Lawfare

A number of exceptionally interesting books concerned with alarming and dispiriting aspects of life in contemporary South Africa have been published over the few months. Gangster State by Pieter-Louis Myberg (2019) has become the best-known, because of the recent fierce backlash against its evidence and arguments. But perhaps even more incendiary because more far-reaching in its analysis is an on the surface quieter book by two senior figures in South Africa’s legal profession, Michelle Le Doux and Dennis Davis (2019).  This is concerned with what has become known as ‘lawfare’, a phenomenon occurring much more widely than South Africa alone but taking a distinctive shape there. As well as a written Constitution and Bill of Rights, there are also numerous state agencies that were established to ensure different kinds of equality measures and which have legal or semi-legal powers, in a context in which there is the widespread existence of corruption and worse among state and local state officials and agents. In this context, the ANC government has frequently called for an end to the separation of powers between state and judiciary, seeing the legal system and senior members of the judiciary in particular as an opposing force preventing the will of the state, seen as synonymous with the will of the people, from being enacted without check. And ministers and officials seen as involved in corruption have also had recourse to the law, turning the law back on itself in seeking more compliant agents in the shape of lawyers and alternative members of the judiciary, around the cry and the claim that the separation of powers and an independent judiciary is just a form of ‘white monopoly capital’ in action.

Certainly there has been a failure of redistribution on the part of the state, but which it should not be forgotten has involved now over 25 years of ANC government. Or rather, there has been some redistribution, but this has served the interests of a small political and administrative elite only and all too often has involved systematic corruption. However, to blame this on ‘white monopoly capital ‘or the judiciary as a proxy for this belongs more to the rhetoric of a tweeting Donald Trump than it is a realistic claim in the South African context. The causes are complex, multi-faceted, and certainly predate the 1994 political transition although increasing exponentially since then. The ramifications continue to unfold, with the recourse to lawfare in the last few weeks on the part of Ace Magashule, the focus but not the sole focus of Gangster State, a clear demonstration of this.

So what is the overall argument of Lawfare and why is its analysis so important? The book discusses a series of landmark cases, starting with the Rivonia Trial and pass laws and ending with gay marriage and state capture, that have marked South Africa’s legal and political landscape. It argues powerfully for the separation of powers in a democratic state as a bulwark against state incursions on freedoms and rights, in holding government accountable and acting as a check on it and its agents exceeding its legitimate powers. Its analysis of the details of these cases acts as a salutary reminder of the actual role of the judiciary, as sometimes good and sometimes bad but with an overall trend in acting independently of the state. Who else, if not the judiciary, among the organisational players in the political and legal sphere are able to act with independence as a collectivity? And where else will attempts to contain and control corruption and promotes redistribution come from, if not from within, from resistant members of the judiciary and state? This is not to treat the judiciary as a kind of hero riding to the rescue of the citizenry, it recognises its deficiencies as well as its more praiseworthy aspects, and it convincingly puts its finger on the separation of powers as the key element in preserving political balance. That is why there is so much interest in bringing the judiciary under state control. And for those wanting to know more and to follow what is unfolding, eyes should be kept on Ace Magashule and what is in effect his class action against Gangster State and its author.

Last updated:  6 June 2019