Capture in the Court: In Defence of Judges and the Constitution

Dan Mafora, Capture in the Court: In Defence of Judges and the Constitution (Cape Town: Tafelberg, 2023)

THIRTY years down the line from its first democratic elections, the political landscape of South Africa may best be described as a struggle between constitutionalists and anti- constitutionalists. There has been complacent assumption of widespread acclaim for what is regarded as one of the most progressive constitutions in the world. Yet the ANC, wedded to the communist-inspired national democratic revolution, has no history of constitutionalism and accepted the concept only reluctantly in the early 1990s.

So, in recent years Lindiwe Sisulu has excoriated the Constitution as neo-liberal; Jacob Zuma has called for unfettered parliamentary power (back to the bad old days of white rule) and so-called democratically appointed judges; and Gwede Mantashe has labelled the Constitution counter-revolutionary. But this demand for people’s power is nothing more than opportunism from a failing liberation movement desperate to cling to power. To this end the tactics of populism have been wheeled out shouting the odds about the will of the people, and suitably garnished with conspiracy theory, to perpetuate the rule of an ideologically fossilised vanguardist elite.

Moeletsi Mbeki famously said that there was indeed a revolution in South Africa: it was called the Constitution, a document finalised two years after liberation. Yet it is damned as colonial. Africanists have long rejected the pluralism implicit in the Freedom Charter upon which much of it is based. Now some people in academia and the legal profession go so far as to call for abolition of the all-embracing Constitution, replacing it by indigenous sovereignty. Since this involves an unscrambling of history as far back as 1652, it means abolishing the very idea of South Africa.

Ironically, people posing as radicals favour restoration of what Dan Mafora calls, with a touch of presumed irony, ‘precolonial splendour’ and the chiefdoms that then dominated; if they and their territory can now be identified. And how legitimate were they in terms of the will of the people? Mafora suggests that the reactionary nature of abolition is likely to end in violence.

Less ambitious reformers have called for more modest, and perhaps realisable, decolonisation through elevation of living customary in place of common (Roman-Dutch and English) law; although as Mafora points out there is a tendency to confuse colonialism with modernity. And there is the danger of delegitimising the cross-fertilisation of ideas. Whatever reforms are introduced, they would need to be tested ‒ against the Constitution, including the Bill of Rights which some have dangerously declared unAfrican. And there is the complication that customary law varies from place to place and was polluted by colonial and apartheid regimes.

Mafora has some pertinent thoughts on decolonisation. Like critical race theory, he argues, in the political sphere it is used and abused with ruinous potential. Ultimately, it ends up as a populist slogan aimed at monopolising power. Sisulu and her adherents call for African value systems and an end to colonisation. But they ignore universal values and perversely want a return to the very colonial conditions South Africa has recently escaped: in other words, the ability to wield unfettered power. Majoritarianism is a highway to tyranny and the denial of rights and democracy to everyone.

The author also shows that South Africa is a deeply anti-intellectual society that distrusts experts and is hostile to a life of the mind; and thus well-suited to this new age of unreason. Disturbingly he identifies such attitudes among the judiciary. ‘Kleva blacks’ are disparaged by populists; and Mafora responds, ‘This clever black calls on others to join in the fight against anti-intellectualism. Our entire civilisation depends on it’ (p. 167).

Dan Mafora works for the Council for the Advancement of the South African Constitution and he puts up a spirited and convincing defence of it. Its strengths are well-known: most notably the rule of law, separation of powers, entrenchment of basic rights and the frustration of arbitrary power. These enable the audibility of many voices, equality of all before the law, the embedding of habeas corpus and the checks and balances that thwart tyranny. It is also enabling in its blue and green, second and third level, civil rights that deal with socio-economic and environmental issues; truly post-colonial. Politicians blame the Constitution for a lack of transformation unaware apparently that its provisions highlight their own failures in this area.

There can be no objection to reasonable reform of a constitution. However, amendment is not dismemberment and both the document and the courts that interpret it are fragile; only as strong as those who respect, trust and maintain them. The recent failure of the political process, particularly the performance of parliament as little more than a group of eager praise singers, and the consequent resort to lawfare in the courts has not helped their image and tarnished it with politics. Some advocates like Dali Mpofu have sullied the courts with farcical political theatre and meaningless, time-wasting rhetoric.

The ANC is losing its grip on power and as this accelerates there will be a concerted effort to sow confusion and broadcast wild accusations, especially via social media. Political groupings that thrive on extremism may acquire greater power. And in these circumstances the integrity and determination of courts in interpreting the Constitution may be all that separates us from anarchy.