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
11 June 2012

On the yearning for a more compliant judiciary

Why is it that so many of our politicians and members of the elite from countries emerging from the long period of destructive colonial conquest and oppression find it so difficult to redefine ourselves and the states we live in without reference to the values, norms and practices of the colonial power which colonised and oppressed us?

Using the norms, values, standards, practices and structures of the colonial power as our compass (the North Pole, as it were) to guide all our actions — either by gravitating towards and internalising the values, norms, standards and practices of the colonial power or by purporting to veer in the opposite direction by rejecting everything associated with the colonial power whose culture, language, political language and ways of knowledge once dominated our country — we often allow the colonial power to remain the reference point for everything we do and think and say and how we organise our lives and the state we live in.

In South Africa, with its “colonialism of a special kind”, this tendency is more acutely (but not exclusively) focused on the cultural and political values, norms and practices of the white minority who once dominated South Africa and continues to play a dominant role in its economic and cultural — if not political — life. It is as if we cannot escape from the powerful pull of the social, cultural and economic dominant minority. That is why we often boast that our facilities are “world class” or that a South African movie is “just as good as a Hollywood production”, why we celebrated our successful hosting of the Soccer World Cup in terms that compared us with the Western countries whose cultural dominance we have not managed to free ourselves from.

Even those who claim to reject the cultural and political norms, values and practices of the culturally dominant group, often affirm the dominance of these norms, values and practices by their obsessive lamentations about the inability of society to reject these culturally dominant norms, standards, values and practices instead of getting on with fashioning a distinctly South African sensibility without using our colonial past as a marker. (And I am well aware of the paradox inherent in this observation, as I am was produced by and live in this society infested with colonially inspired values and norms and am drenched in the values of the culturally dominant group. I  can therefore not claim to be free from these influences that I bemoan, even as I write this sentence.)

In the constitutional realm, this phenomenon manifests itself in the expression of a (less than innocent) yearning for a return to the colonial and apartheid era governance structures (albeit structures now much improved by the extension of the right to vote to all South Africans). The governance structures of the colonial powers and the colonially imposed minority governments (or in the case of South Africa, the former minority apartheid government) were given a free hand to make any laws it wished (no matter how discriminatory and oppressive) and to govern as it wished (no matter how serious the abuses of power and the undermining of the Rule of Law).

This system provided courts with minimum power (in an attempt to provide a fig leaf to legitimise the violence visited on people by the law) to interpret and apply the law, but never sufficient authority effectively to check the abuse of power or the infringement of the rights of anyone. Courts – mostly packed with conservative white judges loyal to, and invested in, the success of the colonial project — were not given the authority to check the potential abuse of power by the other branches of government and, in any case, would seldom have dreamt of doing so if it had the potential to be detrimental to the implementation of the government’s apartheid policies.

I would argue that Deputy Minister Ngoako Ramatlhodi is a prime example of a politician who cannot understand why the government of the day cannot do as it pleases — just as the former apartheid government could. One imagines the honourable Deputy Minister asking why it is suddenly necessary to allow courts to interpret and enforce a supreme Constitution when this would never have been allowed during the era of white domination? Is it perhaps because the cultural and economically dominant group does not trust the post-apartheid government and is relying on the courts to rule by stealth?

This view is based on the faulty assumption that the governing party and the majority of electorate who voted for it will always share exactly the same interests. Proponents of this view argue that it is profoundly undemocratic and disrespectful of those who voted for the governing party (or the increasing number who did not care to vote at all) to suggest that an all powerful government would abuse its power or trample on the rights of some citizens. Proponents of this view implicitly argue that the governing party and the people are one and the same and that a governing party will always act in the best interest of those who voted for it. But this is something that seldom happens — just think of the many working class white people in the United States of America who vote for the Republican Party, the quintessential party of the privileged rich at war with those who are not rich and privileged.

Last week Ramatlhodi complained bitterly about the current system, expressing views which seem to reflect a yearning for the re-introduction of the pre-democratic system of Parliamentary sovereignty which prevails in the United Kingdom and was also in force for the white minority government under apartheid.

Ramatlhodi is perhaps less keenly aware than the drafters of our democratic Constitution that a constitutional democracy (as opposed to a system of Parliamentary sovereignty) was chosen by our democratic Parliament exactly to ensure that never again in South Africa will we allow a recurrence of the flagrant abuses of power and the systematic negation of the human dignity of many South Africans which occurred during the era of colonialism. Perhaps assuming rather optimistically that a democratic government in South Africa (or anywhere else in the world — including Britain) will never infringe on the rights of individuals and will never abuse its power, the Deputy Minister wishes to return to a system in which the two elected branches of government will re-assert its dominance over the judiciary.

I have seen now in our country the courts are being used to replace the executive. There is a tyranny, a minority tyranny, that is using state institutions to undermine democratic processes at this juncture in our country.

At the heart of this view is a yearning for a return to a system that would empower politicians and well-connected elites vis-à-vis ordinary citizens and especially the more vulnerable members of society who do not have the resources to insulate themselves from the excesses of an unchecked government and a rapacious business elite.

The yearning is based on the fallacious set of assumptions: that politicians who have been democratically elected will always act in the best interest of voters, that they are incapable of being bought by those with money (including those in big business who help to fund the political campaigns of both the ANC and the DA), and that they will never flout the law in order to enrich themselves and their associates or in order to undermine the democratic processes (inside their respective parties or in the county) to retain political power and the concomitant access that this provides to state resources. It is therefore a dangerous yearning because it may lead to a subversion of our democracy through the semi-permanent entrenchment of the powers of the political and business elites whose interests are not aligned to that of the majority of South Africans.

At the Judicial Service Commission (JSC) interviews with prospective Constitutional Court judges on Saturday, several members of the JSC touched on this issue, reflecting an unease with the current role of the judiciary as guardian of our democracy. For example, during the interview with Supreme Court of Appeal (SCA) judge Mandisa Maya, she was asked about criticisms that the courts were being too activist and that they were encroaching on other branches of government. She responded, quite correctly in my view, that the constitutions “enjoins a degree of activism”, referring specifically to section 39 of the Constitution which requires judges to interpret legislation and develop the common law and customary law to bring it in line with the spirit purport and objects of the Bill of Rights.

The example she gave was instructive. What does a court do, she asked, when approached by an NGO in circumstances where children do not have textbooks because of a failure on the part of government? Surely it was not wrong for a court to compel government to act in these circumstances, as it was what the constitution required? When courts act in this way, they promote transformation and progressive values despite the government failure to do so in specific instances.

It is not surprising that Deputy Minister Ramatlhodi later in Maya’s interview returned to this issue. He asked her about the limits of the rationality test, a test that requires the President and others who exercise public power to act rationally when they do so. (This requirement of rationality is an incidence of the Rule of Law, based on the rather uncontroversial assumption that the legislature in a democratic state would never empower anyone — including the President — to act irrationally.)

Ramatlhodi complained that there were instances where courts “substituted their own rationality” for that of the executive. This is an interesting point, but perhaps not for the reasons that Ramatlhodi had in mind. Our courts have found that there must be a rational relationship between the act of the member of the executive and a legitimate government purpose being pursued in terms of the empowering legislation in terms of which the member of the executive purports to act. Where the member of the executive acts in an arbitrary or capricious manner or in bad faith or where he or she acts in a way not explicitly allowed by the legislation in terms of which he or she purports to act, the actions of the member of the executive can be set aside because it is irrational.

For example, where an Act of Parliament empowers the President to appoint only a “fit and proper” person who will act “without fear favour or prejudice” to a specific position and the President appoints a personal friend who had been convicted of corruption and had been exposed as a liar and a political sycophant by an official government enquiry, then there would be no rational relationship between the appointment by the President and the law empowering the President to appoint that person.

As I see it, the problem is that members of the executive (including our President and the Minister of Justice) do not always seem to understand (or they choose to ignore) the fact that the democratically elected Parliament often places limits on the exercise of the powers of the executive in order to prevent abuse of powers by all powerful politician and to protect the citizens of the country as well as those inside and outside the governing party who are not in the President’s inner circle.

The courts must then step in when the President or other members of the executive ignore these limits placed on the exercise of their power. When the courts do so, they cannot merely ask (as sycophantic judges might well do) whether the President believed that he had acted rationally. They have to look at the relevant empowering provision of the law and the purpose being served by it and establish if there is a rational connection between the President’s act and the purpose for which he or she was empowered to act. When they do so, judges are constitutionally required to “substitute their own rationality” for that of the President.

This does not mean that they are empowered to declare a decision invalid because they think it unwise or because they do not agree with it. It does mean they cannot take the word of the President that he or she had acted rationally at face value and is required to test whether the actions comply with the purpose behind the legal provision on which the President relies. If a judge fails to do so and accepts the President’s assurance that he or she had acted rationally without any independent investigation, that judge is not fulfilling his or her oath of office to enforce the Constitution and the law, giving the President a blank slate to use and (it must be said, sometimes abuse) his powers as he sees fit.

Ramatlhodi therefore seems to be advocating the judicial endorsement of potential lawlessness, in effect arguing that we should return to pre-democracy time when the apartheid era State President was given a wide discretion (especially by the politically more pliant Appeal Court) to exercise his discretion as he saw fit. (As an aside, it irritates me that many people do not seem to know that our Constitution creates the office of President, not that of State President which was the name of the office in the last years of apartheid.)

What Ramatlhodi does not seem to understand is that the judges who fulfil their constitutional obligations diligently and impartially are actually doing their job while also doing the governing party a huge favour. When judges do what they are constitutionally required to do by declaring invalid the more extreme forms of irrational behaviour by members of the executive, they provide a visible mechanism through which voters can feel that they can correct the abuses of power by the executive without having to vote for another political party. Such judges also prevent the executive from abusing their powers in such a shameless manner that voters will lose confidence in the majority party and start voting for another party. (If I was a shameless and unprincipled opposition leader, I would support the packing of our courts with sycophantic pro-government judges to speed up the delegitimisation of the governing party and their concomitant electoral demise.)

In a democracy, it is actually in the interest of the governing party to have a vigilant judiciary looking over its shoulder to ensure that it does not become so arrogant and out of touch with the electorate that the electorate spurns it at the next election.

When the Constitutional Court declared invalid the legislation which abolished the more independent Scorpions and replaced them with the politically more pliant Hawks, it might have reached the outer limits of its authority (as Ramatlhodi correctly suggested during the JSC interview with Judge Maya), but it might well have done the ANC government a favour by forcing it to redesign the Hawks to make the new body more independent. The electorate, punch drunk from the seemingly never-ending stream of allegations of government corruption, might well give our government another chance and vote for it despite the perception that corruption has become endemic, if the new, more independent Hawks, is seen to tackle at least some of the allegations of high level political and business corruption in a serious manner.

It is rather short sighted, as well as demonstrative of the hold of our colonial past on the imagination of some politicians, that they complain so bitterly about the fact that we do not live in a country where the two elected branches of government enjoy a carte blanche to do as it pleases.

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