By Thabang kaMashobane

worry to South Africans that there are people who seem to lose every case when their cases sit before certain judges, while others will emerge victorious under almost the same circumstances. This particularly in the political field.
In the ANC’s political circles, it is strongly believed that people seem to be found guilty or not, depending on the faction they belong to.
It should be a matter of great This surely should be of real concern to the judiciary and something should be done about it rather than shrug its heavy shoulders dismissively with a “bring evidence if you think the judiciary is captured” argument.
When political parties, even a senior politician of the governing party is lambasted by the judges for accusing them of being biased in certain judgements rather than the judiciary look at itself honestly, it must be a cause for concern.
The former Chief Justice, Mogoeng Mogoeng, once said judges earn good salaries and any judge who is corrupted has to be a really bad, bad person.
In an interview on 14 February with JJ Tabane on Power to Truth, on eNCA, Mogoeng said: “Any human being and any professional, is capable of being captured. Haven’t you heard of attorneys or advocates being struck off the roll as a result of dishonesty?
“What do you think is going to happen if that lover of money, that lover of fame, of power, somehow finds his or her way in the judiciary and an impressive offer is being made.
“At the end of the day, we are all human. It’s all a question of whether you are a person of integrity or not. Becoming appointed as a judge does not automatically render you insulated from the influences out there,” he told Tabane.
He also said: “Are there principles that you hold so dear that you would rather be mocked, rather be lied about, killed than compromise? That is the bottom line. That is what is going to determine whether you are a potential candidate for capture or not.”
Chief Justice Raymond Zondo, before being appointed to this position, lambasted the Minister of Tourism, Lindiwe Sisulu, for calling judges “house Niggers” who are not following the rule of law.
Like Mogoeng, Zondo urged anyone who had evidence of any judge or member of the judiciary who is captured to come forward and present it to bodies like the Judicial Conduct Committee (JSC).
As the calls grow louder and louder, the question on many people’s minds is: “Has our judiciary lost its independence or dabbling in politics for that matter?”
Is it not time yet for the judiciary to launch an inquiry to allay these fears and redeem its image?
It should be of great concern to those who are supposed to apply the rule of law fairly to read of “scathing” judgments to others, while “soft” outcomes for some in the news.
There are those who still believe Mogoeng was “ducking” something heavy when he took a long leave just before former President Jacob Zuma was sentenced without a trial by the Constitutional Court.
The argument is that Mogoeng may not have wanted to be “tainted” by the outcomes of that judgement, the first in South Africa.
Besides Sisulu, other politicians and political parties have accused the judiciary of being biased. EFF President, Julius Malema, and his deputy, Floyd Shivambu, have said this publicly numerous times, with Malema even accusing a certain judge of being “nothing but a political activist”.
Independent economic, energy and political analyst, Tshepo Kgadima, said there are matters that lead to “the inescapable but lamentable conclusion that indeed the judiciary is itself captured”.

Kgadima told The Telegram: “In order for the state to remain free from capture by special interests, the judiciary must dutifully rise to the occasion and remain ‘strict constructionists’ who are indeed the night watchmen for a constitutional democratic state such as ours to survive.
“Furthermore, a closer study of judgments delivered over the last decade or so, an argument can objectively be sustained that a greater percentage of our country’s judges lack personal attributes of integrity, objectivity, tolerance of opponents which are a prerequisite for one to be a judge.” He said if anything, “the almost R1 billion Zondo’s State Capture opera” has brought into sharp focus Major General James Jackson’s quote in 1809 that “eternal vigilance is the price of liberty”.
Kgadima elaborated: “The mere notion that the state was ever captured as tacitly accepted by Zondo, who has patently been richly rewarded with the plum job of Chief Justice, notwithstanding his remarkably poor and shoddy performance during the recent JSC interviews, carries the inescapable but lamentable conclusion that indeed the judiciary is itself captured.
“It is therefore appropriate to ponder Juvenal’s pertinent question: “Quis custodiet ipsos custodes?” (Who will watch the watchmen?) in the light of what are arguably utter failures of the Judicial Service Commission which is constitutionally entrusted with the duty of “guarding the guards (judiciary)”.
He said the other equally important question to ask is: “What percentage exactly of our judiciary possesses genuine judicial temperament which encompasses being neutral, open-minded, decisive, respect, composed?”
“Beyond the judicial capture narrative, which appears to have lamentably taken root, it appears that the jurisprudence being developed by our judiciary is an antithesis our country’s constitutional order arising from what can be found to be some members of the judiciary’s lack of professional competence with large knowledge of the law, passion for constitutional law, legal analytic skills, good judgment and intellectual concentration,” Kgadima said.
These allegations have become so strong over the years that President Cyril Ramaphosa once said during a media briefing, that allegations about the judiciary being captured were serious and should not be taken lightly.
Ramaphosa then said it was not in the interest of anyone who loves this country to hold the view that the judges have been captured.
EFF Deputy President, Floyd Shivambu, once wrote that “there were indications that Gauteng Judge President Justice Mlambo was Minister of Justice Ronald Lamola and Ramaphosa’s preferred candidate for chief justice.
He had accused the two of meddling in the affairs of the selection of the judiciary.
Shivambu said then that there was a “widely held belief that Mlambo had presided over court decisions which unfairly and illogically favour Ramaphosa’s faction”.
Judge Mlambo has repeatedly dismissed suggestions that the Gauteng High court favours those in the same bed with Ramaphosa.
However, attorney Mpumelelo Zikalala of Mpumelelo Zikalala Attorneys said it may be difficult to capture the judiciary in South Africa because of the safeguards the country has.
He told The Telegram that the
safeguards that are there are enough to deal with corrupting the judiciary: “But in instances where there is proof of judicial capture, the JSC is there to make sure it deals with those who are aggrieved. They should also direct their complaints to appropriate structures.
“The biggest problem is that those who accuse judges of being corrupt, do not bring any concrete evidence forward.
“Forums like the JSC are there for a reason and people should use them. What perhaps needs to be done is tighten the content and the quality of the judgments, meaning judgments should have an educational aspect or further explanation how a particular decision was arrived at,” Zikalala said.
“This should be done, especially in cases of the Supreme Court of Appeal and the Constitutional Court. These Apex courts set a precedent whereby their decisions apply to all the lower courts.
“It is imperative that they should explain to us how they reached those decisions.”
He said it was important for litigants to understand that if they do not trust a particular presiding officer, they have a right to ask that the judge should recuse himself or herself.
Zikalala said: “This is easy. You don’t even have to prove the actual biasness. You simply have to prove there’s a perception of biasness.
So, my short and long answer would be that I don’t necessarily think there is judicial capture unless there is something that proves it exists.
“For now, the structures that we have to guard against state capture seem to be there. But seemingly they are perhaps not utilised properly.”
Interestingly, during a media briefing to respond to Sisulu’s attack on the judiciary, Judge Zondo said “one does see, from time to time, certain actions that appear to be attempts to capture the judiciary”.
But he said as far as he knows, such attempts have never succeeded and it was up to everybody to make sure those attempts are never successful.
Mogoeng’s chilly words of warning during the 2019 Mandela Lecture must not be forgotten: “Be on the lookout, be vigilant and be forceful in making uncomfortable anybody who seeks to establish a pliable judiciary. We owe it to this country, and generations to come, to make sure that we don’t have a compromised judiciary.
“A captured judiciary will never be able to use the Constitution as an instrument of transformation. … when certain issues are involved, well the decision is known in advance, so and so can’t lose.”