The most important judge in the country resigns this year. That's a big deal. Even if you haven't heard of Chief Justice Pius Langa — or the three other Constitutional Court judges (Yvonne Mokgoro, Kate O'Regan and Albie Sachs) who are retiring alongside him — this information should matter to you as a South African citizen.

It matters because the Constitutional Court matters. It matters because the 11 judges who preside over the Constitutional Court stand guard over the Constitution and our human rights. They are the final frontier against the potential violations of a power-hungry government.

Section 167 of the Constitution gives the Constitutional Court exclusive jurisdiction over disputes about the powers and constitutional status of branches of government.

Only the Constitutional Court may:

• Decide disputes between organs of state in the national and provincial spheres concerning the constitutional status, powers or functions of any of these organs of state.
• Decide on the constitutionality of any parliamentary or provincial bill.
• Decide on the constitutionality of any amendment to the Constitution.
• Decide that Parliament or the president has failed to fulfil a constitutional obligation.

Because of this, an independent judiciary is our only real failsafe against abuse by those wielding power. And, up until now, the judiciary has done just that.

But — with four spots on the Constitutional Court bench up for grabs, including that of chief justice; the saga of Cape Judge President John Hlophe clouding the court and the JSC; and the ANC's at-times critical approach to the judiciary — there are fears that the ANC may use this opportunity to diminish the independence of the judiciary.

Attacks on the judiciary

Although Jacob Zuma has, on numerous occasions since becoming president, reiterated the importance of the independence of the judiciary, the assurances belie a systematic attack on the judiciary by the ANC and the decisions taken at the ANC's Polokwane conference to 'transform' the judiciary.

In January 2005, in relation to an earlier confrontation between Judge John Hlophe and other members of the judiciary, the ANC said:

"The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will… result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system."

While it is true that the judiciary is accountable to the people, it is by no means beholden to the masses. Judges are not required to please the people, or even to emulate their value systems, but rather to ensure that the rule of law and the Constitution (the very founding principles of our society) are respected.

Obviously, the law leaves some room for interpretation and having the integrity to interpret the law in a way which is in the interests of the people is a characteristic which all judges, especially those appointed to the Constitutional Court, should possess.

It is perhaps a confusion of the ideas of accountability and indebtedness which led Gwede Mantashe to label some of the judges of the Constitutional Court as "counter-revolutionary" in July 2008. It is perhaps this confusion that led the ANC to express "shock" when Deputy Chief Justice Dikgang Mosenke, referring to the role of the judiciary in 2007, (rightly) said: "It's not what the ANC wants or what the delegates [to Polokwane] want; it is about what is good for our people."

These sentiments are not, however, particularly surprising when you consider that the ANC is on record as saying that "transformation of the State entails… extending the power of the National Liberation Movement over all levers of power: the army… the bureaucracy… the judiciary… and so on".

On the next page: The ANC's plans to 'transform' the judiciary...

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