In 2013 a tender to review the highest courts was awarded to the Human Science Research Council (HSRC) together with the Nelson R Mandela School of Law of the University of Fort Hare by the Department of Justice and Constitutional Development. This tender was to run for a period of 18 months[xiii] and at a cost of R10 million.[xiv] The research has been completed and the report has been written. So why has the government not released the report? There is not much information available but in a halfway update, the HSRC said they had ‘interviewed two esteemed former constitutional court justices’ who expressed anxiety over government’s failure to ‘adequatley implement court orders’ and called for respect of the rule of law and the judiciary.[xv]

Ultimately, a “progressive judiciary” has not been given any clear meaning by the ANC. But in times such as these, with phrases such as state capture featuring prominently in daily headlines and discourse, we need to be alive to the possibility of attempts to “capture” the judiciary.

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