South Africa has joined the ranks of nations where the constitution is under threat, notably from political figures who refuse to obey court rulings, Judge Dhayanithie Pillay said on Tuesday.
In her interview for a position at the constitutional court, Pillay defined a constitutional crisis as a situation where “keeping disagreements within the ordinary bounds of political discourse becomes impossible”.
She said the net effect included politicians refusing to obey court orders, while 163(4) of the constitution compelled all to obey court orders “whether we like them or not”.
Pillay famously issued a warrant of arrest for former president Jacob Zuma in February 2020 when, without producing a proper medical certificate, he failed to appear before the Pietermaritzburg high court, which is hearing the arms deal corruption case.
The warrant was stayed pending his subsequent court appearance on May 6 last year.
She also found Zuma guilty of making a defamatory and untrue statements for tweeting that former minister Derek Hanekom was a “known enemy agent”. Zuma was ordered to apologise and refrain from referring to Hanekom as an apartheid spy.
Zuma sought leave to appeal from the high court, the supreme court and finally from the constitutional court but was denied in every instance.
In late March, he singled out Pillay for attack when he responded to argument by counsel for the Zondo commission before the constitutional court that he should be jailed for two years for contempt for defying an order that he testify before the judicial inquiry into state capture.
The former president in a lengthy missive hinted darkly at an uprising against what he termed “judicial dictatorship”. Turning to Pillay, he said her inclusion in the hearing, as an acting judge at the apex court, was curious considering “her historical hostility and insults” against him.
He went on to say it was indicative of the crisis engulfing the judiciary.
Pillay defended both her court rulings against the former president in matter-of-fact fashion.
She said judges regularly made findings on medical certificates, and issued warrants of arrest. In this particular case she did so because the certificate had clearly been altered.
Referring to the earlier defamation ruling, she said she applied the law while recognising that the actual conflict between the two parties went deeper but that she was “never going to get to it” in court.
Pillay insisted under questioning from Economic Freedom Fighters leader Julius Malema that she had no obligation to recuse herself from the defamation matter because she had, not long before, had lunch with Zuma at his Nkandla residence.
During the parliamentary debate on President Cyril Ramaphosa’s State of the Nation address in February this year, Malema inferred that the president used the judiciary and the National Prosecuting Authority to target his enemies and protect his allies.
She said she expected an application for her recusal but none came and she did not feel conflicted. She conceded however that she would have preferred for a colleague to hear the matter because Zuma had recently hosted her and therefore handling the case “felt a little bit discourteous”.
Pillay said she had found him to be affable in any interaction they had over the years.
“He is an amiable person.”
But she was scathing of attacks in the media on judges and court judgments, noting that nobody on the bench could respond to these publicly. Nor should they, Pillay added, because if those complaining did not take the proper route of approaching the JSC, their remarks deserved only to be qualified as noise.
This did not mean that the attacks were not deeply damaging, she said, without mentioning the former head of state by name.
“So anyone who has a complaint: put it before the JSC, who will deal with it. That is what it means to abide by the constitution, abide by the rule of law. We can’t respond to noise out there because that is just what it is. But it is damaging, it is damaging particularly to women when misogynistic messages hit the media.”
She ventured that it had become common but was facile to characterise judgments as bad, or good.
“That is a binary and in binaries you miss out everything in between and there might be a lot good going on in between.”
Malema also charged that Pillay’s friendship with Public Enterprises Minister Pravin Gordhan made her unsuitable for the bench, and that there was a perception that she used her position to fight factional, political battles.
She dismissed this, adding that she could not disassociate herself from their long-standing relationship but that any party could bring an application for her to recuse herself if there was ever a perception of conflict of interest.
“He has been my friend for a long time and I cannot deny that.”
But Chief Justice Mogoeng Mogoeng returned to the issue and revealed that during an earlier round of interviews for appointments to the constitutional court, Gordhan requested an appointment with him — if memory served to discuss an issue relating to the tax ombudsman — but asked in the course of the conversation: “How did my friend Dhaya Pillay do?”
Mogoeng said he immediately informed the minister that she had been unsuccessful but said the encounter had “stayed with me” and it perplexed him that a minister would seek an audience with him to enquire about the upward mobility of a judge who is a friend of his.
Pillay said from the chief justice’s telling, it seemed as if the JSC had by then already made its decision.
Mogoeng interjected to say the minister was not aware that it had been made.
Pillay continued that the remark must have been casual conversation.
“I know that Mr Gordhan would not promote me or any of his friends precisely because of his high profile and the fact that he would be accused of this …. Our boundaries have been strictly observed.”
If Pillay was questioned extensively about the current political wrangling over the courts, her introductory remarks had placed pressures on the constitution in a wider context.
She said the end of the Cold War saw the dawn of a romantic era of constitutionalism, with some 65 drafted in the last two or three decades but these supreme documents were now under pressure, for a number of socio-economic reasons.
The foremost cause was the manner in which the fourth industrial revolution was increasingly testing the courts on matters of privacy, dignity, intellectual property and security.
But in the South African context the shift, aggravated by the Covid-19 pandemic and pressure on the environment, meant that a majority of the population schooled in labour like mine work, were facing greater economic exclusion.
“So again the pressure is on the courts — how do we deal with that?”
She noted that lawyers were in her experience for the most part reluctant to bring constitutional law into their arguments, unless they were hard pressed to gain access to the apex court.
But Pillay said she believed the South African judiciary served as a bulwark against constitutional backslide and the country was “nowhere near constitutional rot … where public trust in our institutions is non-existent.”
Pillay is one of 11 applicants for two vacancies at the apex court.