Constitutional Hill


Why perceptions of political interference in NPA fuel corruption

After the end of apartheid South Africa adopted some of the most expansive and comprehensive anti-corruption laws in the world. But if these laws are not vigorously and efficiently enforced (in an impartial and fair manner) by a Prosecuting Authority completely free from interference by powerful politicians and business elites, they will have little or no effect in curbing both public and private sector corruption. It is for this reason that the ongoing instability at the National Prosecuting Authority (NPA) is of concern to every South African.

The drafters of the South African Constitution understood that those who wield political power or financial influence do not like to be held accountable and may well try to abuse their power as politicians or as rich businessmen and women in order to protect themselves against criminal prosecution by the NPA.

It is for this reason that section 179(4) of the Constitution demands that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”

Section 32(1) of the NPA Act gives effect to this constitutional command by stating as follows:

(a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

Anyone who interferes improperly, hinders or obstructs the NPA in carrying out its duties is guilty of an offence “and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.

It will not be easy to prove such interference as those who seek to interfere with the NPA to stop a prosecution (or to target an enemy for prosecution) is not likely to do so by sending an email or an sms that can be traced back to them. Criminals usually do not leave many clues as to their illegal activities.

Any half clever politician or businessman or woman will seek to interfere in the activities of the NPA informally or indirectly. They will do so either by giving instructions verbally (often through a third party and never over the phone where it can be recorded) or by ensuring that pliant individuals are placed in pivotal positions within the NPA. Such individuals could then be manipulated (or could be relied upon) to protect your interests and the interests of those who are loyal to you, while prosecuting your enemies in an opposing faction of the governing party or in opposition parties, or your competitors in the private sector.

It matters not whether members of the NPA are in fact impartial or whether they are beholden to politicians and business elites. What matters is whether there is a widespread perception that some of them in influential positions are beholden to the dominant faction within the governing party.

When a perception takes hold that you will be protected from prosecution by pliant individuals within the NPA as long as you remain loyal to the leader of the dominant faction within the governing party, corruption will flourish among many people who are prepared to show blind loyalty to the leader of the dominant faction of the governing party. (This is so because most people commit crime when they believe they will not be caught or prosecuted.)

A second consequence of such a perception taking hold is that it will diminish democratic contestation within the governing party as it will cement the power of the political leader and the dominant faction associated with him or her and will discourage some within the party from contesting internal party elections for fear of losing their perceived protection and being targeted for prosecution.

It is within this context that the announcement yesterday by Shaun Abrahams, the new Director of Public Prosecutions, that the NPA had decided to drop perjury and fraud charges against Deputy Director of Public Prosecutions, Nomgcobo Jiba, will not allay widespread perceptions that the NPA may be beholden to the interest of the dominant faction within the governing party.

As Abrahams did not provide a comprehensive legal motivation for the dropping of charges against Jiba, it is not possible to say with certainty whether the decision was legally sound or not. Abrahams did say that the main reason for the dropping of charges was the clause in the Prevention of Organised Crime Act (POCA), which states that a member of the NPA could not be prosecuted for anything “done in good faith” under the Act.

What was not made clear was on what basis the NPA had decided that Jiba had acted “in good faith” when she apparently misled the court when charging Johan Booysen, a major general in the police, with several offences created by POCA.

Booysen challenged this decision by Jiba in the High Court, who reviewed and set it aside her decision in Booysen v Acting National Director of Public Prosecutions and Others. In doing so, the court addressed the argument by Booysen that advocate Jiba had been “mendacious” (in other words, “untruthful” or “dishonest”) when she claimed that she considered particular statements together with the other information in the “docket” before making the impugned decisions.

Although Jiba was invited to explain how she could have taken into account information on oath that objectively did not exist at the time of taking the decision, she did not do so. This led the court to comment harshly on her behaviour in the following terms:

In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence [from Jiba]. In such circumstances, the court is entitled to draw an inference adverse to the NDPP…. Most significantly, the inference must be drawn that none of the information on which she says she relied linked Mr Booysen to the offences in question. This means that the documents on which she says she relied did not provide a rational basis for the decisions…

In effect, the court said that Jiba had lied to the court by claiming to have considered documents (which did not exist) before deciding to charge Booysen. In the absence of comprehensive legal reasons for the decision to drop charges against Jiba, it is not possible to say whether this dishonest behaviour on the part of advocate Jiba was indeed a “good faith” mistake or whether it was, in fact, a bad faith mistake made to pursue a political agenda.

However, given the widespread suspicions (true or not) that advocate Jiba is politically conflicted and may not be able to make impartial decisions regarding prosecutions of well-connected politicians and business people, it is regrettable that the NDPP did not provide comprehensive reasons for the dropping of charges.

Although there may well be solid legal reasons for dropping the charges, the fact that such reasons were not shared with the public will fuel speculation that the charges were dropped because Jiba is politically well-connected and because she is being protected because she is beholden to a dominant faction within the governing party and is doing its bidding within the NPA in order to protect corrupt politicians.

This perception might be incorrect. However, the remarks made by the Supreme Court of Appeal (SCA) about Jiba’s actions in the so called “Zuma spy tapes saga” do raise some questions about advocate Jiba’s impartiality and about her possible allegiance to President Zuma. In Zuma v Democratic Alliance and Others the SCA criticised Jiba’s seeming reluctance to assist the court in dealing with the spy tapes saga as follows:

In the present case, the then ANDPP, Ms Jiba, provided an ‘opposing’ affidavit in generalised, hearsay and almost meaningless terms. Affidavits from people who had first-hand knowledge of the relevant facts were conspicuously absent. Furthermore, it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality, or otherwise, of documents and other materials within its possession, particularly in the face of an order of this court. Its lack of interest in being of assistance to either the high court or this court is baffling. It is equally lamentable that the office of the NDPP took no steps before the commencement of litigation in the present case to place the legal representatives of Mr Zuma on terms in a manner that would have ensured either a definitive response by the latter or a decision by the NPA on the release of the documents and material sought by the DA. This conduct is not worthy of the office of the NDPP. Such conduct undermines the esteem in which the office of the NDPP ought to be held by the citizenry of this country.

The establishment of an NPA that is truly effective and impartial and is perceived to be impartial would create an environment in which far fewer politicians and business people would be prepared to take the chance of a 15-year jail term by engaging in corrupt activities.

This would potentially save billions of Rand of public funds that could be used to build schools, pay for the upkeep of roads, ensure that life saving medicine is delivered to hospitals, increase social grants or otherwise be used to better the lives of those who truly need the assistance of the state to live a dignified life. The question to ask is why more concerted efforts are not made to address the actual or perceived political bias within the NPA and who benefits from this.

What the rules say about the removal of MPs from Parliament

In what is becoming a ritualised enactment of political theatre, EFF leader Julius Malema is this week set to ask President Jacob Zuma yet again when he will comply with the remedial action imposed by the Public Protector and when the President will “pay back the money”. If recent appearances by the President in the National Assembly (NA) are anything to go by, some EFF members may well at some point be instructed to leave the Chamber. It is at this point that the new rules on the removal of MPs from the Chamber will be invoked. The question is whether these rules are constitutionally compliant or not.

It is clear that President Jacob Zuma has decided not to implement the remedial action imposed on him by the Public Protector when she found that he and his family improperly benefited from the use of public funds for the renovations of his private house near Nkandla. The Public Protector ordered the President to:

Pay a reasonable percentage of the cost of the [non-security related] measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.

The President has refused to comply with this remedial order. (This decision is either rational and valid or irrational and not valid, but the parliamentary ad hoc Committee on Nkandla cannot turn an otherwise irrational and invalid decision into a rational and valid one by “exonerating” the president, as it does not have the legal authority to do so.)

It is unclear what will happen when the President is once again asked about this matter later this week in the NA. However, if the President again fails to answer the question or fails to provide an answer that satisfies the members of the EFF, the presiding officer might well find him or herself in a position where the recently adopted rule 53A is invoked to justify the removal of some EFF MPs from the NA.

Rule 53A of the NA purports to deal with a situation where an MP refuses to leave the Chamber when ordered to do so by the presiding officer in terms of rule 51. Rule 51 allows a presiding officer to order an MP to leave the Chamber:

if the presiding officer is of the opinion that a member is deliberately contravening a provision of the rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly.

The presiding officer will of course first have to inform the targeted MP which rule he or she is “deliberately contravening” or on the basis of which rule he or she is “in contempt of the authority of the presiding officer”. This requires the presiding officer to have an intimately knowledge of (and respect for) the rules.

Unfortunately the current Speaker has demonstrated neither an intimate knowledge of the rules nor a great respect for them. Neither has she always acted in an impartial manner or been able to avoid a reasonable perception of bias on her part. This lack of preparation and inability to apply the rules with even a modicum of fairness or wisdom has eroded the authority of the Speaker, the legitimacy of her rulings and the dignity of Parliament as a whole.

It points to a truism that legal rules alone cannot bestow authority and legitimacy on a person who, through his or her own actions, is hell bent on undermining his or her authority and legitimacy. It also reminds us that the crisis in Parliament is not in the first instance about the rules, but about the manner in which the rules are interpreted and applied and the failure of the Speaker to command the respect of MPs across political party lines.

It is not as if the existing rules of the NA do not provide presiding officers with the authority and legal means to act fairly but decisively against MPs who disrupt proceedings in Parliament. (Of course, engaging in robust, raucous and even chaotic debate in parliament does not disrupt proceedings. Making it altogether impossible to participate in any form of debate does.)

For example, rule 49 states that whenever a presiding officer “rises during a debate, any member then speaking or offering to speak shall resume his or her seat, and the presiding officer shall be heard without interruption”.

This means that while MPs are allowed to raise points of order during a session of the NA (including during a session in which the President answers questions), they are not allowed to interrupt the presiding officer while he or she is commanding the floor. Of course, the rule presupposes that the presiding officer will not be politically biased and will not abuse his or her power by ignoring the rules of the NA and the rights these rules bestow on MPs merely to protect individual politicians.

Rule 47 also prohibits any MP from interrupting another member whilst speaking, “except to call attention to a point of order or a question of privilege”. This means that MPs have a right to raise a point of order while anybody other than the presiding officer is speaking (thus also while the president is answering questions) and the presiding officer must recognise the MP and hear him or her out.

However rule 50 further allows the presiding officer to order an MP to discontinue his or her speech if the MP persists in irrelevance or repetition of arguments, but only after having warned the MP of this first. It is unclear whether this rule applies only to MPs delivering speeches and individuals answering questions, or whether it also applies to MPs raising points of order. As the rule is currently phrased I would guess it does not apply to the raising of points of order.

Rule 63 prohibits an MP from using “offensive or unbecoming language” in parliament. The use of swear words or other so called vulgar words by MPs is therefore prohibited. What is not prohibited is the use of “unparliamentary language”. This means when the presiding officer rules speech impermissible on the basis that it is unparliamentary, he or she has no obvious legal authority to do so. Lastly rule 66 prohibits an MP from reflecting on the competence or honour of a judge, or of other individuals serving in constitutional bodies such as the IEC, Human Rights Commission, Public Protector or Auditor General.

The problems will arise when the presiding officer fails to follow these rules when dealing with MPs who raise points of order or otherwise raise uncomfortable questions. If the presiding officer makes a patently unlawful ruling for partisan political reasons, the question will arise whether MPs are still legally obliged to yield to his or her authority? Would an order by a presiding officer to leave the Chamber be lawful even when the original ruling by him or her is patently and absurdly unlawful?

In other words, if a presiding officer makes a ruling that no honest person with knowledge of and respect for the rules could have made, would this justify MPs’ ignoring the ruling? (It is akin to asking whether a motorist would be justified to ignore an order by a traffic police officer to hand over a R1000 bribe to him or her.)

Clearly, it would not normally be permissible for an MP to second guess the rulings of a presiding officer – even when reasonable people might well disagree on the interpretation or application of a rule by the presiding officer. It is less clear what the situation would be if the ruling of the presiding officer is so outrageous or so patently illegal that no reasonable and impartial person could honestly have made such a ruling.

In any event, if we assume a situation will arise where the presiding officer has lawfully ordered an MP to leave the Chamber and the MP refuses, the new rule 53A will guide the proper way to deal with the situation.

Rule 53A(1) allows the presiding officer to instruct the Serjeant-at-Arms to remove the MP from the Chamber and the precincts of Parliament if the MP refuses to leave as instructed by the presiding officer.

If the Serjeant-at-Arms is unable in person to effect the removal of the member, the presiding officer may call upon the Parliamentary Protection Services to assist in removing the MP from the Chamber and the precincts of Parliament. Obviously, only the MP who is in breach of the rules and has specifically been named can so be removed. All the MPs of a political party cannot be removed because the presiding officer had ruled that one of its MPs was in breach of the rules.

If an MP resists attempts to be removed from the Chamber either the Serjeant-at-Arms or the Parliamentary Protection Services “may use such force as may be reasonably necessary to overcome any resistance”. Other MPs are prohibited from physically intervening in, preventing or obstructing the removal of an MP being removed. The presiding officer is authorised to instruct the removal of any MPs who intervene in the removal of another MP. Once again, this cannot apply to all the MPs of a political party where some MPs have intervened.

Rule 53A(11) further states that in the event of violence, or a reasonable prospect of violence or serious disruption ensuing in the Chamber as a result of a MPs resisting removal, the presiding officer may suspend proceedings, and members of the security services may be called upon by the presiding officer to assist with the removal of members from the Chamber and the precincts of Parliament “in terms of Section 4(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act”.

One could argue that the new rule 53A does not fall foul of the provisions of section 58 and 71 of the Constitution which guarantee free speech in Parliament and prohibit MPs from being arrested for anything they says in Parliament. In terms of this argument, rule 53A does not target MPs directly for what they say, but for their refusal to obey the orders of the presiding officer. I would agree with this argument on the condition that this will only be correct if it is assumed that the rule would not apply when an MP refuses to obey a patently unlawful ruling by the presiding officer – one that no reasonable person with knowledge of and respect for the rules could possibly have made.

In the absence of this assumption, the presiding officer would in effect be allowed to have any MP removed from the Chamber for any reason the presiding officer sees fit. Just as one would not normally argue that a legislative provision that authorises a police officer to arrest a suspect is constitutionally invalid because of the possibility that the police officer would use the section corruptly to arrest a person who refused to pay him or her a bribe, one would not be able to argue that the parliamentary rule is invalid because of the likelihood that the presiding officer will abuse his or her power and will flout the rules.

Where a presiding officer displays at least a working knowledge of the rules and apply the rules more or less fairly, no injustice will be visited on an MP who is ordered to leave the chamber. But if the presiding officer abuses his or her power and flouts the very rules he or she is mandated to uphold, the potential injustice is evident. Such a flouting of the rules will also undermine respect for the presiding officer and his or her authority and ultimately for parliament as an institution.

It is for this reason that it remains important that the presiding officers in parliament act fairly and in a non-partisan manner. If they do not, they themselves bring parliament into disrepute.

Why the ad hoc Committee on Nkandla is legally irrelevant

It is unclear why an ad hoc Committee of the National Assembly (NA) is considering a report prepared by Police Minister Nathi Nhleko on the remedial action imposed by the Public Protector regarding the use of public funds for the renovation of President Jacob Zuma’s private home at Nkandla. In terms of the Executive Members Ethics Act and the Constitution, the President (not the Minister nor the NA) is legally responsible for implementing the remedial action imposed by the Public Protector. Only the President can make a legally valid decision not to obey the remedial action imposed and then only if he acts rationally on the basis of cogent reasons.

Section 3 of the Executive Members Ethics Act of 1998 empowers the Public Protector to investigate breaches of the Executive Members Ethics Code by the President and other members of the Executive. Only the Public Protector is empowered by the Act to make findings on breaches of the Code. Ministers and Parliamentary Committees are not authorised to make findings about breaches of the Ethics Code. Any reports on this from these bodies therefore have no legal standing.

Section 3(2) of the Act requires the Public Protector to submit a report on breaches of the Code of Ethics to the President for appropriate action. Section 3(5) then states:

The President must within a reasonable time, but not later than 14 days after receiving a report on a Cabinet member or Deputy Minister referred to in subsection 2 (a), submit a copy of the report and any comments thereon, together with a report on any action taken or to be taken in regard thereto, to the National Assembly.

As the President is the head of the National Executive (in terms of section 85 of the Constitution) and has the power to appoint and dismiss members of the National Executive in terms of section 91(2) of the Constitution, it is appropriate that the Act empowers the President to take action against members of the Executive found to have breached the Code of Ethics.

However, as the Public Protector has pointed out previously, the drafters of the Act did not envisage a situation in which the President himself is found guilty of a breach of the Code of Ethics. This means the Act empowers the President to decide whether to implement the remedial action imposed by the Public Protector in the wake of a finding of a breach of the Ethics Code by the President himself.

Section 182 of the Constitution, read with section 6(4) of the Public Protector Act also empowers the Public Protector to investigate, on his or her own initiative or on receipt of a complaint, any alleged: maladministration; certain forms of corruption; or improper or unlawful enrichment.

In terms of the High Court judgement on the powers of the Public Protector (which must guide the discussion until such time as the Constitutional Court gives a definitive answer on the powers of the Public Protector), the remedial action imposed by the Public Protector are not binding in the same manner as a court order would be binding. However, the High Court also held that the findings and remedial action imposed by the Public Protector cannot be ignored by the President.

[T]he fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject…. an organ of state cannot ignore the findings and remedial action of the Public Protector.

The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state (in this instance, the President) must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.

Where the President refuses to implement the remedial action imposed by the Public Protector, he or she can also be held accountable by the NA and can, ultimately, be removed from office by a majority vote in the NA if the majority loses confidence in the President. To this end, section 8(2) of the Public Protector Act provides for a report of the Public Protector to be submitted to the NA and for the NA to consider the report and to decide whether it would be appropriate to remove the President from office or not.

This does not mean the ultimate legal duty to deal with the remedial action imposed by the Public Protector lies with the NA or the Minister. It would be in breach of the separation of powers if the NA purports to make decisions on behalf of any member of the executive – including the President. All the NA can do is call members of the executive to account where such members fail to implement the remedial action imposed by the Public Protector and, in extreme cases, to remove the President and cabinet from office for failing to fulfil their legal duties.

The Public Protector made several important findings in her Nkandla report and directed that several bodies take remedial action in terms of it. In the most important finding that directly implicates the President, she found that when news broke in December 2009 of alleged exorbitant amounts spent at Nkandla (at the time R65 million), the President had a duty to take reasonable steps to order an immediate inquiry into the situation and to correct any irregularities and excesses. This is because the President, as head of the Executive, has the ultimate legal and constitutional obligation to ensure ethical government and to prevent self-enrichment of members of the Executive.

The Public Protector hence found that the failure of the President to do so and to act in protection of state resources constituted a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.

Recall that the Public Protector found that when President Zuma told Parliament that his family had built its own houses and the state had not built any for it or benefited them, this statement was not true. Curiously the Public Protector nevertheless accepted the evidence that the President “addressed Parliament in good faith” and therefore did not lie in breach of the Ethics Code.

In other words, while he did not tell the truth, he did not lie. This finding may well be reviewed and set aside by a court of law on the basis that it was irrational as it is unclear how one can find that a person did not tell the truth but can then find that the person did not lie.

Be that as it may, regarding the finding of a breach of the Executive Ethics Code, the Public Protector imposed the following remedial action on the President, ordering him the to:

11.1 Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool.

11.1.2.  Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.

11.1.3.  Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.

11.1.4.  Report to the National Assembly on his comments and actions on this report within 14 days.

When the President decided to ignore this remedial action and to ask the Minister of Police to determine whether he should repay any of the money and if so what amount, the legal question arose as to whether the President had offered “cogent reasons” for refusing to implement the remedial action imposed by the Public Protector and if such cogent reasons existed at the time when the President made this decision. Thus far the President has not offered such cogent reasons for his decision to anyone.

The role of the NA, as the democratically elected branch who is constitutionally mandated to hold the President accountable, is to ask the President why he had refused to implement the remedial action imposed by the Public Protector. It is unclear why the NA is engaging with another report then prepared by the Minister of Police on the matter, as legally the Minister of Police was not empowered or entitled to decide on whether the remedial action imposed by the Public Protector should be implemented or not. In other words, the NA is focusing on the wrong decision by the wrong person.

The President cannot delegate a power entrusted to his office by legislation and by the Constitution to a Minister as that would constitute an abdication of power. As the Constitutional Court stated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others “[w]hen contemplating the exercise of presidential powers, …[w]hat is important is that the President should take the final decision”.

In terms of the Ethics Code and the Constitution (read with the High Court judgment) that obligation rests with the President to make a decision either to implement the remedial action or not to implement it and to be held accountable for this decision. The purported attempt by the President to delegate this duty to the Minister of Police is an abdication of his responsibilities and in my opinion hence unlawful.

The NA may, of course, for political reasons, decide not to hold the President accountable and not to engage with his decision to ignore the remedial action. But by focusing on the decision of the Minister of Police the NA is really misconstruing its duty to hold the person accountable who is legally responsible for the decision either to implement or not to implement the remedial measures imposed by the Public Protector.

As long as the High Court judgment stands, the only relevant legal question is whether the President had cogent reasons for not implementing the remedial action imposed by the Public Protector. The only person who can provide such cogent reasons is the President. The Minister cannot provide such reasons on behalf of the President as the Minister did not make the decision not to implement them.

It seems to me in the light of this legal position the work of the ad hoc Committee on Nkandla is really a side show with little or no legal standing or effect. It is focusing on the wrong person (the Minister of Police) and the wrong decision (his report “exonerating” the President).

The only relevant decision is the one taken by the President not to take advice from the Treasury as to the amount to be paid back but rather to ignore the Public Protector’s findings and to ask the Minister of Police to review these findings. Was this decision rational and hence are there cogent reasons for this decision?

Ultimately, when this matter reaches the courts, I suspect this will be the question they will ask. The report by the Minister of Police (and the strange but irrelevant engagement of the NA with it) will merely become a humorous footnote in the seemingly never ending scandal.

Blade Nzimande and the criticism of court judgments

It is a tad surprising that the statement issued last week by the Chief Justice and all other senior judges in South Africa about the independence of the judiciary and the rule of law elicited such excitement in media circles and from some commentators. The statement is remarkably unremarkable. It merely restates the long held and uncontroversial principles on which any constitutional democracy founded on the rule of law is based. The only vaguely interesting aspect of the statement relates to the criticism of judges and court judgments. But even this was not really controversial. None other than Minister Blade Nzimande appears to have heeded the advice of the judges about how to criticise court judgments – unfortunately not with great success.

Over the past few weeks some politicians attempted to use the judiciary as a scapegoat in order to distract attention from their own problems. Often resorting to wild and unsubstantiated conspiracy theories or sweeping generalisations about the judiciary, politicians such as Gwede Mantashe, Marius Fransman, Nathi Nhleko and others attacked the judiciary and court judgments in vague and overheated terms.

These attacks reminded me of the attack by then DA leader Helen Zille on a judge appointed to head a commission of inquiry back in 2012. At the time Zille complained that “some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them”. There was no factual basis for this claim and the court who later heard a challenge to the legal validity of the commission declined to endorse this particular conspiracy theory.

Politicians from across the political spectrum as well as many members of the public seem to have some difficulty in distinguishing between valid criticism of court judgments and unsubstantiated and vague attacks questioning the integrity or honesty of members of the judiciary. To this end the statement issued by the Chief Justice and the other senior judges confirmed that:

[j]udges like others should be susceptible to constructive criticism. However, in this regard, the criticism should be fair and in good faith.  Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable.

The statement further acknowledged that judges – “like other mortals” – sometimes make mistakes. That is why litigants can appeal judgments all the way to the Constitutional Court where a full bench of eleven judges may provide a final answer to a legal question. The statement also pointed out that “judgments are often subjected to intensive peer and academic scrutiny and criticism”.

The few legal academics and students who actually read law journal articles (despite the unspeakable tedium and dullness of many of these missives) will attest to the fact that court judgments are sometimes subjected to scathing criticism. But the criticism is always specific and always engages with the legal reasoning employed by a judge to justify the outcome of a case.

Thus, while it is perfectly acceptable to argue that a judgment is wrong because a judge misstated a legal rule (say dolus eventualis) or misinterpreted the facts and to advance an argument about how the judge should have interpreted and applied a specific legal provision or rule instead, it is not appropriate to accuse a judge of bias or a hidden agenda – unless, of course, you provide factual proof for your accusation.

As the Chief Justice pointed out, if there is any evidence that some judges may have been prompted by others to arrive at a pre-determined result, they should immediately report this to the Judicial Conduct Committee of Judicial Service Commission (and should endeavour to provide evidence on which they base their allegations).

Which brings me to the Minister of Higher Education Dr Blade Nzimande, who – commendably – seems to have taken the statement of the Chief Justice to heart and on Saturday stepped back from previous vague allegations against the judiciary and instead singled out for criticism the judgment of the Western Cape High Court in the case of Democratic Alliance v Speaker of the National Assembly and Others. The judgment dealt with the legality of section 11 of the Powers, Privileges and Immunities Act which was used to justify the removal by the Police of EFF MPs from parliament during President Jacob Zuma’s state of the nation address.

Unfortunately it seems that the Minister may either not have read or understood the implications of the judgment or may deliberately have misconstrued the legal reasoning contained in it. Minister Nzimande complained that:

[j]udges must apply a tough test if a case comes before them which is about the [executive or parliament]. If a question comes about rules of parliament, a test must be very tough.

The Minister is also reported as criticising the judgment as “a ruling that tells us that the EFF has a right [to disrupt parliament]”.

This, however, is not exactly what the judgment found. The judgment is careful to acknowledge that sections 57(1) and 70(1) of the Constitutions bestows a general power on parliament to “determine and control its internal arrangements, proceedings and procedures” and to “make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement”.

The judgment further notes that the rules of parliament empowers presiding officers to deal extensively with members who deliberately disobey the rules, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in parliament. For example rule 51 of the NA states that:

if the presiding officer is of the opinion that a member is deliberately contravening a provision of these Rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly, he or she may order the member to withdraw immediately from the Chamber for the remainder of the day’s sitting.

National Assembly rule 56 also allows the presiding officer to adjourn the meeting or suspend proceedings in the event of grave disorder at a meeting.

The judgment also specifically confirms that no MP has a right to disrupt proceedings in Parliament. As the court noted the Constitution permits Parliament to make rules that temporarily exclude disruptive members from the sittings of Parliament. It quoted from a 1999 Supreme Court of Appeal judgment which stated:

There can be no doubt that this authority is wide enough to enable the Assembly to maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society. Without some such internal mechanism of control and discipline, the Assembly would be impotent to maintain effective discipline and order during debates.

It is therefore not entirely correct to claim – as Minister Nzimande did – that the judgment gives the EFF a right to disrupt parliament. Instead the judgment deals with the rather narrow question of whether section 11 of the Powers, Privileges and Immunities Act (relied on by the Speaker to justify the physically removal of EFF MPs from parliament by police officers) was constitutionally valid.

The court found that it was not. This was so because the section was badly phrased and thus overbroad because it allowed for the physical removal of an MP from parliament and for his or her arrest when that MP creates a “disturbance”.

There were two problems with the sections which rendered it overbroad. First, it allowed for the arrest of MPs for what they say in parliament, something that is prohibited in absolute terms by sections 58 and 71 of the Constitution. No exception to this rule is provided for in the Constitution. Second, it allowed for the removal of MPs from parliament for causing a “disturbance”, but defined “disturbance” too broadly.

The impugned section of the Act on which the Speaker relied defined “disturbance” in an extremely wide manner as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of parliament”. But the court found that sometimes robust debate could be viewed as being disruptive and the section could therefore be used to censor, remove and even arrest MPs for speaking their minds in parliament.

In real terms the definition is so broad that the exercise of the right to free speech in the NA, NCOP or parliamentary meeting, which ordinarily and appropriately includes robust debate and controversial speech, can certainly constitute an act which can be construed to interfere with or disrupt proceedings. This extremely broad definition of the word “disturbance” thus potentially detracts from a member’s constitutional privilege of freedom of speech and freedom from arrest as envisaged in terms of s 58(1) and 71(1) of the Constitution.

If applied in this manner it could silence MPs and could be used to rob citizens of their right to hear what their democratically elected representatives have to say in parliament about a matter of pressing public importance.

It is important to note that the court did not rule that legislation may never allow for the removal of MPs from parliament. Indeed the court stated:

It is not difficult to imagine a situation where a [MP] may create or cause a disturbance of such gravity that it undermines the authority or dignity of Parliament as a whole. In those instances common sense dictates that the Presiding Officer must be in a position to take decisive action as an orderly measure to protect the dignity of Parliament from obstruction, disruption and disturbances.

As noted above the Court pointed out the NA and NCOP have established rules empowering presiding officers to deal extensively with members who deliberately disobey a rule, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in Parliament.

The court also rejected the argument that it had been necessary to draft section 11 in such broad terms to ensure parliamentary proceedings was not unduly impeded, noting that parliament has more than sufficient tools to maintain order in its precincts.

It has the Rules and the power to hold members in contempt. There are offences created by section 27, and the power to allow the security forces to enforce them as contemplated in section 4 of the Act. In fact section 4 of the Act provides that members of the security forces may enter the precincts of Parliament and perform any policing functions in the precincts and inter alia take action to prevent immediate danger to life or safety of any person or damage to any property.

Of course, the heavens will not fall merely because a Minister misconstrued a court judgment while purporting to criticise it. On some level voters should expect that politicians will sometimes ignore the carefully reasoned judgments of courts in order to score cheap political points.

However, it is important that citizens stay alert to the propaganda and spin of politicians and are not easily taken in by such misrepresentations. To ensure that citizens are not misled by politicians tempted to misconstrue court judgments, it may be helpful if citizens studied the relevant court judgments themselves to ascertain whether the criticism is correct or not. Alternatively, citizens may do well to treat such attacks with a pinch of salt.

What Al-Bashir judgment said and why the Rule of Law is a prerequisite for democracy

The judgment of a full bench of three judges of the Gauteng High Court that South African law required the government to arrest President Al-Bashir and that attempts by the government to grant immunity from arrest and prosecution to President Al-Bashir were amateurish and legally misguided, raises important questions about the quality of legal advice provided to the government and about the threat the exercise of arbitrary power poses to our democracy.

In a postscript to his magisterial book “Whigs and Hunters” the Marxist historian EP Thompson called the Rule of Law “an unqualified human good”. Although highly critical of “the shams and inequities which may be concealed beneath this law”, he nevertheless argued fervently for the protection of the Rule of Law. In its absence, he said, those who exercise public power do so arbitrarily, unguided by the discipline and constraints that an adherence to the law brings.

When public power is exercised arbitrarily, it becomes impossible for those who do not wield state power to participate in politics in any meaningful way. Any semblance of democracy is snuffed out by those who make arbitrary decisions based purely on their own (instead of the common) interest – often in order to cement their power and to silence criticism and dissent.

The judgment of the Gauteng High Court in The Southern Litigation Centre v the Minister of Justice Others provides support for this argument.

At the heart of the judgment stands section 231 of the South African Constitution. The section states that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces”, unless it is an agreement of a technical, administrative or executive nature. Section 231(4) further states that “[a]ny international agreement becomes law in the Republic when it is enacted into law by national legislation”.

What the judgment illustrates is that the lawyers advising our government (in this case the Chief State Law Adviser) either did not know or understand these provisions, or our government chose to ignore them and to exercise its powers arbitrarily.

It is common cause that South Africa duly ratified the Rome Statute that creates the International Criminal Court and that this was approved by the democratically elected legislature. It is also common cause that the Rome Statute became law in South Africa in terms of section 231(4) of the Constitution after our democratic Parliament adopted the Implementation of the Rome Statute of the International Criminal Court Act in 2002 (Implementation Act).

It is furthermore common cause that the relevant African Union Conventions and the agreement between the African Union (AU) and South Africa to host the AU Summit were never made legally binding law in South Africa in terms of section 231(4) of the Constitution. (Informed observers may well ask why our government deemed the former agreement important enough to domesticate, but the latter not, and wonder what it says about our government’s purported commitment to AU.)

The Rome Statute devises a system of international criminal justice wherein the primary responsibility for the investigation and prosecution of those most responsible for serious violations of international law rests with the courts in the country in which the crimes were committed. In principle, a matter will only be admissible before the ICC where a state is either unable or unwilling to investigate and prosecute torture, genocide and other crimes against humanity. Once a matter is referred to the ICC though (either by a state itself or by the UN Security Council) the ICC gains jurisdiction over the prosecution.

The ICC may at this stage request a state to arrest and surrender a suspect. Article 89(1) of the Rome Statute imposes a duty on a state to “comply with requests for arrest and surrender”.

In terms of the Implementation Act adopted by the South African Parliament, South African authorities are enjoined to cooperate with the ICC, for example, to effect the arrest and provisional arrest of persons suspected of war crimes, genocide and crimes against humanity. These crimes have been specifically created in the South African context in terms of section 4 of the Implementation Act.

The question that arose in this case was whether the government had the requisite legal authority nevertheless to grant immunity to a sitting head of state attending an AU Summit on our soil, despite these clear international law obligations and obligations imposed by South Africa’s own law.

The South African government argued that the host agreement between the AU and South Africa provided for the granting of privileges and immunities and thus empowered the South African government to ignore its international law and domestic legal obligations. Clause 1 of Article VIII of this agreement records that the Republic of South Africa shall accord the Members of the AU Commission and Staff Members, the delegates and other representatives of Inter-Governmental Organisations attending the Meetings certain privileges and immunities. Tellingly, it does not refer to heads of state attending the Summit.

The government also referred to section C, Article V (1) (a) and (g) of the OAU Convention (which was not domesticated into South African law), which states that “[r]epresentatives of Member States to the principal and subsidiary institutions, as well as to the Specialised Commission of the Organisation of African Unity [now AU], and to conferences convened by the Organisation, shall, while exercising their functions and during their travel to and from the place of meetings, be accorded the following privileges and immunities” This includes immunity from personal arrest or detention.

In order to do so, the government argued, it published a notice in the Government Gazette in terms of section 5(3) of the Diplomatic Immunities and Privileges Act 37 of 2001 to grant foreign heads of state the requisite immunities during the AU Summit. The High Court found that there were several legal problems with this argument.

First, the Immunities Act in terms of which the immunity was purportedly granted does not domesticate the General Convention on the Privileges and Immunities of the OAU in accordance with section 231(4) of the Constitution. The OAU (now AU) Convention is therefore not binding law in South Africa, and the structures, staff and personnel of the AU consequently do not automatically enjoy privileges and immunity in South Africa.

Second, the hosting agreement between our government and the AU does not in fact confer immunity on heads of state – only on AU personnel and the like – and even if it did, it has not been made binding law in South Africa and therefore cannot trump our duly passed laws, including the Implementation Act.

Third the notice Gazetted by the Minister purporting to grant immunity to heads of states in terms of section 5(3) of the Immunities Act, is not applicable as section 5(3) only deals with the conferral of immunity and privileges on an organisation, which is defined in s. 1 of the Immunities Act as “an intergovernmental organisation of which two or more states or governments are members and which the Minister has recognised for the purposes of this Act”.

It does not deal with, or confer a power to grant immunity on, a head of state, envoy or other representative. It follows that the June agreement also does not confer immunity on President Bashir, and cannot serve to exclude this Court’s jurisdiction.

The high-water mark of the government’s case was that the Immunities Act confers a general discretion on the Minister to grant immunities and privileges on persons of her choosing, which she did by Gazetting a notice to this effect granting immunity to all heads of state.

However, the court rejected this argument, stating that:

she must exercise that discretion lawfully, in accordance with South Africa’s domestic and international law obligations. She cannot lawfully exercise the discretion where the effect will be to prevent the arrest and surrender of a person subject to an ICC warrant and request for surrender.

In other words, where a law grants a discretion to a Minister, it does not grant a discretion to that Minister to break the law while exercising the discretion. The court did not explicitly say so, but another reason why the Minister’s discretion in this regard is circumscribed is that it would be in breach of the separation of powers doctrine to grant a Minister the effective power to amend legislation (in this case the Implementation Act) which was duly passed by the national legislature. To hold otherwise would be to grant the Minister – a member of the Executive – the power to amended duly passed legislation. But legislation can only be amended by the legislature.

If any provision of the Immunities Act did indeed grant such a sweeping power to the Minister to amend the Implementation Act and to grant immunity to a head of state in contravention of the Implementation Act, the provision would therefore be unconstitutional. The Constitutional Court already held as much way back in 1995 in the Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others.

Lastly, even if one ignores section 231(4) of our Constitution which requires that agreements between South Africa and the AU or any other AU Convention only becomes enforceable law in South Africa if domesticated by our Parliament, it runs up against UN Security Council Resolution 1593 (2005) as well articles 25 and 103 of the UN Charter. In essence these require Members of the UN to accept and carry out the decisions of the Security Council. Furthermore, it affirms that in the event of a conflict in the obligations of members of the UN under the UN Charter and their obligations under any other international agreement their obligations under the Charter would prevail.

One could, of course, ask serious questions about the South African Government’s lack of commitment to the AU and the various agreements entered into by South Africa under the AU’s auspices. Why were none of these agreements made binding law in South Africa in terms of section 231(4)? Does this mean our government is not serious about its commitments to the African Union? Was it careless or incompetent in not doing so? Or did it deliberately and consciously decide to give domestic pre-eminence to the UN and to international agreements like the Rome Statute, perhaps in a bid to impress Western powers?

Those who have expressed anger at the South African judiciary for attempting to uphold the Rule of Law, to demonstrate appropriate respect for our domestic legislature and for enforcing the laws actually passed by our legislature, may well re-direct their anger towards our government who has not shown a burning commitment to make agreements entered into under the auspices of the AU binding in South Africa.

It may also direct some opprobrium at the state’s legal advisors who may have demonstrated a tenuous grasp of South Africa’s international law commitments. The failure to foresee the legal problems presented by our government not domesticating AU agreements but doing so with the Rome Statute has caused our government substantial reputational damage on the continent and across the rest of the world.

It has also placed our government in a position where it apparently decided to flout the very laws our democratic Parliament adopted and the court orders issued in terms of these laws, thus acting in an arbitrary manner and eroding respect for the Rule of Law. As the High Court warned in this regard:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.

The South African Constitutional Court has confirmed that principles of the rule of law are indispensable cornerstones of our constitutional democracy. As the High Court remarked:

The emphasis must be on “indispensible”. Where the rule of law is undermined by Government it is often done gradually and surreptitiously. Where this occurs in Court proceedings, the Court must fearlessly address this through its judgments, and not hesitate to keep the executive within the law, failing which it would not have complied with its constitutional obligations to administer justice to all persons alike without fear, favour or prejudice.

Thoughtful political “realists” and hardened cynics may well argue that it would never be in South Africa’s regional interest to arrest the sitting head of state of a fellow African country – even if that head of state is accused of orchestrating the deaths of 200 000 Africans. This would be a strong argument for expecting the South African government to have indicated politely to President Al-Bashir that it would not be in his best interest to attend the AU summit because our courts may order his arrest. It is, in other words, a strong argument in favour of informed, competent, pre-emptive action by our government to prevent the mess it created for itself.

What it is not and can never be, is a plausible argument in favour of the erosion of the Rule of Law – indeed an “unqualified human good” – through its bad planning, a cavalier disregard for laws passed by our democratic Parliament and enforced by our courts, and an indifference towards agreements concluded by our country under the auspices of the African Union.

Al-Bashir: flouting court orders are anti-poor and anti-democratic

The decision by the South African government to ignore the order of the Gauteng High Court not to allow President Omar al-Bashir from North Sudan to leave the country, constitutes a deliberate, pre-meditated, act of contempt of court.  The case raises many complex legal and geo-political questions over which reasonable people could profitably disagree. But even in an overheated political climate in which emotions tend to overpower principles and logic, it is unclear how any level-headed South African could support the deliberate flouting of a court order.

I am not a great fan of the International Criminal Court (ICC). Several years ago, just after Vusi Pikoli was suspended as National Director of Public Prosecutions (NDPP) I attended a conference in The Hague where several officials of the ICC were present. In private conversations, some of these officials did not impress me – I detected, and I make allowances for being hyper sensitive, a kind of cultural arrogance, bordering on racism emanating from some of the ICC officials.

However, in principle it must be possible to create a mechanism to prosecute political leaders of brutal authoritarian states who engage in crimes against humanity by facilitating mass torture, rape and ethnic cleansing. This is not an easy task because it will always be near impossible to bring to book the leaders of countries with the most economic and military power (I think here of the US, China and Russia, amongst others). In a world in which political, social and military power is not distributed equally, it is difficult to hold the most powerful human rights abusers to account.

Nevertheless the South African government decided to ratify the Rome Statute creating the ICC. It went further and became the first country in Africa to domesticate that treaty when its democratically elected representatives passed legislation to make the provisions of the treaty binding in South Africa. This occurred in 2002, eight years after South Africa became a democracy.

There are many cogent reasons for criticising the ICC, based on the fact that political considerations will prevent it from going after some politicians who are guilty of crimes against humanity. One could also argue on pragmatic grounds that it is unsound to arrest and prosecute a head of state because this would endanger the relative stability of the country over which he governs. Even when a leader is accused of facilitating the mass murder of his citizens – as President Omar Al-Bashir has been, with more than 200 000 people killed and more than 2 million displaced – grubby, unprincipled, pragmatic political considerations may militate against that President’s arrest.

But international agreements are entered into voluntary by states. When South Africa signed and ratified the Rome Statute (which establishes the ICC) and when it passed legislation in 2002 to make its provisions applicable within South Africa it did so voluntary.

The democratically elected government of South Africa could have chosen not to sign on to the Rome Statute. It could have chosen to withdraw from it if it believed that the ICC was unfairly targeting politically, economically and military weak leaders from the African continent. That South Africa did not do. Instead, it remained a signatory to the treaty and retained the law making that treaty applicable in South Africa on the statute books. In the same manner it has passed laws prohibiting rape and corruption, it has passed a law prohibiting crimes against humanity and placing a duty to on the government to co-operate with the ICC.

Those who oppose the extradition by South Africa to the ICC of a tyrant who allegedly was instrumental in facilitating the rape and killing of hundreds of thousands of Africans, are really critical of the ANC government decision to adhere to these obligations.

Any lawyer worth his or her salt would also have been aware that any immunity granted in terms of the Diplomatic Immunities and Privileges Act of 2008 to foreign heads of state on the assumption that the AU is akin to the UN would be on shaky legal ground. The international instruments and the South African Act was always likely to be interpreted to apply only to United Nations related personnel and was never likely applicable to the Presidents of foreign countries wanted by the ICC who attends an African Union summit in South Africa.

Although this area of the law is not well-settled, it was at least likely that a court would find that an attempt to grant immunity to President Omar Al-Bashir under this Act would not be legally valid and binding and would be trumped by South Africa’s constitutional obligations and international law obligations in terms of the Rome Statute.

(I am not an expert on international law, so I find the various conflicting provisions of the Rome statute, its interplay with the South African Constitution and how this relates to customary international law norms, rather perplexing. But even a brief search on the internet informed me that at the very least this is a grey area of law and that it was at least likely that a South African court would not find the legal immunity purportedly granted under this Act to be legally valid.)

It was therefore always at best unwise and at worst inviting a complete diplomatic meltdown, for South Africa to give the go-ahead for President Al-Bashir to visit South Africa. It was also arrogant and recklessly endangering South Africa’s standing on the African continent and in the international community not to warn President Al-Bashir that he may face legal consequences if he visited South Africa. If the South African government had explained that its laws may require it to arrest and extradite President Al-Bashir he would not have arrived.

Once an NGO approached the High Court about the matter and the High Court issued an order prohibiting President Al-Bashir from leaving until the matter was considered in full, the South African government had a full blown diplomatic crisis on its hands – entirely of its own making due to its arrogance and/or incompetence.

Then our government proceeded to make a bad situation worse by facilitating the departure of President Al-Bashir in clear and direct conflict with a court order not to do so.

Once a government flouts court orders it undermines the legitimacy of the courts – not only in highly charged political matters but also in ordinary matters affecting ordinary citizens. It is a calamity for every citizen – even if this may not at first be apparent to some citizens who might even, in a particular case, support the flouting of a court order and the lawlessness that it entails.

As former Chief Justice Sandile Ngcobo pointed out in a public lecture the judiciary needs to retain the public’s confidence in order for it to fulfil its role properly. Public confidence was important, suggested Ngcobo CJ, because it is necessary for the effective performance of judicial functions.  What was required was for members of the public to recognise the legitimacy of individual decisions of the court even when it disagreed with the outcome of such decisions: in other words, public opinion related to the institutional position of a court and hence courts had to act in such a manner that it retained the confidence – if not always full agreement – of the public it served.

When a democratically elected government flouts the orders of a court, it undermined public confidence in the courts and undermines the legal system as a whole. If members of the public come to believe that what matters is not what a specific legal principle require, but what those with money and power dictate, lawlessness in its most extreme form logically follows.

To quote former Chief Justice Ishmael Mahommed:

[u]nlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will.  The superior courts and the Constitutional Court do not have a single soldier.  They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts.  The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.

It is important to the rule of law that people and governments develop such confidence in the judiciary that they routinely accept and comply with judicial decisions. This acceptance is most necessary in the case of decisions that are controversial and unpopular. Every day courts make decisions that injure or offend people. Of course, there is a greater good underlying these decisions — respect for the law, and the policy goals and the protection of rights that the law represents.

Yet that greater good is not always apparent to losing parties or to those who do not support the court order. And yet the rule of law depends upon peaceful acceptance of those decisions, and compliance with court orders, even if they are strongly resented. Here the argument, familiar for political scientists, seems to be that it would be difficult for a Constitutional Court (or the judiciary at large) to survive institutionally if its decisions were routinely ignored or flouted by those with power and with connections to those with power.

The result would be a system in which who you know and how much money you have would become the only, the absolute only, determinant of whether you will enjoy the protection of the law or whether, alternatively, you will be thrown at the mercy of those with connections, money and power.

What the South African government did by flouting a court order preventing President Al-Bashir from leaving is to open the possibility to a situation in which who you are, how much money you have, and who you know will determine whether your dignity will be respected or undermined and whether your basic rights will be vindicated or ignored. This state of affairs is not compatible with a constitutional democracy in which the inherent human dignity of all are protected – regardless of economic or social status or political affiliations.

It is especially destructive to those without money and with no access to politically connected individuals as the courts are often their last resort. In South Africa courts have a relatively good record at actually listening and hearing the please of poor people whose rights are being flouted. Ignoring court orders is thus an anti-poor and anti-democratic move which, if repeated often enough, will destroy South Africa’s democracy.

Nkandla: yes the decision may be irrational and can be reviewed

There is an argument to be made that it will be more appropriate and effective to respond politically – instead of legally – to the manner in which President Jacob Zuma has dealt with the Nkandla scandal. The courts alone cannot hold politicians accountable. Voters have a pivotal role to play – both in the periods between elections and at the ballot box –  in holding politicians ultimately accountable. However, if the legal route is pursued, there may be both procedural and substantive grounds on which to challenge the executive’s response to the Public Protector’s report on Nkandla.

The Constitutional Court has not yet provided a definitive answer to the question of whether the findings of the Public Protector and the remedial action imposed by that office in terms of the Constitution, the Public Protector Act and the Executive Members Ethics Act are legally binding. Neither has our top court provided any guidance on when – if ever – such findings and remedial action can be ignored by those affected by the findings and tasked with implementing them.

The Western Cape High Court did provide preliminary answers to these questions in its judgment in Democratic Alliance v SABC and Others. Until the Constitutional Court clarifies the matter, the High Court judgment must guide any legal analysis of the Public Protector’s powers and the legal status of any remedial action imposed by her office.

The High Court held that the findings and remedial action ordered by the Public Protector are not directly binding and enforceable. However, it also held that the findings and remedial action imposed by the Public Protector cannot be ignored.

[T]the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject…. an organ of state cannot ignore the findings and remedial action of the Public Protector.

The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.

At the very least the organ of state must have acted rationally in declining to implement the findings and remedial action of the Public Protector. To decide whether a decision not to implement the findings and remedial action are rational and therefore lawful, “the underlying purpose of the Public Protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice” – must be considered.

In other words, you should ask whether there is a rational relationship between the need on the part of an organ of state to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice and the decision by that organ of state not to implement the findings and remedial action of the Public Protector.

Usually rationality is not a difficult legal standard to meet. But the manner in which the High Court phrased the rationality test in dealing with the non-implementation of Public Protector reports would make it very difficult for an organ of state to justify a decision not to implement the findings and remedial action. This is because it will be very difficult to show that there is a rational link between the decision of the executive not to implement the findings and remedial action imposed on the one hand, and its duty ensure effective and fair government free from corruption or maladministration on the other.

The executive will in effect have to show that it was necessary to ignore the Public Protector’s report in order to ensure effective and fair government free from maladministration and corruption. Showing that a different decision-maker could have reached a different decision from that reached by the Public Protector would not suffice.

In the absence of any evidence that the Public Protector acted in bad faith or misconstrued her powers it is not easy to see how the executive will manage to convince a court it had acted rationally (and hence lawfully) when it ignored the findings and remedial action of the Public Protector.

In terms of the Constitution and the Executive Members Ethics Act the ultimate obligation to deal with the findings and remedial action imposed by the Public Protector in her Nkandla report lies with the President. It does not lie with any cabinet minister whom the President appoints and can fire at will.

If it is assumed for the moment that the High Court judgment dealing with the powers of the Public Protector is correct, the President would have to show that “cogent reasons” exist that allows him to ignore the findings and remedial action of the Public Protector on Nkandla. It is unclear whether such reasons indeed exist.

First, the Public Protector ordered that the President pay a reasonable amount of the cost of the non-security related upgrades at Nkandla “as determined with the assistance of the National Treasury”. In other words, the President and the Treasury should have made a determination on the matter. This never happened. Instead the President tasked another Minister to determine if he needed to pay any amount and if so how much.

A procedural problem therefore arises because the President failed to involve the Treasury in the process and also failed (on the face of it) to take the decision as required – instead delegating the decision to the Minister of Police. Thus far no cogent reasons have been provided for failing to involve the Treasury as prescribed. Furthermore, no cogent reasons have thus far been advanced for why the President abdicated his responsibility to determine the amount to be paid “in consultation with the Treasury”.

There are, of course, pressing political reasons for the President to appear to delegate the decision on how much to pay to one of his colleagues (whom he appoints and can fire at wil). It places a symbolic distance between the President and a potentially unpopular decision to absolve him from any financial responsibility for Nkandla. Good politicians always manage to get others to take responsibility for unpopular decisions which may ultimately only be in their own best interest. But this would not constitute a cogent reason to justify ignoring the Public Protector’s report.

This seems to render the President’s response to the Nkandla report irrational and hence unlawful and invalid.

But even if this is not so, it is difficult to see how the decision by Police Minister Nathi Nhleko that President Zuma need not pay anything for the state-funded upgrades of his private home at Nkandla could be deemed rational.

The Minister did exactly what the High Court said was not allowed, namely he decided that the remedial action ordered by the Public Protector need not be implemented on the mere basis that he had a different view than the Public Protector about the appropriate findings and remedial action. As the Minister has not argued that the Public Protector acted in bad faith or misconstrued her powers, the decision that President Zuma did not benefit from the Nkandla upgrades and need not pay back any of the money therefore appears to be irrational and hence unlawful and invalid.

The findings and remedial action imposed by the Public Protector may, of course, itself be taken on review and a court can set aside such findings on the ground that due to a misinterpretation of the law or for some other reason the findings or remedial action are irrational.

At least two findings by the Public Protector regarding the Nkandla matter may be vulnerable to such a review, but unfortunately for the President it relates to findings that favour him. (Another body may of course request the court to review and set aside these findings in order to impose a far more onerous financial obligation on the President.)

First, the Public Protector found that while the claim made by President Zuma in Parliament that he and his family built and paid for everything at his private home, except for the security measures was not true, this may have been an honest mistake. The report thus found that there was no breach of section 2 of the Executive Members Ethics Act as it may have been a bona fide mistake that the President had misled Parliament. It is not clear from the Public Protector’s report on what rational basis this finding was made.

Given the fact that the President declined to provide the Public Protector with any information of how the non-security related aspects of Nkandla was financed (information which only the he could have provided) and given the fact that the extensive non-security related building at Nkandla (excluding the contested swimming pool, cattle kraal, chicken coop and amphitheatre) must have cost several million Rand, it is unclear how the President and his family could have financed it without assistance from a bank or from a third party.

(The President did provide evidence of a bond to the Public Protector, which was apparently obtained to finance the building of the first houses at Nkandla more than ten years ago.)

Where a person being investigated by the Public Protector refuses to provide her office with information that could exonerate that person, it would be rational to assume that such evidence does not exist – unless there are cogent reasons for the refusal. It is, at best, unclear whether such cogent reasons were provided to the Public Protector or indeed, whether they exist. If asked to do so, a court may therefore find that this finding was not rational and hence that the President did lie to Parliament in breach of the Executive Members Ethics Code.

Second, the Public Protector found that if a strict legal approach were to be adopted, the President would have been liable for all cost relating to the security upgrade of his private home. This is so because his Nkandla home was declared a National Key Point in terms of the National Key Points Act. The Act requires the owner of the property to carry all cost relating to security improvements.

However, the Public Protector generously found that such a finding would be unfair to President Zuma. This is because, in terms of a Cabinet Policy adopted in 2003 all Presidents and former Presidents are entitled to reasonable security upgrades at their private homes, at their request or that of their office. However, President Zuma stated that no such request was ever made.

There are two problems with the findings of the Public Protector in this regard.

First, the separation of powers doctrine holds that the executive cannot amend legislation adopted by the legislature nor can it decide to ignore applicable law validly passed by Parliament. Where legislation imposes a duty on a member of the executive, a Cabinet policy cannot nullify such an obligation as this would, in effect, amount to the executive usurping the power of the legislature.

Second, the President said he never requested any security upgrades at his private home, which is a requirement for the cabinet policy of 2003 to be activated. In the absence of a request from the President, it is therefore unclear how any rational person could have found that the policy nevertheless applied to the security upgrades at Nkandla. As no request was apparently made, the Cabinet Policy could not apply and the President may therefore be liable for the entire amount of the security upgrades as prescribed by the National Key Points Act.

There is therefore a plausible legal argument to be made that the Public Protector erred and acted irrationally – to the benefit of President Zuma. Although it is never easy to predict how a court would rule in a specific case, I would argue that there is at least a likelihood that, if asked, a court could review and set aside the decision by the Public Protector not to hold the President liable for the entire amount of the security upgrade as required by the National Key Points Act.

I hope I have made clear that while the electorate will ultimately decide whether to hold the executive and the party its members belong to accountable for the Nkandla scandal, there are several interesting legal arguments that could be presented to a court, in the event of the matter coming before it. And the worst case scenario for the President is that a court may rule that he is liable for the entire amount spent on security upgrades at his private home – not only the relatively small amount which he is liable for in terms of the Public Protector report.

Xenophobic statement: Is King Zwelithini guilty of hate speech?

Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini in a speech delivered in March fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?

Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.

But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.

(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)

With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.

When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):

[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).

The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.

In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.

He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.

Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.

In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.

To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:

could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.

Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).

What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:

foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”

The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.

In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.

All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.

As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.

Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.

Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.

If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.

“Unparliamentary speech”? There is no such thing.

In the no confidence debate in the National Assembly this week ANC Chairperson Baleka Mbete, who sometimes also moonlights as Speaker, ruled that it was “unparliamentary” to call President Jacob Zuma a “thief”. At present there is no Parliamentary rule, nor any standing order or resolution, which prohibits or regulates “unparliamentary” statements made by an MP. The Speaker therefore had no legal authority to make the ruling and her ruling was unlawful.

In a recent judgment, the Constitutional Court reminded us (if we needed reminding) that “[p]olitical life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious”. But, said the court, “[t]hat is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible”.

Such vigorous discussion will often be rude and aggressive and politicians who do not like being insulted should probably get another job. There is no place for the fainthearted in our political discourse.

In its judgment the Constitutional Court found that a text message sent by the Democratic Alliance before the previous election stating that “[t]he Nkandla report shows how Zuma stole your money to build his R246m home….” expressed an opinion that did not contravene the relevant provisions of the Electoral Act.

The judgment did not find that the claim that President Jacob Zuma is a thief was true. It is therefore not clear whether President Zuma would be able successfully to sue for defamation if he is called a thief outside Parliament. (The Constitution protects MPs from being sued for defamatory statements they make inside Parliament or in any of its committees.)

The Speaker was therefore correct to rule that the judgment did not speak directly to whether an MP can call the President a thief in Parliament. (However, to the extent that the Speaker suggested Parliament was not bound by applicable Constitutional Court judgments, she was obviously talking dangerous nonsense.)

What has to be determined is whether the rules of Parliament prohibit an MP from calling the President a thief on the ground that such a statement would be “unparliamentary”.

Neither the rules of the National Assembly nor the standing orders prohibit an MP from making prima facie defamatory statements about any individual who is not a member of the Assembly. The President is not a member of the Assembly (he ceases being a member of the Assembly when elected President) and for the purposes of this discussion is no different from any other ordinary member of the public. Even if there were a rule that prohibited an MP from calling another MP a thief (there is no such general rule), it would not apply to the President.

Section 58 of the Constitution states that Cabinet members, Deputy Ministers and members of the National Assembly have freedom of speech in the Assembly and in its committees, subject to its rules and orders. This means that MP’s can say anything about somebody in Parliament unless constitutionally valid rules or orders of the Assembly regulate or prohibit such speech. The Constitution does not allow the limitation of free expression in Parliament by a “practice”.

There is no rule that prohibits “unparliamentary” speech by an MP and so no rule that prohibits an MP from calling the President (or anyone else – including you and me) a thief. Strangely, a “practice” has developed according to which the Speaker forces MP’s to withdraw “unparliamentary” statements. As there is no fixed definition of what constitutes “unparliamentary” statements, this illegal practice grants the Speaker unfettered discretion to censor any statement by an MP she does not approve of.

But the Constitution does not allow a Speaker to limit the freedom of speech of MPs unless he or she is authorised to do so by the rules or orders of Parliament. A vague “practice” will not do. This means every time the Speaker rules that certain speech by an MP is “unparliamentary” and must be withdrawn, the speaker is unconstitutionally limiting the freedom of speech of MPs as she is invoking a “practice” that has absolutely no legal standing.

Now, the rules of Parliament could be amended in order to add a rule that would allow the Speaker to rule “unparliamentary” statements impermissible. It will depend on the content of the rule (especially whether it was formulated with sufficient precision) whether it would pass constitutional muster. Parliament could also adopt a standing order to this effect. Again, the standing order would need to comply with the Constitution. But none of these options have been followed.

This means there is no legal authority for the Speaker to rule on “unparliamentary” statements of MPs. When she rules speech “unparliamentary” she has the same legal authority to do so than, say, the legal authority I have to order South African troops to invade Lesotho. It’s a dangerous and anti-democratic nonsense inherited from the colonial Parliament. It is beyond me why the MPs of all political parties have thus far gone along with this flagrantly illegal limitation on their rights to free speech.

Now, one argument to counter this view would be that the Speaker retains a general discretion to make up rules and to invent “practices” that limit free speech. Such an argument would probably rely on rule 2, which grants the Speaker the authority to rule on “any eventuality for which these Rules do not provide”.

But this rule is not applicable to limitations on what can and cannot be said in Parliament because the rules of the National Assembly already contain extensive provisions on the regulation of speech in the National Assembly. As the rules already provide for the limitation and regulation of free speech to retain order and decorum in the House, the Speaker is not authorised by rule 2 to make up new rules or to invent new practices to limit free speech merely because the colonial masters in London may have applied a similar “practice” or “rule”.

If the rules were read differently, it would lead to absurd results as it would allow the Speaker to make any rule limiting the freedom of speech of MPs, including a general rule that no opposition MP is allowed to ever say anything in Parliament. As rule 2 does not apply, this means the Speaker cannot invoke the nonsense of “unparliamentary speech” because there is no rule or order that allows her to do so.

How do the actual rules and orders of the National Assembly limit free speech at present and why is it that these existing rules do not usually apply to statements made by MPs about the President (or about any other non-MPs)?

Rule 46 of the National Assembly prohibits MPs from talking aloud during a debate while rule 47 prohibits an MP from interrupting “another member whilst speaking, except to call attention to a point of order or a question of privilege”. Rule 50 further regulates speech by stating that the Speaker “after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech”.

Rule 61 prohibits any MP (including the Speaker!) from referring to any other MP by his or her first name or names only (which is why MPs often call each other honourable member – something which, I am ashamed to say, often makes me snigger like a naughty schoolgirl).

Rule 63 prohibits an MP from using “offensive or unbecoming language” in a debate. Rule 63 does not refer to the content of the speech but rather to the form the speech takes. Calling somebody a thief or a liar or alleging that a tenderpreneur has cheated the state out of millions of Rand would not be covered by this rule, but calling a person a “little shit” or a “fuckwit” or some such offensive term would obviously contravene rule 63.

Rule 66 also prohibits an MP from reflecting upon the competence or honour of a judge of a superior court, or of the holder of an office (other than a member of the Government) whose removal from such office is dependent upon a decision of the House, except when a substantive motion to that effect is being debated. This rule obviously applies to judges and individuals such as the Public Protector or members of the South African Human Rights Commission, but does not apply to the President or other Cabinet Ministers.

Rule 67 quaintly prohibits MPs from referring to any matter on which a judicial decision is pending. This rule contains the pre-constitutional position regarding the sub judice rule, but this position has been overturned by the Supreme Court of Appeal in the Midi-Television case, so rule 67 may well be unconstitutional. Nevertheless, until it is invalidated it applies, so when Deputy President Ramaphosa refused to comment on his involvement in the signal jamming fiasco he was acting in conformity with the existing rules.

However, there is a standing order made by a former Speaker of the National Assembly, Frene Ginwala, on 17 September 1996, which reads as follows:

A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.

First, it can be argued that the motion of no confidence in President Zuma indeed constituted a “substantive motion” about his conduct and therefore covers the debate conducted this week.

But even if this was not correct, the standing order quoted above did not apply to President Zuma. This is because the standing order only applies to MPs (or to the President when he is actually present in the Assembly) – not to non-MPs. Although rule 5 states that when the “President takes his or her seat in the Assembly” the rules also apply to him or her, this week (as is almost always the case when the Assembly sits) the President was not present in the Assembly, which means that the standing order quoted above could not possibly have applied to him.

Thus, as the rules stand, when the President is not in the Assembly, an MP is allowed to say the most scurrilous things about the President during any debate (regardless of whether a substantive motion to this effect had been brought) – as long as this is not done in “offensive or unbecoming” language.

When the President is not in Parliament an MP can call the President a murderer (perhaps alluding to Marikana), a thief (perhaps alluding to Schabir Shaik and/or Nkandla), a liar (perhaps alluding to his answers about Nkandla) or a weakling and lackey (perhaps alluding to the Gupta’s).

As the Constitutional Court pointed out in the case quoted above voters are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint.

When MPs make claims about the President in Parliament ordinary voters would judge such claims accordingly. Unless the President had acted in a way to give credence to the scurrilous claims made in Parliament about him, most voters would dismiss the claims as overblown political rhetoric.

This view accords with the idea that voters (and not politicians) are ultimately in charge and ultimately judge politicians and their parties on voting day. Voters judge whether they have any reason to believe an MP when he or she uses parliamentary privilege to call the President (or anyone else) a thief.

It’s called democracy. Pity the Speaker does not seem to be a fan.

Who will protect our Parliament against the President and his securocrats?

A press conference held on Tuesday revealed that ANC Chairperson and part time Speaker of the National Assembly (NA), Baleka Mbete, as well as former North West Premier and part time National Council of Provinces (NCOP) Chairperson, Thandi Modise, do not have a good grasp of either the architecture of the Constitution of the Republic of South Africa nor of the rules of Parliament which they are required to enforce impartially (but which they have chosen not to).

It is a little known fact among non-lawyers that the terms “separation of powers” and “checks and balances” are not to be found in the South African Constitution. However, the Constitutional Court, in a long line of cases, has held that the separation of powers doctrine (and the concomitant system of checks and balances) forms an integral part of the South African constitutional design.

The Constitution creates three branches of government (some argue it may create a fourth branch consisting of the Chapter 9 institutions) and allocates specific powers to each branch. This allows each branch to check the exercise of power by the other branches in order to ensure that no branch gains too much power. In theory this protects citizens from the abuse of power that inevitably results from the concentration of too much power in one institution or branch of government.

In modern democracies like South Africa (in which governance decisions have increasingly become complex and often technical in nature), the executive is by far the most dangerous branch of government. If the other branches do not vigilantly check the exercise of executive power and hold it accountable, the executive will threaten the health of the democracy as well as the rights and well-being of every person who lives in South Africa. (The Marikana massacre is the most bloody and extreme recent example of this phenomenon.)

The executive has direct operational control over the military and the other potentially repressive state institutions such as the police force and the secretive state security services with its network of spies and its ability to eavesdrop on the conversations of any citizen.

It also controls an army of civil servants who (in terms of chapter 10 of the Constitution) must execute the lawful policies of the government of the day but must remain politically impartial. However, many civil servants find this impossible to do because of an increasing conflation of the governing party and the state and because of the pressure to show loyalty to (and entertain the whims of) the head of the executive.

The problem of abuse of power by the executive is heightened in the South African system in which citizens do not directly elect the executive. Unlike the members of the NA (the only national institution democratically elected in direct elections by voters), the executive is formed at the whim of the President who, in turn, is indirectly elected (some will say, appointed) by the members of the NA.

In reality, at present the President is elected by the just over 4000 delegates who attend the ANC national elective conference every five years. However, to what extent these delegates represent the choices of the rank and file members of the party is unclear, because branches can be bought or otherwise manipulated to support one or the other candidate at the elective conference.

In order to safeguard our democracy against the dangerous and overweening power of the President and other members of his or her executive, the Constitution subjects the executive to the control of the legislature – in particular the democratically elected NA – as well as to the Constitution, enforced by an independent judiciary.

The President is not only elected by the NA, but can also be fired by it. The NA can also fire the cabinet. The NA can fire the President and/or the cabinet at any time for any reason it sees fit.

Section 42(5) of the Constitution empowers the President to summons Parliament to an extraordinary sitting at any time to conduct special business. When summoned, Parliament cannot refuse to gather, but in theory it retains the power vis-à-vis the President and his or her executive because it has the final say on any binding decision it is required to take.

Moreover, the President (or any other member of the executive or of the security apparatus) is not authorised to prescribe to Parliament how it should operate when it is called to such a special sitting or what decisions it should take.

This is made clear by section 45 of the Constitution, which states that the NA and the NCOP “must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council”. The President or members of the executive (include the police, military or state security) cannot rewrite these rules or circumvent them.

Section 57 and 70 of the Constitution also confirm that when the NA or the NCOP sit separately they are empowered to determine and control their internal arrangements, proceedings and procedures.

Section 56 and 69 further provide the NA and the NCOP with far reaching powers over the executive, stating that the NA or NCOP or any of their committees may:

  • summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  • require any person or institution to report to it;
  • compel, in terms of national legislation or the rules and orders, any person or institution to comply with such a summons; and
  • receive petitions, representations or submissions from any interested persons or institutions.

This means the NA or NCOP can at any time summons the President (or any other person) to appear before it. If the President (or any other person) refuses to do so, the NA or NCOP can force them to appear by summoning him or her to do so. If the President (or any other person) refuses to appear when summonsed he or she would be in contempt of Parliament. In terms of the rules of Parliament the Speaker or Chairperson of the NCOP needs to grant permission before a person is summoned.

(Of course, given the fact that the ANC Chairperson and the President meet every Monday at Luthuli House and given that her loyalty to the party and its leader will – in the absence of strong principles – trump loyalty to the rules of Parliament, it is not likely that the Speaker will ever grant such permission to summon the President to the NA.)

As we all know (because the rule was flouted last year) NA rule 111 also requires the President to answer questions in the NA at least four times every year. The question sessions are supposed to be scheduled in terms of the Parliamentary programme. If the Speaker fails to schedule such sessions (as she indeed failed to do last year) she is flouting the rules of the institution that she purportedly heads.

Because much of the de facto power resides with the President and his or her executive (as they control the potentially all-powerful and repressive state institutions as well as the public administration), Parliament can only perform its functions and hold its own against the potentially repressive actions of the executive, if the Speaker and Chairperson of the NCOP vigilantly protect Parliament from interference by the executive and protect the sanctity of the institution.

When Speaker protects Parliament in this manner, she is protecting democracy itself. She is protecting the democratic space and the right of voters to be represented in a robust and vigilant manner by the MPs representing the political parties for whom voters cast their ballots. If she fails to protect the sanctity of Parliament against the overbearing power of the executive, she is unlawfully surrendering our democratic space to the whims of unelected bureaucrats, shadowy securocrats or politicians who serve at the pleasure of the President, not at the pleasure of the voters.

It is to that end that the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 specifically states in section 3 that:

The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.

The Speaker and the Chairperson cannot legally abdicate this control over Parliament to anyone. It cannot delegate their powers to the Minister of State Security, any of its spies, the South African Police Service or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:

Members of the security services may (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.

When Baleka Mbete therefore suggested to journalists on Tuesday that she was not in control of the security arrangements at Parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.

Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, “we became aware that there was a plan for certain equipment to be deployed”. But she admitted that:

It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president.

This means that if the Speaker was being truthful she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the Parliament when she was legally bound to give permission for their actions and retain control over these actions. She had abdicated her legal responsibility, and had thus forsaken her Constitutional duty to protect the legislature against encroachment by the executive branch of government.

Her political loyalty to the head of the executive branch of government thus trumped her loyalty to the Constitution and her duty to uphold the law. It made her position (and that of the Chairperson of the NCOP) untenable.

Both have a duty to resign forthwith. That they won’t do so and won’t be forced to do so by the majority party, tells its own story.