- Nelson Mandela called on the inaugural Constitutional Court judges to exercise wisdom, independence and integrity.
- Two controversial rulings have led the author to question the Constitutional Court’s independence and judicial reasoning.
- The author argues that the courts’ approach to political and historically sensitive issues raises concerns about equal treatment and justice.
When he inaugurated the Constitutional Court on 14 February 1995, President Nelson Mandela spelt out the task facing the members of that court as it held its first sitting. Theirs, he said, was a lonely task that required the use of their wisdom, honesty and good sense, relying only on the Constitution and their conscience. He exhorted them to be true to their oath and to avoid any shortcuts in the execution of their duties.
Mandela urged the Constitutional Court members to guard “not only against direct assault on the principles of the Constitution, but against insidious corrosion”, and he commended the fact that they came from “a multiplicity of backgrounds and life experiences”. He warned that attacks on people’s rights are “invariably couched in innocent language”.
“One of the things one discovers when coming into office is that there is no shortage of rubber stamps. South Africans did not establish this court to be another rubber stamp. We expect you to be creative and independent. We expect you to be true to the oath you have just sworn,” Madiba cautioned.
Although overwhelmingly white, since there were not many senior advocates from whose ranks to appoint judges at the time, the one thing that marked the judges of that court was their diversity. After all, diversity described South Africa and was very important to Mandela. Seven of those judges were white (one of whom was a former freedom fighter), three were Africans, one was Indian, and two were women.
Thirty-one years later, we are entitled to ask if, indeed, the Constitutional Court has lived up to Mandela’s expectations. Reflecting on its work as a legal layman, I conclude that, by and large, the court has, indeed, been equal to the task at hand. One must also concede that the unwise extension of its mandate beyond just constitutional matters has sullied its reputation and resulted in a perception of inefficiency, with some matters taking years to be adjudicated upon.
The ANC’s candidate registration dispute
However, there are at least two instances that have made me question the Constitutional Court’s sense of independence. For me, the most bizarre was the ruling given by the court in the ANC’s litigation following its failure to submit 181 of its candidates to the IEC for the recent local government elections. Like many others, I had expected the court to rule against the ANC in that case because it had not clicked the “submit as final” button before the IEC’s 5pm deadline on 28 August.
For a start, the ANC – like all other parties contesting the elections – knew that it had to press the “submit as final” button to confirm the submission of its candidates. Not only had it attended IEC training where that had been made plain, but it had done so in the case of 97% of its candidates and is reported to have done so in the past. The argument that the ANC’s failure to field candidates in the affected municipalities would have infringed on the right of those who live in those municipalities to vote does not hold water for me.
As at least one legal commentator has pointed out, the right of those who live in those municipalities to vote would not have been affected. They would still have had a big choice of registered parties to choose from, except the unregistered ANC. While the Constitutional Court has yet to release its reasons for its verdict, in the meantime some of us cannot help but wonder if the fact that some of the judges have ANC histories or sympathies was behind that ruling.
Coincidentally, that questionable ruling has denied the ANC the opportunity to use the non-registration of its 181 candidates to explain its dismal showing in the elections. That, at least, is one good that came from the Constitutional Court’s bizarre judgment.
The ‘Kill the Boer, kill the farmer’ ruling
The other court ruling that has astounded me – from the Equality Court and the High Court to the Supreme Court – was the sanctioning of the continued use, in a diverse and democratic South Africa, of the “Kill the Boer, kill the farmer” chant. That song, our courts found, was protected speech that did not constitute hate speech.
When the appeal reached the Constitutional Court, that court refused to hear the matter, stating that there was no reasonable prospect of success. In my non-legal mind, that means that the Constitutional Court concurred with the lower courts that a call on people to “kill the Boer, kill the farmer” was protected speech – just because, once upon a time in a different era, that song was sung by the oppressed masses of the country.
The change in the complexion of our courts must, I think, explain that ruling. Well, that, for me, is not justice. Instead, it is playing to the gallery. It is quite conceivable that during the same era, members of the old South African Defence Force or even the South African Police had their own songs that despised black people. Would it be correct for white people to openly sing those songs today, just because they were once sung during the apartheid era? I do not think so.
Black people were not the only ones to have nasty names like the “K…” word used to describe them. They, too, had similar names of their own for whites, coloureds and Indians. If the use of the “K…” word is now correctly deemed to be hate speech and illegal, why is the use of a song that exhorts others to murder other members of this rainbow nation deemed permissible?
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The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of Conviction.co.za
