EDITORIAL: Ramaphosa has a duty to defend the constitution

The battle lines between constitutional democracy and those politicking ahead of the ANC’s 2022 electoral conference are clear.

The daggers were sharpened when tourism minister Lindiwe Sisulu made a punching bag of the country’s supreme law. Acting top judge Raymond Zondo felt moved to react to the “insulting” comments about black judges in particular, who were accused of having colonised mindsets. He was right to ensure the assault met forthright defence.

After Zondo’s response, the minister, who has previously made much about her family members’ contribution to the struggle for democracy, said she “noted” the remarks. Amazingly, she was consulting her lawyers. Is she suggesting she might seek some kind of redress from the same judiciary and constitution order she had attacked?

The fallout has set the tone for what is likely to prove a make-or-break year in SA in politics and rule of law. Weaknesses in Sisulu’s text abound, from alleged plagiarism to poor argument. Even the minister’s dates are off. She writes of a new constitution in 1994 when in fact it was ratified in 1996.

Sisulu mentions the constitution of SA in broad terms, and doesn’t analyse any individual laws to support her argument. The statute she bothers to mention by name is the Native Land Act of 1913, which has long been binned. She says “mentally colonised Africans” in the high echelons of the judiciary have “turned against their own”, but with no specific rulings named or quoted.

Zondo was among those who pushed back when Sisulu rubbished SA’s rule of law and the legitimacy of the constitution. Meanwhile, the president has maintained a steely — and, frankly, unforgivable — silence. Cyril Ramaphosa, circumspect to a fault on taking action, has not so much as made a public peep about Sisulu’s remarks.

Zondo is likely to be quizzed on his retort when he interviews for the chief justice job in two weeks’ time. For the first time, the Judicial Service Commission (JSC) will interview candidates, before Ramaphosa makes the final decision.

There is no debate: the judiciary needs a decisive leader, who inspires confidence of her or his peers and the public at large. Even the best appointment will be stillborn if the likes of Sisulu dress down the rule of law without reprimand.

The Office of the Chief Justice has been in want of a permanent appointee for months, with Mogoeng Mogoeng’s later years having been marred by bizarre and unnecessary controversies. The mid-2021 riots with a death toll of more than 300 proved a challenge to SA’s rule of law. And attacks on the judiciary, and indeed, constitutional democracy, from the likes of former president Jacob Zuma, are rising. The country is going to be under continued strain and will need a strong leader. 

Zondo was forthright in asserting the independence of the courts. The reply included the promise that judges would persist in doing their work in line with their oath of office, and withstand pressure from those who lashed out when disgruntled at bench decisions.

Unsurprisingly, Zondo’s address sparked pushback from political quarters. It also prompted those in politics and legal practice to support Zondo in speaking up for the constitution.

Whoever becomes the next chief justice, the saga of the last fortnight speaks to the real contest as to what kind of state SA will become: one which shirks the constitution and its hard-won values in favour of tyranny, or one which takes seriously the imperatives of the constitution in serving SA’s most vulnerable.

Ramaphosa may have other political considerations in staying out of the fray, lest he gives Sisulu and her backers an opportunity to legitimise a sense of grievance and push for his ouster.

One can argue that his most important legacy, irrespective of how his political career ends, is already at stake. As one of the authors of the constitution, he has a duty to the founders of this democracy, who include Sisulu’s parents, Walter and Albertina, to defend what he has been entrusted with.