THE integrity of South Africa’s judiciary has never been under more scrutiny since the advent of our democracy than it has in recent months, with accusations from a broad spectrum of society that judges and magistrates were involved in corrupt dealings.
The allegations soared, with a social media campaign naming a host of judges who allegedly received monies running into the millions from the CR17 campaign that ran President Cyril Ramaphosa’s race for the ANC presidency. The judges refuted the allegations prompting Chief Justice Mogoeng Mogoeng to call a press conference to deal with the allegations. At the time, he called for people with information of wrongdoing by judges to come forward. Here’s a clip of that press conference including what one businessman said was a dossier of evidence of corruption by judges. https://wp.me/p7OMJc-2OX
There are many who say they have provided the evidence but it has been ignored by the legal fraternity – from Mogoeng’s office to the Legal Practice Council, which has replaced the law societies. Of concern is that these allegations don’t come from citizens only but some in the legal fraternity have also made claims that there exists a practice of covering-up judicial wrong-doing. For example, an ex-regional magistrate Pumelele Sibusiso Legodi has lodged a criminal complaint with the police against Judge President of Mpumalanga, Francis Legodi, alleging the judge told “lies” to parliament that resulted in his dismissal as a magistrate. Here’s his full complaint State v Legodi A1-2
Most South Africans believe most if not all judges and magistrates are corrupt according to a survey published by Judges Matter, a transparency project that believes in the importance of judges. https://www.judgesmatter.co.za/
A survey by Afrobarometer says the number of citizens in South Africa who say that “most” or “all” judges and magistrates are involved in corruption has doubled between 2002 (15%) and 2018 (32%).
This is obviously extremely troubling. Issues around corruption in the judiciary have been raised before, in particular by Judge President Dunstan Mlambo who for example in 2016 said that corruption had also made its way into courts. However, he made the point that he felt the corruption to be a factor in the moving parts of the justice system that surround judges, rather than judges themselves.
The Afrobarometer survey suggests something different. It suggests that a significant number of people believe that “most” or “all” judges and magistrates are corrupt. If you look at perceptions of the independence of the judiciary disaggregated into perceptions of judges and magistrates, we see that they are seen as virtually identical in terms of how they are seen.
What has caused this decline in confidence? One factor in the perception of a lack of independence in the judiciary may be the failure of the justice system to deal quickly with the legal issues surrounding President Zuma, including the failure to prosecute him in relation to the arms deal corruption allegations. Between 2012 and 2015, public perception of how often the president complies with the courts and the laws of the country dropped significantly. In 2012, two-thirds of South Africans said that the president never or rarely ignored the courts. Three years later, this number had dropped to less than 40%. Lawyers familiar with those cases against the President may argue that the system of finding the President accountable for his various actions is grinding on steadily if not quickly. However, the failure of the system to quickly finalise the ongoing legal battles may have dented our collective confidence in the judiciary. Confidence in all branches of government has declined since 2006, but the courts have fared better then the other two branches of government.
However we need to take any decline seriously. As the full bench of the North Gauteng High Court said in its judgment on the Al Bashir case;
“A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.”