South Africa is a noisy and vibrant democracy. We couldn’t have it any other way. At the heart of this vibrancy is the promise enshrined in the constitution that we are a nation that adheres to the rule of law.
The supremacy of the constitution is enforced by an independent judiciary — a system that puts the Constitutional Court as the final arbiter of disputes in society.
And for the past 32 years, the apex court has won the goodwill of many South Africans, delivering monumental judgments ranging from recognising same-sex marriage and abolishing the death penalty to socio-economic rights.
The court has shown teeth in the political realm. Its sentencing of former head of state Jacob Zuma to direct imprisonment for defying its orders was one of the court’s crowning moments. Nobody, not even a former president, is above the law.
It is disconcerting that the court, which has worked hard over the past three decades to earn the respect and goodwill of the majority of South Africans, has opened itself for criticism in the undue delay in handing down judgment in the Phala Phala saga involving the sitting head of state, Cyril Ramaphosa.
Today marks 435 days since the court heard an appeal by the EFF, challenging parliament’s decision not to proceed with an impeachment inquiry into the theft of millions of rand at Ramaphosa’s Phala Phala farm in 2022.
The Section 89 panel, ironically chaired by the court’s erstwhile chief justice, has already found that Ramaphosa had a prima facie case to answer — a finding that legislators dismissed.
Naturally, the EFF and others have raised questions on what is leading to the delay in the court deciding on the matter.
This is not the terrain that the court should have put itself on. The esteemed members of the court and the institution they represent can ill afford to be seen to be biased or protecting the executive from scrutiny.
With allegations of judicial capture sporadically made by some elements in society — particularly those who hate the guardrails a rule-based society imposes on them — the court has invited upon itself a hive of accusations and conjecture.
This is regrettable. The delay has put the court in a position that it owes the public an explanation for the delay. The legitimacy of the judiciary is too precious to take for granted.
The hard-fought-for values of judicial independence and impartiality are sacrosanct and rely on litigants and the public having confidence in decisions handed down by the system.
The justices who have the rare honour to serve on the court know well that perception of judicial bias undermines public trust.
The delay in handing down judgment on the matter is also unfair to Ramaphosa, as it creates an impression, rightly or wrongly, that he may be shielded from scrutiny over the Phala Phala saga.
The declassification of the Ipid investigation into Phala Phala has done little to erase fears that state machinery is being used to protect the president. While the South African Revenue Service and the public protector have cleared the president of wrongdoing in the matter, the decision by the apex court on whether parliament failed to hold him accountable matters.
It matters because society looks to the court as the last line of defence to rein in the often rogue public officials, elected and unelected.
The integrity and legitimacy of the apex courts rests on them delivering quick judgments. A delay of more than a year sends the wrong message to society. The prestige of the court and its history demands better of it.
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