Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
12 May 2009

Madness descends on the Western Cape

Our politics seems to have descended into complete madness – and so soon after the election. Please people, take a deep breath, calm down, and step back from the abyss. We are all trying to give reign to our hopes and not our fears in the post-election glow, but some politicians never got that memo.

First Helen Zille, finding herself in a fix because of her palish, all-male cabinet, fired off a moralistic broadside (better suited to a right wing fundamentalist Christian) against President Jacob Zuma just days after he was sworn in. One would have thought that Zille would have observed the tradition of allowing the new President some sort of political honeymoon in order not to alienate the 11 million voters whom she would like to convert to the DA before the next election.

Making moralistic pronouncements about the President’s private life (who knows what the arrangements and understandings are between Zuma and his wives?) really only hands the ANC a propaganda coup and reminds us of the reactionary tendencies of the DA.

Then the youngsters at the ANC Youth League – perhaps jealous at Zille for stealing the limelight – sunk far, far, lower, with a sexist and defamatory statement so juvenile and ignorant that it is hard to believe the statement was not produced by “dark forces” (maybe the CIA or those “apartheid agents” lurking amongst the Scorpions?) hell bent on embarrassing the ANC, stating:

Zille has appointed an all male cabinet of useless people, majority of whom are her boyfriends and concubines so that she can continue to sleep around with them, yet she claims to have the moral authority to question our President.

If the fake racist girl Zille continues to speak hogwash like she has been doing during elections, we will take militant action against her, and demonstrate to her that she does not have monopoly over the Western Cape. The fake racist girl who was dropped on a head as child should understand that South Africa will never be a Mickey-mouse Republic like she wants to portray it.

If Zille wanted to, she could sue the (short) pants off the Youth League for this absurd and ignorant display of brutal and naked prejudice. Really, robust debate is great, but hurling such infantile insults reflect very poorly on those who had concocted this statement. Ironically the statement displays the very same sexism that the youngsters accuse Zille of.

Then, just when I thought things could not get more absurd, I see that the usually compassionate and sensible Tony Ehrenreich, Cosatu’s secretary in the Western Cape, announced that Cosatu had lodged papers in the Equality Court to challenge the decision by Helen Zille to appoint an all-male cabinet, saying that the make-up of the Cabinet showed disregard for the country’s constitutional and legislative principles.

Oh please, get a grip.

One may very well criticise Zille for appointing an all-male cabinet. Personally I think it reflects very poorly on the DA in general and Zille in particular that she claims not to have been able to find one competent women from among the DA members in the Western Cape Legislature to appoint as an MEC. Either Zille does not want other women in her cabinet because she feels threatened by them, or the DA is so male-centric that it did not attract any competent women to stand for election for the Provincial Legislature. Either way, it provides the ANC with a big stick to hit Zille with and tarnishes her image with the media elites.

But having said that, the Equality Court challenge is so preposterous that I cannot believe any lawyer actually signed off on this idea. This is because the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) clearly states – as if it was necessary to do so – that the Act was subject to the Constitution. And when one reads the Constitution in its entirety it is as clear as day that the kind of political decision to appoint a cabinet will not be subject to PEPUDA.

There are several reasons for this.

Section 132 of the Constitution bestows the power on the Premier to appoint an Executive Council from among the members of the provincial legislature and does not require the Premier to take into account race or gender considerations. Elsewhere in the Constitution, the appointment power is fettered by requiring the appointing authority to consider the need “to reflect broadly the race and gender composition of South Africa”. But this is explicitly not required when the President or the Premiers appoint a cabinet, allowing them a very broad discretion to make the political appointments (or fire members of their cabinets) as they wish.

Unless this discretion was exercised in bad faith, for example, by appointing a person to cabinet after being paid a bribe, no court of law will have the power to interfere with the exercise of this discretion. I cannot imagine any Equality Court judge entertaining this application seriously.

There is a very good reason for this. The President or the Premiers exercise a naked political discretion when appointing (or firing) cabinet ministers and the separation of powers doctrine prevents courts from interfering with the exercise of this power. The party who wins the election forms the government and the head of that government can only govern if he or she can make cabinet appointments based on political considerations. If a court interfered with this, it would require unelected judges to overthrow the democratic will of the people, something we really do not want judges to do when it comes to party political decisions like this.

If one does not like the cabinet appointments one could say so loudly and clearly and could vote for another party come the next election. This is called democracy (a concept the Kortbroek juveniles at the ANC Youth League seems to have a great difficulty in understanding).

Cosatu’s application is therefore dead in the water. I suppose its easier to run to the courts than to unite the ANC and start organising for the next election. One cannot pay expensive lawyers to do that hard political work for you, hence the silly move by Cosatu to run to the courts. The move seems to signal a disregard for the voters and hence for democracy and does not reflect well on the Western Cape leadership of Cosatu.

We might not like it that Zille won the election, but she did, so until next time, get over it and stop running to the courts to try and thwart the will of the people.

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