OPINION: The judge of true independence

It was a meeting that probably should not have happened, but it did. Last week chief justice Mogoeng Mogoeng, flanked by his deputy judge Dikgang Moseneke as well as senior judges of the Supreme Court of Appeal, met with President Jacob Zuma, deputy president Cyril Ramaphosa and four Cabinet ministers.

The meeting, held at the request of the chief justice, was intended to discuss the recent tensions between the executive and the judiciary, specifically in the wake of the al-Bashir judgment.

Government failed to adhere to judge president Dunstan Mlambo's order that it detain Sudanese President Omar al-Bashir who is wanted by the International Criminal Court (ICC) for various human rights abuses. South Africa is a signatory to the Rome Statute that sets up the ICC.

However, the tensions may have reached a highpoint with the al-Bashir matter but it is worth remembering that various ministers and also senior members of the ANC have attacked the judiciary consistently in the past few years.

After the Mlambo judgment, secretary-general Gwede Mantashe launched a scathing attack on the courts, citing them as 'problematic' and that there were 'some sections' of the court system driven by a desire to 'create chaos for governance' in South Africa. His deputy Jessie Duarte followed suit with similar criticisms.

In 2012, Ngoako Ramathlodi launched a scathing attack on the judiciary while delivering a lecture in honour of ANC President AB Xuma. Ramathlodi accused the judiciary of seeking to undermine the executive. But the tension goes further than criticising the judiciary. As the Nkandla matter unfolded we saw successive ministers and the president himself undermine the public protector's office, which is a constitutionally mandated body charged with ensuring that there is no impropriety in public administration.

When the public protector released her report into the corruption and rot within Prasa recently, the ANC response was luke-warm, calling her findings and recommendations, 'allegations'. Words matter and what the ANC says matters.

By using the word 'allegations', the ANC has both minimised and undermined the public protector's office and the Constitution. It is therefore unsurprising that the attacks on the judiciary have increased in number and intensity.

The trend has mostly been to attack the judiciary when judgments are unfavourable to the State and also then to subtly (by not implementing court orders at times) undermine the judiciary. and then unsubtly through open attacks on judges.

We are told that the meeting between the chief justice, the president and their colleagues was held in good spirit and Mogoeng was quoted as saying that sometimes judgments 'pinched' which was a sign of a healthy, robust democracy.

Out of the meeting arose a 'ten point' agreement which broadly will ensure that there is mutual respect between the executive and the judiciary, that criticism against either branch of government be measured and also that the Constitution be upheld. So, after seven hours of meeting, the parties agreed to adhere to the Constitution. If only it were that simple.

The question, of course, is how one measures and defines 'criticism'? When judges hand down judgments the Constitution demands that they do so without fear or favour, and also by applying the law and the Constitution. Where government falls short - as it did in the al-Bashir matter - or simply ignores a court order, it should feel the sharp end of the rule of law. Its Constitutional obligation is to adhere to court orders and if dissatisfied with them, to appeal them.

One requires robust dialogue in a democracy and it is true that in the past few years we have seen an increasing number of matters which ought to be dealt with politically, heading to court. Numerous appointment processes, such as that of the National Director of Public Prosecutions and the CEO of the SABC, to name but a few, have headed to court.

In addition, Parliament itself has become embroiled in far too much litigation. What this signals is our inability to deliberate and persuade one another of an alternative viewpoint. It says a great deal about the state of our politics and how increasingly porous it has become.

It also often places the judiciary in a difficult position because some matters are simply not meant for court adjudication. The pressure such matters puts on the judiciary is untold and we are starting to feel the deleterious impact of the over-use of court processes.

Yet, often in the face of a recalcitrant State, parties have no choice but to seek clarity and a last word from the courts.

The al-Bashir matter showed us, however, that the ANC government is perfectly capable of ignoring a court order and undermining the judiciary with little concern for the long-term consequences. An amount of tension between the executive and the judiciary is healthy, as well as a natural outcome of our constitutional arrangements. Yet ignoring a court order takes us into a realm of impunity rather more dangerous.

So it is unclear what the meeting between these two branches of government achieved last week except to restate the constitutional position.

But we would be naïve to take the matter on face value.

While the chief justice and his colleagues should be supported and commended for boldly calling such a meeting during testy political times, we need to keep a close watch on the judgments handed down and appointments made to the bench in the coming months and years.

Zuma remains a president under pressure and under threat of possible prosecution. As we have seen with the shameless manipulation of the NPA recently, he might pledge allegiance to the Constitution and the rule of law, but his actions may well indicate quite the opposite. No doubt both Mogoeng and Moseneke are keenly aware of this and would have been keen to draw this line in the sand to protect and defend the Constitution and the independence of the judiciary.

What we really need to be watching is future appointments, not only to the Constitutional Court but the high courts too. Keeping a close eye on the Judicial Services Commission that deals with the appointment of judges will be key. For one can sugarcoat any interaction and spin the outcome, yet the effects of the meeting might well only be seen in the distant future.

Might this meeting, for instance, not have had a dampening effect on judges in general who may now be more cautious and deferential in their judgment, specifically where the State is involved? Those in lower courts aspiring to promotions might also have heard the message loudly and clearly and so trim their sails according to political winds. This is not an impossible scenario and it would be naïve to believe that our courts, like our media, are not under significant threat from those in power.

For now we can rest easy knowing that the leadership of our judiciary is united on retaining their independence. But it is not something that we should take for granted, no matter who is in power.

_Judith February is based at the Institute for Security Studies. Follow her on Twitter: _ @judith_february