Why Zuma’s moves may be unlawful

The news that President Jacob Zuma had fired two cabinet Ministers (found by the Public Protector to have acted in the most disgraceful manner) reminded me of the words of Winston Churchill (that warmongering, jingoist, raconteur and drunk), who once remarked that “America will always do the right thing, but only after exhausting all the other options.”

President Zuma also eventually did the right thing (although he might have done so in an unlawful manner, as I will explain below), after running out of other options. We do not seem to hold our politicians to a very high standard (perhaps because we do not believe that we deserve better), and President Zuma has therefore been widely applauded for his “brave” and “decisive” move. (I myself experienced a rush of goodwill towards our President when I heard yesterday that he had finally done the right thing after exhausting all the other options.)

Apart from the firing of the two cabinet ministers, President Zuma also announced the names of three judges who will conduct an inquiry into the arms deal and the name of the judge who will chair the Inquiry into allegations of misconduct against the National Police Commissioner, Bheki Cele. Supreme Court of Appeal judge Willi Seriti will chair the arms deal inquiry and retired Constitutional Court judge Yvonne Mokgoro will chair the inquiry to be conducted in terms of section 9(1), read with section 8(1), to (8) of the South African Police Service Act 68 of 1995. (At least I assume it is this Act as the statement by the President sloppily failed to identity the relevant Act under which action is to be taken.)

Section 9(1) of the Police Service Act (read with section 8(1)) empowers a panel headed by a Supreme Court judge to enquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her fitness for office or capacity for executing his or her official duties efficiently. Section 8(6) of the Act requires this panel to submit a report to the President, the Commissioner concerned; and the Parliamentary Committees.  The report may recommend that no action be taken in the matter; the Commissioner concerned be transferred to another post or be employed additional to the fixed establishment; his or her salary or rank or both his or her salary and rank be reduced; he or she be removed from office; or any other appropriate steps be taken.

The problem is, of course, that justice Mokgoro is, as far as I am aware, not a judge of the Supreme Court as required by section 8 of the South African Police Service Act. She is a retired judge of the Constitutional Court. The Act does not provide for a retired judge to head the panel in question and it is therefore not clear why our President had purported to appoint her to head this panel.

It is also far from clear that she has ever been a Supreme Court judge as intended by the Act. As the court system has changed since this Act was adopted and as the names of some courts have changed, this Act must be read in conformity with the constitutional environment in which it was adopted. One therefore needs to look at the 1993 Constitution to establish what is meant in the Act when it states a Supreme Court judge must head the inquiry against the Police Commissioner. That document makes pretty clear that a distinction is drawn in law between what was at the time a judge of the Constitutional Court (retired or not) and what was a judge of the Supreme Court.

Section 99(3) of the 1993 Constitution, which dealt with the appointment of judges to the first Constitutional Court, stated that “four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice”, making it clear that in terms of the interim Constitution a Constitutional Court judge and a Supreme Court judge were two very different kinds of judges. Section 101 further dealt separately with the Supreme Court (after having dealt with the Constitutional Court in  previous sections) and stated that “there shall… be a Supreme Court of South Africa, which shall consist of an Appellate Division [now the SCA] and such provincial and local divisions [now High Courts], and with such areas of jurisdiction, as may be prescribed”.

Unless one does a huge amount of legal interpretative gymnastics, one would not be able to conclude that judge Mokgoro is legally entitled to act as the chairperson of the inquiry into whether Bheki Cele is guilty of misconduct or whether he is fit for office or has the capacity to execute his or her official duties. Of course, one could try and re-interpret the Act by reading words into it which are not there, but as this is not required to make sense of the Act as it stands, it would be very surprising if a court did indeed add words to the Act to justify the appointment of justice Mokgoro. The “appointment” of Justice Mokgoro by the President may therefore be null and void, which would mean any work done by the inquiry would have no legal standing.

It may appear as if the same lawyer or lawyers who had previously (wrongly) advised our President that section 8 of the Judges’ Remuneration and Conditions of Employment Act was constitutionally valid, may have been responsible for advising him that a retired Constitutional Court judge was actually a sitting Supreme Court judge.

The Commission of Inquiry into the arms deal may also run into some legal trouble if those affected by it decide to challenge the decision by the President to appoint three sitting judges to head this inquiry – although in this case the legal issue is far less clear-cut. In the Constitutional Court judgment in which that Court declared that it was unconstitutional for a sitting judge – Judge Willem Heath – to sit as the head of the Special Investigative Unit, that court warned that a judge should not normally perform a function that creates the risk of judicial entanglement in matters of political controversy. In dealing specifically with the question of whether judges should chair Commissions of Inquiry the Court stated that:

In dealing with the question of judges presiding over commissions of inquiry.. much may depend on the subject matter of the commission… In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information.

Of course, famously the Western Cape High Court inexplicably went much further in the case in which Helen Zille challenged the legality of the appointment of Judge Nathan Erasmus by then Premier Ebrahim Rasool to head a Commission of Inquiry into the alleged corruption in Zille’s administration, stating that:

With great respect to the views of the Constitutional Court, that judges may in “appropriate circumstances” preside over commissions of inquiry without infringing the separation of powers, the problem lies in deciding in any particular case whether it is “appropriate” for a judge to involve him or her self, in the particular commission. The facts of the present case starkly illustrate the problem….. With great respect to the views of the Constitutional Court, it seems to me that at this early stage of our fledgling democracy, and with the vital object of preserving public confidence in the independence of the judiciary, active judges should as a matter of principle, not chair commissions of inquiry. This would eliminate the risk of judges becoming embroiled in disputes such as the present and the need to define in what circumstances a judge could “appropriately” chair a commission of inquiry.

I would think that appointing sitting judges to conduct a Commission of Inquiry into the arms deal would at the very least be a borderline case. Even if one rejects – as one should – the bizarre statements of the Western Cape High Court in the Zille matter, it is not clear that the appointment of Judge Seriti and his two colleagues as members of an Inquiry into the arms deal would pass the Constitutional Court test for the separation of powers and judicial independence.

The arms deal scandal is one of the most controversial and divisive political issues in South Africa, pitting members of the ruling party against each other and running the risk of exposing the ruling party or at least some of its leaders to serious political risks. Whether sitting judges should conduct such an Inquiry is at least an open question.

While our President should therefore be lauded for finally acting on several issues regarding corruption, it is far from clear that the announcements he made yesterday would be considered legally and constitutionally valid. Those whose rights may potentially be adversely affected by the two inquiries may well run to the courts to challenge the lawfulness of these two Commissions of Inqiury. In the Bheki Cele case, such an application will almost certainly be successful while there is at least some chance that in the case of the arms deal inquiry there will be a decision to declare the appointment of the three judges invalid (although I would not put my money on it).

Once again, one wonders who is advising the President on legal and constitutional matters. It sure can’t be anyone who has the necessary skills and legal knowledge, or is sufficiently diligent and careful to earn the trust of the President of our country.

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