Minister and her advisors must calm down

No country can tolerate mutiny or insurrection by soldiers of its armed forces or patent ill discipline by members of the armed forces. Neither can any constitutional democracy tolerate unlawful behaviour by members of the executive. Where soldiers disobey orders and threaten national security the relevant authority would have every right to terminate the services of such a soldier – in extreme cases even without giving them a fair hearing. But the Minister will only be entitled to do so if he or she is authorised by the Constitution or ordinary legislation to do so.

The question is whether the Defence Act of 2002 does indeed give our Minister of Defence that right and if it does, what limits it places on her power to exercise that right. Are soldier of the SANDF entitled to the right to a fair labour practice set out in section 23 of the Bill of Rights – even when they have allegedly broken the law – or does legislation allow the Minister to fire them without such a hearing?

These questions arose after soldiers staged a chaotic march to the Union Buildings which turned violent and the Minister subsequently decided to dismiss soldiers she claimed had been identified as having taken part in the march without giving them a fair hearing. The North Gauteng High Court found that these summary dismissals were not justified by the law, which irked the Minister of Defence. Interestingly, instead of appealing this judgment, she is now bringing an application in terms of Rule 42 of the Uniform Rules which provides that the court who issued an order may rescind or vary “an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission”.

The Minister’s legal advisor – in an affidavit submitted to the Court – claims this error or omission stems from the fact that the judge stated that:

it was never at any stage, communicated to the applicants in any way whatsoever how the march organised by SANDU posed a risk to national security to such an extent that it caused the respondent to adopt the novel approach to address the problem. There is no explanation to justify the procedure that had been adopted by the respondents or reasons set out why the principles of natural justice and procedural fairness could not be applied in the particular circumstances….The Court could not find any reference in the respondents’ papers as to how national security was threatened by the conduct of the members.

The affidavit alleges in a somewhat confusing and less than convincing manner that the papers had indeed shown how nationals security had been threatened. Maybe the papers are just badly drafted. I have not seen the original papers submitted to the High Court so it is impossible to know whether legal advisors to the SANDF did indeed provide evidence to the High Court that the national security of the country was threatened by the conduct of the soldiers. I am also not a procedural lawyer, so I can therefore not comment on the plausibility of this application.

However, the affidavit does contain curious passages which suggest that the person or persons (?) who drafted it are either not familiar with the South African Constitution or are wilfully trying to mislead the Court.

First, the founding affidavit seems to lack any appreciation of the Rule of Law and does not seem to show a sufficient appreciation of what the supremacy of the Constitution entails. It claims unfettered powers for the executive in the realm of national security and claims that Courts can never review decisions of a Minister if that Minister claims that national security is at stake. But our Constitutional Court has made it clear that in principle all action by the executive is reviewable by our courts and if the executive fails to act in accordance with the Constitution or ordinary legislation, such action can be declared invalid by the courts.

In one of the most famous earlier cases, the Constitutional Court in President of the Republic of South Africa v Hugo found that any action by the President may be reviewable to determine whether it is inconstant with the Constitution. The line of SARFU cases confirmed that the President had to comply with the requirements of legislation which authorised him to act. The same obviously applies to the Minister of Defence.

However, in attacking the judgment by the North Gauteng High Court the affidavit on behalf of the Minister — under the name of Barnabas Xulu – seems to claim that South African Courts cannot in any way be involved in reviewing the decision of the Minister of Defence as long as she claims that national security had been at stake.

The argument seems to be that where the Constitution or ordinary legislation allows the Minister to fire soldiers if national security had been threatened, she would be entitled to do so if she had decided that national security had indeed been threatened and no court could ever intervene or review such a decision to determine whether national security had indeed been threatened or whether the Minister had merely pretended that it was threatened to justify the infringement of individual’s rights (perhaps for another or an ulterior purpose). It states:

It is abundantly clear that the Courts are not granted roving missions or the unbridled power to define national security for the Presidency or the Ministers responsible for the defence of this country. Those powers are reserved exclusively for parliament and the national executive. It is just plainly wrong for the Court to purport to tell the political branches of government how to define national security and what measures would be deemed appropriate to deal with grave threats to national security and mutiny. In this case, Judge Pretorius not only belittled the Chief of the SANDF’s legitimate fears about risks to the security of the state but she went further to tell the executive how risks to national security must be handled. The Court even went so far as to suggest that the “harm to national security could have been addressed by suspending the members pending an investigation”.

In a constitutional democracy based on the Rule of Law, this contention is utterly untenable. While our Courts will probably give a relatively wide margin of discretion to the Minister of Defence (or to the President) to determine when national security had been threatened, this discretion will never be unlimited. Where the Minister uses this discretion drastically to interfere with the rights guaranteed in the Bill of Rights (as happened in this case) the Minister would have to provide some evidence (which is not the same as bold assertions not backed up by some proof) that national security had been threatened to demonstrate that her conclusion was at least rational (but perhaps reasonable).

To hold otherwise would be to give the Minister absolute power to infringe on the rights of citizens even in cases where on the facts it would be impossible for any person to come to the conclusion that national security had indeed been threatened. This would be lawlessness masquerading as a concern for national security. (I am not claiming that this was indeed the case here. As I had not seen the original submissions on behalf of the Minister I have formed no opinion on whether the chaos that resulted from the march by soldiers to the union buildings could plausibly be said to have threatened national security.)

This claim that the actions of the Minister of Defence is completely exempt from judicial review in any case in which she claims national security is at stake (even if this claim is utterly irrational or bogus) is a preposterous one. It cannot be squared with constitutional governance in a democracy in which supremacy of the Constitution (not of Parliament or the Executive) is entrenched. Neither can it be squared with respect for the Rule of Law.

Second, the affidavit also contains a curious mistake (or perhaps it is a misrepresentation). It argues that the High Court should have taken into account various precedent from the United States Supreme Court. Now, strategically, this is not a wise move as anyone who is familiar with the jurisprudence of the South African Constitutional Court would know that US Supreme Court precedent is seldom followed by our highest court. But that is not the real problem. In making the case for the application of US Supreme Court precedent, the affidavit correctly states that section 39 of the Constitution states that “when interpreting the Bill of Rights, a court… must consider international law”. Our Courts have found that this does not mean that it has to follow international law, merely that it has to consider it.

But the curious thing is, the affidavit conflates international law (the law that governs relations between states, which our courts must consider) and foreign law (the law developed by foreign domestic courts like the US Supreme Court), which section 39 of our Bill of Rights states our courts may consider when interpreting the Bill of Rights. The drafters of this affidavit are either unaware of the difference between international law and foreign domestic law (a first year law student mistake which would be shocking for a legal advisor to a Minister to make), or they are trying to mislead the Court.

Our Courts have no constitutional duty to consider the precedent of the US Supreme Court as suggested by this affidavit. It may do so if it chooses to, but that is another matter altogether. The fact that an affidavit prepared on behalf of the Minister of Defence cannot even correctly distinguish between international law and foreign domestic law is rather worrying. One wonders if all other assertions in the affidavit are correct or whether there might not be some other misleading passages.

Now this is a complex and interesting case. Clearly firing soldiers without giving them a hearing limits their rights. This can only be done by a law of general application. But nothing in the Defence Act or its regulations explicitly limits the rights of soldiers in this way — although some of the regulations could, at a stretch, perhaps be read as implying such a limitation because it gives the Minister the right to fire them without saying anything about the requirements of a fair hearing.

Our Courts have argued that where rights are to be limited by legislation (or regulations) this must usually be done explicitly. If the courts find that the law as it stands does not allow the MInister to fire soldiers without giving them a hearing in extreme case where national security is indeed threatened by such soldiers, then Parliament may of course intervene and amend the law.

This would be in line with the idea — mooted by Chief Justice Sandile Ngcobo at a lecture last year at the University of Stellenbosch on the separation of powers — that there is a continual dialogue between the legislature, the executive and the judiciary. Our Parliament may respond to a judgment by the courts to try and rectify a loophole in the law — as long as it does not limit the rights of individuals in a way that cannot be justified by the limitation clause. But then the Courts can review that law if asked to do so to check that that the limitation on the rights of soldiers are indeed constitutionally justifiable.

To claim, as the Minister’s legal advisor seems to do in this affidavit, that courts have no right to review the actions of a Minister or legislation passed by Parliament if it relates to “national security” is of course a disgraceful and subversive affront to the idea of a constitutional democracy based on the supremacy of the Constitution. Even the Minister of Defence is subject to the law and the Constitution – even when she claims to be acting out of concern for the national security of the state.

I have changed my mind slightly on this case. Given the important issues at stake it is a good thing that this issue will eventually be decided by our Constitutional Court. But unfortunately it seems as if the ego’s of those involved in the case have gotten the better of them, which have led them to litigate the case in a manner that is not in the best interest of the Minister or of the country. Maybe it is time that the Minister and her advisors take a deep breath and calm down (and perhaps also obtain the services of a bona fide constitutional lawyer) so that they can present the best possible case to the Constitutional Court devoid of the emotional and incendiary rhetoric that is characterising their approach at this point.

This latter approach will be in the best interest not only of the Minister and the government, but also of the country and its citizens.

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