Judges should also be subjected to lifestyle audits because members of the judiciary are human beings who hold political views and can be influenced, political parties say.
The uMkhonto weSizwe Party and the African Transformation Movement said the judiciary was allowed to operate without sufficient accountability even when it got things wrong.
MK Party spokesperson Nhlamulo Ndhela said the party had long called for judges’ declaration of registrable interests to be made public, in the same way MPs’ declarations were disclosed.
“Judges are human beings; they are open to persuasion and influence just like all of us. They support a soccer club, they have political opinions,” he said.
“Look at the case of Judge Aubrey Ledwaba. He is now implicated before the Madlanga Commission for allegedly receiving a bribe of R2 million to grant bail to a certain individual implicated in criminal activity.”
The party has had a long-running standoff with the judiciary over how former president Jacob Zuma and some of its members were treated, arguing that they were treated unfairly.
Former Constitutional Court justice Sisi Khampepe sentenced Zuma to 15 months’ imprisonment for contempt of court after he failed to appear before a judicial inquiry into allegations of state capture, led by then-deputy chief justice Raymond Zondo.
In her judgment, Khampepe said the decision was influenced by the need to set an example and assert the authority of the court — a move Zuma’s supporters argued was wrong. They said the court should have strictly applied the law rather than make an example of him.
The MK Party has also raised concerns about the courts overruling parliament after it had decided that former judge president John Hlophe should serve on the Judicial Service Commission (JSC) after his impeachment.
“Judges have become demi-gods in our country, now usurping the sovereignty of the country and the will of the people for their own personal agendas,” Ndhela said.
He said the judiciary had positioned itself as a participant in the country’s politics and was handing down judgments that were politically motivated. Unlike parliamentarians, judges were not lawmakers and judges were supposed to interpret the laws parliament made.
“What we are seeing now is that they are becoming lawmakers themselves because we are finding that they are starting to change laws that are made by parliament,” Ndhela said.
“If you look at Dr John Hlophe participating in the JSC, as per the powers and privileges of parliament, an MP can participate in any committee.
“What you find is that after a vote was taken in parliament allowing Dr Hlophe to participate in interviews of judges, a political party that disagrees with that decision takes the matter to court, only for the court to rule on a decision made by lawmakers.”
That was a classic example of judicial overreach, he said, adding that the decision to remove Hlophe on moral grounds was wrong because there was nothing in law allowing a judge to make a legal determination based purely on morality.
Ndhela said judicial sovereignty was emerging even though the country’s sovereignty lay in the vote and outcome of elections.
“When judges rule against the will of the people, that is interfering with the Constitution they are supposed to protect, the will of the people and the privileges of members of parliament, who are lawmakers.”
ATM parliamentary leader Vuyo Zungula said the Phala Phala matter was a clear indication that Constitutional Court justices believed there was no avenue through which they could be held accountable. When they were criticised, there was often a perception that they were being attacked.
Zungula said there was no practical mechanism to hold Constitutional Court justices accountable, noting that politicians were ultimately answerable to the electorate.
The Phala Phala matter was taken to court and heard on 26 November 2024. About 15 months later, no judgment has been delivered, despite many cases typically being finalised within three to six months.
After the ATM asked Chief Justice Mandisa Maya about the outstanding judgment, acting chief registrar Karabo Munene responded in February, stating that the chief justice had directed her to acknowledge the enquiry regarding the outstanding judgment.
Munene said the matter was on the Chief Justice’s desk, adding that the delay was regretted, the matter was being expedited and judgment would be delivered as soon as reasonably possible.
The Economic Freedom Fighters (EFF) has also marched to the apex court, demanding the judgment but there has been no response.
Zungula described the Phala Phala case as a clear example of judges operating above the Constitution. “The question is: What must happen in that case? There is no legal recourse. You can march, you can picket but ultimately it is them who decide.
“Unlike Parliament, where parties must be responsive to the people, if there is a significant outcry, they can respond and in five years you can vote them out — elections are another mechanism to hold them accountable.
“The letter was sent on 4 February and almost two months later there is still no response.”
Zungula said one would expect Constitutional Court justices to be the first to abide by the Constitution, the rule of law and their own rules.
“Remember, they have a code of conduct that stipulates that judgments must be issued timeously, I believe within three months.
“For them to take close to 16 months without issuing a judgment on Phala Phala, while we have an executive that is compromised and a parliament that fails to adjudicate, means the Constitutional Court has also failed.
“It is unacceptable for a judgment to take 15 months across two arms of the state. There is failure in all three arms of the state. With president Zuma, it would take about three months but because it involves President Cyril Ramaphosa, they do not want to admit that we are facing a constitutional crisis.”
On Wednesday the EFF in Gauteng again marched to the Constitutional Court to demand that the Phala Phala judgment be released.
This marked the third time the red berets have marched to the apex court since November last year to demand the release of the judgment.
The Mail & Guardian contacted the spokesperson of the chief justice, who was not available at the time of publication.
Legal analyst Mpumelelo Zikalala told the M&G that it would be unfair to say that justices were doing as they pleased because there was a way for political parties to voice their complaints. Every judge was subjected to the JSC, which allowed anyone to file complaints.
Zikalala said that after six months or close to a year of the judgment not being released, the political parties should have laid complaints against the judges as that would have sufficed.
He said the political parties were, however, correct that something might be wrong if a judgment had not been released timeously.
“If it can be justified, let’s say there are 50 volumes worth of paperwork, which I need to look for, I still need to go and research on the precedents of the case laws they have given me as I cannot just rely as a judge … on what has been given by the parties, I need to read the whole thing.
“This can be within three to six months normally or [if it’s] a minor case, then it’s understandable,” he said, adding that after six months and up to a year meant something was wrong and should be investigated.
“Yes, you can march there [Constitutional Court] to voice your complaints as you are a political party at the end of the day.”
The political parties are calling for judges to undergo lifestyle audits, citing accountability concerns, judicial overreach and the delayed Phala Phala judgment