Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
12 December 2011

The perils of criticising a court judgment

Is the Supreme Court of Appeal (SCA) judgment declaring the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) unlawful and unconstitutional bad in law and will it be overturned by the Constitutional Court? Prof Ziyad Motala, a law professor in the United States, thinks the decision is bad in law and has hinted that the Constitutional Court should overturn the SCA decision which is nothing more than “politics masquerading as law”.

Writing in the Sunday Times yesterday, he argued that the SCA’s “reliance” on the adverse findings against Simelane made by the Ginwala Enquiry  was misplaced. Prof Motala contends that the SCA judgment suggested that the Ginwala Enquiry findings against Mr Simelane “represent objective truths and something the President was bound by”. This was wrong because the SCA, he argued, conspicuously ignored questions about the nature of the Ginwala Enquiry. If the Enquiry was not an independent and impartial tribunal under the Constitution (which it clearly was not), then the probative value of its findings would be limited.

Prof Motala — correctly in my view — zooms in on the most difficult aspect of the case, namely the fact that there was no clear finding by an independent and impartial tribunal before the SCA which had concluded that Mr Simelane is not a “fit and proper person with due regard to his or her experience, conscientiousness and integrity” as required by section 9 of the NPA Act.

The SCA considered the findings of the inquiry to be an objective truth and not something for the President to assess. The court pays lip service to the core values of the Constitution such as the rule of law and legality. The ultimate decision and the reasoning, which underpins the result, are extraordinarily brazen. It signifies an abject dereliction of the court’s judicial function and lack of respect for the core values of the Constitution. The inquiry was neither a court of law nor a competent independent tribunal in terms of what our Constitution or international human rights would require. Instead, it was an ad hoc inquiry led by a political appointee (the former speaker of the National Assembly) selected by a prior President during a period of Machiavellian subterfuge and political maneuverings within the ruling party. The court takes no cognizance of this reality.

The case presented the SCA with a difficult problem. Section 9 of the NPA Act sets out objective minimum criteria that the NDPP must comply with if his appointment is to be deemed to be legally valid. If the appointee is not fit and proper with due regard to his experience, conscientiousness and integrity, the appointment is invalid. But what happens if there are serious questions about whether these minimum requirements have been met by the appointee, but no definitive finding about whether an appointee meets these requirements have been made by an independent and impartial tribunal? What is the duty of the court to enforce respect for the Rule of Law, when the evidence placed before it is inconclusive?

As the SCA pointed out, the Constitutional Court has stated on numerous occasions that the exercise of power by the President is constrained by the principle of legality, which is implicit in our constitutional ordering. Firstly, the President must act within the law and in a manner consistent with the Constitution. He or she therefore must not misconstrue the power conferred. Secondly, the decision must be rationally related to the purpose for which the power was conferred. If not, the exercise of the power would, in effect, be arbitrary and at odds with the rule of law.

Prof Motala argues that the SCA had wrongly relied on the findings of the Ginwala Enquiry (which he argued that court took to be the “objective truth”) to find that the appointment did not meet the objective requirements prescribed by section 9 of the NPA Act. It seems to me that although Prof Motala identified the factual difficulties surrounding the case, he misunderstood the legal reasoning of the SCA (and hence misrepresented the scope of that judgment).

The SCA had not, as far as I can tell, taken the findings of the Ginwala Enquiry to be the “objective truth”. If it had done so, Prof Motala’s criticism would be completely valid. What the SCA did do, was to find that the findings of the Ginwala Enquiry (and the extremely negative comments about Mr Simelane’s integrity made by judges of two different courts) raised serious questions about whether Mr Simelane met the objective requirements as set out in the NPA Act (requirements included in the Act to ensure the independence of the NPA) and that this required the President to follow a systematic procedure to determine whether these findings and comments disqualified Mr Simelane from being appointed NDPP or not.

Because there were serious question about Mr Simelane’s legal fitness for the job, the President had a duty to engage in a real and earnest manner with the issues raised. According to the SCA, his failure to do so was irrational as there was no rational link between the purpose of the exercise of the power (appointing a NDPP who is fit and proper and who will safeguard the independence of the NPA) and the manner in which the power was exercised.

(The Constitutional Court established this principle that the manner in which a power is exercised to achieve a specific purpose is relevant when determining whether the principle of legality had been satisfied in the Albutt case where it found that the President had acted irrationally when he approved the pardoning of apartheid era criminals in order to achieve reconciliation without allowing for consultation with the victims of the criminal offences. By failing to allow for a process of consultation with the victims, there was no rational connection between the purpose of achieving national reconciliation and the act of pardoning the apartheid era criminals.)

The SCA argument thus essentially boils down to this: Given the questions raised about Mr Simelane’s fitness to hold office, the principle of legality required the President — at the very least — to undertake a proper enquiry of whether the objective requirements of section 9(1)(b) were satisfied to ensure the independence of the NPA. What was required was for the President to obtain sufficient and reliable information about the candidate’s past work experience and performance; sufficient and reliable information about the candidate’s integrity and independence; and in cases like that of Mr Simelane where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

Where Prof Motala goes wrong, in my view, is by somehow reading the SCA judgment as accepting the findings of the Ginwala Enquiry about Mr Simelane as objectively true and as binding the President to these findings. As far as I can tell, it did not do anything of the sort. As the SCA judgment clearly states:

There may well be answers forthcoming from Mr Simelane on the issues raised by the [Ginwala Enquiry] report, but at the very least they required interrogation [by the President].

What made the appointment irrational and unlawful was that there was not — in the view of the SCA – sufficient interrogation of the various findings and statements by the Ginwala Enquiry and by the judges of two different courts which cast doubt on Mr Simelane’s fitness to hold office. (Requiring interrogation of the findings of the Ginwala Enquiry can surely not be equated – as Prof Motala does -with accepting these findings as objectively true?) Thus, said the SCA, the process followed by the President was not rationally related to the purpose of the appointment — the safeguarding of the independence of the NPA.

It is so that the Constitutional Court may look at all the facts and may find that there was indeed sufficient interrogation by the President of the various adverse findings against Mr Simelane and the various adverse comments made by judges of the High Court and the Constitutional Court about Mr Simelane’s integrity. Or it may find — somewhat contradicting its Albutt decision — that in the absence of a finding by a court that Mr Simelane was fit and proper, the President was not required to follow a more onerous process of actually considering and weighing all the negative comments made about Mr Simelane by the Ginwala Enquiry and by judges of the High Court and the Constitutional Court.

If I was Mr Simelane’s lawyers I would strongly push the first point (the second point seeming to be rather difficult to sustain) by highlighting exactly what President Zuma had done to interrogate the various adverse findings and comments against Simelane and by arguing that the facts demonstrated that the President had indeed followed a procedure that was rationally related to the purpose of his exercise of power.

Now, this might be difficult to show, given the fact that the President had previously argued that as the democratically elected head of the executive he had the absolute power to decide whether Mr Simelane was fit and proper. (And legally this argument was perhaps not the wisest one to have made in the High Court and before the SCA, as it misconstrued the nature of the requirement of s 9 and ignored the fact that section 9 set some minimum objective criteria that had to be met before the appointment of the NDPP could be deemed to be valid.) But a different court may well look at the evidence and conclude that a less onerous form of interrogation was required and that the President had satisfied this less onerous standard of interrogation.

My view is that one could thus easily criticise the SCA judgment on the basis that it had not given due regard to the facts placed before the court by the President and the Minister of justice. What one could not plausibly do without misconstruing the judgment of the SCA, was to argue that the SCA had accepted the findings of the Ginwala Enquiry as objectively true and then lambasting the SCA for playing politics. The latter line of reasoning seems at best to completely misread the judgment and at worst to deliberately misrepresent it for political purposes.

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