Judges at War: In What Could Be a Defining Moment in South Africa's Nascent Constitutional Democracy, Judges of the Highest Court of the Land, the Constitutional Court, Have Publicly Accused Another Judge of Improperly Trying to Influence a Decision. and It Is No Ordinary Judicial Decision as It Relates to the Political Future of the Country-The Trial of Jacob Zuma, the President of the Ruling ANC Pusch Commey Reports from Johannesburg

By Commey, Pusch | New African, August-September 2008 | Go to article overview

Judges at War: In What Could Be a Defining Moment in South Africa's Nascent Constitutional Democracy, Judges of the Highest Court of the Land, the Constitutional Court, Have Publicly Accused Another Judge of Improperly Trying to Influence a Decision. and It Is No Ordinary Judicial Decision as It Relates to the Political Future of the Country-The Trial of Jacob Zuma, the President of the Ruling ANC Pusch Commey Reports from Johannesburg


Commey, Pusch, New African


In a landmark issue, the judge president of the Cape Provincial Division of the judiciary, Justice John Hlophe, has been accused of having paid an "unholy" visit to two judges of the 11-member Constitutional Court-Justice Bess Nkabinde and Justice Chris Jafta-allegedly to influence them to be kind to the ANC president, Jacob Zuma, whose trial on corruption and tax evasion charges begins in Durban on 14 August.

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Hlophe allegedly claimed he had political and intelligence connections and was acting on a mandate. He was further alleged to have threatened that he would be made their boss if Zuma came to power, and would fire them if they ruled adversely in three cases pending before the Constitutional Court which have serious implications for Zuma's trial.

The South African judicial system has four tiers. The coal face is the Magistrate's Court where practically all criminal and civil cases start off. A large majority of cases start and end here.

Next comes the High Court, which handles serious criminal matters and appeals from the magistrate's court, as well as more serious civil matters. The higher Supreme Court deals with appeals from the High Court in all matters.

Then comes the Constitutional Court, the highest court in the land, which handles largely constitutional issues referred to it by the other courts. The president of the constitutional court serves as the head of all the courts. Ever since Jacob Zuma was investigated, accused of corruption and fired as the deputy president of the country by President Thabo Mbeki, legal and political skirmishes have been going on without end over many aspects of the law. Practically every decision has gone all the way to the Constitutional Court.

One such case related to a search and seizure operation carried out on the home and offices of Zuma and his lawyer in 2005. Several documents were seized and have formed the basis of new charges preferred against him. He challenged the legality of the operation all the way to the highest court. The Supreme Court ruled last year that the operation was valid and that the documents could be used in Zuma's trial. Now the issue is the constitutionality of the operations, especially with respect to documents seized from the offices of his lawyers, which in legal parlance are privileged, or immune from such actions, for the simple reason that legal representation becomes severely compromised if the prosecution authorities have access to what an accused tells his lawyer. Furthermore, Zuma alleges that he cannot have a fair trial, as the whole episode is politically motivated-a persecution initiated and orchestrated by his rivals, and not a prosecution. He is thus calling upon the courts to halt the proceedings in the name of fairness. No doubt, politics cannot be divorced from law. In the battle for the sould of the ANC, defined as between two factions-the Mbeki camp and the Zuma camp-justice has been a casualty.

So far, Zuma seems to have won the political battle on all fronts. He now totally dominates all structures of the ruling party, from the ANC youth league and the women's league to its powerful national executive committee. Meanwhile anybody perceived to be aligned to Mbeki is scrambling for the exit, as they are voted out of elective offices or are literally "purged". Two premiers of two provinces close to Mbeki have been shown the door. Some voices in the party have even called for the dismissal of Mbeki himself before his term ends in 2009. Technically the party can. At general elections, people vote for the party, and not the state president. The winning party, in simple terms, appoints the president of the country. Invariably the president of the party becomes the state president. Since Mbeki lost the ANC presidency to Zuma last December, his stock has progressively fallen.

So, will the judges of the Constitutional Court be throwing the last dice in a titanic struggle? …

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Judges at War: In What Could Be a Defining Moment in South Africa's Nascent Constitutional Democracy, Judges of the Highest Court of the Land, the Constitutional Court, Have Publicly Accused Another Judge of Improperly Trying to Influence a Decision. and It Is No Ordinary Judicial Decision as It Relates to the Political Future of the Country-The Trial of Jacob Zuma, the President of the Ruling ANC Pusch Commey Reports from Johannesburg
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