State of SA’s judiciary not a happy one

There are two professions where there can be no compromise on exacting standards: surgeons simply bury their mistakes. Not so judges. Every judgment is open to public scrutiny. And scrutiny shows that the state of the South African judiciary is not a happy one.

Routine judicial housekeeping is falling by the wayside. Reserved judgments go undelivered for years. Allegations of bias and corruption, improper relationships, bribery and favouritism are not uncommon and are rarely properly addressed.

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Given the frequency with which court findings are later overturned on the most basic tenets of law, it is apparent that ignorance and incompetence are widespread among presiding officers.

Key Chapter 9 institutions, such as Public Protector SA and the SA Human Rights Commission (SAHRC), have become tools to shape the ideological and political landscape in accordance with the agenda of one or another faction of the ruling ANC.

There has been a rash of recent judgments that are wonderfully “progressive”, but are oblivious to the potentially enormous real-life consequences they might have.

Last week, in a well-intentioned but out-of-touch ruling, the High Court in Pretoria ruled that all hospitals, clinics, schools, police stations and other public facilities be exempted from load shedding. This judicial overreach is pretty meaningless. Eskom can’t carry out the order without triggering a collapse of the grid.

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Far more concerning is the judicial wokery-pokery on highly contentious matters like racism. In this regard, desperate attempts are made to accommodate provocative statements by powerful people, while the banal racism of the stupid and powerless is harshly punished.

In 2016, Penny Sparrow, an elderly white racist with self-evident psychological problems, likened black beachgoers to monkeys in a Facebook post. The SAHRC took her before an Equality Court, where she was found guilty of hate speech and ordered to pay R150 000 to a foundation set up to honour the ANC stalwarts, Oliver and Adelaide Tambo.

Criminal prosecution followed. After pleading guilty to crimen injuria, Sparrow was sentenced to a fine of R5 000 or 12 months imprisonment. In addition, she was sentenced to two years’ imprisonment, wholly suspended for five years, as well as being ordered to make an appropriately grovelling public apology.

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Contrast the consequences to Sparrow to the impunity with which Economic Freedom Fighter leader Julius Malema, along with an increasing number of radical firebrands, has threatened whites, Indians and coloureds with violence. But the SAHRC and courts are unapologetic about the double standard.

The late SAHRC commissioner Priscilla Jana a few years ago said the SAHRC was purposefully lenient to black offenders in racial incidents “because of the historical context”.

Last week, the SAHRC was defending its decision in 2019 to let Malema off the hook for hate speech. The complaint followed him telling a 2016 rally “we are not calling for the slaughtering of white people, at least for now”.

The legal teams representing the FW de Klerk Foundation and AfriForum now want the SAHRC decision reviewed. The SAHRC, in defence of its finding, argues the viewpoint articulated by Jana.

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At the nub of it is the belief that black racism is excusable because of what happened in the past, while white racism is a clear and present danger to the constitutional order. One must hope that this important judgment, which was reserved, will be made soon.

It will signal whether the worrying drift towards a country where it is the race of the perpetrator that is the deciding factor in whether someone should be prosecuted.

After all, South Africa’s been there before.