South Africa: Chaskalson’s Rule of Law under Threat

By Frank Richardson

Published on May 20, 2014

“A giant among the architects of South African democracy”

Polite, humble and unassuming, in June, 2011, he had been in my workshop at the World Justice Forum III, in Barcelona, and came to sit next to me in the conference hall; but I had no idea just who he was until he was handed the World Justice Project Rule of Law Award.

As a human rights lawyer in the early 1960s, Arthur Chaskalson had been in the defence team that saved Nelson Mandela and other anti-apartheid activists from the death penalty at the infamous Rivonia trial. Not an Afrikaner, but a Jewish member of South Africa’s whites that hailed originally from Germany, Chaskalson identified with the powerless, such that in 1978, he founded the Legal Resources Centre, the first public interest law firm to fight apartheid in South Africa.

In 1994, he went on to become the first President of South Africa’s new Constitutional Court and held the post of Chief Justice of South Africa from 2001 to 2005. On his retirement as Chief Justice, President Thabo Mbeki described him as a “giant among the architects of our democracy.”

The Constitution trumps Parliament

His appointment to the Constitutional Court affirmed the end of apartheid and the emergence of a majority-ruled South Africa where the Constitution (which Chaskalson had helped to write) and a bill of rights secured minority rights for whites and blacks alike. “For the first time,” he said at the time of the opening of his court, “the Constitution trumps Parliament.” The Constitution, he went on, does not simply dismantle the old apartheid laws; “It does much more than that. It demands that our society be transformed from the closed, repressive, racial oligarchy of the past, to an open society based on the founding values of democracy, human dignity, equality and freedom – values which must now inform all aspects of our legal order.” The court proceeded to abolish the death penalty, guarantee a right to shelter and permit same-sex marriage. Recipient of the prestigious Gruber Prize for Justice in 2004, Chaskalson was president of the International Commission of Jurists from 2001 to 2012. Sadly, at the age of 81, he passed away on 1st December, 2012.

Protect our democracy

Chaskalson frequently argued in defence of the Constitution and that the independence of the judiciary and the legal profession must be upheld. In February he drew attention to the fact that the ruling party largely controls the Judicial Services Commission (JSC), which is responsible for appointing judges. Perhaps fearful of such developments, in his last address to the Cape Law Society he affirmed that: “It is important that we should protect the checks and balances we have, so that they are there should they be needed in the future to protect our democracy”.

Because there was a constitutional imperative to make the bench diverse, in 1996 the final Constitution changed the structure of the JSC. It now comprises a majority of politicians rather than lawyers, with the growing perception that it is through political fealty rather than ability that one becomes a judge. Consequently in both civil and criminal matters litigants suffer because of the lack of experience of many high court judges. In criminal matters disastrous convictions and acquittals have occurred because judges failed to understand even the fundamental rules of evidence or the criminal law. Furthermore, it is of course absolutely vital that judges serve the constitution and the nation, rather than political forces, if the rule of law is to prevail.

Indeed, a core principle that was embodied in the final Constitution is that: “The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights,” but today this is under threat as the delicate balance between judicial independence and accountability is being tampered with. It is feared by many in the judiciary that a combination of legislative incursions into judicial independence proposed since 2005, and the attacks on members of the judiciary is a threat to the very survival of democracy in South Africa.

Such was her concern that even in 2008, at a South African Institute of Race Relations briefing, Carole Lewis, a Judge of the Supreme Court of Appeal, spelled out the three things that were needed for judges to be able to work effectively, efficiently and without fear of political interference. They were: “First, appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC. Second, politicians should take lessons in constitutionalism and realise that they are not above the law. And third, the provisions in proposed legislation that in any way detract from judicial independence should be consigned to oblivion.”

Politicising and corrupting the criminal justice system

The highly controversial appointment in September, 2011, of Chief Justice Mogoeng Mogoeng by President Jacob Zuma, has certainly not advanced the judiciary’s independence, despite the Chief Justice’s assertion that he “will not hesitate to confront anybody who actually does something that poses a threat to the independence of the judiciary.” Louise Olivier, the law programme manager at the Open Society Initiative for Southern Africa, considers that the appointment of Judge Mogoeng as Chief Justice – whose role is to uphold one of the most progressive constitutions in the world – “makes a mockery of the substantial constitutional advances made by the court. His previous judgements on gender equality and marital rape indicate that he has scant regard for legal protections that most South Africans hold dear.”

This weakening of the judiciary is compounded by the growing perception by South Africans, confirmed by various surveys, that corruption is endemic in their police force and prosecution service. A number of high-ranking officials have been accused and/or found guilty of maladministration, fraud and corruption, thus undermining public trust in the criminal justice system as a whole, despite the apparent decline in most crime statistics and the increase in the number of prosecutions. Unfortunately, this raises yet another issue of concern, namely the lack of meaningful, integrated, timely and reliable information about the efficiency and effectiveness of the criminal justice system.

Nevertheless, South Africa clearly experiences high levels of criminal violence, which the perceived corruption in the criminal justice system exacerbates. Other causes include: the normalisation of violence as a response to conflict; the condoning of coercive sexual behaviour against women (particularly by the current Chief Justice); the existence of a subculture of violence and criminality aided by knives and firearms; the consequences on the young of inadequate child parenting and poor youth socialisation; and the high levels of inequality, poverty, unemployment, social exclusion and marginalisation in the country.

The lack of public trust in the criminal justice system is all too graphically illustrated by the breakdown in relations between communities and police on the Cape Flats in Western Cape, where vigilante groups have meted out their own barbaric version of justice by burning alive nine young men suspected of burglary and theft, over a three month period. Residents complain of the nonchalance and lethargy of the police, drawn out prosecutions, bungled investigations and corruption.

Crime does pay

In 2001, the South African Law Commission (SALC) tracked cases from when they were reported to the police to their conclusion in the courts. Measuring conviction rates, the SALC concluded that crime does pay. The research found that for every 100 violent crimes (murder, rape and aggravated robbery) reported to the police, only in six cases had “the perpetrators been convicted after more than two years,” which prompted the government to undertake a comprehensive review of the criminal justice system in 2007, and to adopt a seven-point plan of reform. Unfortunately, handicapped by serious discrepancies between police and prosecution service statistics, and despite a three-fold increase in expenditure on the criminal justice system leading to a 62% increase in the size of the police force in the past decade, little progress has been made.

In fact the malaise now appears pervasive as, within just five years, two national police commissioners, Jackie Selebi and Bheki Cele, have been fired. The former was prosecuted and convicted of corruption and the latter found guilty of maladministration. Richard Mdluli, the chief of crime intelligence who has been suspended several times, faced murder and kidnapping charges and a raft of allegations that included nepotism, misuse of public funds and the use of South Africa’s intelligence facilities in internal African National Congress (ANC) battles. It was also alleged that the Acting National Director of Public Prosecutions, Nomgcobo Jiba, – whose appointment was controversial because disciplinary proceedings against her were abandoned just prior to it – was acting to protect Mdluli when kidnapping and murder charges against him were dropped in February. However, in November, Boksburg Magistrates’ Court declared that there was no evidence Mdluli was implicated in murder. Mduli claims there is a plot to implicate him.

Unfortunately, President Jacob Zuma, who claims to have been a victim of political prosecution himself, is perpetuating the politicisation of the National Prosecuting Authority (NPA) commenced by President Mbeki. Zuma appointed Menzi Simelane as National Director of Public Prosecutions (NDPP) in November, 2009, despite the Public Service Commission’s recommendation at the time that disciplinary action be taken against Simelane. This is also the year when top prosecutors at the NPA were overwhelmingly in favour of pressing ahead with the corruption case against President Zuma, yet the then-head of the NPA, Mokotedi Mpshe, dropped the charges. In November of this year, when the Sunday Times made this revelation, the NPC applied to the High Court in Pretoria to halt the distribution of the paper, but failed.

Bowing to executive authority

Simelane is suspected of protecting Gaston Savoi, a Uruguayan businessman whose modus operandi, it is alleged, is to bribe to secure government contracts while donating millions of rand to the local ANC branch. It was when the Special Investigating Unit (SIU) was homing in on Gaston Savoi and some ANC officials, that Simelane is alleged to have tried to oust Willie Hofmeyr from his position as head of the SIU and the Asset Forfeiture Unit. Furthermore, Simelane had openly declared that he believed that the NDPP, who is officially tasked with upholding the Constitution and the law, must bow to executive authority.

When Simelane’s appointment was challenged, it was deemed by the Supreme Court of Appeal to be “inconsistent” with the Constitution and invalid. In October, the Constitutional Court concurred on the basis of Simelane’s “dishonesty” and the serious questions raised “about Mr Simelane’s conscientiousness, integrity and credibility”. In November, the Parliamentary Justice Committee expressed its concern that prominent criminals were getting off scot free because no new NDPP had yet been appointed.

However, it is no longer just a matter of criminals getting away with murder, but the police too. After 34 striking miners were killed by police gunfire at Lonmin’s Marikana mine in South Africa’s North West Province (it is alleged that some of the miners were shot in cold blood by police out of sight of journalists), the NPA resurrected the former apartheid government’s “common purpose” doctrine and charged the 270 arrested mineworkers with the murder of their own workmates. Reacting to the “sense of shock, panic and confusion within the members of the community and the general South African public” that this engendered, the Minister of Justice, Jeff Radebe continued: “It is therefore incumbent upon me to seek clarity on the basis upon which such a decision is taken.”

Far from clarity, the waters could not be muddier and, unfortunately, none of the above shenanigans instil much confidence in a criminal justice system that is so vital to the health of the nation and the welfare of its people. Arthur Chaskalson, while having been laid to rest only two and a half years ago, must be already turning in his grave.”

The Author

Frank Richardson

Frank Richardson trained as a lawyer, founded OpenTrial and writes for the International Bar Association’s ‘Global Insight’ as well as other publications.

Article picture: falco via Pixabay


Law & Philosophy