The Time of Courts and Commissions Stabilising Anc Politics

In the time of ANC turmoil, when intra-party conflict became intractable, courts and commissions helped the movement to find its feet, bringing escape routes when other state institutions were bogged down by politicians’ contests for control of strategic state operations. Courts and commissions of inquiry were pushed into a zone of political arbitration. They were involved, in effect, in political decision-making – the political organisations and government institutions were engulfed by factional contest and self-interest and could not resolve their own differences any more.

The judicial interventions intensified over the years, especially as ANC factions became bogged down in power struggles, state institutions became sites of struggle and control over them became the trophy. In many respects, the Cyril Ramaphosa presidency was the time of high reliance on the judiciary to resolve, postpone or veil political problems in the ANC and its government. Commissions of inquiry and courts were the go-to agencies to extract South Africa’s political and governance systems from quagmires. In other cases, the problems were criminal in nature: corruption and capture could often not be handled politically. The fightback against clean-up and consequences, combined with suspects hiding behind legal-domain quid pro quo counter-actions led to otherwise straightforward legal procedures becoming political.

Ramaphosa could let the commissions and courts run their processes, reducing the political sting, allowing him to watch from the wings rather than taking more direct positions (firing people, for example) in state clean-up. As a rule, Ramaphosa moved in only when the evidence of wrongdoing was delivered by commissions and courts – after considerable lapses in time. He could then escape inter-factional charges of retribution and purges. The exception came when Ramaphosa himself became entrapped in the legal webs spun by the public protector and opposition parties to try to neutralise him by using much of his own legal procedure-cum-executive- ethics tactics.

This chapter investigates the role that the judiciary, through courts and commissions, played in the Ramaphosa era of precarious political power. In this time of ANC factionalism, when dead-ends were reached and hands were tied owing to cries of ‘factional purge’, the courts and commissions had to forge progress where the ANC could not help itself. The roles of commissions and courts, however, played out in both directions.