10,99 €
Mehr erfahren.
- Herausgeber: Jonathan Ball
- Kategorie: Fachliteratur
- Sprache: Englisch
- Veröffentlichungsjahr: 2019
What happens when South Africa's tumultuous political life becomes entangled in the courts of law? Throughout the past 50 years, the courts have been a battleground for contesting political forces as more and more conflicts that were once fought in Parliament or in streets, or through strikes and media campaigns, find their way to the judiciary. Certainly, the legal system was used by both the apartheid state and its opponents. But it is in the post-apartheid era, and in particular under the rule of President Jacob Zuma, that we have witnessed a dramatic increase in 'lawfare': the migration of politics to the courts. The authors show through a series of case studies how just about every aspect of political life ends up in court: the arms deal, the demise of the Scorpions, the Cabinet reshuffle, the expulsion of the EFF from Parliament, the nuclear procurement process, the Cape Town mayor – the list goes on and on. This book offers a highly readable analysis of some of the most widely publicised and decisive instances of lawfare. It argues that while it is good that the judiciary is able to shoulder the burden of supporting democracy, it is showing signs of immense strain under the present deluge of political cases. Whether the courts will survive this strain undamaged remains to be seen.
Das E-Book können Sie in Legimi-Apps oder einer beliebigen App lesen, die das folgende Format unterstützen:
Ähnliche
LAWFARE
Judging Politics in South Africa
MICHELLE LE ROUX
and DENNIS DAVIS
Jonathan Ball Publishers
Johannesburg & Cape Town
ACRONYMS AND ABBREVIATIONS
ANC African National Congress
ARV antiretroviral
AWB Afrikaner Weerstandsbeweging
AZAPO Azanian Peoples Organisation
CALS Centre for Applied Legal Studies
CASAC Council for the Advancement of the South African Constitution
CODESA Convention for a Democratic South Africa
CosatuCongress of South African Trade Unions
DA Democratic Alliance
EFF Economic Freedom Fighters
ESTA Extension of Security of Tenure Act
ICC International Criminal Court
IFP Inkatha Freedom Party
KC King’s Counsel
LRC Legal Resources Centre
MEC Member of the Executive Council
MK Umkhonto we Sizwe
MTCTP mother-to-child transmission prevention of HIV
NDPP National Director of Public Prosecutions
NERSA National Energy Regulator of South Africa
NGO non-governmental organisation
NPA National Prosecuting Authority of South Africa
NUSAS National Union of South African Students
PAC Pan Africanist Congress
QC Queen’s Counsel
SABC South African Broadcasting Corporation
SAPS South African Police Service
SARFU South African Rugby Football Union
SARS South African Revenue Service
SC Senior Counsel
TAC Treatment Action Campaign
TEC Transitional Executive Council
TRC Truth and Reconciliation Commission
UCT University of Cape Town
FOREWORD BY PRAVIN GORDHAN
Through the dark and devastating periods of colonialism and apartheid, the lodestar for democrats, activists and the majority of the oppressed was an aspiration to freedom: to create a democratic state, with racial and gender equality; to enjoy freedom from want, fear, oppression and exploitation; and to live a dignified life.
The law was a pivotal instrument during that period.
Today, the law constitutes the foundation of our young democracy, providing an all-embracing framework where our collective rights and obligations are preserved in the Constitution, which also limits the abuse of executive power and public funds.
The Constitution commits us to uplift the poor – to eliminate inequalities, to promote economic development for the benefit of all, and to create a society in which social justice and economic emancipation occur within a far-reaching transformation of our society.
Government’s objective is not merely to transfer ownership of assets or opportunities to contract with the state: it is to change the structure of the economy. Broad-based transformation should promote growth, mobilise investment, create jobs and empower citizens. It must create new resources to support social change, including assets and livelihoods for the majority, and strengthen South Africa’s constitutional foundations.1
So participation in government is not just a technical or technocratic role. It is, and has been for me, one aimed at achieving the vision and goals of leaders such as Nelson Mandela, Walter Sisulu, Lillian Ngoyi and Bram Fischer to advance a profound, fundamental transformation.
But, in today’s geopolitics – with mounting alienation between elites and citizens, insecurity for workers, the rise of right-wing populism and identity politics – the law, the Constitution and the courts also have a role beyond holding the executive to account.
Now the courts – through the process of lawfare, as the authors of this book, Michelle le Roux and Dennis Davis, observe – together with other institutions, need to defend democratic values against the worst in populist politics, identity essentialism and repressive economic policies.
The law and lawfare should become instruments of a progressive transformation of society, the economy, politics and culture, in the context of the Bill of Rights, and thus in defence of individual rights and economic rights. The law should seek to challenge patterns of concentration in the economy, confront hate speech and tribalism, and promote the process of nation-building.
But transformation and transitions can also unleash the forces of greed, corruption and new means of exploitation. What we have experienced are the consequences of the worst human instincts – self-enrichment, neglect of the higher mission, placing one’s self-interest before the community’s interests.
All this begs the question: what went wrong in the functioning of government?
In a context of poor governance, questionable executive conduct and the forces of state capture and corruption for nearly a decade, we need to examine what the role of a new phase in lawfare should be to restore the democratic state as a servant of citizens, and to ensure that social and economic development advances social justice.
The law and civil-society activism have been key features of our political discourse over recent years. And they should continue to inculcate a culture of accountability in the private and public sectors.
We have been through a torrid time over the past nine years. The authors of Lawfare examine why our acclaimed Constitution could not be a sufficient safeguard against the mendacity of state capture and why institutions that were built with resilience can be destroyed without too much resistance, notwithstanding the vigilance of a few civil-society organisations.
In 2014 Judge Edwin Cameron told the Johannesburg Bar: ‘The Constitution itself cannot save South Africa from crime, corruption, misgovernance, governmental inefficiency and police brutality. What can save us is the Constitution in combination with a proud, deeply sceptical population, together with principled lawyering.’2
State capture damaged the institutional fabric of our state; a culture of malfeasance was legitimised and tolerated with increasing impunity and a lack of accountability.
Democracy, we have learnt the hard way, is not a smooth, frictionless ride. A number of seminal cases, challenging the authority and conduct of the executive, have been instructive in expounding the resolve of our constitutional democracy.
Thus, the courts have held political office-bearers to a high standard of honesty – even those who lie under oath (see Minister of Home Affairs and Another v Fireblade Aviation Proprietary Limited and Others); they have confirmed the independence of Chapter 9 Institutions (McBride v Minister of Police and Another), and have prescribed the qualities for a ‘fit and proper person’ to hold public office (in the Simelane and Ntlemeza judgments).
As Le Roux and Davis argue in Lawfare: ‘The courts stood alone as a credible institution – hence the intensification of lawfare during this past decade.’
In contrast, we have now arrived at a moment where we are recalibrating our perspectives on ethical leadership, where we are restoring good governance, introducing greater boldness of vision, and showing a new urgency in our actions towards transforming our economy and our society towards greater inclusivity. This must occur in both the public and private sectors.
We know from research by the MIT Sloan School that ‘countries rise when they put in place the right pro-growth political institutions and they fail – often spectacularly – when those institutions ossify or fail to adapt. Powerful people always and everywhere seek to grab complete control over government, undermining broader social progress for their own greed. Keep those people in check with effective democracy or watch your nation fail.’3
In this respect, Lawfare draws from an extensive and diverse body of domestic law that concerns, primarily, the contestation between political power, the public interest, social justice and, ultimately, the rule of law to strengthen democracy.
I know that Le Roux and Davis, as exemplary lawyers, attempted this detailed analysis of case law to help ensure we do not again arrive at a point where nefarious intent and irrationality determine how this country is governed.
What divides us is not colour or race, or even ideology. It is ethics.
We should heed the words of Nelson Mandela: ‘Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another and suffer the indignity of being the skunk of the world. Let freedom reign.4
Gordhan is South Africa’s Minister of Public Enterprises, a former Minister of Finance and a former Commissioner of the South African Revenue Service.
PREFACE
This book is about this use and abuse of law. It analyses the stories of key cases litigated during apartheid and over the past 20 years to show the potential – and the limitations – of law. Throughout South African history, the law has both constructed and transformed society. Law created and entrenched the racist, corrupt framework of apartheid. Now, the law is being used to dismantle that state and build a constitutional democracy for all who live in this country.
The law, in our recent constitutional era, brought the promise of transforming the society and economy organised under apartheid. This process was almost immediately threatened by the arms-deal corruption allegations and, more recently, the systematic hollowing out of our constitutional institutions. In the landmark legal cases described in this book, one side had a firm and fervent belief in the rule of law and in the rights to be enjoyed under it, while the other felt that the very same legal concepts frustrated its particular political or social objectives.
Fortunately, the rule of law largely survived these institutional assaults in the past decade of the state-capture era. In particular, powers of the judiciary were not captured, and the law even held our leaders accountable in some important cases brought by civil society and opposition parties, manifesting a phenomenon we explore here: lawfare.
However, the wholesale degradation of the police and prosecution authorities, in particular, has fundamentally compromised governance and placed at risk the ongoing reliability, predictability and certainty demanded by the rule of law. It remains to be seen whether our criminal-justice system can be ‘recaptured’, and whether the perpetrators and predators will be compelled to wear orange prison uniforms for their crimes – whether they be apartheid-era killers or corrupt officials.
South Africa’s tradition of progressive lawyering, even during the darkest days of apartheid, coupled with our ambitious Constitution, gave us hope in 1994 that law could be a core tool for the construction of a meaningful democracy. It must be recognised that, regardless of the theoretical and conceptual possibility of law, too little has actually changed in South Africa for most of the country’s citizens. Where we live, what we live in, and whether we get a good education, a decent job and healthcare when we are sick, all still depend too much on our race. Corruption and the looting of our state resources only deepen inequality and accelerate the immiseration of far too many. No one can feed law to their hungry children.
At the same time, populism, often linked to identity politics, is on the rise in South Africa. This endangers our constitutional project and is a deadly threat to the building of a non-racial, non-sexist country, as promised in the Constitution. As long as the way we look or the colour of our skin continues to be the main determinant of our path in South Africa, politicians will be tempted to tell us that those who look like them will be first to eat.
Our Constitution describes a united and diverse society. Ubuntu is central to this vision. But it is a vision that is under threat. For some South Africans, perhaps an increasing number, the Constitution is seen as a sell-out of the majority, a compromise, an obstacle. Or just irrelevant to the lived experience of most.
Globally, this turn away from constitutionalism towards populism and strong-man politics is giving rise to forms of authoritarian constitutionalism. This sees the tropes and rhetoric of democracy used to justify undemocratic executive action on the basis that the President has been elected by the people and should not be constrained by rights claims enforced by unelected judges. At the same time, suspicion and distrust of the Other are used to justify a hardening of policing and law-enforcement, censorship, crackdowns on movement and increased intolerance. So, while a notional constitutional state remains in play, it has actually been gutted in a number of countries (see Turkey, Hungary and Zimbabwe, for example).
This book shows that those of us who believe in equality, dignity and freedom for all – values that should flourish in the constitutional framework – continue to have a lot of work to do: restoring our institutions to ensure capable leadership; retaining the vibrancy of civil society and active citizenship; dismantling the racist inequality of apartheid; and holding government accountable for its exercise of public powers and spending of public money. Critically, in our immediate context, we need to reach across our differences, abandon our privileges and respect every single person who lives in South Africa – as the Constitution demands.
Nothing is inevitable in this project – neither success nor failure. The Constitution is a powerful tool for the building of accountable and meaningfully participative democracy, but it is only a book of words if there is not a supportive politics and vigilant citizenry striving to realise its vision. A reaffirmation of our constitutional values is needed.
The cases described in this book show the possibilities and the precedents for progressive, transformative law, and the dangers and risks posed by its opposite.
Note on the text
Chapters 3 to 10 were originally published in a book we wrote in 2008 titled Precedent and Possibility: The (Ab)use of Law in South Africa. Each has been carefully reconsidered in the light of legal and political developments that have taken place over the decade since they were initially written. These chapters have been revised and updated to draw out the implications for the overall argument advanced in this book, namely the role and significance of lawfare in the third decade of South African constitutional democracy. We hope that the stories they tell remain of interest and relevance to a wider audience here.
Michelle le Roux
Dennis Davis
March 2019
1
THE ASCENDANCY OF LAWFARE
‘The Nkandla moment presented that opportunity to interact with our people and to tell them about the legal, constitutional and normative underpinning of public power and why we are duty bound to deploy it honestly [and] effectively in order to produce good outcomes and to produce a just society.’1
–FORMER DEPUTY CHIEF JUSTICE DIKGANG MOSENEKE, 28 January 2017
‘This judgment signifies unfettered encroachment of the judiciary into the realm of the executive – pandering to the whims of the opposition who want to co-govern with the popularly elected government through the courts.’2
–ANC NATIONAL SPOKESPERSON ZIZI KODWA Reacting to an order that President Zuma must disclose his reasons for his 2017 cabinet reshuffle
‘Politics itself is migrating to the courts … Conflicts once joined in parliaments, by means of street protests, mass demonstrations, and media campaigns, through labour strikes, boycotts, blockades, and other instruments of assertion, tend more and more … to find their way to the judiciary. Class struggles seem to have metamorphosed into class actions.’3
–JEAN AND JOHN L COMAROFF
‘You ain’t seen nothing yet’
–BACHMAN TURNER OVERDRIVE, 1974
The birth of democracy in 1994 held out the promise of the construction of a new nation, in which the equality, dignity, freedom and humanity that could unite all South Africans would replace the systemic racism, sexism, discrimination, exclusion and homophobia that had fractured the country throughout its history. That possibility is contained in the Constitution, the foundational text for South Africa’s new society. The Constitution is both allocative and normative, meaning that it assigns roles and imposes obligations upon various institutions, organs of state and spheres of government, while it also prescribes the creation of a new society described in compelling terms in its pages.
Key to the constitutional democratic state established by the Con-stitution is the concept of separation of powers. As the label suggests, this is the creation of three distinct arms of government, each with its own interrelated powers – the executive, legislature and judiciary. Each is assigned a specialised role to build the society promised in the Constitution. The executive formulates policy and implements legislation passed by Parliament, which is the sole lawmaker in the republic. The conduct and performance of the executive and the legislature are, in turn, subject to judicial scrutiny.
Underpinning this interlocking scheme is the principle of legality, or the notion that all public power is sourced in the Constitution, expressed in national legislation and exercised in a way that needs to be rational, fair and reasonable. In other words, government has no authority or power other than that sourced in the Constitution – hence it is referred to as ‘the supreme law’. With the Constitution, there is no royal prerogative power or any other residual power for those who govern our country.
And all public power is held accountable – to the courts, to Parliament and to the key institutions created by Chapter 9 of the Constitution to support constitutional democracy. These are the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General and the Electoral Commission.
As an aside, readers are forgiven if they have only heard of about three and a half of these institutions and then only of those whose leaders were distinguished by either spectacular incompetence or striking excellence at fulfilling their mandates. The ‘Chapter 9s’ are supposed to be partners in advancing the Constitution’s transformative project, as well as scrutinisers of government power and performance. They are important because they further support our faith in law and the Constitution, our fidelity to the constitutional scheme of governance, and our commitment to the transformative outcomes prefigured in the Constitution. A society of dignified, free and equal South Africans, as described in the Constitution, is both the goal and the measure of our progress towards it. Unfortunately, we have still far to go in having the Chapter 9s fulfil our expectations of them as we do in ensuring that the constitutional promise is the lived reality of all South Africans, rather than racialised inequality and poverty.
The political, social and economic promises contained in the Constitution were framed as legal claims. These claims are expressly made in the Bill of Rights (Chapter 2 of the Constitution). Hence it should have been foreseen that struggles for both the political and economic rights set out in the Constitution would be increasingly fought in the courts once politics had failed to deliver immediate redress, transformation and justice to the victims of apartheid.
When we wrote Precedent & Possibility: The (Ab)use of Law in South Africa, we were concerned at the time of writing in 2008 that, if politics failed (or even if government was simply ineffective), the courts alone would not be able to power this journey away from apartheid and towards constitutional nirvana. For this reason, we warned that a turn to lawfare carried its own risks for the constitutional enterprise, which, at the time, was scarcely a decade and a half old. The concern was that political struggle by active citizens, civil-society groups, political parties and organised labour should not be converted into litigation alone. Displacing our constitutional political project (of ‘nation-building’ or ‘transformation’ for ‘the rainbow nation’) into legal processes fails for two reasons. First, litigation is slow, often incremental and relatively narrow in what it can change. Politics should be more responsive and comprehensive in reflecting the will of the people. Secondly, pending litigation seems to halt other processes or institutions from delivering on their obligations to realise the constitutional vision of our society, facilitated by a competent and capacitated state. Cabinet ministers and other public servants seem to feel that they are ‘off the hook’ while litigation about something for which they are responsible proceeds. The country waits for judgments at each level of the court system, rather than seeing its government deliver services and meaningful change. All of the arms of government and institutions of state in all spheres of government must do their bit. The constitutional project works only if all of its parts are functional and engaged and deliver on their mandates.
We had underestimated the extent of this rush towards litigation. The degradation of state institutions began relatively slowly. But by the end of a decade, a parallel state with compromised heads of security and law-enforcement agencies, including the critical revenue service, was revealed (see the revelations at the commissions of inquiry into state capture and the South African Revenue Service [SARS], for example). Parliament became as politically sheepish as the head of the National Prosecuting Authority (NPA). The courts stood alone as a credible institution – hence the intensification of lawfare during this past decade.
The exponential increase in lawfare
We have described the use of the courts in this fashion as constituting a form of lawfare, a term we borrowed from John and Jean Comaroff, who observed that, as society increasingly uses law as a means of control, the targets of the state invoke the cry of human rights to persuade courts that law has an intrinsic quality of accountability, certainty and the recognition of the basic freedom of the individual citizen. In this way, citizens fight attempts to control them through the law by using the law. Thus politics in many societies is played out more in the courts than it is in the streets, more by the use of law and its disguised violence than by unfettered brutal force, absent of any legal constraint.4
Political claims became legal complaints as, increasingly, the courts became the primary dispute-resolution mechanism replacing Parliament, political struggles, community activism and engagement, and media campaigns.
This is not a phenomenon exclusive to South Africa, which prompts the question, why do governments then employ law as a means of political and social control if it can work against social control? The Comaroffs provide a plausible answer in their concept of ‘lawfare’: ‘As a species of political displacement, [lawfare] becomes most readily visible when those who act in the name of the state conjure with legalities to act against some or all of its citizens.’5 For example, former President Zuma’s government used law to advance an ideological battle by introducing controversial legislation and regulation, such as the Mining Charter proposed by Minister Mosebenzi Zwane or when it repeatedly floated the idea of a media tribunal to deal with unflattering coverage and effective investigative journalism.
Within a few years after democracy had dawned in South Africa, the political energy that had powered the sustained struggle against the apartheid regime began to be replaced by vigorous contests in court in the Zuma era, and the phenomenon continues. The stampede to the courts to invalidate elective conferences held by the provincial structures of the African National Congress (ANC) is a case in point. The courts have become a battleground for contesting political forces, not only between the state and its opponents, as was the case during apartheid, but even between contending forces within the governing party.
Lawfare should be understood as having a duality to it; it can be a good or a bad thing. It is a good thing for adjudication to be political, in the sense that it advances the constitutional project and is undertaken by litigants and judges as an instrument to ensure that the constitutional vision is realised. However, it is a bad thing when courts become the site of pure political contestation because politicians seek to usurp judicial powers to achieve their objectives. In both contexts, it draws the judiciary far further into the political arena than has traditionally been the case. It holds the promise of promoting more reasoned deliberation about key political and distributional claims, but it can also turn the courts into a juristocracy, thereby reducing the importance of politics and the vibrancy of civil society. It is here that the two parts of lawfare meet each other. Lawfare in its negative sense is most clearly seen when politicians employ the courts in political trials to marginalise or remove their political opponents. When civil society is vibrant, the use of law in this fashion contests the attempt to criminalise political opposition and, in turn, may employ the courts as a means to curb the (ab)use of law. And the stronger the voices of civil society, the more likely it is that a court will feel less constrained by political pressure and freer to exercise accountability over these forms of abuse.
Let us then begin with what could and should have been seen, at least from the moment that the criminal law was employed against Zuma before he became President. To be clear, ours is not an argument that Zuma should not be held accountable in a criminal court in respect of the 16 charges brought against him of corruption, money laundering and racketeering for 783 payments he received from his one-time financial advisor, Schabir Shaik. However, once he was charged, law and politics fused as competing factions in the ANC battled for political ascendancy. After the conviction of his co-accused, Shaik, in 2005, Zuma was dismissed as deputy president by President Thabo Mbeki. Expertly casting himself as the victim of a campaign of political interference aimed at preventing his rise to Number 1 citizen, Zuma turned to the courts. In 2007 he was charged on various counts of money laundering and corruption. On 12 September 2008, Judge Chris Nicholson held on procedural grounds that these charges were unlawful. This judgment proved to hold huge political implications. Not only did the judge set aside the prosecution of Zuma, but he also offered a number of scathing observations about the motivation for the prosecution, in particular about the political influence brought to bear by Mbeki and certain of his acolytes.
The result of the appeal against this judgment was an intemperate excoriation of Judge Nicholson by Judge Louis Harms, on behalf of a unanimous Supreme Court of Appeal. Correctly described by journalist Adriaan Basson as overwrought, Judge Harms accused Judge Nicholson of failing to apply basic rules of procedure and evidence in his critique of the prosecution. Although the harsh language of the rebuke was unjustified in our view, it is also clear that Judge Nicholson had overreached himself by delving into political questions that were not before him for determination, and his judgment’s findings about the ANC’s succession politics, which had surrounded the prosecutorial decision to pursue Zuma, far exceeded the narrow procedural case that he was called on to decide.
It is worth noting, though, that Nicholson’s musing on the need for a commission of inquiry to provide closure to the saga seems strangely prescient today, when commissions of inquiry are demanded and formed on a daily basis – as if they could substitute for effective law enforcement, diligent investigation, vigorous prosecution or a capable state intent on service delivery.
What was less known were the tactics alleged to have been adopted by the competing factions in the battle for political control in the ANC, and hence the country. Recently it has been suggested by historian and journalist RW Johnson that when the state prosecuted Shaik, in effect for having a corrupt relationship with Zuma, Mbeki sent an emissary to the then Judge President of the KwaZulu-Natal High Court to ensure the appointment of the presiding judge for the Shaik trial. Johnson also claims that Zuma warned Shaik not to appoint a technical criminal advocate (Shaik’s choice had been the eminent silk Francois van Zyl, who successfully defended Shrien Dewani, who had been charged with the high-profile murder of his wife while visiting Cape Town) but to deploy political/legal tactics, as he subsequently did with his so-called Stalingrad litigation strategy.6 This is the strategy of delay, made possible by undertaking appeals with little prospect of success and the pursuit of preliminary or interlocutory points to postpone consideration of the merits, all coupled with an extra-curial resort to the much misunderstood but frequently invoked sub judice rule to avoid accountability or the need to justify this grotesque waste of public funds spent on litigation.
The anticipated application to stay (or halt) Zuma’s prosecution altogether (rerunning the political interference point and adding to it the self-created delay in bringing the prosecution to trial) is the final available ploy. Even today it appears that further appeals against any decision on the application will ensure that Zuma avoids the trial court for years to come. The retort that ‘if the law and rules of procedure permit it, it’s OK’ is no answer to this strategy. The legal system should not be abused with frivolous, baseless, vexatious or tendentious cases. Sound legal judgement and advice, given by lawyers guided by their obligations to ensure the proper and efficient use of the legal system, would not result in some of the litigation strategies pursued in our courts. Abuse of process and litigation undertaken not to resolve real disputes or to vindicate rights, but to avoid or delay politically unpalatable outcomes, should be discouraged.
In 2008, we woefully underestimated the extent of state capture and the intensity of lawfare that would unfold. The subsequent assault on key institutions created by the Constitution – disempowering and decapacitating them – was also inadequately predicted. Since then, a programme of what is now referred to as state capture was rolled out. Institutions of state have two purposes – service delivery, and preserving and strengthening our constitutional democracy. What we have seen in too many government departments, agencies and institutions is that the service deliverers have become corrupted for their own enrichment through cronyism, nepotism, and tender and procurement fraud, while accountability has been incapacitated by the appointment of leaders of key institutions who seemingly do not have the will to fulfil their mandates.
First to fall were the Scorpions, set up in 2001 as a multidisciplinary, independent institution to deal with the increasing scourge of corruption, combining investigative and prosecutorial competence. By 2009, the unit had been disbanded and replaced with the Hawks, whose legal design placed it within the clutching grasp of the then Minister of Safety and Security. The decision to be rid of the Scorpions was taken by the ANC at its 2007 Polokwane electoral conference, where Zuma emerged victorious against Mbeki and ascended to the ANC throne. The Scorpions, which had played an important role in the Shaik corruption trial and the subsequent investigation of Zuma, were doomed once the political dominance of the Zuma faction was cemented. The name change between these two law-enforcement predators barely captured the devastating effect of the changes made on the unit’s ability to crush corruption. The new unit was no swift and efficient crime killer.
Thanks to the tireless efforts of Johannesburg businessman Hugh Glenister, the birth of the Hawks was at least a troubled affair. Glenister launched an intensive campaign of lawfare, seeking to win from the courts what the losing ANC factions and opposition parties could not deliver. Three cases dealing with the constitutionality of the Hawks made their way to the Constitutional Court, the most significant of which was Glenister 2. Here, Glenister and the Helen Suzman Foundation, as amicus,7 argued that the legislation that established the Hawks did not give the unit the necessary structural and operational independence to be an effective corruption-fighting mechanism. And, for that reason, the impugned legislation was inconsistent with international obligations of the republic to have independent corruption busters and, hence, it was also incompatible with the Constitution, which requires compliance with treaties that South Africa has ratified and adopted.
In their majority judgment, former Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron found for the applicants. Their bold judgment sourced an obligation to establish a viable, and thus independent, anti-corruption unit in a reading of South Africa’s international obligations coupled with the Constitution. The announcement by President Ramaphosa in his February 2019 State of the Nation address that the ‘Scorpions 2.0’ would be re-established under the direction of the new National Director of Public Prosecutions (NDPP), Shamila Batohi, is a promising ending to this saga.
This kind of judicial oversight aimed at ensuring institutional competence and independence was not an exception. In 2012, the official opposition failed in Parliament to prevent the appointment of Menzi Simelane by Zuma to the all-important position as NDPP (at least his appointment was certainly important to the President). In keeping with the move to lawfare, an application was launched to set aside this appointment. Again the stakes were high: the early stench of public corruption had begun wafting through the state and it seemed as if the executive wanted to ensure not just an unreliable anti-corruption unit, but also to prevent an excessively (or even vaguely) independent NDPP.
The case again required judicial scrutiny of an executive decision – this time whether Simelane met the requirements of integrity and conscientiousness to be the fit and proper person required by the relevant legislation. The government argued that the President had a wide discretion in the appointment of the NDPP. It was for the President to make the decision – which involved a value judgment – and the requirement that the person appointed ‘must be a fit and proper person with due regard to his experience, conscientiousness and integrity’ could not be said to be an objective one. However, just because the President has the power to make this appointment does not mean that his decision cannot be objectively scrutinised by a court.
A careful evaluation of the evidence relating to Simelane’s performance in his previous position as director general in the Department of Justice showed compellingly that he did not meet the tests of conscientiousness and integrity to rationally be considered a fit and proper person for appointment to such high office generally, let alone one that requires the strength of character and integrity of the NDPP. The highest court agreed, and Simelane was removed.
But Simelane should not feel as if he was the only ‘victim’ of courts diligently ensuring that compromised leaders picked for critical law-enforcement positions were removed from office. In a similar vein, decisions in the High Court went against the NPA’s senior prosecutors, Nomgcobo Jiba and Lawrence Mrwebi; the Hawks head, Berning Ntlemeza, and crime-intelligence boss Richard Mdluli were also declared to be unfit and improper to hold these offices. In keeping with the general intensity of the lawfare waged, Jiba and Mrwebi appealed the decision to strike them from the roll of advocates. Five judges of the Supreme Court of Appeal heard the appeal and, by three to two, ruled that neither Jiba nor Mrwebi should be struck off. The General Council of the Bar appealed this decision to the Constitutional Court. The decision to appeal was not unanimous, and caused Advocates for Transformation to accuse the General Council of the Bar of racism,8 yet another example of the contested nature of lawfare.
Another compelling exercise in lawfare was seen in the saga that sought to reinstate Mxolisi Nxasana as NDPP, one in which allegations were made that the former President had lied under oath when he said that Nxasana had requested to leave office. In that case – and the resolution of the dispute of fact arising from the two seemingly mutually destructive versions put up by the ex-President and Nxasana – the Pretoria High Court held that Shaun Abrahams had been improperly appointed as the head of the NPA but that Nxasana, his predecessor, should not be reinstated. It ordered that the then deputy president, Cyril Ramaphosa, should appoint a new head of the NPA. By the time the case reached the Constitutional Court, Ramaphosa was President.
The Constitutional Court removed the head of the NPA and gave President Ramaphosa 90 days to appoint a new head prosecutor. A minority decision found that this was an outcome that required the majority of the court to engage in unfounded speculation about whether there would be further instability in the NPA if Nxasana were reinstated, which is an eventuality that those judges chose to avoid. The majority judgment appears to have fallen into the same trap of which it criticised the former President: removing lawfully appointed public servants in ways that smacked of political expedience.
And, a decade ago we were not yet aware that disputes over improvements made to former President Zuma’s homestead, Nkandla, would build into a tsunami of taxpayers’ money spent wastefully on the legal system. When the then Public Protector, Thuli Madonsela, found that some of the improvements to Nkandla had been made not to ensure the security of the President but for his private benefit, and for which he was obliged to reimburse the fiscus, the attack on her office was unbridled. Both the then ANC secretary general, Gwede Mantashe, and his deputy, Jessie Duarte, accused the Public Protector of behaving as if she was above Parliament. In the words of Duarte, she was ‘very populist in her orientation’ and did ‘not present a full picture to the public’.9
For almost two years, the nation was told that the executive could commission its own report on the Nkandla improvements and that it was not, in any way, bound by the Public Protector’s completed report. But, finally, in early 2016, the Economic Freedom Fighters (EFF) applied to the Constitutional Court for an order declaring the President in breach of his constitutional obligations because he had refused to comply with the Public Protector’s report and had not ‘paid back the money’.
The outcome of the EFF application before the Constitutional Court was inevitable after Advocate Jeremy Gauntlett, on behalf of the President, conceded that the remedial action in the Public Protector’s report was binding. Hence the Constitutional Court was hardly confronted with a hard case. However, it was in the wording chosen by the Chief Justice that the core importance of the judgment was to be found:
One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.10
The Nkandla judgment held major political ramifications, to the extent that even the President felt constrained to inform the nation of his (non-)response by convening a late-night press conference to share his sorry/not sorry non-apology/non-resignation statement with the nation. The Nkandla decision was a rallying cry for further legal action by opposition parties and civil-society groups. Its findings were used to challenge Speaker of Parliament Baleka Mbete and Zuma during parliamentary sittings. Following its decision, the Constitutional Court was required to deal with the proper parliamentary mechanism for impeaching a President as a consequence of its earlier finding that he had failed to uphold his oath of office and fulfil his constitutional obligations. The majority of the court found that Parliament had to hold a preliminary inquiry to determine whether a ground for impeachment existed and, in turn, this obliged the National Assembly to make rules specifically tailored to conducting an impeachment process. The Chief Justice penned an irate dissent, accusing his colleagues in the majority of ‘a textbook case of judicial overreach’ by intruding impermissibly into the terrain of Parliament.
Many of the cases where the courts have required executive compliance with the Constitution have been swiftly followed by sustained attacks against the judiciary from outsiders, questioning its role. This has placed the courts in the line of political fire. In reaction to this lawfare, and faced with a series of adverse findings against government, the ANC has rolled out its attack machine on several occasions.
The governing party was particularly incensed by the manner in which the courts dealt with the government’s handling of the case of Sudanese President Omar al-Bashir. In June 2015, al-Bashir, arrived in South Africa for the African Union assembly. Two warrants had been issued by the International Criminal Court (ICC) for his arrest on charges of crimes against humanity and war crimes. On 27 November 2000, South Africa had ratified the Rome Statute, which conferred jurisdiction on the ICC to try cases such as those involving al-Bashir.
One might therefore have reasonably expected that, when the ICC asked for assistance in the arrest of al-Bashir, the South African authorities would have complied with their obligations under both the Rome Statute and the domestic legislation passed to ensure implementation of its obligations. But they did no such thing. And when the Southern African Litigation Centre applied to the Pretoria High Court for an interdict preventing al-Bashir from leaving the country, the court was assured by government lawyers that he was still present in the country.
Sadly, that was not true.
The government reaction was strident, particularly after the outcome in the Pretoria High Court. An interim order was granted by the court preventing al-Bashir from leaving South Africa pending a hearing on the application. The South African government then allowed the Sudanese leader to leave, the court order notwithstanding. The court took a very dim view of this violation of a court order, saying, ‘If the State, an organ of State, or a State official does not abide by Court orders the democratic edifice will crumble stone by stone until it collapses and chaos ensues.’11
Mantashe did not take lightly to this criticism: ‘There is a drive in sectors of the judiciary to create chaos for governance … we know if it doesn’t happen in the Western Cape High Court it will happen in the North Gauteng. These are two benches where you always see the narrative is totally negative …’12
On 1 July 2015, the ANC warmed to the theme of describing judgments as judicial overreach – as if they breached the doctrine of separation of powers. The organisation also expressed concern at statements of the former Deputy Chief Justice, speaking at Georgetown University in Washington, when he said that in South Africa the judiciary should take a more direct political stance than even in the US.
Justice Moseneke had earlier raised concern at the ‘uncanny concentration of power’ in the President in regard to appointments provided for in the Constitution. Among other things, he referred to the President’s responsibility (after consultation with the Judicial Service Commission and the leaders of parties in the National Assembly) to appoint the Chief Justice and Deputy Chief Justice. Justice Moseneke had questioned whether the design of this part of the Constitution was not at war with the dominant idea of preventing a concentration of power in the hands of the President. In response, the ANC asked, ‘Is he proposing changing the Constitution in the name of defending the Constitution?’13
This all proved to be a bridge too far for Chief Justice Mogoeng Mogoeng, who reacted vigorously to these attacks and convened a meeting of the President and senior ministers with representative heads of courts. This unprecedented encounter with the arms of government appeared to end in a conciliatory way. However, it would be naive to assume that we have heard the last of this tension as courts continue to decide who leads party structures and organs of state.
As described in more detail later in this book, the courts have been called upon to deal with egregious conduct on the part of the executive on various occasions. But we should add a word of caution: on occasion an adverse judgment, whether it be in the Nkandla case or the litigation to remove Berning Ntlemeza as head of the Hawks, has been accepted by government without demur. It may well be, therefore, that attacks on the judiciary are partly dependent upon the balance of political forces within and between political parties at the time a case is decided. When the Constitutional Court delivered its unanimous Nkandla judgment, for example, there was not a peep of criticism of the court. The ANC tactic shifted to an argument that the judgment had not found that the President had deliberately breached the Constitution sufficiently to justify any constitutional basis for impeachment. When the judgment came down, Zuma was facing a series of crises all linked to his alleged connection to the Gupta family and their business dealings in South Africa. It would have been foolhardy to attack the Constitutional Court for delivering a judgment based, to a large extent, on a concession made by the President’s own lead counsel, when the political forces within the governing party were already engaged in a ferocious war of position.
The Eurocentric/neoliberal attack
In addition to the consequences of the deepening phenomenon of lawfare, another set of challenges to the constitutional project has emerged, namely the fact the Constitution itself has become an object of criticism by those who see it as an obstacle to transformation. This thinking that the Constitution prevents social and economic change, particularly as it is a Eurocentric document, is unsurprising, given the slow pace of economic transformation (radical or otherwise) the country has seen over the past two decades. Some of the content of this line of attack has been around from the inception of the Constitution, but the volume and intensity of this form of discourse has increased since 2008.
In responding to this criticism, it is wise to recall the text of the Republic of South Africa Constitution Act of 1996, which boldly proclaims that the country aspires to be a non-racial, non-sexist society based on the core principles of freedom, dignity and equality. The ambitiousness of the constitutional enterprise was captured in a truly remarkable speech delivered by the then deputy president, Thabo Mbeki, who addressed Parliament as it met to adopt the Constitution:
The Constitution, whose adoption we celebrate, constitutes an unequivocal statement that we refuse to accept that our African-ness shall be defined by our race, our colour, our gender or our historical origins.
It is a firm assertion made by ourselves that South Africa belongs to all who live in it, Black and White.
It gives concrete expression to the sentiment we share as Africans, and will defend to the death, that the people shall govern.
It recognises the fact that the dignity of the individual is both an objective which society must pursue, and is a goal which cannot be separated from the material well-being of that individual.
Mbeki went on to claim that the Constitution
creates a law-governed society which shall be inimical to arbitrary rule.
It enables the resolution of conflicts by peaceful means rather than resort to force.
It rejoices in the diversity of our people and creates the space for all of us voluntarily to define ourselves as one people.
As an African, this is an achievement of which I am proud, proud without reservation and proud without any feeling of conceit.14
In a moment of magnificent expression, Mbeki had captured the animating idea behind the enterprise: a people defined by our diversity, cognisant of our racist past and of how far we must still travel in order to all become Africans, and thus a people with a shared common identity. To achieve this, we were to destroy the myth of racialised cultural and economic superiority that prevented us from claiming a fresh identity as South Africans. As Cameroonian philosopher Achille Mbembe has argued,15 democracy was dependent on this construction. If we could not break the myth and replace it with a new form of citizenship, the very enterprise set out in the Constitution was fatally doomed.
Now, however, there is a growing chorus claiming that the Constitution was employed by recalcitrant whites to subvert majority rule. This mode of attack, located at the margins of politics back in 2008, is now assuming increasing importance in the national discourse. It sees the Constitution as a compromise aimed at preserving so-called white monopoly capital, and casts Mandela and his team of negotiators as sell-outs of their people, especially on the question of land redistribution and apartheid restitution. The argument is that the constitutional promise preserves the ill-gotten gains obtained during apartheid. The slow, almost non-existent, pace of meaningful land reform in particular has proved to be fertile ground for casting the Constitution as the obstacle or, worse, the mechanism to retain apartheid-era economic and ownership structures of land and other productive assets.
What is most apparent in the ongoing debate regarding land reform is that the Constitution is now labelled as part of the problem. We say that it is rather the seeming absence of a coherent land policy implemented with determination and expedition that is the source of the present crisis in land restitution. Assume away the property clause, Section 25 of the Constitution, and we would be in the same factual position. The land-reform problem is political, not constitutional. The same observation is applicable to the stark patterns of inequality, the grinding poverty encountered by millions and the structural racism that continues to blight this land – unaddressed by government. These are not the products of the Constitution.
Even ignoring the deployment of the hollow Bell Pottinger catchphrase ‘white monopoly capital’, spouted as a response to the nation’s vocal rejection of state capture in South Africa, the government’s failure to address the disgraceful material conditions of poverty and landlessness in this most unequal of societies is evidence of the failure of the ANC government to fully realise the transformation promised in the Constitution.
An academic version of the line of argument that the Constitution is the problem has been developed by University of Pretoria academic Joel Modiri. In a series of articles, Modiri argues that, while the advent of a new constitutional order did alter the moral and political foundation of the country, there can be no guarantee that the Constitution will not reproduce a formalist and conservative legal culture. It is also based upon the assumption that Western liberal constitutionalism is superior to African alternatives. Thus, the South African Constitution represents a Western (and hence colonial) order of legal knowledge that ‘suppresses and marginalises indigenous African ways of knowing and doing law’.16 In similar fashion, Tshepo Madlingozi claims that the call for a supreme Constitution and a Bill of Rights came overwhelmingly from whites ‘with a view to keeping the main edifice of the anti-black bifurcated policy intact’.17
These critical voices call seriously into question the possibilities of which many spoke when the Constitution passed into law; hence they require a careful response. In fact these criticisms necessitate two related replies: to the attack on the failure to transform the economic structure inherited from apartheid and to the contention that, far from being the poster child of progressive constitutionalism, the South African text is wholly inappropriate for an African country.
There can be little doubt that this line of attack on the Constitution has highlighted the mistakes made through the almost unqualified praise, indeed the triumphalism, that has accompanied constitutional writings over the past two decades. Read, for example, the standard textbooks on constitutional law, the comprehensive and careful assessment of the so-called Chaskalson court by Theunis Roux,18 the breathless enthusiasm for the mystical Constitution in the work of the court by retired Justice Albie Sachs and you will find not a scintilla of the kind of criticism that Modiri, Madlingozi and the hosts of social-media users have articulated consistently over the past year or so.
Is the Constitution a Eurocentric imposition or a uniquely South African achievement? Will it inevitably retard the structural changes needed to achieve a substantive model of democracy, as claimed by its antagonists and energetically denied by its proponents? These are questions that now bedevil the political and legal debate. In summary, we now need to revisit the role of the judiciary in a constitutional democracy grounded in South African society. But we cannot do this without an answer to a prior question: can our Constitution promote substantive structural change to achieve its proclaimed vision, a non-racial, non-sexist democracy based on freedom, dignity and equality for all?
Just as economic sanctions hastened the end of apartheid, can and will downgrades to junk status, coupled with years of stagnant growth and debilitating youth unemployment, herald an irresistible opposition to constitutional democracy? Is it then correct to blame the Constitution for our recession? Our unemployment? Our deindustrialisation? Our failing schools? Our inadequate healthcare system? We say not.
So, is the Constitution a tool of self-preservation for the beneficiaries of apartheid? We have emphasised Thabo Mbeki’s ‘I am an African’ speech that he made in his address to Parliament when the Constitution was passed into law. This was to emphasise our argument that the Constitution was based on an essential truth – to be a democratic country we needed to embrace the idea of ‘us as Africans’ transcending our past understandings of race and gender. To say we are (South) Africans poses the urgent existential challenge to construct a fresh national identity, respectful of the dignity of difference but committed to the sharing of our common goods, to offer our skills, work ethic, resources, opportunities and commitment to the benefit of all South Africans, and to redress the racist discrimination of our colonial and apartheid past.
That redress of the past and adequate protection for those on the margins have not taken place is undeniable. We would argue that the blame for this political, or indeed legal, failure cannot be placed on the Constitution. On the contrary, read in at least one coherent manner, the Constitution seeks a society in which democracy means far more than a formal adherence to the economic or social status quo. Loyal theorist Karl Klare has captured this vision of the Constitution as promoting a rich and broad view of constitutional democracy: ‘In this enlarged optic, democracy includes conceptions of self-governance and human self-realisation that go beyond the traditional discourse of checks-and-balances and the trite division of government into legislative, executive and judicial branches. The Constitution introduces new governance relationships.’19
This reading resists the idea that the Constitution, no matter from where particular words or phrases in the text were borrowed, will reproduce a society wrenched from its African roots. To repeat, for us, the animating constitutional idea was, and should remain, the creation of a society based upon a new South African identity, which eschews the claim of white superiority in any form, or the concomitant idea that only Western ideas are to be employed to fashion the new society.
We need to admit that the conservative legal culture bequeathed to us by our colonial past and a regrettable poverty of legal imagination in too many cases have contributed to the lack of transformation of key legal rules, which continues to be an obstacle to substantive economic and social change. This must then lead to a discussion of the role of the law and courts in the attainment of this objective.
Lawfare is a central part of this discussion. As explained above, courts are an important and necessary site for accountability, and an instrument for realising the constitutional vision (the good side of lawfare). But they can and, indeed, have been abused by politicians precisely because they may be more decisive and effective than the messy, incremental processes of politics (the bad side of lawfare). So, while lawfare is a complex and contested concept, the manner in which the South African Constitution has envisaged the governance of the country mandates the courts to become partners with the other two arms of government in the reconstruction of society. In turn, that means that political, economic and social controversies will be fought out in the courts, which is indeed what the Constitution envisaged.
Conclusion
The key question that needs to be posed when we look at where we are and where we have come from is: how have we done so far as a democratic nation? For the critics of the Constitution, the answer, clearly, is not well enough. The critics suggest that the record supports their contention that, as inequality and poverty remain firmly entrenched, the privileges that whites gained from apartheid continue to be as entrenched as they were some 25 years ago. The standards employed to judge both academic and professional performance have hardly altered during the past two decades. At best, the Constitution has contributed nothing meaningful to the transformation of the economic or social structure of South African society and, at worst, it has helped reinforce the structures of society that were constructed over the 300 years of racist rule.
To evaluate this critical stance, we need to examine a number of issues that have come to the fore after at least a decade of state capture and lawfare, as well the legal fights to temper the consequences. There needs to be, first, a greater focus on the political context and, secondly, a critical examination of the role of courts in this process. In particular, we need to ask, have our courts over the past twenty-odd years grasped the radical challenges posed by the promises of the Constitution, as they would have been read by a community who were not trained in constitutional law? Put in a different way, has the constitutional idea as contained in the text – of a decisive break from the past, a fresh start by way of the construction of a non-racial, non-sexist democracy, based on freedom, dignity and equality for all – been vindicated, or has the country even begun its required journey in this direction without being hijacked or having lost its way?
Separation of powers is at the heart of the tension between the government and the judiciary, as described earlier. This prompts further questions: have the courts crafted a doctrine of separation of powers that facilitates this journey? How has the legal system, particularly our procedures (with the emphasis on access to the law by those for whom the Constitution made social and economic promises), as well as the structure and nature of the legal profession, served this set of objectives? Should we remain passive to the existing legal rules of access to justice? Why have we never duplicated the imaginative procedures adopted by other middle-income countries? Finally, how far have we travelled in closing the polarisation caused by the existing racial structures?
We pose some new answers to our current challenges in the concluding chapter of this book. Those answers draw on the lessons learnt from the cases described in the intervening chapters. These cases were chosen for three reasons. First, they remain relevant because they remind us of the limits of courts. Courts cannot fill the gap left by an executive or legislature or government that does not implement policy effectively and thereby transform South African society. The courts alone cannot lift South Africa unaided into the society prefigured in the Constitution: every arm of government, institution of state and active citizen must play their part.
Secondly, these cases warn us of how courts, too, can be captured – and eventually may be. Law can be (ab)used to legitimise political struggle, and delegitimise political opponents. The Rivonia trial and the charges filed, and dropped, against former finance minister Pravin Gordhan are products of the same drive by the executive. The Zuma trial is of a different hue – here serious criminal acts are alleged to have been committed, although Judge Nicholson’s apprehension of the role played by politics cannot be discounted.
Finally, even in the dark days of apartheid, law was used by creative and courageous lawyers to restrain the arbitrary use of political power. The stories we tell, past and present, may help us understand the possibilities that a progressive cadre of lawyers might be able to realise and the limitations inherent in this exercise. Fundamentally, that leads to this question: how much more can be done today and tomorrow with the Constitution as our guiding source?
So, please, read more about why we chose the cases in this book, and we will catch up with you at the Conclusion, when we offer our answers to these questions.
