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A recent article on News24 reports S’dumo Dlamini, President of the Congress of South African Trade Unions (Cosatu), saying the South African judiciary is a “threat to democracy.”

Among Dlamini’s claims is that the judiciary often undermines the interests of the majority of citizens – the working poor ala proletariat – and that it is “untransformed.” It is not necessarily the fact that many judges are still white, but seems to have more to do with the fact that Cosatu believes judges are not being proactive in advancing the “socio-economic rights of the working class.” Dlamini says the courts must “not tolerate inequalities inherited from apartheid capitalism.”

He also proceeded to attack the Public Protector, Advocate Thuli Madonsela, as being part of a campaign by the opposition in Parliament to replace majority rule and “delegitimise the popular democratic government.”

What Dlamini’s statements amount to, is essentially that judicial officers – judges and magistrates – must become political commissars. In the Soviet Union, political commissars were often deployed into military units to ensure soldiers toed the line of the communist ideology. Judges, in the opinion of Cosatu, must not uphold the law and protect all South Africans against the excesses of the executive government, but must rather act as a third rubber-stamp for the ANC.

Parliament, as the legislature, is the representative organ in the modern state. The head of state and government, the President, also serves a representative function. Judges, as part of the third branch of government, are not representatives, nor should they be. They are responsible for interpreting the law and adjudicating disputes. Moreover, in a constitutional democracy such as that of South Africa, their role is most certainly to ensure that the government does not violate the rights and liberties of minority groups and individuals, in pursuit of realizing the abstract “interests of the majority.” What the majority wants, feels or believes, is irrelevant for the purposes of the judiciary.

A popular example of this is from the United States, the world’s oldest constitutional republic. The Supreme Court in the case of Brown v. Board of Education, declared school segregation unconstitutional, despite the fact that the majority of Americans in some states, at a glance, approved of having separate schools for whites and blacks. But cases like this won’t get noticed, because it does not support the Narrative of the authoritarian ‘social justice’ lobby. Instead, they will complain about how the black minority in America has its interests violated daily by the white majority and their government. The same principles of majoritarianism which the likes of Cosatu want in South Africa does not extend abroad. This is a great illustration of the distinct racist undertone to the entire ‘transformation’ narrative. According to the social justice lobby itself, in the school of deconstructivism, we must acknowledge the existence of this hidden undertone.

Unfortunately, Cosatu is not the only group attacking the independence of the South African judiciary. Gwede Mantashe, ANC Secretary General, has also in the past accused the courts of breaching the doctrine of separation of powers. Police Minister Nathi Nhleko has accused the courts of colluding with “characters” to manufacture judgments.

The South African judiciary is certainly not perfect, as I have pointed out numerous times. They are very government-minded, like their predecessors in the Apartheid regime, and won’t hesitate to do away with the protection of property rights in favor of social justice goals. But compared to the executive and the legislature, they still have much integrity left, and at least appear to have a desire to limit the overzealousness of government in many circumstances.

The fact remains that if the final teeth the judiciary has left are plucked out, South Africa will certainly experience unprecedented levels of oppression. We should remain vigilant, and guard against having the last small wall of defense against tyranny, destroyed.

  • tjama lekula

    my problem with your analogy is its inability to locate the debate from what COSATU is arguing. firstly Sdumo cites 300 years of colonialism and apartheid legacy and secondly cite the Marxist ideology for his argument. since you are studying effects of cultural Marxism I thought you will be able to take us through an argument raised by Sdumo within the Marxist ideology and couple it with the effects of 300 years of slavery and colonialism. but I find only an every day media and white liberal theory of how those who are in the alliance are against judiciary. maybe you can teach me more, please try to get into the thinking of the Marxist and those who still feel the effects of apartheid.

    • Hi Tjama, thanks for the reply!

      Firstly, you should be aware that this is slightly more of a news update than a thorough analysis. We tend to try and keep these short and to the point. Other articles, such as my post on Critical Theory, feminism, why Apartheid wasn’t capitalist, etc. tend to be much longer and more comprehensive.

      My post on Critical Theory explores some of the cultural Marxist themes but more so in the context of comparing it with libertarianism. I have not yet written specifically an analysis of why the left continuously wants to undermine the judiciary, but it can be alluded from my previous articles; specifically with reference to subversion, logic (causality especially), and so forth. I will seriously consider writing one in the future, though. Watch this space!

      I must also warn you that I am not a Marxist nor do I claim to be. I am studying especially cultural Marxism (Critical Theory, Frankfurt School etc.) not because I support it but because I oppose it and wish to understand it thoroughly. So I am certainly not going to write anything where I attempt to justify what the cultural Marxists in South Africa are doing. I can guarantee that my analysis will explore exactly why they are wrong.

      Further, I highly recommend looking at some of the other material on this website. We are not liberals in the way you seem to understand them. We are libertarians. This article specifically is not liberal for ‘the protection of democracy’ is not why I am defending the judiciary. The protection of individuals is why – and this is definitely not a modern liberal ideal. The idea of “white liberal” is also silly. Biko smoked something strong when he theorized about “white values”, “white liberals” and so forth, so I take it with a pinch of salt. I much rather prefer objective logic to be my guiding methodology, over Bikoist Critical Race Theory.

      So please, have a look at all the other material available here. Also head over to our library and consider reading “The Law” by Bastiat. More material there will be added as time goes on.

      Martin