South African law: are there thugs in robes?
Justice Johann Kriegler reviews Capture in the Court
Dan Mafora’s ‘Capture in the Court’ is a popular work with little academic pretension, but the author must still be thanked for his useful contribution to the public understanding of constitutional issues, even if Johann Kriegler believes he shouldn’t have taken the legal framing of politicking so seriously.
Capture in the Court: In Defence of Judges and the Constitution by Dan Mafora. Publisher: Tafelberg. Price: R320
A renowned emeritus professor claims in a blurb that we have here “a challenging, provocative, and highly accessible account of some of the most urgent constitutional and ideological questions besetting South Africa currently”. Well, if there’s one thing that makes me sceptical, it’s hyperbolic advertising. Poor Dan Mafora thus essentially starts on the back foot.
He is indeed a well-known commentator on constitutional matters — a Master’s student at UCT in constitutional law, a senior researcher at a respected NGO in the constitutional debate circle — and undoubtedly a skilled legal journalist with an impressive body of work.
But this, his first full book (170 pages without the bibliography or index), is a popular work with little academic pretension. At the same time, most of the issues he raises appear to this observer as barely disguised political rhetoric, rather than pressing constitutional questions. Therefore, it would be unfair to judge the book by the exaggerated claim of the blurb.
Although what the book suggests is hardly among our country’s most pressing constitutional or ideological questions, it must be admitted that serious discourse is conducted in certain black consciousness-oriented academic (legal) circles around existential questions such as the decolonisation of our state structure and legal system. In legal academic terms, however, they are currently a fringe phenomenon.
Nevertheless, responsible citizens should take note of the political, or ideological, atmosphere that Mafora sheds light on. What the parties involved are so passionately dealing with is essentially not a legal debate, but ideology — where “ideology” serves as a euphemism for black racism, the modern form of Boer hatred.
The crux of their argument is the alleged disregard for black culture, tradition, and epistemology. More specifically, for them, it concerns the subordinate status in our legal system of (black) customary law compared to Roman-Dutch law. The latter is labelled as the white conqueror’s system, part of the country’s cursed colonial legacy, incompatible with black norms and value systems.
More recently, the Constitution has also been criticised by pioneers of this radical school of lawyers, either as essentially a conscious Eurocentric bias, incompatible with the African worldview, or as evidence of the Eurocentric brainwashing of its drafters. This tempting line of thought then meanders further to explicitly reject the Bill of Rights in the Constitution as a foreign creation, and even more audaciously, to question the relevance of elections in the African context.
The most well-known application of this kind of thinking is in the ongoing wrangling around property rights and expropriation without compensation. If the Constitution is suspect, how much more so what section 25 thereof intends to safeguard? Mafora freely flanks this kind of toxic rhetoric with considerable evidence, extensively across social media, where it apparently finds great approval.
It’s precisely for this reason that he decided to tackle the misconceptions and fallacies of the RET faction and its academic supporters. He cites several examples where senior ANC officials have made the same noises. In essence, Mafora is concerned with the increasing attacks on the judiciary, its loss of legitimacy and credibility, and the consequent threat to the rule of law itself. These are, of course, not academic debates but actual manifestations of a disregard for the judiciary’s status and authority by politicians and/or their legal representatives.
He then highlights some of the most striking attacks, for instance, by Minister Lindiwe Sisulu in January 2022 when she openly accused black judges of being Eurocentrically brainwashed, and the repeated allegations from the Zuma camp over recent years that the judiciary is being manipulated to persecute him.
Mafora is balanced in his analysis of the allegations: He calmly and in accessible language examines their origin, nature, credibility, logic, and sustainability. He does not hesitate to identify and expose shortcomings in judicial conduct. For example, he is strongly critical of the entire process with which former president Zuma’s non-cooperation with the Zondo commission was managed. It’s not that he approves or even condones the man’s actions. His focus is rather clinically directed at the decisions and methods of the commission, its chairman, and the various courts involved in the “contempt” saga. The conclusion he reaches, and the reasons for it, are meticulously laid out — leaving no room for doubt that there was no judicial bias.
In a similar manner, he meticulously discusses the allegation that the Pretoria High Court is pro-Ramaphosa and anti-Zuma. This discussion is based on an occasion in February 2022 when Judge Dunstan Mambo, the judge president of the Pretoria court, appeared as a nominee for the Chief Justice position before the Judicial Service Commission. An extended passage is quoted from the records of the proceedings where advocate Griffiths Madonsela SC, a presidentially appointed member from the Zuma era, and commissioners Julius Malema MP and Dali Mpofu SC, tear Mambo apart. This is done under the guise of following up on a complaint by Democracy in Action, but it’s clear that this is a calculated move to favour a competitor for the position, seemingly with raw political venom and no genuine exercise of the JSC’s powers.
But make no mistake: Mafora is certainly not a mindless echo of the courts and judges whose integrity he defends. He doesn’t hesitate to dissect decisions coldly and expose errors in law, fact, or reasoning piercingly. More importantly, he is sharply critical, sometimes condemnatory, when judges cross the line between their jurisdiction and that of the legislative or executive branches of government.
He emphasises, in fact, that the judiciary's loss of legitimacy is largely due to this kind of politicisation of the law, and he cites several questionable court decisions to substantiate this. However, Mafora fails to thoroughly analyse the current underlying political and constitutional dilemma facing the judiciary, namely, when one or even both of the other two pillars of state fail to fulfil their constitutional responsibilities. It’s painfully clear that the whole Zuma-Gupta state capture and its catastrophic aftermath were tensioned and facilitated by the legislature’s lamentable refusal to oversee the president.
The ruling party and its servile allies in parliament circled the wagons out of misplaced political solidarity around a criminal comrade. The author doesn't emphasize enough that the judiciary was inadvertently and necessarily drawn into this mess. Similarly, he doesn’t consider the fundamental issues surrounding our preference for “judicial” commissions of inquiry. On one hand, the government – and the public – desires and expects the trust that judicial participation in such a body confers. On the other hand, it drags the involved judge into the very disputes that led to the commission's establishment and/or arise from its findings. This is the Zondo minefield: As a commissioner, he must defend his findings, while the political arena is off-limits to him as the Chief Justice.
Lastly, while the author must be thanked for this useful contribution to the public understanding of constitutional disputes, it would have been better if he hadn’t taken the legal trappings of politicking so seriously. A thug in robes remains a thug.
• Johann Kriegler is a retired judge of the Constitutional Court.
This review was first published in Afrikaans in the 29 October 2023 edition of Rapport, an Afrikaans weekly newspaper. It was also published on Netwerk24 here. The review was translated into English by Erika Bornman with slight editorial changes by me. We have tried to remain faithful to Judge Kriegler’s original review. The views expressed herein are entirely his.