'Lawfare' in South Africa and Its Effects on the Judiciary

Home , Baleka Mbete, Gupta family, Helen Suzman Foundation, Public Protector, Shaun Abrahams

African Journal of Legal Studies 10 (2017) 105–126

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‘Lawfare’ in South Africa and Its Effects on the Judiciary

Hugh Corder Professor of Public Law, University of Cape Town [email protected]

Cora Hoexter Professor of Law, University of the Witwatersand, Johannesburg [email protected]

Abstract

This article identifies three senses of the term ‘lawfare’ in the South African context. In the first and most standard sense of the term, law was abused by the state during the pre-democratic era in order to construct a racist state. In the second sense, litigation was used in the period 1910–1993 as a weapon of the weak by those excluded from the franchise, in order to resist oppression and rule by law. The third sense of lawfare overlaps with the second but is associated with the judicialisation of politics in the era of constitutional democracy. It refers to the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial constitutional safeguards. Using examples, the article shows that lawfare in this third sense was a feature of the presidency of Jacob Zuma and that it was triggered by the rise of nepotism, corruption and state capture well as the abdication of governance responsibilities to the judiciary. It argues that because the courts have been drawn into the public arena and thrust into a relationship of constant tension with the political branches, the judiciary has become the primary casualty of this barrage of lawfare.

Keywords lawfare – judiciary – South Africa – strategic litigation – political disputes

1 Introduction1

‘Lawfare’ has multiple meanings, but in academic discourse it usually denotes the use or abuse of law by the state to achieve strategic political or military ends. Using the term in this sense, John Comaroff characterises lawfare as ‘the effort to conquer and control indigenous peoples by the coercive use of legal means’.2 Unsurprisingly, African countries feature prominently in the literature of lawfare in this first sense.3 South Africa is one of those countries. Martin Chanock’s magisterial study of the making of South Africa’s legal culture dem- onstrates lawfare in action from 1902 to 1936, a period during which essential political and legal narratives were developed for the construction of a racist state.4 The apartheid era that followed (1948–1993) is a more blatant illustra- tion of the use of law, and indeed the entire legal system, to promote white supremacy and suppress other races. However, ‘lawfare’ has also acquired a contrary and nobler meaning: the use of litigation as ‘a weapon of the weak’.5 In this second sense, lawfare is a strategy used by the colonised and oppressed precisely in order to resist rule by law. In South Africa there is a long history of the use of litigation for such purposes by non-state actors, and the role of lawfare in the struggle against apartheid is well documented.6 There is a third sense of the term too, at least in South African legal and political discourse, which has grown out of the second meaning and overlaps with it. It has to do with the judicialisation of politics, or the migration of politics to the courts, in postcolonial societies.7 Over the last few years, ‘lawfare’ has

1 This article is based on research supported in part by the National Research Foundation of South Africa (Grants 85861 and 96285). Any opinions, findings, conclusions or recommenda- tions expressed are those of the authors, and the Foundation does not accept any liability in this regard. 2 J L Comaroff, ‘Colonialism, culture and the law: A foreword’ (2001) Law and Social Inquiry 305, 306. 3 See eg M Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge University Press, Cambridge 1985). 4 M Chanock, The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice (Cambridge University Press, Cambridge 2001). 5 Comaroff (n 1) 308, and see D Davis and M le Roux Precedent and Possibility: The (Ab)use of Law in South Africa (Juta & Co Ltd, Cape Town 2009) 185. 6 For instance, C J R Dugard, Human Rights and the South African Legal Order (Princeton University Press, Princeton NJ 1978) and R Abel, Politics by other Means: Law in the Struggle against Apartheid, 1980–1994 (Routledge, London 1995). For a more popular account, see Chapters 3, 4 and 5 of Davis and Le Roux (n 4). 7 Descriptions used by J Comaroff & J L Comaroff (eds), Law and Disorder in the Postcolony (University of Chicago Press, Chicago and London 2006) 26.

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 107 come to describe the use of litigation to resolve contentious political disputes: the phenomenon of asking courts to rule on problems that would tend to be resolved by political means in more mature jurisdictions, or that might not even be regarded as justiciable. In what follows we first consider the South African history of lawfare in the second sense: the use of litigation in the pre-democratic era to fight against rule by law. We then discuss its reappearance in the third sense with refer- ence to a number of recent examples. We explain this barrage of lawfare by pointing to factors that have encouraged it, and we go on to discuss some of its deleterious effects on the judiciary. An obvious danger when politics plays out in the courts is that they may be taken outside their area of constitutional and institutional competence and be drawn into factional politics. But apart from that risk, litigation of this kind inevitably places strain on the relationship between the judiciary and the political branches. It also exposes the judiciary to public criticism, whether justified or not, which ultimately detracts from the legitimacy of the courts.

2 Lawfare in Pre-democratic South Africa

In South Africa, administrative-law review has been a prominent method of holding the government to account since the Union of South Africa was formed more than a century ago. In the era of white minority rule that followed, the courts presented the citizen’s only hope, albeit sometimes a feeble one, of having individual rights protected or constitutional obligations upheld. This, in turn, fostered an abiding faith in law and in the power of the courts to achieve at least some measure of justice.

2.1 The Constitutional Background: Lawfare in the First Sense In 1910 four British colonies became provinces of a new Union of South Africa: the Cape, Natal, Transvaal and the Orange Free State. The point of this union was to bring together English- and Afrikaans-speaking white people, recently divided by the Anglo-Boer War of 1899–1902, and to consolidate their political power. Part of the price of this ambitious project was the exclusion of black people from the franchise. So the non-racial (though hardly egalitarian8) Cape was thwarted by the racial prejudice of the other three colonies. However, existing voting rights in the Cape were specifically protected in the Union

8 Women in the Cape colony did not have the vote, and the Union franchise was extended to adult women only in 1930.

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Constitution,9 together with the equality of the two official languages, English and Afrikaans. An entrenching provision prevented the amendment or repeal of these provisions except by a resolution passed by two-thirds of both houses of Parliament in a joint session. Despite these constitutional safeguards, black African male voters were removed from the common voters’ roll in the 1930s,10 and ‘coloured’ (mixed-race) male voters in 1956.11 The latter step was an important one in the implementation of apartheid. This policy of racial segregation and repression was officially espoused by the National Party, essentially the party of white Afrikaners, which had come to power in the general election of 1948. Another significant constitutional achievement for the National Party was the move to republican status, achieved by the adoption of a new Constitution in 196112 and accompanied by South Africa’s ignominious departure from the British Commonwealth. Some twenty years later, in response to widespread pressure for change, a ‘tricameral’ Constitution13 was adopted. This reform was a transparent attempt to co-opt the support of coloured and Indian South Africans, but one that chiefly served to emphasise the continuing exclusion of black South Africans. The tricameral Constitution triggered even fiercer rebellion at home and the tightening of international sanctions on South African trade, finance and sport. All of this materially contributed to the end of formal apartheid and transition to constitutional democracy based on universal franchise.

2.2 The Dual State and the Rise of Lawfare in the Second Sense Union saw the establishment of the Supreme Court of South Africa, consisting of existing colonial courts reorganised into provincial and local divisions with a new court, the Appellate Division, at their apex. However, the courts were fundamentally constrained by the sovereignty of Parliament, which prevented them from reviewing the substance of statutes (although the highest court could, and did, enforce the use of the entrenched procedure). Furthermore, and with some notable exceptions during its history, the Appellate Division for the most part exhibited an attitude of executive-mindedness towards exercises of governmental power.14

9 The South Africa Act 9 of 1909, Edw VII Ch 9, an Act of the British Parliament. 10 See Ndlwana v Hofmeyr NO 1937 AD 229. 11 See Collins v Minister of the Interior 1957 (1) SA 552 (A), the culmination of South Africa’s most famous constitutional crisis; and see further n 16 below. 12 Republic of South Africa Constitution Act 32 of 1961. 13 Republic of South Africa Constitution Act 110 of 1983. 14 See especially H Corder, Judges at Work: The Role and Attitudes of the South African Appellate Judiciary, 1910–50 (Juta & Co Ltd, Cape Town 1984) and C Forsyth, In Danger for

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But in spite of these unpropitious conditions, from the time of Union the courts were frequently resorted to by parties seeking to challenge their exclusion from the full range of benefits normally accorded to citizens of a country. Among these were people of Asian origin who sought entry to the Union and free movement across its provincial borders,15 or who hoped to acquire land tenure in the Transvaal.16 Landmark cases were brought on behalf of black and coloured men seeking to uphold the franchise rights protected in the Union Constitution.17 Litigation was used, too, in attempts to soften restric- tions on the freedom of movement of black people from rural to urban areas18 and to challenge detention without trial.19 While these challenges were not always successful, judgments of the courts in such cases over the period 1910–1993 had a very significant effect: they fostered and maintained an abiding belief in the potential of the courts to uphold the rule of law and protect human rights at least to some degree. In one of the most penetrating studies of this phenomenon, Jens Meierhenrich catalogues the triumphs and setbacks of those who used litigation to retard the trend to a racist oligarchy, and who thus nurtured the vision of government under law in a democratic system.20 Meierhenrich draws on Fraenkel’s conception of the dual state: the coexistence of the prerogative state – governance without the rule of law, or despotic power – and the contrasting normative state, where the law operates as constraint.21 He identifies the same duality in the South African state at various stages of its development, high- lighting the presence of ‘executive despotism … side by side with the trappings

their Talents: A Study of the Appellate Division of the Supreme Court of South Africa, 1950–80 (Juta & Co Ltd, Cape Town 1985). 15 See eg Shidiack v Union Government (Minister of the Interior) 1912 AD 642, R v Padsha 1923 AD 281 and Corder (n 13) Chapter 7. 16 See eg Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719, Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 and Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530, as well as Corder (n 13) Chapter 8. 17 In addition to Ndlwana (n 9) and Collins (n 10), see R v Ndobe 1930 AD 484 and the two cases that brought about the constitutional crisis of the 1950s, Harris v Minister of the Interior 1952 (2) SA 428 (A) and Minister of the Interior v Harris 1952 (4) SA 769 (A). 18 See eg Khomani v Bantu Affairs Administration Board 1980 (4) SA 448 (A) and Oos-Kaapse Administratsieraad v Rikhoto 1983 (3) SA 595 (A). 19 See eg R v Ngwevela 1954 (1) SA 123 (AD), Rossouw NO v Sachs 1964 (2) SA 551 (A) and Minister of Law and Order v Hurley 1986 (3) SA 568 (A). 20 J Meierhenrich, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000 (Cambridge University Press, New York 2008). 21 E Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford University Press, New York 1941).

African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com10/01/2021 07:18:47AM via free access 110 Corder and Hoexter of parliamentary government’22 and later, under apartheid, the existence of a ‘dual political system of parliamentary democracy for whites and a dictatorship for blacks’.23 Crucially, in South Africa law was an instrument not merely of oppression but also of resistance, both sword and shield.24 So, in a piece from 1988 quoted by Meierhenrich, two South African commentators aptly draw attention to a remarkable feature of their legal system:25

[T]hat the courts allow an impoverished black employee to call his or her white employer to account, and a voteless black resident to summon a white cabinet minister before court. Law has been used as an attenuated form of accountability in a country where the majority of citizens are denied the right to exercise a more conventional form of accountability, the franchise.

Meierhenrich also quotes aptly from E P Thompson’s seminal account of the enforcement of the Black Act in England in the mid-1700s: ‘The rhetoric and the rules of society are something a great deal more than sham…. They may disguise the true realities of power, but, at the same time, they may curb that power and check its intrusions’.26 Paradoxically, despite its Draconian nature, the Black Act solidified and celebrated the rule of law as the core of the English common law. South Africa’s experience under colonialism and apartheid mir- rored that experience in many ways, giving expression to the idea of lawfare as a means of struggle for democracy. Indeed, Meierhenrich’s overarching thesis is that the South African legal tradition produced a faith in law that greatly facilitated the country’s transition to democracy in the early 1990s. The achievement of constitutional democracy in April 1994 – majority rule, constitutional supremacy, a justiciable Bill of Rights – ipso facto presaged the end of lawfare in the second sense: there would no longer be a need for it. However, the cessation proved to be merely temporary. After the first few years of democracy, the optimistic ‘rainbow’ years associated with the presidency of

22 Meierhenrich (n 19) 112, quoting W P M Kennedy and H J Schlosberg, The Law and Custom of the South African Constitution (Stevens & Sons, London 1935) 459–60. 23 Meierhenrich (n 19) 112, quoting D Omar, ‘An overview of state lawlessness in South Africa’ in D Hansson and D van Zyl Smit (eds), Towards Justice? Crime and State Control in South Africa (Oxford University Press, Cape Town 1990) 19. 24 Meierhenrich (n 19) 129. 25 N Haysom and C Plasket, ‘The war against law: Judicial activism and the Appellate Divi- sion’ (1988) 4 South African Journal on Human Rights 306, 307, quoted in Meierhenrich (n 19) 168. 26 E P Thompson, Whigs and Hunters: The Origin of the Black Act (Pantheon Books, New York 1975) 265, quoted in Meierhenrich (n 19) 314.

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Nelson Mandela,27 a new kind of lawfare began to be deployed alongside the sort of litigation one would expect in a young constitutional democracy. As is explained in what follows, lawfare in the third sense went on to reach extraor- dinary levels during the presidency of Jacob Zuma.

3 Lawfare under Zuma

Jacob Zuma became President in May 2009. He was re-elected in 2014 but did not serve out his second term: in early February 2018 he was ‘recalled’ by his party, the African National Congress (ANC), and resigned on 14 February 2018 under threat of a motion of no confidence supported by the ANC.28 He was replaced the following day by the man who had lately been his deputy, Cyril Ramaphosa. In the Zuma years the superior courts29 had to deal with innumerable judicial review applications concerning politically charged matters and launched by opposition parties or NGOs. And the courts found themselves ruling with remarkable frequency that the South African government had acted unlawfully and unconstitutionally. Especially famous instances include the government’s spectacular failure to arrest President al-Bashir of the Sudan during a visit to South Africa when warrants for his arrest had been issued by the International Criminal Court;30 its failure to obtain the approval of Parliament before issuing a notice of South Africa’s withdrawal from the Rome Statute;31

27 The first description of South Africa as a ‘rainbow nation’ is attributed to Archbishop Desmond Tutu, but it was President Mandela who made it famous. In recent and more cynical years, ‘rainbowism’ and the ‘empty politics of reconciliation’ have been exposed as a delusion: see eg S Msimang, ‘The end of the rainbow nation myth’ The New York Times 12 April 2015 accessed 28 March 2018. 28 Zuma had previously survived no fewer than six motions of no confidence brought by opposition parties, four of which had been voted on. 29 Magistrates’ courts have no jurisdiction to rule on the constitutionality of executive conduct or of legislation. The superior courts consist mainly of various divisions of the High Court (formerly divisions of the Supreme Court of South Africa). On the next highest level is the Supreme Court of Appeal or SCA (formerly the Appellate Division), and at the apex is the Constitutional Court, created in 1994 as the guardian of the democratic constitution. Today the SCA functions as an intermediate court of appeal between the High Court and the Constitutional Court. 30 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development 2015 (5) SA 1 (GP), largely upheld on appeal in Minister of Justice and Constitutional Develop- ment v Southern Africa Litigation Centre 2016 (3) SA 317 (SCA). 31 Democratic Alliance v Minister of International Relations and Cooperation 2017 (3) SA 212 (GP).

African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com10/01/2021 07:18:47AM via free access 112 Corder and Hoexter various missteps in procuring nuclear power in a huge deal with Russia;32 and non-compliance with a Constitutional Court order by the Minister for Social Development and the Social Security Agency.33 But there are so many such cases that it is not possible to list them all. Instead, in what follows we identify four prominent clusters of litigation: categories that seem to us to epitomise the sorts of politically fraught disputes that the courts have been called upon to deal with in recent years.

3.1 Examples of Lawfare 3.1.1 The Dropping of Corruption Charges against Zuma A volley of litigation was triggered by the sudden dropping of 783 counts of corruption and related offences against Jacob Zuma, then a member of a provincial cabinet, by the National Prosecuting Authority (NPA) early in 2009. This conveniently timed decision allowed him to become President of the country in May of that year. For close on a decade the Democratic Alliance (DA), the main opposition party, doggedly pursued its challenge against the lawfulness and rationality of the decision to drop the charges. Two interlocutory applications and two appeals later, a full bench of the Pretoria High Court ruled in April 2016 that the decision was indeed irrational.34 Leave to appeal was refused, as was a petition to the SCA. Zuma subsequently submitted last-minute representations to the NPA on why he should not be prosecuted on the corruption charges. However, political pressure to bring the former President to book had increased appreciably since his recall and forced resignation, and the representations were in vain. At the time of writing, Zuma had made his first appearance in court on charges of corruption, money laundering, fraud and racketeering, and there was speculation that he would challenge the NPA’s decision to reinstate the charges.

3.1.2 Challenging Executive Appointments to Public Office Over the last few years a considerable proportion of litigation has related to executive appointments, more particularly the appointment of compromised individuals to important public offices that are required to be held by persons of integrity. A well-known example is President Zuma’s appointment of a

32 Earthlife Africa Johannesburg v Minister of Energy 2017 (5) SA 227 (WCC). 33 Black Sash Trust v Minister of Social Development 2017 (3) SA 335 (CC), and see more recently Black Sash Trust v Minister of Social Development 2017 (9) BCLR 1089 (CC) regard- ing joinder of the Minister and the question whether she should be held personally liable for costs. 34 Democratic Alliance v Acting National Director of Public Prosecutions 2016 (8) BCLR 1077 (GP).

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 113 glaringly unsuitable National Director of Public Prosecutions (NDPP). In 2012, at the instance of the DA, the Constitutional Court set aside the appointment of Menzi Simelane for irrationality.35 Undaunted, a few years later President Zuma illegally terminated the appointment of the incumbent NDPP and installed a replacement of questionable independence, Shaun Abrahams. These actions were declared unconstitutional and invalid by a High Court in December 2017.36 The full bench pointedly ordered that the appointment, suspension or removal of an NDPP be undertaken by the Deputy President rather than the incumbent President, who was ‘conflicted by a host of criminal charges’.37 The 2015 appointment of General Mthandazo Berning Ntlemeza as national head of a special investigative unit, the Directorate for Priority Crime Investigation, was another instance of setting a fox to guard the hen house: the Minister of Police who appointed him was aware that courts in two sepa- rate sets of legal proceedings had previously described Ntlemeza as dishonest. This appointment, too, was successfully challenged in court. In March 2017 a full bench of the High Court struck down the appointment as unlawful and irrational,38 and the SCA subsequently confirmed that Ntlemeza was not enti- tled to return to his post pending the determination of his application for leave to appeal against the High Court judgment.39 After unsuccessfully petitioning both the SCA and the Constitutional Court for leave to appeal against the High Court judgment, Ntlemeza was forcibly retired (by a new Minister of Police) in September 2017.40

3.1.3 The Nkandla Scandal A case that made headlines around the world concerned lavish ‘security’ upgrades at President Zuma’s private homestead at Nkandla. An investigation by the Public Protector, a general ombud, found that some of the upgrades were unrelated to security and that Zuma and his family had been unduly enriched by them at public expense. However, the then President largely ignored the remedial action ordered, while the National Assembly (the first

35 Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC). 36 Corruption Watch (RF) NPC v President of the Republic of South Africa; Council for the Advancement of the South African Constitution v President of the Republic of South Africa 2018 (1) SACR 317 (GP). 37 Ibid [109]. 38 Helen Suzman Foundation v Minister of Police 2017 (1) SACR 683 (GP). 39 Ntlemeza v Helen Suzman Foundation 2017 (5) SA 402 (SCA). 40 S Mabena, ‘Ntlemeza, Mdluli out for good – Mbalula’ HeraldLIVE 17 January 2018 accessed 31 January 2018.

African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com10/01/2021 07:18:47AM via free access 114 Corder and Hoexter house of Parliament) saw fit to secure rival reports that exonerated Zuma. Opposition parties sought relief directly from the Constitutional Court, which reaffirmed the binding nature of remedial action taken by the Public Protector and declared that President Zuma and Parliament had failed to fulfil some of their most fundamental constitutional obligations.41

3.1.4 The Cabinet Reshuffle A reshuffle of the Cabinet by the head of the executive is usually regarded as the epitome of a political decision. Nevertheless, the DA decided to challenge a reshuffle announced on 30 March 2017. The challenge related particularly to the axing of Pravin Gordhan, a highly effective Minister of Finance, and his Deputy, who were known to be a bulwark against looting of the state by suit- ably placed members of the government (not least President Zuma himself), and whose removal from the Cabinet seemed to lead inexorably to the down- grading of South Africa’s financial rating to ‘junk’ status.42 The DA failed initially to secure an interim interdict to stop the reshuffle from being implemented.43 However, in May 2017 a High Court judge, Vally J, ruled in favour of the DA on an interlocutory point, holding that President Zuma was bound to produce the full record of his Cabinet decisions as well as the reasons for them.44 The reshuffle also inspired a vote of no confidence in President Zuma which, in turn, led to litigation about whether the Speaker had the authority to prescribe a secret ballot for such a vote. In June 2017 the Constitutional Court unanimously affirmed the Speaker’s discretionary power in this regard, remit- ting the matter to her and making it clear that her decision would be subject to review for rationality.45 History records that the Speaker decided to allow a secret ballot, but that Zuma nevertheless survived the vote.

3.2 Variations on Lawfare In addition to litigation brought to uphold the rule of law, two less noble sorts of lawfare have also been discernible in recent years. These are the use of criminal prosecution to persecute or intimidate the political enemies of those in

41 Economic Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC). 42 See Democratic Alliance v President of the Republic of South Africa 2017 (4) SA 253 (GP), [5] and [38]. 43 Democratic Alliance v President of the Republic of South Africa [2017] ZAWCHC 34. 44 Democratic Alliance v President of the RSA (n 41). The main application by the DA has since been withdrawn. 45 United Democratic Movement v Speaker of the National Assembly 2017 (5) SA 300 (CC).

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 115 power, and the ‘Stalingrad’ tactic employed by Zuma and others in an effort to evade legal accountability. An example of the first kind is the laying of trumped-up charges of fraud against Pravin Gordhan in October 2016, while he was still Minister of Finance – and, crucially, known to be the sort of Minister who would not permit the looting of the Treasury.46 The charges were abruptly withdrawn a couple of weeks later. The Stalingrad tactic entails constantly raising unwarranted interlocutory points, mounting spurious defences, launching baseless counterclaims and appealing against every adverse ruling, irrespective of the merits. It relies on the shameless use of state resources to fund endless litigation. As suggested by some of the examples discussed above, former President Zuma would seem to be the arch exponent of this approach, and the Minister of Justice has admitted that Zuma spent more than R24m of taxpayers’ money on legal fees while he was President.47 Indeed, in a 2017 judgment the full bench of a High Court frankly acknowledged Zuma’s tendency in litigation to defend the inde- fensible, ‘banking on any advantage that the passage of time may bring’ before finally conceding the point in dispute.48 However, Zuma is not the only one. In two prominent cases, superior court judges facing serious disciplinary charges have achieved endless postpone- ment of their day in court, allowing them to continue to draw a full salary and benefits for approximately a decade while the Judicial Service Commission (JSC) has dithered. In one case a judge who had been found guilty of drunk driving managed to reach retirement age before he was finally brought before a Judicial Conduct Tribunal.49 More shockingly, Judge President Hlophe of the Western Cape High Court has yet to be tried for alleged misconduct of the most serious nature which dates from May 2008.50 One way of discouraging the Stalingrad approach is to award costs against the litigant de bonis propriis, and such orders are certainly becoming more frequent. A notable instance followed a recent review application brought by

46 See C Powell, ‘How the charges against Pravin Gordhan demonstrate a misuse of SA law’ Mail & Guardian 19 October 2016 accessed 1 February 2018. 47 African News Agency ‘R24 million spent on Zuma cases since 2009 – Masutha’ The Citizen 16 April 2018 accessed 17 April 2018. 48 Corruption Watch v President of the RSA (n 35), [88]. 49 See further H Corder, ‘Judicial Accountability’ in C Hoexter and M Olivier (contributing eds), The Judiciary in South Africa (Juta & Co Ltd, Cape Town 2014) 200, 219–21. In April 2018 the tribunal recommended impeachment of the judge in question (Report of the Judicial Conduct Tribunal in re: Judge N J Motata, 12 April 2018). 50 See further Corder (n 48) 215–19. At the time of writing, his Judicial Conduct Tribunal hearing was set down for July 2018.

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Zuma while he was still President. Here the court confirmed that he was bound to appoint a commission of inquiry into state capture in the manner ordered in 2016 by the previous Public Protector – that is, under a chairperson designated by the Chief Justice.51 The court went on to make an order of costs against the President in his personal capacity, a step it found justified by his reckless and unreasonable conduct in bringing an unwarranted review application.52 In January 2018 Zuma complied with the judgment by appointing a commission of inquiry.53 Unsurprisingly, he also lodged an appeal against the costs order.

4 Explaining Lawfare

Meierhenrich shows compellingly that lawfare in the second sense had its genesis in the dual nature of the pre-democratic South African state. The rise of lawfare in the third sense is less easily accounted for given the context of constitutional democracy, a fortiori when one considers the variety of non- curial mechanisms in the 1996 Constitution that are intended to guard against failures of governance. These include a general duty on all organs of state to provide accountable government and a duty on the National Assembly to over- see executive action.54 They also encompass ‘Chapter 9’ institutions created in support of constitutional democracy: the Human Rights Commission, the Auditor-General, the Public Protector and various others. These bodies form the core of what is increasingly being referred to as the ‘integrity branch’ of government,55 a fourth branch alongside the trias politica. However, safeguards such as these clearly did not serve to prevent the recent spike in judicial review applications in politically fraught matters: the large number of cases brought by opposition parties and NGOs in efforts to uphold the Constitution and the rule of law. Part of the explanation for this is no doubt the long South African tradition of trust in the law and readiness to turn to the courts. Two other critical factors, we suggest, are constitutional provisions that

51 President of the Republic of South Africa v Office of the Public Protector 2018 (2) SA 100 (GP), [150]. 52 Ibid [190]. 53 Commission of Inquiry to Inquire into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State, established by way of Proc 3 in Government Gazette 41403 of 25 January 2018. 54 Constitution, ss 41(1) and 42(3). 55 See eg J J Spigelman, ‘The integrity branch of government’ (2004) 78 Australian Law Journal 724; Chris Field, ‘The fourth branch of government: The evolution of integrity agencies and enhanced government accountability’ (2013) 72 Australian Institute of Administrative Law Forum 24.

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 117 encourage litigation; and, above all, the failure of the legislature and executive to prevent the growth of nepotism, corruption and ultimately state capture.

4.1 Design and Interpretation of the Constitution The democratic Constitution is a consciously transformative charter that not only facilitates but actually encourages litigation in some ways. The Bill of Rights invites litigation on the basis of a very wide range of justiciable guar- antees. The Constitution also makes extremely generous provision for stand- ing to sue,56 confers very broad remedial powers on the courts57 and explicitly obliges them to declare invalid any law or conduct that is inconsistent with the Constitution.58 A related factor is the courts’ liberal approach to the justiciability of exercises of public power and the absence of a ‘political question’ doctrine. Reasoning that ‘the exercise of all public power is subject to constitutional control’, the Constitutional Court made it clear in its first decade that even distinctively political decisions are justiciable, such as the President’s granting of a pardon.59 This attitude has fostered the development over the past fifteen years of judicial review of exercises of executive power, relying on the ‘principle of legality’. This principle is an aspect of the rule of law, which is itself a founding value of the constitutional order,60 and a more abstract version of the right to lawful administrative action.61 Crucially, the principle has been held to demand that every exercise of public power conform to at least a minimum level of rationality,62 and sometimes considerably more than a minimum level.63 Rationality, in turn, may demand the giving of reasons and occasionally even procedural fairness.64 While the doctrine of deference that is being

56 Constitution, s 38. 57 Constitution, s 172. 58 Constitution, s 172(1)(a). 59 Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC), [78], referring to President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC). 60 Constitution, s 1(c). 61 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Municipal Council 1999 (1) SA 374 (CC), [59]. 62 Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC), [85]. 63 See Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC) and L Kohn, ‘The burgeoning constitutional requirement of rationality and the separation of powers: Has rationality review gone too far?’ (2013) 130 South African Law Journal 810. 64 Ground-breaking cases in this regard were Cape Bar Council v Judicial Service Commission 2013 (1) SA 170 (SCA) (reason-giving) and Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) (procedural fairness).

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4.2 Nepotism, Corruption and State Capture The background factors just outlined have been constant for some time, and in our view they are insufficient on their own to explain the surge in lawfare in recent years. Equally, that escalation is not fully accounted for as a response to ‘cadre deployment’ carried out by the dominant party, for it has always been ANC policy to ensure that important public positions are occupied by party members.66 In other words, cadre deployment was a feature of the rainbow years too – though its implementation no doubt became more extreme under Zuma. A more complete explanation is that resort to the courts in political matters has been fuelled by the failure to inhibit and prevent, by regular political activity in the legislature and executive, the development of widespread nepotism, corruption and the looting of the state by a ‘patronage faction’ within the ANC, in what has come to be identified as a systematic process of state capture.67 It is not for nothing that in October 2017 the Pan South African Language Board announced ‘State Capture’ as the most prominent phrase of the year: it had appeared in print no fewer than 20 311 times.68 The growth of a mafia state was a feature of the presidency of Jacob Zuma. It was no doubt facilitated by the concentration of power that is vested the

65 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC); P J H Maree and Geo Quinot, ‘A decade and a half of deference’ 2016 Journal of South African Law 268 (part 1) and 447 (part 2). 66 See eg C Twala, ‘The African National Congress (ANC) and the cadre deployment policy in the post-apartheid South Africa: A product of democratic centralisation or a recipe for a constitutional crisis?’ (2014) 41 Journal of Social Science 159. 67 Martin and Solomon define state capture as ‘the actions of individuals or grounds both in the public and private sectors, influencing the formation of laws, regulations, decrees and other government policies for their own advantage’: M E Martin and H Solomon, ‘Understanding the phenomenon of “state capture” in South Africa’ (2016) 5 Southern Afri- can Peace and Security Studies 21, 22. See further Public Protector, State of Capture (Report No 6 of 2016–2017); South African Council of Churches, Unburdening Panel Report (May 2017); State Capacity Research Project, Betrayal of the Promise: How South Africa is Being Stolen (May 2017). 68 ‘State capture named SA word of the year’ Daily Maverick 16 October 2017 accessed 17 October 2017. The phrase seems originally to have been used by the World Bank to describe a phenomenon experienced in certain central Asian countries during the transition from communism: J Crabtree and F Durand, Elite Power and Political Capture (Zed Books, London 2017) 1.

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President, who is both head of state and head of government in terms of the Constitution.69 While the close association of the former President with the notorious Gupta family is old news, the full extent of Zuma’s network of patronage and corruption within the government itself is still largely a matter of speculation.70 The details are expected to emerge over the next couple of years, particularly as a result of a commission of inquiry established to inves- tigate state capture.71 However, one fact is already fairly clear: that the executive and legislature (or the parts of those institutions that were not themselves suborned) were supine under Zuma and did disastrously little to prevent the growth of nepotism and the process of state capture. One chilling example of Parliament’s failure to address corruption is its conniving to smother the findings of the Public Protector in the Nkandla investigation – that Zuma and his family had been unduly enriched at public expense by some of the ‘security upgrades’ made to his private rural compound at Nkandla.72 Far from acting on the report, however, the National Assembly’s response was to commission rival investigations that exonerated Zuma. That is irresponsible if not perverse behaviour on the part of a body charged with holding the executive to account. Another egregious example of abandoning constitutional obligations is to be seen in the unwillingness or inability of various portfolio committees in Parliament, and of the responsible Cabinet Minister, to tackle manifest corruption in the corporate governance of state-owned enterprises.73 In the absence of proper oversight by political institutions, it is hardly surprising that opposition parties and NGOs turned to the courts to fill the accountability vacuum. Indeed, the causal link was explicitly acknowledged by the National Executive Committee of the ANC a full year before Zuma’s recall and resignation. In March 2017 the Secretary-General of the party recorded in a public statement:74

69 See further F Venter, ‘Parliamentary Sovereignty or Presidential Imperialism?’ in C M Fombad (ed), Separation of Powers in African Constitutionalism (Oxford University Press, Oxford 2016) 101. 70 Two books published towards the end of 2017 give a real sense of the extent of the rot: J Pauw, The President’s Keepers (Tafelberg, Cape Town) and A Basson and P du Toit, Enemy of the People (Media24, Cape Town). 71 Ironically, by Zuma himself: see the text to n 52 above. 72 Public Protector, Secure in Comfort (Report No 25 of 2013–2014). 73 Especially the electricity supply commission (Eskom) and South African Airways (SAA). 74 Gwede Mantashe, Secretary-General, ‘Statement of the African National Congress following the National Executive Committee meeting held 24–26 March 2017’ accessed 29 January 2018.

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The very fact that the courts are playing a more interventionist role in governance is reflective of our role in abdicating our governance responsibilities to the judiciary. Judicial overreach occurs in instances where the Executive and Legislature fail adequately to deal with matters before them.

5 The Primary Casualty of Lawfare

In the second sense identified in this article, lawfare has been part of the South African experience for more than a century. The achievement of constitutional democracy in 1994 brought a temporary lull; but as we have suggested, public corruption and failures of governance under Zuma led to a resurgence of liti- gious activity on the part of opposition parties and civil society in cases with a strong political flavour: lawfare in the third sense of the term. It has often been pointed out that the courts would far prefer not to hear cases that tend to draw them into the political sphere.75 As already noted, however, the design and previous interpretation of the Constitution give the courts little choice but to rule on the matters brought before them, no matter how politically fraught the subject matter, and they are obliged to declare incon- sistency with the Constitution when and where they find it. In recent years, lawfare has constantly placed the courts at loggerheads with the executive and legislature, and the results have not been pretty. Members of the ANC both within and outside the government have repeatedly accused the judiciary of ‘overreach’: of violating the separation of powers by encroaching on the pre- serve of the political branches.76 The courts, and sometimes individual judges, have been subjected to intemperate criticism and have been accused of bias against the government. Court orders have been flouted too, seemingly in a more egregious fashion than in the past. In this way the judiciary has become the main casualty of a larger political battle. This state of affairs perfectly suits the agenda of certain factions. It is convenient for those who would use the judiciary as a scapegoat for lack of progress in realising the ANC’s national democratic revolution, or for failure to achieve the promises of the democratic Constitution.77 It is also convenient for those

75 See eg S Grootes, ‘Analysis: The politics of judicial and executive overreach’ Daily Maverick 11 May 2017 accessed 9 June 2017. 76 For a catalogue of such accusations, see C Ramsden Judicial Overreach 8 June 2017, a brief written for the Helen Suzman Foundation accessed 8 June 2017. 77 For instance, Ramsden (ibid) suggests that the ‘cries of overreach’ are an attempt to dis- tract the South African public from the government’s failures.

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 121 bent on state capture: for if the judiciary itself cannot be captured, the next best thing is to weaken the institution by undermining its authority, its independence and ultimately its legitimacy. A mafia state is, after all, unlikely to flourish in the presence of a robust judiciary. The courts have thus become a site of struggle between those insisting on constitutionally compliant governance and those who, for their own dishonourable and self-serving reasons, seek to erode judicial authority. Is there no truth, then, in the allegations of overreach and encroachment? In our assessment there is some justification for such criticism. The courts have occasionally been tempted into exceeding their mandate by failing to respect the separation of powers or by acting without due deference, typically in rela- tion to the remedy awarded. However, clear instances of judicial insensitivity to the separation of powers are few and far between, and have usually been corrected on appeal. One example is a High Court’s award of a temporary restraining order preventing the relevant agency from levying or collecting tolls in a particu- lar province pending judicial review of the tolling regime.78 This order, the Constitutional Court later held, had substantial budgetary implications, and the ‘deafening silence’ of the court below ‘on the overarching consideration of the separation of powers’ was a powerful factor in the higher court’s decision to set aside the interdict.79 Another example is the rather invasive remedy granted by the same division of the High Court in 2013. In this case the applicant NGO had successfully challenged decisions to drop criminal as well as disciplinary charges against a senior police officer, and the court ordered the NDPP to reinstate the original charges and the Commissioner of Police to reinstate the disciplinary proceedings.80 On appeal, the SCA made its displeasure plain. It agreed with the appellants’ argument that these mandatory interdicts were ‘inappropri- ate transgressions of the separation-of-powers doctrine’, which doctrine ‘pre- cludes the courts from impermissibly assuming the functions that fall within the domain of the executive’ except in rare and compelling circumstances.81 The appeal court could see no compelling reason why the authorities concerned should not be left to perform their constitutional mandates, particularly

78 Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2012] ZAGPPHC 63. 79 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 201 (CC), [72]. 80 Freedom Under Law v National Director of Public Prosecutions [2013] ZAGPPHC 271. 81 National Director of Public Prosecutions v Freedom Under Law 2014 (4) SA 298 (SCA), [52].

African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com10/01/2021 07:18:47AM via free access 122 Corder and Hoexter since setting aside their decisions had the effect of reinstating the charges in question; and it concluded that the High Court had gone too far.82 Other examples no doubt exist, but in our view there is no clear correlation between such instances and the more strident allegations of judicial overreach. Rather, it seems to us that these allegations are part of the broader campaign to undermine the judiciary. As we show in what follows, the project of suborning, intimidating and subverting the judiciary has been pursued by various means ranging from the unobtrusive to the blatant.

5.1 Some Less Obtrusive Tactics One of the quieter (and slower) tactics in the campaign has been a long- term effort to influence the judicial appointments process for party-political purposes. This process seems to have coincided with Zuma’s ascendancy. In the early years of the Judicial Service Commission (JSC), notwithstanding the large number of ‘political’ commissioners drawn from the executive and legislature, ‘the culture was that you voted with your conscience, not your constitu- ency, for the truly best candidate’.83 From mid-2009, however, it was hard to resist the conclusion that the JSC was being packed with ANC supporters who would toe the party line rather than exercise independent judgement as to the suitability of candidates.84 Over the last decade there have been many claims of political manipulation of the selection process and of a party-political agenda in the appointment of judges.85 What is heartening is the extent to which the judiciary seems to have retained its independence of mind in spite of the efforts made to appoint compliant judges. The Chief Justice himself has been cited as an example of a judge who ‘confounded expectations (presumably shared by President Zuma when he appointed him) that he would be pliant and beholden to the executive’.86 Disobedience of court orders is another insidious and slow but potentially very effective way of undermining the judiciary. Continual non-compliance with court orders ‘imperils judicial authority’87 as well as undermining the rule of law. Of course, not every failure to comply with court orders is wilful:

82 Ibid. 83 Former commissioner Wim Trengove, as quoted by N Tolsi, ‘Is the JSC courting favou- rites?’ Mail & Guardian Online 26 April 2012 accessed 1 June 2012. 84 See M Olivier and C Hoexter, ‘The judicial service commission’ in Hoexter and Olivier (n 48) 154, 171–2 and 174–5. 85 Ibid. 86 Editorial, ‘Doing justice to the Constitution’ Financial Mail 18 May 2017 accessed 24 May 2017. 87 Nyathi v MEC for Department of Health, Gauteng 2008 (5) SA 94 (CC), [48].

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 123 some failures are attributable to inattentiveness or incompetence,88 and in a young and developing democracy one should probably expect a certain amount of both. Indeed, the Constitutional Court has recorded that from as early as 2002 (long before any talk of state capture), the courts were ‘inundated’ with cases in which state functionaries had flouted such orders.89 Chillingly, however, there have also been instances of wilful disobedience as evidenced by the rapidly growing jurisprudence on contempt of court.90 In recent years, the most outrageous example of executive disregard of judgments has been the contempt shown by the Minister of Social Development for a series of orders by the Constitutional Court in a case concerning the payment of welfare grants. In the Allpay case the court found that a massive tender for the nationwide payment of such grants had been awarded unlawfully,91 and since then the court has done its best to enforce a proper procurement process without interrupting the payment of grants to approximately 17 million South Africans. At the time of writing, some four years since the Allpay judgment on remedy was handed down,92 the South African Social Security Agency, the Department of Social Development and its Minister had still not carried out the court’s orders.

5.2 Louder and More Blatant Attacks In our view, the angry accusations of judicial overreach over the last year or so are part of the larger strategy: a louder and more blatant way of attacking the judiciary. This sort of response to judgments that appear to thwart the democratic will is not entirely new. It became alarmingly common during 2011, after the Constitutional Court had given judgment against the government in two high- profile cases bearing on the separation of powers.93 Soon afterwards there was

88 K Roach and G Budlender, ‘Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?’ (2005) 122 South African Law Journal 325, 345. 89 Nyathi v MEC for Department of Health (n 86), [60]. 90 The case law is surveyed in Matjhabeng Local Municipality v Eskom Holdings Ltd 2018 (1) SA 1 (CC). 91 AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency 2014 (1) SA 604 (CC). 92 AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency 2014 (4) SA 179 (CC), handed down on 17 April 2014. 93 Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC), in which the court struck down legislative provisions for failing properly to secure the independence of the Directorate for Priority Crime Investigation; and Justice Alliance v President of the Republic of South Africa 2011 (5) SA 347 (CC), where the court declared invalid the President’s decision to extend the term of office of the then Chief Justice.

African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com10/01/2021 07:18:47AM via free access 124 Corder and Hoexter a volley of criticism from politicians that a legal doyen described as ‘bordering on demonisation’ of the judiciary.94 Amongst other outbursts, the Secretary- General of the ANC accused the courts of blocking transformation;95 a member of its National Executive Committee, who was also a Deputy Minister at the time, bemoaned the supremacy of ‘forces against change’ in the courts;96 and the ANC Chief Whip instructed the highest court to ‘leave laws made by Parliament alone’.97 One commentator described such statements as a campaign of ‘conservative attacks on the judiciary masquerading as radical concern for transformation’;98 and the government’s announcement in February 2012 of a ‘review’ of the judgments of the Constitutional Court looked very much like an escalation of the attack.99 However, the salvo of criticism eventu- ally subsided and the sinister-sounding review ultimately became a report that largely vindicated the highest courts.100 Nevertheless, the more recent narrative of ‘judicial overreach’ is cause for concern, particularly when coupled with the thinly veiled threat of a budget cut.101 Allegations of judicial bias are also worrying, whether they are disin- genuous or not. In 2015, after the al-Bashir ruling,102 the ANC Alliance com- plained that ‘the judgments of certain regions and judges are consistently

94 George Bizos SC, ‘Blame neither the constitution nor the courts’, a graduation address delivered at the University of Pretoria on 9 December 2011. See further Hoexter and Olivier (n 48) xxvii, xxix–xxxii. 95 ‘Full interview: Mantashe lambasts judges’ Sowetan Live 18 August 2011 accessed 29 January 2014 (transcript of an interview between the editor of the Sowetan, Mpulelelo Mkhabela, and ANC Secretary-General, Gwede Mantashe). 96 N Ramatlhodi, ‘The big read: ANC’s fatal concessions’ TimesLIVE 1 September 2011 accessed 30 January 2014. 97 See eg W Hartley, ‘Moseneke speaks up against attacks on the Constitution’ Business Day 30 September 2011 accessed 5 January 2014. 98 P de Vos, ‘On self-serving and untrue criticisms of the judiciary’ Constitutionally Speaking 4 April 2012, accessed 5 January 2014. 99 See Hoexter and Olivier (n 93). The review was later extended to the SCA and ultimately became a research project on the impact of the decisions of the highest courts particularly as regards socio-economic rights: see Assessment of the Impact of Decisions in the Constitutional Court and Supreme Court of Appeal on the Transformation of Society (dated November 2015 but made public only on 3 November 2017) accessed 10 November 2017. 100 If anything, the report (n 98) tends to blame the executive for its failure to implement court orders. See further C Thakur, The Constitutional Justice Report: Judging the Judges?, a two-part brief written for the Helen Suzman Foundation accessed 20 February 2018. 101 As in the budget speech of the Minister of Justice, T M Masutha, 17 May 2017 accessed 9 June 2017. 102 See n 29 above.

African Journal of Legal StudiesDownloaded from10 (2017) Brill.com10/01/2021 105–126 07:18:47AM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 125 against the state, which creates an impression of negative bias’.103 More recently the Speaker of the National Assembly, Baleka Mbete, suggested that certain unnamed judges were biased against the ANC: if cases ‘end up in the hands of certain specific judges, forget it, you are going to lose that case. It has nothing to do with merit …’.104 Nor has criticism of the judiciary been confined to gen- eralisations of this kind. There have been savage attacks on individual judges, too, most notably on Vally J when he ruled against President Zuma in the matter of the Cabinet reshuffle.105 This ruling was characterised by the ANC as ‘unfettered encroachment’ into the realm of the executive and even as an attempt to ‘overthrow government’.106 Public utterances and diatribes of this nature are extremely dangerous, especially if left unchallenged. Their overall effect is to situate the judiciary within a highly contested public arena and gradually to suggest that even dis- respectful and tendentious allegations are somehow fair comment. In this way public confidence in the courts, the foundation of their legitimacy, is steadily undermined. It is some comfort that such attacks have occasionally been challenged by the judiciary, most notably at an historic meeting in August 2015 between Chief Justice Mogoeng, President Zuma and other senior members of the judiciary and executive.107 More recently, the Chief Justice publicly deplored what he termed ‘gratuitous attacks on judicial officers’.108 The point is one that can hardly be made too often.

6 Conclusion

In this article we have reflected on the use of litigation in South Africa to challenge unlawful, oppressive or arbitrary exercises of public power. Thanks to the remarkable duality of the pre-democratic state, such lawfare enjoyed intermit- tent success after the Union of South Africa came into being in 1910; and those

103 Alliance Summit Declaration 1 July 2015 accessed 27 July 2017. 104 Serjeant at the Bar, ‘ANC is blind to the real threat to governance’ Mail & Guardian 25 July 2017 accessed 27 July 2017. 105 See text to n 43 above. 106 See eg N Gcaba, ‘ANC lashes out at judge who wants Zuma to explain reshuffle’ TimesLIVE 5 May 2017 accessed 9 June 2017. 107 The meeting resulted in ten points of agreement for respecting the roles and responsibilities of each branch: see eg K O’Reilly, ‘Meeting between the President and the Chief Justice’ De Rebus 30 September 2015 accessed 24 April 2018. 108 As quoted by C du Plessis, ‘Chief Justice Mogoeng Mogoeng: “Feel free to mock judges, but don’t threaten us with violence” ’ Daily Maverick 31 January 2018 accessed 2 February 2018.

African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com10/01/2021 07:18:47AM via free access 126 Corder and Hoexter successes fostered faith in law and in the capacity of the judiciary to deliver justice. The era of constitutional democracy saw a resurgence of lawfare in distinctively political disputes, a phenomenon closely associated with the presidency of Jacob Zuma and the rise of nepotism, corruption and ultimately state capture. This barrage of lawfare has been especially dangerous because it has drawn the judiciary into the public arena and thrust it into a relationship of constant tension with the political branches. As we have argued here, the judiciary has become the primary casualty of this ongoing battle. It is tempting to regard the recent fall of former President Zuma as the pana- cea for all South Africa’s ills, including the problem of lawfare. But however effective the leadership of the new President proves to be, it is unlikely to put an immediate stop to the phenomenon of lawfare. Far from it: at the time of writing, the first review was being launched of one of Ramaphosa’s own decisions as President – a challenge by the DA against an executive appointment.109 Nor will it prevent a resurgence of lawfare under other leaders in years to come. Meanwhile, undoing the damage of the Zuma years is likely to lead to more litigation, not less: one can foresee a long queue of litigants, including organs of state, wanting the courts to set aside past conduct associated with state capture. If, as we have suggested, the most recent burst of lawfare was necessitated by the failure of the executive and legislature to do their jobs properly, then sustained dedication to those jobs is probably the only way to a permanent ceasefire. As long as political efforts remain insufficient, excessive recourse to the courts is likely to continue and the tensions caused by it will remain. The courts may then be tempted either to exceed the bounds of their proper authority or to make a strategic withdrawal, the more effectively to fight future battles. Sadly, whichever route is taken is likely to lead to an appreciable loss of public confidence, the ultimate currency of judicial legitimacy.

109 See C Mailovich, ‘DA seeks judicial review over decision to appoint “compromised” Arthur Fraser as boss of prisons’ Business Day 20 April 2018 accessed 23 April 2018.

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