Why Zuma cannot appoint Evita Bezuidenhout as NDPP

Yesterday President Jacob Zuma again expressed concern about the manner in which the judiciary allegedly “interferes” with the work of the executive and with the judicialisation of essentially political disputes, stating that there was a need “to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation”.

President Zuma – quite correctly, in my view — stated that “the executive, as elected officials, has the sole discretion to decide policies for Government”. Stating that he respected the powers and role conferred by our constitution on the legislature and the judiciary, he nevertheless insisted that the “executive must be allowed to conduct its administration and policy making work as freely as it possibly can”.

The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We also reiterate that in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections. This interferes with the independence of the judiciary.

These remarks are similar to remarks, made a month or two ago, which created some anxiety amongst some constitutionalists who have become anxious about the government’s continued commitment to constitutionalism. Unfortunately, the President’s remarks reflect, at best, a rather simplistic view of the principle of separation of powers. It also lacks the requisite detail and nuance that would allow us to analyse the remarks in a sensible and responsible manner.

When President Zuma states that the executive must be allowed to make policy “as freely as it possibly can”, it is not clear what is meant by this. It could mean — quite correctly — that the executive has the sole power to formulate and implement policies that are compliant with the Constitution. It could also mean — quite alarmingly — that even when the executive formulates and implements policies that are in conflict with the Constitution, courts should not interfere because (unlike the government of the day) judges have not been elected in a popular vote.

And what does he mean when he warns that people should not try to co-govern the country through the courts? Does he mean that purely political issues should not be brought to the courts, or does he mean that those who disagree with the policies implemented by the government should not approach the courts to have such policies declared invalid — even when the policies are clearly in conflict with the provisions of the Constitution? If it means the former, what exactly does the President understand to be “purely political” issues?

The problem is that it is not possible to draw a clear line between “purely political” matters and questions about whether the Constitution and the law had been complied with. Yesterday, in a radio interview with John Maytham on Cape Talk, Steven Friedman inadvertently illustrated this point quite well. He pointed out that it was problematic when courts became involved in purely political issues and then mentioned the case of the DA challenging the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) as a case in point.

Friedman is wrong when he asserts this is not a matter that should be taken to court. In fact, in a constitutional democracy where the rule of law is respected, this kind of appointment might very well require intervention by the courts.

The National Prosecuting Authority Act states that the President can appoint any fit and proper person with the requisite legal qualification as NDPP. But what happens if the President appoints somebody as NDPP who is not fit and proper or does not have the requisite legal qualification? For example, if the President were to appoint Schabir Shaik as NDPP, he would not be acting in accordance with the law and any court would have a duty — if so requested — to declare that appointment unlawful and invalid. If it failed to do so, it would in effect sanction lawlessness and would signal that it believed that the President was above the law.

It would be of no use for the President to asserted that he had the power to appoint an NDPP and that he believed Shaik indeed possessed the requisite qualifications for the job: in a constitutional democracy an action does not comply with the law merely because the President claims that it does.

Parliament can of course amend the NPA Act to change the provision requiring that the NDPP possess a legal qualification and had to be fit and proper and as long as these changes complied with the Constitution – including the requirement, affirmed by the Constitutional Court in the First Certification case, that the NPA had to be independent — the President could then appoint somebody as NDPP who complied with the newly introduced requirements. What the President cannot do is flout the existing law merely because he is the President and has decided that the requirements of the law are not to his liking.

Similarly, if the President in effect delegated the power to appoint the NDPP to his Minister of Justice, this would be unconstitutional and any such appointment would be null and void. Until the Constitution is amended to allow the MInister of Justice to appoint the NDPP, only the President can do so. If the President delegated the power to somebody else, he would be acting unlawfully and the Constitutional Court would have no choice but to declare this purported delegation unconstitutional and hence null and void.

Section 1 of the Constitution also confirms that the exercise of power by the President has to conform to the principle of the Rule of Law. This means, at the very least, that the President must act in a rational manner. There must be a rational connection between the legitimate purpose being pursued by the Presidents and the action taken to pursue that purpose. If the President appointed Evita Bezuidenhout or Nic Rabinowitz as NDPP because he thought it would be lots of fun to have a comedian as NDPP, this would not be a legitimate purpose sanctioned by the law and hence would not be constitutionally valid.

I provide these examples to illustrate that a decision by the President that might appear to be purely “political” might nevertheless raise several legal and/or constitutional questions. When this happens anyone — including the DA – has a right to challenge the actions of the President in court. Surely we do not want to live in a country where the President routinely flouts the very laws adopted by the Parliament dominated by the party he is the leader of?

Of course, no President likes to be told that he had acted unlawfully and that a decision he has taken was null and void. To prevent this from happening a wise President will not attack the judiciary for doing its job, but would rather ensure that his legal advisors provide him with honest, reliable, precise and accurate advice so that he would avoid the embarrassment of having his decisions overturned by a court of law doing its constitutional duty.

Given the less than reliable legal advice provided to our President on several occasions since his appointment, I would contend that President Zuma might have misdiagnosed the problem. The problem is not primarily that our courts do not respect the separation of powers — by and large they do. The problem is that on several occasions the President has acted unconstitutionally or unlawfully because he received really terrible legal advice.

Only time will tell whether the appointment yesterday of Mr Michael Hulley as a part-time legal advisor to the President will solve this problem. Hopefully Mr Hulley is a better legal advisor than a businessman. If he is not, President Zuma will continue to be thwarted by our courts doing what they are constitutionally mandated to do – interpreting and applying the law without fear, favour or prejudice.

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