Why the High Court was wrong to overturn Mkhwebane’s suspension on the ground that the President was biased

Courts run the risk of breaching the separation of powers when they invalidate a rationally made decision of the President because of a reasonable apprehension of bias on the part of the President.

Last week, a Full Bench of the Western Cape High Court, in The Public Protector of South Africa v The Speaker of the National Assembly and Others, endorsed the notion that our courts have the power to review and set aside decisions of the President in cases where the President — a politician who heads one of the two democratic branches of government — was conflicted, and this gave rise to a reasonable apprehension that the President was biased when making the decisions.

I worry that the court overreached by impermissibly intruding in the domain of the executive, holding the President to a standard only applicable to judicial officers and other independent tribunals.

I assume some readers will at first find my contention startling. This would not be surprising, given that so many disputes about the exercise of political power end up being resolved by the courts, and given that a bevy of lawyers (including the EFF politician who sometimes plays an angry and shambolic lawyer on TV) has popularised the idea that (some) decisions and processes of the political branches of government had to comply with the exacting standards of impartiality and with the elaborate rules of fairness applicable to adversarial proceedings in criminal trials.

The idea that courts should have the power to invalidate presidential decisions because the President lacked impartiality can also look attractive if one considers the various ways in which former president Jacob Zuma used (or abused) his constitutional powers to try to protect himself from criminal prosecution as well as any form of accountability.

But, as last week’s judgment of a Full Bench of the Western Cape High Court illustrates, courts run the risk of breaching the separation of powers when they invalidate a rationally made decision of the President because of a reasonable apprehension of bias on the part of the President.

In brief, the high court held that Ramaphosa’s decision to suspend Public Protector Busisiwe Mkhwebane was unconstitutional and invalid because he could “reasonably be perceived to be unable to bring to bear an impartial mind when considering whether or not to suspend” Mkhwebane. Ironically, the court relied on the fact that the Constitutional Court had held in the CR17 matter that Mkhwebane had not investigated the President with an “open and inquiring mind” and that she was “unduly suspicious”, suggesting that Ramaphosa wanted to suspend her to prevent Mkhwebane from pursuing the Phala Phala investigation with the same lack of impartiality.

The court ignored the fact that the suspension process was initiated on 17 March, choosing only to focus on the fact that the suspension finally came on 9 June (many months after it should have been done), a day after Mkhwebane had sent Ramaphosa 31 questions relating to her Phala Phala investigation.

For current purposes, I will nevertheless assume (without expressing a view) that the facts in this case did give rise to a “reasonable apprehension of bias” in the mind of a reasonable person in possession of all the relevant facts, that the President might “not bring an impartial and unprejudiced mind to bear” on the decision to suspend Mkhwebane.

However, the judgment strayed far beyond the question of whether a reasonable apprehension of bias existed, making factual findings about the President’s state of mind seemingly based on suspicions rather than facts. The court suggested that the suspension was triggered by the decision of Mkhwebane to institute an investigation against the President, that the suspension was retaliatory as it was prompted by Mkhwebane’s decision to put 31 questions to the President, and that it was, therefore, “certainly tainted by bias of a disqualifying kind and perhaps an improper motive”.

While the investigation may have influenced the President’s decision (just as Mkhwebane’s decision to send 31 questions to the President may have been aimed at preventing her suspension), the court was not in a position to make factual findings on the President’s state of mind.

The Constitutional Court must confirm the high court’s decision to invalidate the suspension before it will have any force, and is unlikely to do so. But, whatever the outcome, I have no doubt that it will not follow the example of the high court to treat (arguably reasonable) suspicions about the President’s motives as proven facts.

The Constitutional Court will, hopefully, also decline to endorse the high court view that courts have the power to review and set aside decisions of the President merely because of a reasonable apprehension that the President was not impartial when he made the decision. This view was first mooted in the dying days of the troubled presidency of Jacob Zuma in December 2017, when a Full Bench of the Gauteng High Court relied on the “reasonable apprehension of bias” principle in President of the Republic of South Africa v Office of the Public Protector.

In that matter, Zuma had asked the court to review and set aside the remedial action imposed by then Public Protector Thuli Madonsela in her State Capture report, including the remedial action requiring somebody other than Zuma to select the chairperson of the State Capture Commission. The court found that there was nothing wrong with this as Zuma was implicated in State Capture, was thus conflicted, and should not be allowed to select the chairperson of the commission, invoking the “reasonable apprehension of bias” test to justify this conclusion.

Perhaps because “a bad president makes for bad constitutional law”, the high court got it spectacularly wrong. By assuming that Zuma had a duty to recuse himself from selecting the chairperson of the State Capture Commission of Inquiry because a reasonable person would have formed a reasonable apprehension that he would be biased when doing so, the high court ignored the fact that the President is by design not required to be as independent and impartial as members of the judiciary are. Moreover, the high court also ignored the fact that the discretion to appoint commissions of inquiry is that of the President alone, and, in theory, at least, any failures in this regard are for the political process, not the Public Protector or the judiciary, to deal with.

Judges are unelected and are required to resolve legal disputes in a fair and impartial manner. Their decisions are assumed to be guided by the applicable law and the proven facts, not by the policies of the political party they voted for, nor by factional interests, or by the whims of donors. And unlike the President, judges are not directly accountable to voters and cannot be voted out of office. To safeguard the legitimacy of their judgments, it is therefore important to require judges to recuse themselves from hearing a matter when there is a reasonable apprehension of bias on the part of the judge.

The President, on the other hand, is an elected politician, who is accountable to voters, and who can thus be voted out of office. If the President makes bad decisions, the assumption is that he and his party will pay the political price for this. The President is assumed to be guided by the policies of the political party they belong to, and by other political considerations. It is thus literally the job of the President to be partisan and not to be impartial in the way expected of judges.

It would therefore amount to a dangerous power grab for our courts to accept that all decisions of the President are subject to review based on the “reasonable apprehension of bias” test. I assume that most readers will at least agree with me that it would be untenable for courts to invalidate decisions about the appointment and removal of Cabinet ministers, and other decisions clearly animated by party-political considerations, using the “reasonable apprehension of bias” test.

Unfortunately, the high court judgment failed to consider this problem at all. It might have argued that courts can review only a specified category of presidential decisions because of feared bias. But how one would do so is not clear to me, as the Constitution grants extensive powers to the President to appoint, suspend and remove heads of constitutionally created bodies in his capacity as the head of the national executive, at least in part in recognition of the fact that we live in a constitutional democracy that requires important governance decisions to be made by the head of government and not by unelected bureaucrats or by judges.

Assuming that I am correct that our courts do not have (and should not have) the power to review and set aside decisions of the President on the ground that there is a “reasonable apprehension of bias” on the part of the President, does this not leave the door open for the President to abuse these powers and leave the courts powerless to intervene effectively to stop it? To this question, my answer would be both a big no and a small yes.

A big no, first, because the Constitutional Court has long held that any exercise of public power can be reviewed and set aside by relying on the legality principle. (The court can also invalidate decisions that are in breach of any of the rights in the Bill of Rights.) If a decision of the President is not authorised by law or if it is not rationally related to the purpose for which the power was given, the courts can intervene and set the decision aside. Because of separation of powers concerns, a rationality review provides the courts with important but limited powers to review the decisions of members of the executive branch of government.

The court relied on this test in Democratic Alliance v President of South Africa and Others to invalidate Zuma’s appointment of Menzi Simelane as the National Director of Public Prosecutions, not because Zuma was conflicted, nor because there was a reasonable apprehension that he would be biased, but because it was not rational for the President to ignore  serious findings made against Simelane by the Ginwala Commission. In this case, the Constitutional Court warned that the rationality test:

‘involves restraint on the part of the Court. It respects the respective roles of the courts and the Legislature. In the exercise of its legislative powers, the Legislature has the widest possible latitude within the limits of the Constitution. In the exercise of their power to review legislation, courts should strive to preserve to the Legislature its rightful role in a democratic society’. This applies equally to executive decisions.

It goes without saying that the high court (in both the State Capture matter and the suspension matter) failed to heed the Constitutional Court’s warning that courts should exercise restraint when reviewing decisions of the legislature or the executive. By reviewing and setting aside the decisions of the head of one of the two democratic branches of government, not because the power was exercised irrationally, but because the President was not deemed to have been impartial, the Western Cape High Court failed to respect the rightful role of the President in a democratic society.

Second, an argument is also made that a decision of the President can be reviewed and set aside by a court if the President made the decision in conflict with section 96(2)(b) of the Constitution, which states that the President and other members of the Cabinet may not expose themselves to “any situation involving the risk of a conflict between their official responsibilities and private interests”.

The wording of this section does not in fact state that constitutionally authorised decisions of the President will be unconstitutional and invalid in situations where there is a risk of a conflict of interest, so I am not sure this section is applicable in cases like this. In any event, where the President or another member of the executive make a decision to gain a private financial advantage or an advantage for their party, and not for the purpose for which the power was given, that decision would in any event be irrational and invalid. (It will also constitute a criminal offence in terms of the corruption legislation.)

Interestingly, the high court considered the argument that section 96(2)(b) disqualified Ramaphosa from suspending Mkhwebane due to a conflict of interest. The court assumed without discussion that section 96(2)(b) did apply here. It then proceeded to suggest (but declined to make a finding to this effect) that a breach of the section might have occurred, stating that “it is reasonable to assume that the investigation will relate to the President’s private interests as well; hence, there is a strong argument to be made that the Phala Phala incident involves a risk of conflict between the President’s official and private interests”.

As I suggested above, while courts can use existing grounds of review to limit the abuse of power by the President or other members of the executive, the powers of the courts are limited. Judges cannot fix a fundamentally broken political system by developing ever more invasive forms of judicial review to curb abuses of power by the President and other members of the executive. They can do what they can to ensure that the democratic system of checks and balances continues to work (as the judiciary, by and large, did during the destructive Zuma years), but ultimately voters, not judges, decide who governs.

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