*WHO GUARD THE GUARDIANS* *1. **CLASSICAL ROLE JUDICIARY *
The article which appeared on YCL on as “issue 4; volume 8; on 11 April, titled ‘Lets enlighten, educate and civilise these backward, uncultured and barbaric Africans” did justice on giving analysis on class contents of what is currently obtaining before Equality Court but I thought it’s important to take the discussion further and examine the role of courts in its conventional context and complication of its contemporary developments. I depart on appreciating that it will be grotesquely distortion to contemplate that it is inherent for courts to be neutral or fair arbitrators that uphold justice regardless of property power relations in society. For their location and evolution must be understood within conceptual framework of base and superstructure. If were to agree as I suspect we should that the base of society is the way people relate to one another in the production of their lives and their means of life, in other words, the productive relations. *2. **THE DIALETICS OF BASE & SUPER STRUCTURE* Classes are an aspect of productive relations, therefore it follows that people do not relate on just any basis. But relate to one another through their mutual relation to property. If then what is above is true as I anticipate then this in turn defines the society. But what is important for purpose of this paper is that it will then be also true that a state, a legal system (underline legal system), social institutions, and ideas arise on this base. These elements make up what we call the superstructure. The superstructure reflects, protects, organizes and strengthens the base. They are a superstructure because they can only be understood, in the final in terms of a society’s economic base. To bring this closer to home, the force removals of African majority from productive lands, the concentration of masses of Africans in Bantustan’s, their super exploitation and segregation even apartheid which was crime against humanity was legislated and courts presided to hand down harshest sentence to those who dared question this crime against humanity. The point we seek to make is that courts have been reflection not to dispense justice but reflection of material property relations in society, as to protect the interest of the ruling class. Strategy and tactics as adopted in 1969 ANC Morogoro Conference makes this observation “South Africa was conquered by force and is today ruled by force. At moments when White autocracy feels itself threatened, it does not hesitate to use the gun. When the gun is not in use legal and administrative terror, fear, social and economic pressures, complacency and confusion generated by propaganda and "education", are the devices brought into play in an attempt to harness the people's opposition. Behind these devices hovers force. The spectre is falsely raised of a threat to the White men's language and culture to "justify" a policy of cultural discrimination and domination, by economic bribes and legal artifices”. On philosophy & class struggle –Dialego point out “In so far as economic realities come into conflict with pet schemes of this or that apartheid ideologue, it is the ideas and not the realities which suffer! It is the basis which ultimately determines the superstructure”. *3. **EVOLUTION OF JUDICIARY IN SA* Now that we have established the point that courts as component of super structure were established and used to legitimise the segregation, oppression and crime against humanity then it follows that their transformation cannot be complete without overhaul of production patterns and system. To demonstrate further that judiciary had existed as super structure to perpetuate material property interest of ruling class in South African context, the governing laws whom Africans presided on over for centuries upon arrival of colonisers such legal system was chastised and relegated to judiciary museums without any prospect of development. This had resulted in Roman – Dutch & English laws being imported as best suit to protect the interest of the ruling class. Even when Act 108 of 1996 was introduced as a constitution of the Republic the Roman – Dutch English law still triumphed and our laws, African had practised for centuries was relegated to be a source of law only when all laws of our former colonisers cannot find suitable law for application, such injustice is still justice in South Africa till to date. Post 1994 with the strategic political breakthrough the ANC Alliance seek to build non-racial, non-sexiest, democratic, united and prosperous society and among other tenants of democracy it committed to doctrine of separation of powers, with judiciary being independent as to resolve any dispute and be institute to exercise check and balance of democracy. *4. **CONTEMPORARY FEAURES OF SA JUDICIARY* *4.1 Right to critic & Transformation* However few aspects warrant some interrogation in a manner in which the judiciary component of had evolved. Firstly while it has become a signal of fearless to critic the executive and legislative even at times without substance and base but such is praised as participatory democracy that must be guarded from lazy and corrupt politicians but any critic of judiciary is often as taboo that threatens the credibility and independence of judiciary if not democracy. This unwritten rule which seem popular is infact misleading and dangerous in that judiciary as other leg of state must remain accountable to broader society and expression of opinion even if it’s critical can never be treat to democracy but the opposite is true. The process to transform judiciary appears very slow. The focus has only been put on the form, which itself is very slow as the top echelons of judiciary are still occupied by apartheid jurists but more concerning is the content of what prevails as South African law to date. We had made mention earlier that no significance is given to African indigenous law with has been relegated to oblivion while Roman Dutch English law continue to hegemonic and improved. This may be undermined but it’s important if we are serious about self-determination, state sovereignty and restoring dignity and pride to law that is not based on retribution but on restoration. *4.2 **Access to courts* Access to courts is also another concerning area in that majority of South Africans whom do not command resources have little or no access to courts let alone justice. In South Africa exist a cruel relationship that those who have money can afford to buy justice and access courts up to the highest in the land but for those who do not have money must forget about such prospects. While this is glaring in the civil cases in that those who command resources can do as they please because they afford best jurists and provide all security needed by courts but even in criminal cases, I have witnessed denial of justice on basis of being poor. For example in area of which I reside there has been more than one killing of young person’s wherein perpetrators are known and do appear one or two times before court and the case after that disappears and life goes on because that life was not rich enough for courts to care but for those who command resource often white the mere stabbing receive best the court can provide, this phenomenon cannot be allowed to perpetuate. ** *4.3 The doctrine of separation of powers* The doctrine of separation of powers among executive, legislative and judicial is founded as tripartite of democracy with each independent but complimenting the other. We have come to be accustomed to loud noise every time the is rumour that executive wants to interfere or compromise the independence of judiciary the dissolution of Scorpions and Judge Hlophe Saga with Constitutional Court Judges being cases in point. The legislature is praised every time it criticise the executive or disapproves of this or that legislation. Little attention has been given to those instances wherein the judiciary actually interferes with the executive and pronounce on budget allocation or what should be priority of government wherein elected government have taken an executive decision on the matter. This situation is equally untenable!** *4.4 **Courts being political players* The recent development poses a serious threat to credibility of courts in the long term, in that we are beginning to see courts being either used by wealthy minority to subvert the majoritarian aspiration using courts or courts being active political players in political battles. The first of the above phenomenon is being used largely by right wing sections of our population whom every battle they loose on the street or at ballot want to subvert that which is an aspiration of majority or supress the majority from exercising its democratic right by using court of law. While the are many case in points but the recent Equality Court case on banning of singing of struggle song is a case in point where the heritage of South Africa was hanging in balance and infact the movement had to put a serious defence within and outside court otherwise the treat or deleting the history that informs our future was real. The same is true on many instances on policy and government programs that regardless of popular support but insignificant minority always remind government of its power in court and then government cannot help but retreat we saw such even with Appropriation Bill on land question. The treat in this regard is that once society arrives in a determination that courts have allowed the subverting majority aspiration and are representing the interest of particular sections in society. Then their role of being fair arbitrators gradually dissipate and society lose confidence in credibility of courts which can culminate in their role being undermined. The second component is has been aggressive lately where courts allow to be political players, cases in point include but not limited to the submission of ANC candidates to the IEC for the 18 May local government elections. Effectively in Eastern Cape were endorsed by Court, the Judge was satisfied that constitution of the ANC had not been violated. Surely ANC knows its constitution and application far better than learned Judge. The cope leadership is not going to be decided by their congress or any of their platform but court, Magwaza Msibi D.C by IFP had to confirmed by court etc. the point is that courts have become active players in political processes and this development poses danger to its credibility and level of confidence to which it enjoys from the society as whole. *5. **Conclusion* While it is true that state is a class contested terrain which is not in stagnation but forever responsive to balance of forces at a particular trajectory, it is also true that material property relations greatly influence on how people relate. Therefore as progressive forces wrestle among other sectors for hegemony of working class aspiration within the state, it is imperative that such participation must never be driven as to perfect the state apparatus in its prevailing circumstance but in the immediate it must seek to transform it in something new that in its form and content respond to interest of majority. The sustainable transformation of state apparatus is when the material property relations alter from hands of few to enjoyment of the majority, with alternate of production patterns departing from dictates of capitalism. It is therefore prudent that as we uphold the independence of judiciary, in our daily struggles we must equally be vigilant in safeguarding our democracy. Importantly in that project is that judiciary must be equally earn and sustain its credibility as a dispute arbiter, we must never fold arms when aspiration of the societal majority are subverted by abusing court processes. The separation of powers and right of society to critic or expresses opinion must be defended. We have to constantly persuade the court to clear from being political players that makes determination on party political differences. In the final analysis the total lasting transformation of courts/judiciary to reflect the organisation of majority it’s only when material property relations are enjoyed by people as a whole *Mawethu Rune:* is the National Deputy Chairperson of Young Communist League of South Africa -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] .
