To believe that the 1994 democratic breakthrough dealt with all African Claims (imvo za bantu) but enfranchisement would be a colossal understatement. Economic freedom has been illusory despite the equal opportunities declarations enshrined in the Constitution. As a critical national grievance, restitution of capital, land, in particular, has been met with and by the technicalities related to the currency of property rights versus the history of accumulation. Acutely and central to how post-apartheid power relations migrated from an oppressed context to a liberatory one is the dependence on adjudication precedence etched in the colonial era construed law, which predominates South Africa's cognitive legal elites.
Justice is an elusive dividends liberation promised by the Constitution. Notwithstanding that justice is what the liberation struggle was, in essence, about, the negotiated settlement guaranteed justice to victims and perpetrators of apartheid alike. This feature made the faces of the settlement Nobel Peace Price Laurette material and befitting global acclaim. As a result, the design of the political accord or settlement to emerge with an institutional democracy created spaces of justice for all South Africans. The immediacy of accessing rights as a citizen is not at variance with the logic of restitution applied to dispossessed South Africans based on their equality before the law principle. This is partly because, when negotiating, the liberation movement saw the entrenchment of justice in the adjudication life of South Africa as a liberation promise. Its adversaries agreed because they saw it as a conservative institution of constraint.
In the end, and for our democratic contentment as South Africans, the legal way of doing things prevailed. In its rational sense, the rule of law became the leading principle underlying the process of coming to terms with our apartheid past, including how we pardon those our common sense would refute their deserving of it. While the past will always be processed from its popular understanding by society, our constitutionalism imbues the entirety of the state, and acutely the judiciary, to have an institutionalist understanding.
In the parlance of the 1993 interim Constitution, our current systems of dispensing justice in all aspects of South African life should, as convention, be about providing "a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunity for all South Africans". The people's power character of the post-apartheid imagination of the state, especially its Constitutional form, posits justice as the most fragile in the reconciliation continuum that must carry societal patience at the visible benefits of apartheid-era accumulated (by conquest, dispossession, or otherwise) land as the basis of wealth.
Justice, the apex indicator of the extent to which society can be protected from the temptations of power vices and acutely prerogative political power, is a function of what normatively undergirds the judicial system. At inception, the context of justice in South Africa was lauded as a beacon of hope, and some constitutional court judgements remain authoritative citations in global jurisprudence. Legal scholars and practitioners from South Africa became instructive in concepts such as transformative constitutionalism and liberatory jurisprudence for post-conflict communities in nation-building reconciliation-based democracies.
Inside this euphoric vortex of celebrating justice as a 'Mandela' jurisprudence dividend, opportunistic and cynical cohorts of legal minds and practitioners pursued an agenda which treated these transformative developments as outgrowths of the normal authority-based and erstwhile rule-by-law jurisprudential cycle. Given the oppressibility of the majority of post-apartheid justice beneficiaries, the oppressor mentality of the dominant amongst the cognitive legal elite fuelled a tendency to see challenges to the power relations status quo as a temporary and gradually reversible possibility.
Construed in a paradigm that seeks to disable a culture of parliamentary sovereignty, which entails that parliament, and by extension political prerogatives, reign supreme, wielding legislative authority such that no court could review its actions, justice in South Africa relies on a doctrinally new to judicial officers context. The parliamentary sovereignty legal culture remains the background of permanence with which the politics of the rule of law are filtered, whence the liberation as construed by the governing liberation struggle party has its power referenced from what the executive can do and not the constitutionality of how they use public power.
It is not surprising to see outbursts at judicial authority decisions that, in the layman's legal eye and ear, seem to be at variance with the political expectations of some in the executive. These rants have to date, become nurturant to a condition of defenders of the constitution seen to be leading chants that undermine or appreciate challenges interior to jurisprudence in transition and trying to find points of stability. As the judiciary matures into the demands of constitutionalism, its decisions on the constitutionality of public power actions, in the main pathfinding with few to no precedence in the immediate memory of society, its findings or judgements can in the purview of executive and legislative power knowledgeable society, be easily construed as an overreach by the judiciary.
The insecurity of politicians in contexts that progressively shrink their appetite for arbitrary power has, for a while, accounted for the low levels of accountability and constitutional justification of actions by organs of state. Instead of demonstrating with the demands of Constitutional correctness, there seems to be a trajectory that builds a trend to the effect of wanting to question the supremacy of the Constitution and the rule of law. Courts are, in this context, not only spaces of justice but custodians of norms with which the subsistence of the fundamental principles of the constitution could be safeguarded. The new context establishes an order in which the legislative and executive authority of and in the republic, wherever it vests, will always be subject to the Constitution and the rule of law.
A CASE OF JUDICIAL OVERREACH?
In his submission on transformative constitutionalism, former Chief Justice Pius Langa submits that judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values. He also cautions that their personal, intellectual, or moral preconceptions should be acknowledged, as their do influence their decision making. This posit into the legal knowledge space by Langa, is an admission in kind that, and unless the sensitivity index of judges to their prejudices is high enough, their capability to enter into the executive authority domain is by default increasable by the disregard of this reality.
To illustrate this potential of bias and overreach, in the matter of Zuma Parole; In addition, the high court made two declaratory orders which are indicative of a context that can arguably be classified as deep seated bias. In the first one, at para 5 of its order, the high court declared that the time Mr Zuma was out on medical parole should not be considered for the fulfilment of his sentence of 15 months imposed by the Constitutional Court. This issue implicates the doctrine of separation of powers. Matters concerning how an inmate serves his or her sentence; when and how he or she qualifies for and is to be released on parole, quintessentially reside in the province of the executive – the Department of Correctional Services in this instance. Interestingly, even Counsel for the Helen Suzman Foundation, at whose instance the declaratory order was granted, fairly conceded that the order was inappropriate. It should be set aside.
The effect of the setting aside of this declarator is that once the order in this appeal is handed down, Mr Zuma’s position, as it was prior to his release on medical parole, will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Escourt Correctional Centre to do so. the question that begs to be answered remains that of what then becomes the role of DCS in the management of inmate sentences, including facilitating matters of whatever type of parole. At worst, the correctness or otherwise of parole lies in the domain of the Department of Corrections, as it is the one that released Jacob Zuma on parole, after it has satisfied itself that he meets the requirements, in law, of the decision they took.
In the matter of releasing Waluz, the legal intricacies of the rights of prisoners to parole in relation to the ultimate of sentence management are what society needs to interact with to understand the prism through which the matter was adjudicated, notwithstanding its emotive character, given the immediate national memory of the crime committed.
WHAT THEN?
The regulating and governing of people are political, and law as a social construct can never be assumed to be neutral to politics. In fact, it is out of the political decisions taken that laws to reconcile the conflicting interests in society are promulgated, only to be adjudicated by the judiciary, independent or otherwise. The independence of the judiciary is, therefore, an institutional truism but not necessarily a humans-in-the-judiciary truism. The individual's personality in the robe of being a judge carries the expectation of independence that the Constitution envisages, yet they are value-laden creatures from whence they originate.
The cognitive legal elite of South Africa has operated in crafted spaces of legality with which specific aspects of apartheid in the legal system could be legitimate in their imagined non-racial character. Save for actual criminal matters and the criminalisation of demanding political freedoms and questioning the templates of economic and socio-economic dominance, the law in South Africa became a conduit to construct apartheid in as much as it was a platform to dismantle it. It would, however, be the permissive and nurturant context within which active agents in the judiciary operate, including the cognitive maps defining them and the confidence in each other, that will carry society along in the reconciliation of institutionalist justice and its informal justice expectations.
Because at any point in the development of a system, jurisprudence includes, humans will, and as a default position, start with pre-existing customs, traditions and their sub-elements of norms and standards that influence their new departures. In the systematic bureaucratisation of the post-apartheid state to embrace the 1996 Constitutional settlement and its vision of a democratic order, a form of authoritarianism that would co-exist with the liberation promise had to be devised. This entry into the new state was facilitated by the law whose rule would prevail in a rule of law context. With mercantilist economic plunder manifesting as illicit money transfers and economic dominance of the majority by a minority, cognitive elites could easily be enrolled into a pre-1994 racial oligarchy that was undergoing a process of ecdysis with a non-racial outer cover as its celebrated outcome.
Like many oligarchies, South Africa's oligarchs became increasingly curated within the litigation communities that are being extended by a rule-by-law default cognitive map still predominating its cognitive legal elites. For the longest time, the guilty context around the liberation movement's imagination of freedom has had in-the-system rewards that might still be subtly in place and propelling 'eerlike' or 'honest' jurists to higher positions. The race to ascend the top echelons of the judiciary seem to include as an accolade your ability to bracket your lived experience of apartheid and adjudicate outside your instructing life philosophy. Worse, the elitist character of our law has made it a natural adversary of the poor who can't afford its access; it has now become a 'faki mali uzo phuma' justice system rather than 'ilungelo nge lakho' one. It is costly to be innocent and maybe cheap to be guilty in our justice system.
A legal tradition, according to John Merryman, connotes a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, the proper organisation of the operation of the legal system, and the way law is and should be made and applied'. This, therefore, means under conditions of uncertainty, and this rendition submits most of South Africa's jurists, and acutely, those in the apex courts, the human-in-the-robe of the office of the judge, cannot escape interpretation of what is before him/her in a way that does not reflect their learning. This can be worse if a requirement is to reflect on a matter as a collective because their cultural backgrounds and experiences share reasonably convergent mental models, cognitive maps, ideologies, and institutions.
A cursory look at the composition of the constitutional court can justify a conclusion that despite their different learning experiences, some of which should be from other theories, opinions, and ideas with which they could interpret what is before them, their twenty-eight-year experience of an unfolding jurisprudence will instruct most of their judgements. Encouraging, though, is that they are all outcomes of an era where a tradition of speaking law to authority developed and reigned.
The tradition of speaking law to power built during the anti-apartheid struggle has yet to be recalibrated to speak justice to the law. CUT!!
*This rendition is referenced. A list of references is available at info@justthinc.co.za
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