UJ Politics hosts book discussion on Capture in the Court: In Defence of Judges and the Constitution

On the 26th of October in 2023, the Department of Politics and International Relations hosted a book discussion on Dan Mafora’s new volume titled Capture in the Court: In Defence of Judges and the Constitution. Published in October 2023 by Tafelberg, the text is available at Exclusive Books, which is already a number one bestseller.

Advocate Tembeka Ngcukaitobi SC says about the work: “This book matters,” because, as he says in the foreword, “It reminds us that the struggle for constitutionalism was worth it. Yet existential threats remain.” and that “While in global terms, South Africa was among the last to achieve freedom and with it constitutionally guaranteed rights, deepening these rights rather than eroding them is intrinsically connected to the function of promoting democracy.”

Mafora (centre) with some of the audience members following the discussion.

Prof Bhaso Ndzendze, head of the department, was the discussant and the session was facilitated by Mmakoena Mpshane-Nkosi, a PhD candidate in the department as well as a staff member in the Faculty of Law’s Dean’s Office. In his opening remarks, Mafora highlighted some aspects of his book, including the history of the African National Congress’ relationship with constitutionalism, the emergence of populism rallying against the Constitution, and excessive litigation in South African politics.

On the latter point, “They [politicians] are running to the courts instead of using the political process, because a court’s judgment is final. This is attractive but dangerous for the country because it politicises the judiciary.” “This is not to say that politicians should not access the courts,” he said, “But they should do so on genuine questions of law and the constitution, not to fight partisan political battles.”

L-R in front: Mmakoena Mpshane-Nkosi, Dan Mafora and Bhaso Ndzendze

In his discussion, Ndzendze declared that the book is an excellent contribution and that every time one sits and re-reads it, there are many things that one picks up anew. Delving into deep theoretical arguments and simultaneously being grounded in case law, the book should be compulsory reading for every citizen, he said.

During the discussion, Ndzendze and Mafora elaborated on key arguments presented in the book regarding multiparty democracy, with the book supporting it, even though some argue there are “too many political parties.” They also discussed the frequently hostile atmosphere within the Judicial Service Commission during the appointment of judges, and Mafora’s organisation is working to promote transparency in the deliberation process.

Additionally, they touched on potential constitutional amendments, with Mafora expressing his intention to eliminate provinces, revise the electoral system (including direct presidential elections), and ensure that citizenship cannot be revoked.

Published by Tafelberg in October 2023, the book is a deep dive into the litany of attacks on the judiciary and the constitution itself by populists, advocates and some in academia.

During the Q&A session, the audience, each of whom received a complimentary copy of the Constitution, engaged Mafora with a range of questions and concerns. They delved deeper into his reasoning for the proposed constitutional amendment and discussed the potential for intensified populism and scapegoating of the Constitution in 2024, marking thirty years of democracy, particularly in the context of socio-economic transformation challenges.

The audience also raised questions about the power of the Public Protector’s office and explored the possibility of amending the Judicial Service Commission (JSC) to eliminate politicians among the commissioners. They sought assurance that the president wouldn’t exploit his appointment power to influence judges seeking promotion.

Funding’s role in promoting democracy, the place of indigenous knowledge in the court system, and the causes of friction between lawmakers and the courts, where parliamentary supremacy was sometimes advocated, were also subjects of discussion.

Comparisons were made between the politicization of the JSC in South Africa and the United States, with a particular focus on whether there exists a genuine separation of powers in South Africa’s current constitution.

Lastly, the audience pondered whether the prospect of amending the constitution should be taken more seriously, given the potential unintended consequences it could have for other sections of the constitution.

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