/OPINION: Why the EFFs threat to the judiciary is a threat to our democracy

OPINION: Why the EFFs threat to the judiciary is a threat to our democracy

2019-08-19 09:28

We as a nation should not allow threats to our democracy to continue without rage and disdain. We should not allow populists to shape our understanding of that which protects us most, writes Bouwer van Niekerk.

Despite
sporadic declarations to the contrary, Julius Malema and the EFF have never had
either a firm understanding of, or much respect for, the notion of a democracy,
let alone a constitutional democracy. This has been proven time and again by
their incitement of violence, calls for appropriation of land by way of
self-help and without legal foundation and openly racist derisions of white and
Indian people.

Usually,
the (primarily) outbursts by the EFF’s “commander-in-chief” have
increased either close to elections, or when the risk appeared real that the
public at large was about to realise that this specific political party’s
ideologies were nothing more than recycled socialist dogmas that all failed
horribly. Luckily, so far not much has come from these intermittent rants, and
our legal system has throughout been charged to keep the press-, non-black-,
Pravin Gordhan-hating Julius Malema and his sycophants in check.

However,
Malema’s recent attack on the judiciary is cause for real concern. It has been
reported that Malema, speaking at a Women’s Day event in the Northern Cape, accused
South Africa’s judges of being “traumatised old people“, and
threatened to “go into the bush” if the judiciary continues to be
biased.

Such
an attack should not be taken lightly. It is one thing if such a threat came
from an obscure outfit such a BLF. It is quite different when it comes from the
leader of a political party that garnered nearly two million votes in the
recent elections.

But
it is the content of the threat that is most disturbing. It is a very thinly
veiled threat from a political party (and a very litigious one at that) that suggests
that, should judges not rule in its favour, its supporters will have no other
option but to “go into the bush”; a clear reference to employing some
kind of guerilla tactics that inevitably will involve violence of some form.

In
considering this threat, it is important to understand that we live in a
constitutional democracy. But what does this mean?

Our nation’s ability to successfully
pass legislation is dependent on the majority of the votes cast in Parliament,
which consists of the National Assembly and the National Council of Provinces.
The individuals tasked with passing new laws are known as the legislature. In
practice, this power lies with the party that holds the majority of the seats
in Parliament. These honorable members are elected as such by the political
party that they represent subsequent to the result of a democratic election;
they are thus democratically elected (or at the very least deployed) on the
basis of one person, one vote. 

In turn, the executive authority is
tasked with the day-to-day running of our country. The executive consists of
the president of the Republic of South Africa, the deputy president and
Cabinet, who consists of the ministers and deputy ministers.

However, the legislature and executive’s
authority are not absolute. Their decisions and actions must pass constitutional
muster. If they do not, they are open to constitutional review by our courts.
In this context, our courts are known as the judiciary, with the Constitutional
Court being the highest court in the land. 

These three authorities – the legislature,
the executive and the judiciary – make up the separate powers of the state. The
rationale behind separating these powers is axiomatic: The executive is tasked
with running the country, but it must run it in accordance with the laws of the
land and, in doing so, must uphold the Constitution. It must also answer
to Parliament. In turn, every piece of legislation that Parliament passes must
be consistent with the Constitution.

Should Parliament fail to bring the executive
to task in not fulfilling its obligations, or fail to pass legislation that
stands up to constitutional scrutiny, it is up to the courts (and, eventually,
the Constitutional Court) to intervene and correct these wrongs.

Taking cognisance hereof, for a powerful politician to threaten the judiciary with violence is as good as to
threaten the continuance of our separation of powers, and by extension one of
the pillars of our constitutional democracy. In contemplating just how serious
such a threat is, it is important to consider just how important a role the
judiciary has played in the tumultuous last ten years that have been stained
with political self-enrichment (this specific politician included), state
capture and the pilfering and systematic ruin of state-owned enterprises. How
much further down the line would we have been had it not been for an
independent judiciary?

Consider the following. Without the
judiciary, we would have had a president who would not have given a second
thought to repaying some of the millions of rands spent on improving his
personal homestead. Without rational judges, the Gupta family could have interdicted banks from walking away from them
and their dubious banking practices.

Without access to courts, we would
have had a toothless Public Protector in Advocate Thuli Madonsela. Without the
intervention of the judicial system, we would have a Public Protector in Advocate
Busisiwe Mkwebane that could singlehandedly order the National Assembly to
amend the Constitution to change the mandate of the Reserve Bank without
further ado. And sans the judiciary, we would have a red beret-wearing
politician who could continue to indiscriminately defame ministers (both former and
current), excel in hate speech and threaten those who work tirelessly to ensure
our access to a free press.

We as a nation should not allow such
threats to continue without rage and disdain. We should not allow populists to
shape our understanding of that which protects us most. Rather, we as a people
should insist that those who represent us in the hallways of power should spend
their time on strengthening the foundations of our specific brand of democracy.
After the last ten years, we deserve it, and we deserve better. If nothing else,
this is what the judiciary has taught us every time when executive autocracy
has tried to rein free.

Van Niekerk is a director at Smit
Sewgoolam.

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