As the system matures, it isolates.

 The seventh administration will go on to history as the culmination of a convergence of the political, constitutional, democratic, economic, and judicial order in the Republic of South Africa. Dubbed the most consequential elections since 1994, it has foregrounded several interests, including the bursting to the centre of ethnic, racial, ideological, and economic interests within a context of no absolute majority party in charge. The triumph of proportional representation and minority representation in the centre of government, a consolidation of the political establishment, is also creating relationships that are beginning to be driven by national interest. It is now a reality that RSA political parties are in a government of national unity, either participating or in the opposition benches. 

Notwithstanding their voter support evidence, the system has isolated those opposed to the past thirty years' threaded establishment’s consensus. The political and economic order has reached the magic intersection point the stability of the constitutional order has always been in search of. The era of maverick politicking evaporated with absolute majoritarianism, which characterised a post-1994 RSA. Unlike the 1994 GNU, which was written in the 1993 Interim Constitution and thus had a framework which expired when the 1996 Constitution was adopted, the emerging GNU is or must be an outcome of how South Africa’s establishment can thread national unity without it being a legal obligation but a national interest-driven obligation.

 

President Ramaphosa, a key figure in the coalescing establishment, has strategically outsmarted former President Zuma, who positioned himself as the best alternative to the solidifying establishment. While this outsmarting is attributed to Ramaphosa's personal abilities, it is, in essence, a victory of the system, the deep state, over the potential threat of instability. In a battle to preserve its stability and continuity, the deep state has successfully thwarted any attempts at subversion. 

 

First, it was how the IEC, in a quest to coddle the principle of ‘no lawbreaker makes the law’, applied for Constitutional Court access to seek clarity on what ineligibility to be in the National Assembly based on having been convicted and sentenced to a period of more than twelve months in the Constitution meant concerning Zuma's possible return to Parliament after the 2024 elections. Purely out of interpretation, the Constitutional Court affirmed his ineligibility to be an MP because he was found guilty of a crime and incarcerated. This access was with the apex court and is not appealable, thus inscribed as jurisprudence. 

 

Second was Zuma’s attempt, legitimate or otherwise, to question the outcome of the elections. Together with a cohort of smaller and nimble parties, they almost put the otherwise credible IEC into disrepute. Fanged by the rule of law and supremacy of the Constitution, the procedural requirements of objecting to the outcome are such that the cadence of managing the state can't be compromised. As the rule dictates, the RSA system operates on a ‘obey and challenge while in compliance’ basis. The elections were declared free and fair, and the National Assembly was constituted and gazetted. The process of forming a government is now complete.

 

Third was the misconstruing of what the Constitution meant when it provided for the NA to consist of at least 350 and more than 400 men and women. Zuma's party construed in an affidavit that its absence at the inaugural NA meeting would reduce an otherwise constituted 400-member NA to less than 350, thus making it unconstitutional. The court responded with a one-pager to the application and a one-liner to the gross misconstruing of the section the access application would have relied upon. Again, the deep state demonstrated its loyalty to the rule of law, and the constitutional order thrived. 

 

Notwithstanding the chronic antagonistic relationship between Zuma and the law, either through alleged claims of acting inconsistent with its requirements or testing its capacity to be applied to him as a person, the law has, on several occasions, managed to survive the brawls. However, in the context of proven voter support, and acutely regional with emerging ethno-ideological rigidities around Zuma's leadership or as a leader, justified or otherwise, his indictments or litigation against the state are, whatever action or ruling against him cannot and should not be taken lightly. This does not suggest that lady justice should have spatial blindness, depending on who is in the dock or is litigating. It is the combustible character of politics in the region where Zuma has the most support that procures normatively sealed judicial decisions, almost hermetically as the principles the deep state has thus far applied. 

 

On the other hand, as a society, we should also manage the growing risk of the common depictions of law as stable, almost sacrosanct, which immunises from the public eye the work that is done more and more in private law firms or cognitive legal elite secluded interactions, and less and less in parliaments or even courtrooms. Judges are creatures of societies from which they come: law firms that argue court cases, advocate bars that shape legal orientations, secret societies that shape the philologies of law, and political parties that translate interests in law. 

 

The inconvenient truth is that the ruling class "rules, and it rules by law". It owes its capacity to create "the order it wants" to the modules of a legal code backed by state power; its resilience in times of crisis can be attributed to a combination of legal power shielding devices and the state’s willingness to extend a helping hand. It is a 'food chain' the cognitive legal elite in any society masters. 

 

In South Africa, our tormented past, which includes jurisprudence most of the judges in our high courts were schooled in, makes it difficult to declare as a totally innocent bunch of jurists. A context which explains why post-apartheid jurists were 'allowed' to rely on common law and values. Notwithstanding the diversity of the commonness and diverse tenets undergirding their values and socialisation thereof. This was flagged as a risk, but without an alternative, the integrity premium was placed on judges as persons. We are still threading a judicial system because what we had is etched in what tormented us as a society. 

 

Despite these risks, there is a higher obligation to members of society to manage the danger of encouraging extortion by giving in to threats of violence, either political by civil strife rhetoric or economic by rhetoric of investor backlash, if the people's will is what they don't want. The post-1994 democratic order has been through the spectre of mob violence as a threat. Already, the behaviour of construction mafias, vigilante justice in certain communities, anarchy and carnage in the logistics industry (trucking in particular), total disregard of the law by 'zamazamas' through illegal mining, and many other extortions are with us. If certain political parties can use these to subvert the normative character of the democratic order by threatening unrest, they will do so again and again.

 

As we celebrate, and we should as a nation, the triumph of the rule of law and our Constitution, including those that rely on it as the universe or context of our politics, the notion that lawyers make the law and the courts only recognise it must be revisited to accommodate our diversity. We should narrow the scope for lawmaking by lawyers and judges and allow statutes to guide our legal analysis. As for our order, in all its dimensions, it is on the proper wicket; it trumps anarchy and isolates irrational politics. CUT!!