As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When political and economic patronage (instead of ideology) becomes the glue that holds a governing party together, it becomes ever more difficult for the leaders of that party (no matter how honest and principled they might be) and the government they lead to obey legal rules and to provide strong support for the constitutional institutions which the party helped to create and which, in principle, it had always supported and respected. The current turmoil at the Hawks raises questions about whether patrimonial politics within the ANC has now reached this point.
Shortly after Jacob Zuma was elected President of the ANC, the ANC-led government abolished the Scorpions anti-corruption unit because it was pursuing more than 700 fraud and corruption charges against the President of the party. It replaced the Scorpions with a toothless body, which it ironically christened the Hawks.
The destruction of the Scorpions can be viewed as a pivotal moment in what Professor Tom Lodge in a recent article in African Affairs calls the apparent transformation of the ANC from a rule-regulated, mass-based party into an organisation mostly shaped by personal financial and other interests. As Lodge argues:
Increasingly within the ANC, leadership behaviour appears to be characterised by neo-patrimonial predispositions and, while formal distinctions between private and public concerns are widely recognised, officials nevertheless use their public powers for private purposes. Other symptoms of neo-patrimonial political behaviour have also appeared. There is factionalism, that is, the emergence of internal rival groups constituted by personal loyalty rather than shared ideological beliefs. Another manifestation is the affirmation by the ANC leadership of ‘traditionalist’ representations of indigenous culture, whereby moral legitimation is sought more and more from appeals to ‘Africanist’ racial solidarity and nostalgic recollections of patriarchal social order rather than on the basis of the quality of government performance.
In a neo-patrimonial political culture party leaders and their families acquire substantial business interests. Local office holders are kept happy through municipal and provincial tendering procedures when municipalities are “captured” by informal patronage networks that trump the influence of ANC branches.
Business leaders are “co-opted” and willingly contribute funds to the party or to individual leaders in exchange for financial and other benefits in the gift of the state. State owned enterprises also become vehicles for dispensing different forms of patronage.
This does not mean that there are not many leaders (and clearly many more members) within the governing party that do not detest illegal forms of patronage and corruption and do not try, as best they can, to counter it. But it does mean that their struggle becomes ever more difficult. As Lodge argues with reference to the ANC under President Jacob Zuma:
This kind of behaviour has been accompanied by sharpening competition for posts in government and within the party organisation, which in turn has eroded the decorum that used to characterise the ANC’s internal procedures. The ANC’s leadership increasingly reinforces its authority and demonstrates its power through displays of ostentation and through elaborate security procedures…. [Thus] the behaviour of ANC leaders and their followers is beginning to correspond to conventions associated with clientelistic organisations, in which specific public services and resources are offered to particular groups in exchange for political support.
While a neo-patrimonial governing party depends on institutions such as the Hawks, the Public Protector and the judiciary to deal with factional opponents and to legitimise its rule, the dominant faction needs to be able to exert some control over such institutions to protect the members of the dominant faction from some of the consequences of patrimonial politics.
(It must be said that while some forms of patronage are perfectly legal and are indulged in by all governing political parties in any democracy, many other forms of patronage are not).
The relentless attacks on the Public Protector in the wake of her Nkandla Report, and (perhaps) the illegal suspension of Anwar Dramat, the head of the Hawks, by police minister Nkosinathi Nhleko, may be manifestations of this need to exert control over “independent” institutions that may pose a threat to the financial and political interests of the dominant faction within the governing party.
Neo-patrimonial politics have negative consequences for a country and, inevitably, lead to an increase in corruption. And as the Constitutional Court stated in the original Glenister judgement:
corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.
The majority of the Constitutional Court in that original Glenister judgment thus declared invalid several provisions of the law that torpedoed the Scorpions and created the toothless Hawks instead. Finding that an anti-corruption fighting body needed to be “shielded from undue political interference” to be effective, the Court found that the Hawks as originally set up lacked the adequate independence to shield it from such political interference.
One of the reasons the original legislation did not provide for adequate independence for the Hawks was the lack of specially entrenched employment security for members of the Hawks – including its head. Where members of the Hawks can be fired (or suspended) at the whim of a politician it “may well disincline members of the [Hawks] from reporting undue interference in investigations for fear of retribution”.
After Parliament purported to amend the legislation to give effect to the original Glenister judgment, the Constitutional Court once again declared invalid several sections of the amended legislation in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others.
One of the sections it declared null and void and thus of no force and effect was section 17DA(2) of the Police Services Act. This section stated, amongst others, that:
(2) (a) The Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.
The Constitutional Court explained that this section – purportedly relied on by the Minister of Police to suspend Mr Dramat – was unconstitutional and invalid because:
This subsection (2) removal power is inimical to job security. It enables the Minister to exercise almost untrammelled power to axe the National Head of the anti‑corruption entity.
The Constitutional Court therefore found that the quoted section of the Police Services Act was “inconsistent with the Constitution” and was “declared invalid and deleted” from the law. The effect of this Court ruling was that the section which the Minister of Police had relied on to “suspend” Dramat has the same legal power as a suicide note scribbled on a piece of toilet paper by a scorned lover about to jump in front of the Gautrain.
It must be noted that the Court did not declare invalid section 17DA(3) to (6) of the Act. These sections provide for the suspension of the National Head of the Hawks by the Minister, but ONLY AFTER a Committee of the National Assembly has initiated an investigation into the possible removal of the Head of the Hawks.
The sections require that a recommendation by a Committee of the National Assembly for the removal of the National Head would have to enjoy the support of at least two thirds of the members of the National Assembly to be implemented, thus protecting the Head against removal on party political grounds.
The National Assembly has not initiated such an investigation, which means that the Minister has no legal power to suspend the head of the Hawks. He could only suspend the head of the Hawks once the inquiry by the National Assembly has started.
Yet the Minister of Police relied on the unconstitutional and thus deleted section of the South African Police Services Act to “suspend” the head of the Hawks. This was unlawful. No court in South Africa will endorse the illegal suspension of Mr Dramat by the Minister of Police.
Which begs the question: why did the Minister of Police rely on a deleted section of the law to pretend to suspend the head of the Hawks just before Christmas? Was this really for the reasons stated or did it become necessary to break the law because members of the dominant faction within the governing party became anxious about investigations into their affairs by the Hawks?
In other words, when the Minister of Police was confronted by the demands created by the culture of neo-patrimonial politics within the ANC and its financial supporters, did he decide to ignore the Constitutional Court judgment (and hence, did he decide to flout the Rule of Law) in order to protect factional interests within the party?
Or did he act illegally because his legal advisors are so incompetent that they are unable to read and comprehend the order handed down by the Constitutional Court?BACK TO TOP