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.

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.

“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.

DA SMS judgment: what the court really found

How robust are politicians and political parties allowed to be when they engage in election campaigning? In the absence of a court finding to that effect, can one party call another party or its leaders racist? Can one candidate call another dishonest or callous without clearly stating that this was just his or her opinion and then setting out the factual basis for such an opinion? In the recent Constitutional Court judgment of Democratic Alliance v African National Congress and Another the majority of judges held that the Electoral Act and Electoral Code would normally allow such robust forms of speech. The minority judgment had a more restrictive view.

Last year before the general election the Democratic Alliance (DA) sent out an SMS during the election campaign which stated: “The Nkandla report shows how Zuma stole your money to build his R246m home….”

The African National Congress (ANC) approached the High Court for an interdict and other relief on the basis that the DA was not entitled by our law to distribute the SMS. The ANC relied on section 89(2)(c) of the Electoral Act and/or item 9(1)(b) of the Electoral Code, which prohibit any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election.

The majority of judges of the Constitutional Court have now rejected the ANC claim. Five judges (Justices Cameron, Froneman, Khampepe, Moseneke and Nkabinde) found it unnecessary to answer the question of whether the statement contained in the SMS was false or not. Instead, it found that the SMS expressed an opinion, not factual information, and was hence not prohibited by section 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code.

The approach of these five justices towards the importance of freedom of speech during an election campaign differed markedly from that of the minority judgement. The five judges argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”.

As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That 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.

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections. That is why the relevant sections of the Electoral Act and the Electoral Code had to be interpreted in a manner that would limit freedom of expression as little as possible.

A minority of three judges (Justices Zondo, Jafta and Leeuw) seemed to focus more on the alleged threats posed by robust but potentially untrue or difficult to prove expression on the running of free and fair elections. For these judges elections cannot be free and fair where political parties or politicians are allowed to make statements about opponents that are not factually true, or not clearly couched as opinion based on true facts that are either well known or that are mentioned by the speaker when he or she expresses an opinion.

To provide a pertinent example: the minority seems to believe that a free and fair elections would be endangered if a politician was allowed to state that X was racist or that party X was racist – unless the politician clearly stated that he or she was expressing an opinion and referred to the factual basis for the expression of the opinion.

Whether this view is at all plausible in a vibrant democracy is not clear to me. If the minority view were to be sustained many of the views expressed by politicians during an election campaign would become illegal. If the minority view were upheld, many politicians (of all political parties) would face a ten-year prison sentence for expressing views that are false, partly false or that are impossible to prove as being true. As Justice Van der Westhuizen pointed out (in a separate majority opinion in which Madlanga concurred):

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.

For me what lies at the heart of the disagreement between the two majority opinions, on the one hand, and the minority opinion, on the other, is the trust the majority judges place in political parties to debunk the wild accusations of their opponents andthe trust they place in voters to take many of the claims made by politicians with a pinch of salt. The two majority judgments seem to accept that political discourse is often infused with rhetoric and false or only semi-true claims or claims that cannot easily be proven, but that voters are aware of this.

The minority judgment seems to be premised on the idea that the law should prohibit such forms of expression to protect voters from the political rhetoric that flies around during election campaigns. In my view the minority holds a slightly patronizing view of voters – as if we are unable to distinguish between political rhetoric masquerading as fact and actual fact. As if we must be protected by the law from being exposed to such rhetoric.

In any event, the five judges who delivered the main judgment for the majority interpreted the relevant provisions of the Electoral Act and the Electoral Code narrowly to limit the kind of speech that would be prohibited by it.

Pointing out that the Electoral Act imposes tough criminal penalties (up to ten years in prison) on anyone found in breach of section 89 of the Act, the judges suggested that the prohibition on false information needed to be interpreted narrowly. As such, the judges suggested that section 89 was designed to protect the mechanics of the conduct of an election: voting, billboards, ballot papers, election stations, observers, and vote counts.

As the judges explained, the kind of statement that would constitute the provision of “false information” would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election.

Contested statements whose correctness could not be proven would not, according to this view, derail the free and fair election because voters (with the help of other political parties) would distinguish between wild claims and proven facts.

According to the 5 justices the section was not intended to limit the ability of politicians or a political party to make statements about their opponents that may well be difficult to prove as fact: say, that X or the party she belongs to is anti-poor, or anti-black, or callous, or corrupt.

However, the five judges said that it was not in fact necessary to go as far as finding that section 89(2) does not prohibit the dissemination of any information aimed at influencing voters’ views about opposing parties. As the section only prohibits “false information”, all the court had to do was to decide whether the SMS constituted fact or opinion. If it contained opinion and not a statement of fact, it was not covered by the section and was thus not prohibited.

The justices held that the SMS fell outside the ambit of section 89(2) because it was not a statement of fact but an interpretation of the content of the Public Protector’s Report on Nkandla. The SMS did not state as fact that the Report found President Jacob Zuma guilty of theft. What it did was to say that the Report “showed” how the President “stole your money”. This was the opinion of the DA, not a fact.

The minority disagreed with this view. Relying extensively on apartheid era precedent from the then Appeal Court, the minority argued that the SMS constituted a statement of fact, not an opinion and, hence, contravened section 89(2) of the Electoral Act. A politician or party would fall foul of the relevant section of the Electoral Act and the Electoral Code unless it could clearly indicate that it was expressing an opinion and not stating a fact and it further provided the voters with the information on which the opinion was based.

In terms of this minority view it would be illegal to say that party X or candidate X was racist. But it would be legal to say in your opinion party X or candidate X was racist because, for example, X used the “k” word on such and such a date, or party X only had .01% black members or had no black leaders or party X had such and such a policy that discriminated against black people.

On this basis the minority found that the DA SMS on Nkandla was not phrased as an opinion but as a fact and that its statement of fact was false.

In contrast Justices Van der Westhuizen and Madlanga found that it did not matter whether the statement was one of fact or opinion (as, in any case, it would not always be easy to distinguish between the two), but rather “whether the statement is purporting to describe a readily falsifiable state of affairs which poses a real danger of misleading voters and undermining their right to a free and fair election”.

The judges then examined the content of the SMS to determine whether it could – on a generous interpretation – be said that the claim contained in the SMS was true. Unlike the other judges Van der Westhuizen and Madlanga found that the claim could possibly be considered true. The judges then concluded:

According to the Nkandla Report, there was “misappropriation” of taxpayer money. The President benefitted from it. The misappropriation appears to have been tacitly accepted and in certain circumstances caused by the President, as set out in the Nkandla Report. The Nkandla Report seems to “show” that the President at least accepted actions, which resulted in the misuse of taxpayer money, which should not have been used on the project. It does not indicate that the President intended to return the appropriated money. The conduct alleged in the Nkandla Report does fall under a broadly conceived but reasonably possible meaning of the word “stole”, used in the context of an election campaign.

It is important to note that even justices Van der Westhuizen and Madlanga did not find that President Zuma is a thief. They could not do so as a court had not found the President guilty of theft. Neither has the Public Protector found in her Report that the President had stolen any money.

What the justices did was to say that theft does not only have a technical legal meaning. For example, you can say colloquially that a cell phone company is robbing you blind by imposing their exorbitant rates on you. This does not mean the company has been found guilty of theft or armed robbery, but that you believe the company is wrongly inflating its prices in a manner that disadvantages you.

In any case, although the judgment of the majority has been hailed as a victory for freedom of expression during election campaigns, I am not sure it will make a big practical difference to the robustness of speech during election campaigns in South Africa.

This is because during past election campaigns in South Africa politicians and political parties have often made claims about their opponents not couched as opinion and not based on clear evidence. Up until now they have not faced any consequences for making often wild and even spurious claims about opponents.

Elections are often fought via sound bites (X is racist!; Y is anti-poor!; Z is corrupt!) and as Justice Van der Westhuizen pointed out “fairly little of what electioneering politicians say” in such sound bites is likely to be completely true.

Did the politics of patronage require suspension of the Hawks boss?

When political and economic patronage (instead of ideology) becomes the glue that holds a governing party together, it becomes ever more difficult for the leaders of that party (no matter how honest and principled they might be) and the government they lead to obey legal rules and to provide strong support for the constitutional institutions which the party helped to create and which, in principle, it had always supported and respected. The current turmoil at the Hawks raises questions about whether patrimonial politics within the ANC has now reached this point.


Pic: Esa Alexander, The Times

Shortly after Jacob Zuma was elected President of the ANC, the ANC-led government abolished the Scorpions anti-corruption unit because it was pursuing more than 700 fraud and corruption charges against the President of the party. It replaced the Scorpions with a toothless body, which it ironically christened the Hawks.

The destruction of the Scorpions can be viewed as a pivotal moment in what Professor Tom Lodge in a recent article in African Affairs calls the apparent transformation of the ANC from a rule-regulated, mass-based party into an organisation mostly shaped by personal financial and other interests. As Lodge argues:

Increasingly within the ANC, leadership behaviour appears to be characterised by neo-patrimonial predispositions and, while formal distinctions between private and public concerns are widely recognised, officials nevertheless use their public powers for private purposes. Other symptoms of neo-patrimonial political behaviour have also appeared. There is factionalism, that is, the emergence of internal rival groups constituted by personal loyalty rather than shared ideological beliefs. Another manifestation is the affirmation by the ANC leadership of ‘traditionalist’ representations of indigenous culture, whereby moral legitimation is sought more and more from appeals to ‘Africanist’ racial solidarity and nostalgic recollections of patriarchal social order rather than on the basis of the quality of government performance.

In a neo-patrimonial political culture party leaders and their families acquire substantial business interests. Local office holders are kept happy through municipal and provincial tendering procedures when municipalities are “captured” by informal patronage networks that trump the influence of ANC branches.

Business leaders are “co-opted” and willingly contribute funds to the party or to individual leaders in exchange for financial and other benefits in the gift of the state. State owned enterprises also become vehicles for dispensing different forms of patronage.

This does not mean that there are not many leaders (and clearly many more members) within the governing party that do not detest illegal forms of patronage and corruption and do not try, as best they can, to counter it. But it does mean that their struggle becomes ever more difficult. As Lodge argues with reference to the ANC under President Jacob Zuma:

This kind of behaviour has been accompanied by sharpening competition for posts in government and within the party organisation, which in turn has eroded the decorum that used to characterise the ANC’s internal procedures. The ANC’s leadership increasingly reinforces its authority and demonstrates its power through displays of ostentation and through elaborate security procedures…. [Thus] the behaviour of ANC leaders and their followers is beginning to correspond to conventions associated with clientelistic organisations, in which specific public services and resources are offered to particular groups in exchange for political support.

While a neo-patrimonial governing party depends on institutions such as the Hawks, the Public Protector and the judiciary to deal with factional opponents and to legitimise its rule, the dominant faction needs to be able to exert some control over such institutions to protect the members of the dominant faction from some of the consequences of patrimonial politics.

(It must be said that while some forms of patronage are perfectly legal and are indulged in by all governing political parties in any democracy, many other forms of patronage are not).

The relentless attacks on the Public Protector in the wake of her Nkandla Report, and (perhaps) the illegal suspension of Anwar Dramat, the head of the Hawks, by police minister Nkosinathi Nhleko, may be manifestations of this need to exert control over “independent” institutions that may pose a threat to the financial and political interests of the dominant faction within the governing party.

Neo-patrimonial politics have negative consequences for a country and, inevitably, lead to an increase in corruption. And as the Constitutional Court stated in the original Glenister judgement:

corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

The majority of the Constitutional Court in that original Glenister judgment thus declared invalid several provisions of the law that torpedoed the Scorpions and created the toothless Hawks instead. Finding that an anti-corruption fighting body needed to be “shielded from undue political interference” to be effective, the Court found that the Hawks as originally set up lacked the adequate independence to shield it from such political interference.

One of the reasons the original legislation did not provide for adequate independence for the Hawks was the lack of specially entrenched employment security for members of the Hawks – including its head. Where members of the Hawks can be fired (or suspended) at the whim of a politician it “may well disincline members of the [Hawks] from reporting undue interference in investigations for fear of retribution”.

After Parliament purported to amend the legislation to give effect to the original Glenister judgment, the Constitutional Court once again declared invalid several sections of the amended legislation in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others.

One of the sections it declared null and void and thus of no force and effect was section 17DA(2) of the Police Services Act. This section stated, amongst others, that:

(2) (a) The Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

The Constitutional Court explained that this section – purportedly relied on by the Minister of Police to suspend Mr Dramat – was unconstitutional and invalid because:

This subsection (2) removal power is inimical to job security. It enables the Minister to exercise almost untrammelled power to axe the National Head of the anti‑corruption entity.

The Constitutional Court therefore found that the quoted section of the Police Services Act was “inconsistent with the Constitution” and was “declared invalid and deleted” from the law. The effect of this Court ruling was that the section which the Minister of Police had relied on to “suspend” Dramat has the same legal power as a suicide note scribbled on a piece of toilet paper by a scorned lover about to jump in front of the Gautrain.

It must be noted that the Court did not declare invalid section 17DA(3) to (6) of the Act. These sections provide for the suspension of the National Head of the Hawks by the Minister, but ONLY AFTER a Committee of the National Assembly has initiated an investigation into the possible removal of the Head of the Hawks.

The sections require that a recommendation by a Committee of the National Assembly for the removal of the National Head would have to enjoy the support of at least two thirds of the members of the National Assembly to be implemented, thus protecting the Head against removal on party political grounds.

The National Assembly has not initiated such an investigation, which means that the Minister has no legal power to suspend the head of the Hawks. He could only suspend the head of the Hawks once the inquiry by the National Assembly has started.

Yet the Minister of Police relied on the unconstitutional and thus deleted section of the South African Police Services Act to “suspend” the head of the Hawks. This was unlawful. No court in South Africa will endorse the illegal suspension of Mr Dramat by the Minister of Police.

Which begs the question: why did the Minister of Police rely on a deleted section of the law to pretend to suspend the head of the Hawks just before Christmas? Was this really for the reasons stated or did it become necessary to break the law because members of the dominant faction within the governing party became anxious about investigations into their affairs by the Hawks?

In other words, when the Minister of Police was confronted by the demands created by the culture of neo-patrimonial politics within the ANC and its financial supporters, did he decide to ignore the Constitutional Court judgment (and hence, did he decide to flout the Rule of Law) in order to protect factional interests within the party?

Or did he act illegally because his legal advisors are so incompetent that they are unable to read and comprehend the order handed down by the Constitutional Court?

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Our own Olivia Pope won’t end corruption

Last week the Constitutional Court confirmed that Parliament had failed to comply with its previous judgment on the unconstitutionality of the legislation that created the Hawks. But the court also reminded us that no amount of legal tinkering could guarantee the unit’s effectiveness in combatting corruption. Institutions do not (on their own) stop corruption. People do.

When Parliament abolished the Scorpions because it was foolhardy enough to pursue corruption charges against President Jacob Zuma and other high profile politicians and replaced it with the Hawks, the move was met with shock and outrage by many of the same people who watch and enjoy the questionable actions of Olivia Pope in the television series The Fixer (Scandal in the US) and the depraved behaviour of Frank Underwood in the House of Cards.

It is as if people believed that an institution like the Scorpions could single-handedly end the culture of patronage that has become entrenched in our political system. The recent judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others reminds us that a corruption fighting body (as well as the courts) – while playing an important role – can only do so much to stop corruption.

The most telling aspect of the judgment can be found in an “End Note”, penned by Justice Johan van der Westhuizen in his partly concurring judgment.

Justice Van der Westhuizen acknowledges that corruption “threatens the very existence of our constitutional democracy” and that effective laws and institutions are needed to combat corruption. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible”.

But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions.  Much dedication is required on the part of those handling the tools.

As Justice Van der Westhuizen points out:

[E]ven the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of – and trust in – the office-bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.

These words should not come as a shock to those who have watched Olivia Pope strut around in her beautiful white dresses “fixing” other people’s problems by delivering stirring speeches, drinking many large glasses of red wine, her bottom lip occasionally quivering with emotion, while her murderous daddy goes around subverting the rule of law in between lecturing Olivia about how political power actually works.

If I understand Justice Van der Westhuizen correctly, he is saying that while institutions like the Scorpions or the Hawks could help to fight corruption if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the democratic process itself.

But that depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the municipal office, the power cuts, the rubbish that remains uncollected in the streets.

This does not mean that an “adequately independent” corruption fighting body could not help to expose corruption. For this reason the Constitutional Court (in a majority judgment authored by Chief Justice Mogoeng Mogoeng) confirmed the unconstitutionality of several sections of the legislation relating to the establishment of the Hawks.

This legislation was amended by Parliament in a failed attempt to give effect to the Constitutional Court’s previous decision declaring aspects of the legislation unconstitutional for not creating and adequately independent corruption fighting body.

When a Bill purporting to give effect to the first Constitutional Court judgment was initially tabled in Parliament, it displayed little enthusiasm for the creation of an independent corruption fighting body.

It was not only that the “quality of the drafting could use some improvement” – as Justice Mogoeng wryly remarked – but also that the original draft did everything to ensure that the politicians remained in control of the Hawks and that the body would not be able to act independently from some of those it may have to investigate.

To its credit the Portfolio Committee fixed many of the clearly unconstitutional aspects of the draft Bill after several experts (full disclosure, I was one of those so called “experts”) pointed out that the draft legislation would never pass constitutional muster.

But, sadly, the Portfolio Committee ignored some of the important points raised during the deliberations, which has now led the Constitutional Court declaring invalid several sections of the legislation dealing with the establishment of the Hawks.

The Court examined each of the impugned provisions to determine whether they militate for or against a corruption-fighting agency, which, though not absolutely independent, should nevertheless be adequately independent in terms of both its structure and operations.  It used the following test to do so:

We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

The majority of the Court declined to declare invalid the section of the law dealing with the appointment of the National Head of the Hawks by the Minister of Police after approval by the Cabinet (Cameron J in a dissenting opinion argued that the section was indeed unconstitutional). However, Chief Justice Mogoeng did provide an interpretation of the section that limits the discretion of the Minister and the cabinet to appoint the Head of the Hawks. The Court emphasised that only a “fit and proper” person could be appointed which means:

that the candidate must have the capacity to do the job well and the character to match the importance of the office.  Experience, integrity and conscientiousness are all intended to help determine a possible appointee’s suitability ‘to be entrusted with the responsibilities of the office concerned’. Similarly, laziness, dishonesty and general disorderliness must of necessity disqualify a candidate…. Since inconsequential experience and character flaws could not have enhanced the prospects of her appointment to that office, if she was nevertheless appointed, then a successful legal challenge may be mounted against that appointment.

The Court did invalidate the provision that allowed the Minister to renew the term of office of the National Head of the Hawks as this would clearly have compromised the independence of the unit. It also declared invalid sections of the law that would have empowered the Minister to suspend and eventually remove the National Head of the Hawks without any involvement of Parliament.

Other provisions of the Act, which gave far too much power to the Minister to decide which crimes could and could not be investigated by the Hawks and how it had to operate, were also declared invalid. The involvement of the Minister, said the Court, would have rendered:

the anti-corruption character of the [Hawks] dependant on whatever the Minister, in the exercise of her discretion, wants it to be.

This would not have been in accordance with the requirement to create an adequately independent corruption fighting body.

The judgment represents delicate balancing act. It is careful to respect, as far as possible, the policy choices made by Parliament, while protecting the “adequate independence” of the Hawks.

Whether this judgment will ultimately bolster the independence of the Hawks will depend to a significant degree on whether the National Head of the Hawks and those working for the unit are prepared to act in a fearless manner to fight corruption no matter where it might be found.

Even the most honest and diligent person would find this difficult to do – unless he or she can depend on support of those in power and, ultimately on that of ordinary voters; the very people who will be directly affected by corruption.

This suggests that until such time as an overwhelming majority of voters reject all forms of corruption – even when this is committed by a politician belonging to the political party they support or by a business leader they respect – the Hawks will not be able to turn the tide against a phenomenon that “threatens the very existence of our constitutional democracy”.