In defense of the Constitution, judges and the rule of law

As the country commemorates 30 years of democracy this year, part and parcel of the democratic project was a new vision for how one of the arms of the South African state – the judiciary – operates and delivers on its mandate. And, as the democratic project was under siege from state capture, they had to stand firm in defiance of nefarious influence.

The University of Cape Town (UCT) LLM student Dan Mafora chronicles how far this critical institution has come in his book titled Capture in the Court: In Defence of Judges and the Constitution.

“This book is not about state capture. No, this is about a new, more insidious, form of capture. It is about the ascendant anti-constitutionalism of our present moment.”

These are the stern words Mafora uses to introduce the reader to the book.

UCT’s Centre for Law and Society hosted a lunchtime conversation on 13 March, where Mafora engaged in discussion with UCT alumni and the director at the Centre for Legal Integration in Africa at the University of the Western Cape (UWC), Professor Anthony Diala.

The book, Mafora writes, is an attempt to “inject into our discourse a critical inward-looking approach to debating issues, placing the pursuit of truth at the centre”.

“I cut through the noise, eschewing any grand narratives, focusing only on the finer details – arguing purely from the facts as we know them.”

“The book ends up being an interrogation of what I see as anti-constitutionalism, how widespread it is becoming and how tolerant we seem to have become of it. The book explores the role that is played both by the legal profession and the media in how some of the big cases we have seen become a spectacle,” said Mafora.

“There has been a populist turn in our politics, where judges who are doing their jobs are characterised and villainised as elites who have a vested interest in protecting whatever social structure that is oppressive of ordinary South Africans.

He added: “One of the key themes in the book is the myth-busting I’m trying to do: to examine the claim that judges are captured by certain interests or people and see whether the evidence stacks up because a lot is left to the conjecture of ‘this judge is captured because they made this particular decision in this case’ but when you examine it, it is a question of what the law says and how it is applied.

“You can disagree with a judgment of a court, of course, but going further than that and attributing motive to a particular decision which, on its face seems to be reasoned, calls us to interrogate these claims and not allow ourselves to be led by biases.”

Selfish political interests

The book, published in September 2023, has received rave reviews, including one by Professor Diala. “South Africa has a crisis of service delivery, and to tackle this crisis, there is a need for politicians to be focused. All the kerfuffle about judicial capture and lawfare will not help the country tackle the crisis of service delivery – and that alone, makes a must-read for anyone with a vested interest in the development of this country,” said Diala.He picked four themes he gathered from the book and explained them as being lawfare, which is “the judicialisation of politics in which politicians use the courts as a weapon to go after their rivals and for their own selfish political interest”.

Secondly, Diala noted the rampant misinformation campaigns in an era of social media to deceive the public. “There is also the increased public visibility of lawyers and judges which has contributed to the present state of the relationship between judges and the Constitution, and finally, the sluggish pace of socio-economic change in South Africa which has not materialised.”

Mafora agreed with Diala’s impressions: “There’s a failure to do politics in South Africa. Politicians have eschewed persuasion in democratic processes among themselves and more and more political parties are running to court when the reality is that these disputes can be resolved by talking among one another. It’s a damaging cycle to the judicial process and once we have people refusing to comply with court orders, that’s when we’ve lost the rule of law.”