jurists agree, and Justice Maya might not be in total agreement, it would seem. In her new position she would be the ultimate, of course in a collective she might ultimately influence who those are, the node of legal doctrine and philosophy editorial power with influence that might fracture all other inconsistencies of the application of the 'rule of law' and 'supremacy of the Constitution' practices. Viewing this discourse from a lens we are drawn into, the lens of Julius Malemaisms rejection as well as gender and blackness agenda advancement, we might find ourselves having let the bus with the real discourse have left the station without important ideations on board.

If it is indeed true that law carries the structures and systems of society through time, it inserts the common interests of society into the behavior of society members, and it establishes possible futures for society, in accordance with society's values, purposes, and imaginations, then the centrality of those that work with law as an authority of adjudication cannot be underestimated and/or lightly treated. Because of our society's adherence to the doctrine of judicial precedence, and as a result of the need for legal certainty, protection of vested if not acquired rights, and the satisfaction of 'legitimate' or legitimized expectations, the office of the Chief Justice as the apex institution to interpret law cannot escape all attempts to at the least influence it and at best capture it.

Our discourse as a society on the appointment of a Chief Justice is in fact a manifestation of how underappreciated a factor in the democratization process of South Africa has the ideology of law has been. In all matters hegemonic and ideological, they will at all material times embody a doctrine of some coherence. The question is, once appointed, to what end will our judicial system or tradition of law including its contested legacy cohere. CUT!!!

🤷🏿‍♂️A ndzo ti hleketela, then ni tsala.

NB: This piece is referenced, see references in the comments section of the blog