Beware of Populist Leaders, Warns Judge

• Former Justice Azhar Cachalia delivered a warning against populist leaders who pose significant threats to South Africa's constitutional order.
• His Ben Beinart lecture on September 15 at UCT highlighted the erosion of the rule of law and the infiltration of state institutions by criminal networks and politicians.
• Cachalia drew historical parallels to Ben Beinart's legal resistance against apartheid and the internal collapse of the Weimar Republic.
• He cautioned that ethno-nationalist politics, attempts to undermine judicial authority, and the pursuit of untrammelled executive power are destabilising democratic institutions.
• The former judge expressed concern that powerful actors are exploiting institutional failures and economic hardship to capture courts, the prosecuting authority, and public services from within.

Former Justice Cachalia expressed profound concern that this historical pattern—where economic hardship and institutional failure create fertile ground for those who trade accountability for order—is actively being exploited by organised criminal networks and their political enablers in South Africa today.

Former Justice Azhar Cachalia issued a compelling warning regarding the significant threats posed by populist leaders to South Africa's constitutional order. Speaking at the University of Cape Town on September 15, during an edited and shortened extract from his Ben Beinart lecture, former Justice Cachalia highlighted that these populist figures are present across the political spectrum, including within the African National Congress (ANC) and various minority parties.

His address underscored a critical concern: the erosion of the rule of law and the infiltration of state institutions. Former Justice Cachalia pointed to documented instances where powerful political actors have attempted to capture and repurpose state entities for extractive purposes. This includes organised criminal networks working in conjunction with politicians to infiltrate crucial government bodies, notably the criminal justice system itself.

In his lecture, former Justice Cachalia also reflected on the life of Ben Beinart, a Jewish legal scholar whose family had fled European persecution, and shared insights into his own family's experiences under apartheid. This historical context served as a backdrop for his contemporary concerns about the challenges facing South Africa's democratic foundations.

Ben Beinart's worldview was profoundly shaped by the global rise of fascism, a phenomenon he observed firsthand as the Nationalist government began implementing apartheid after his appointment as WP Schreiner Professor of Roman Law at UCT in 1950. Former Justice Cachalia noted that many of these Nationalist leaders openly espoused fascist and Nazi ideologies, which championed authoritarianism and racially exclusionary policies—principles that defined white-nationalist rule throughout Beinart's lifetime. Beinart himself became an influential voice of legal resistance against the systematic erosion of the rule of law as apartheid legislation tightened its grip during the 1950s.

Former Justice Cachalia drew a poignant parallel to the collapse of the Weimar Republic, emphasizing that its downfall was not due to invasion or a coup, but rather a hollowing out from within. He explained how a fractured, multi-party parliament proved incapable of governing through the hyperinflation of the early 1920s and the mass unemployment that followed the Depression. Article 48 of the Weimar constitution, intended for genuine emergencies, was increasingly used to govern by decree, effectively sidelining the elected legislature.

The judge recounted how, in January 1933, conservative elites, mistakenly believing they could control Adolf Hitler for their own ends, installed him as Chancellor. While former Justice Cachalia stressed he was not suggesting South Africa stands precisely where Germany did in 1933, he warned that the *pattern* of a constitutional order being captured from within, where those in power believe they can harness dangerous forces, and where economic hardship and institutional failure create fertile ground for trading accountability for order, is a lesson the framers of South Africa's Constitution understood well.

The constitutional vision of a non-racial country founded on racial equality is currently under threat from an unsettling brand of ethno-nationalist politics. Former Justice Cachalia lamented that this project is regrettably supported by some lawyers who actively promote these political views. Their strategy involves undermining the authority of the courts and stoking xenophobic sentiment, with some openly declaring their aversion to the Constitution itself. These factions seek a return to a parliamentary system where the executive would wield untrammelled authority over the nation, a move that would fundamentally alter South Africa's democratic structure.

Further evidence of this concerning trend is the increasing failure of the state to provide even the most basic services across large parts of the country, a clear indication of weakened and destabilised democratic institutions. Former Justice Cachalia expressed profound concern that this historical pattern—where economic hardship and institutional failure create fertile ground for those who trade accountability for order—is actively being exploited by organised criminal networks and their political enablers in South Africa today. He fears these groups are attempting to capture the nation's courts, prosecuting authority, and public service from within, thereby jeopardising judicial independence and the broader rule of law.

Lawyers and compliance officers in South Africa should be acutely aware of the increasing risks to judicial independence and the rule of law, as warned by Justice Cachalia. This requires heightened vigilance in advising clients on legal certainty, contract enforcement, and compliance, and a commitment to upholding constitutional principles amidst political pressures.

Source: Insights derived from former Justice Azhar Cachalia's Ben Beinart lecture.