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.

Martin is a final year law student at the University of Pretoria and the Academic Programs Director for Students For Liberty in Southern Africa (www.studentsforliberty.org/africa/). He is a co-founder and editor of the Rational Standard and the Editor-in-Chief of Being Libertarian (www.beinglibertarian.com).

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