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Quite Frankly, Dr JJ Tabane is tired of people trying to silence those who need to be heard in the public discourse

It is a tired fact that our society is drowning under the scourge of corruption. Numerous institutions have made countless findings about the extent of graft across sectors of society. Many examples of the fact that the scourge is out of control present themselves daily. Nothing outrages us anymore. The private sector is equally corrupt, as examples of white collar crime also abound. Recently, the banking sector came under a spotlight when the allegations of collusion to devalue our currency came to light.

Amidst this spiralling corruption, the justice system is our only refuge. We keep hoping, clearly against hope, that some big fish will be prosecuted instead of mere foot soldiers. Until we prosecute the big fish, we can forget about winning the big fight against criminality. Our legal fraternity needs to support the National Prosecuting Authority in prosecuting the crooks. But what made me focus on crime is the noise CASAC made in the ear of the Chief Justice recently, basically telling him to shut up and speak through judgements only. This call to censor the Chief Justice is misplaced, hypocritical, and cannot go unchallenged. This scourge of graft is so bad that we need every sensible voice across society to speak out.

The Chief Justice is a leader of a crucial pillar of the state. The judiciary he leads is crucial to hold the other two pillars of the state accountable. They can’t possibly do this only when matters are brought before them. They have to do this in the ongoing public discourse. The strange demand for judges to only speak through judgements and “steer away from political debates” is in direct variance with the Bill of Rights that does not discriminate against any citizens where freedom of expression is concerned. In the case of Justice Zondo, the whole corruption fiasco of the ANC government as accused number one (Ramaphosa’s characterisation, not mine) was before him for more than three years, with a billion Rand to boot. According to the logics of both CASAC and Parliament, the Chief Justice is supposed to turn a blind eye to the implementation of his recommendation, despite this waste of his time and the waste of public resources? Recently, the Chairperson of the ANC also entered the fray, accusing Zondo of being both judge and executioner of his own recommendations. This is highly misdirected, Zondo is simply pointing out that fingered persons like Gwede Mantashe are yet to face the consequences of state capture. No wonder Mantashe is hot under the collar.

Quite Frankly, Zondo is simply exercising much needed conscientious leadership, the same way as Judge Cameron and Judge Mogoeng did before him. It’s an archaic approach to think judges must pretend not to have views on the moral questions facing society. Otherwise they would never be speakers at seminars and conferences. We know that this is not the case. Judges must partake in public discourse through the media so that their wisdom can reach more people than a handful who will experience them in court only. If you refer to Mogoeng Mogoeng’s Nelson Mandela Lecture, you would agree with me that the matter of judges speaking only through their judgements and staying away from politics was laid to rest. Mogoeng states, among other assertions, that the current leadership needs the same moral compass that Mandela used to display.

CASAC is therefore hypocritical as they are jumping only now because the judge dared to contradict their favourite head of state. The CJ should speak without fear in and out of the courtroom. If this was not so, then judges would not be asked to chair commissions which are seriously political. Many commissions since 1994 have had their recommendations ignored and in this way they became a waste of money. It behoves those who were entrusted to chair these types of commissions to follow up that their recommendations are implemented. Otherwise why were they trusted with such a mammoth task in the first place?

Archbishop Desmond Tutu was highly critical of how the TRC recommendations were undermined by the ANC. He was insulted for it and told by Thabo Mbeki himself that he was not an ANC member, as if it is a badge of honour to be one. So Zondo is not alone. Once you tell the truth, you can easily become a target of ridicule and marginalisation. One wonders why, if we don’t like his voice, we have appointed him as Chief Justice against the better judgements of the JSC? Was it a tactic to silence him? I am glad he is not falling for it and should continue to speak truth to power on and off the bench. Our democracy can benefit from a public discourse enriched by jurists and other academics, instead of the condoning theory work to halls of courts or universities where their inputs remain in inaccessible ivory towers.

Dr JJ Tabane is Editor of Leadership Magazine and Professor of Media Studies at the University of Botswana.

By Editor