Judicial activism or politics?
Excuse the pun, but President Thabo Mbeki in his moment of strain as he waved his good-bye after being recalled as the President of the Republic counselled that “… we should never become despondent because the weather is bad nor should we turn triumphalist because the sun shines.”
I hold no brief for President Zuma and indeed the African National Congress. After all, continuing with the analogy of the Chief Justice Mogoeng Mogoeng, they are the David who destroyed the Goliath of Apartheid (at least in its formalistic political sense). They can hold their own. But there is certainly something to be said in the cacophony of the fourth estate that has made normal the narrative of a beleaguered President, and an African National Congress that has lost campus. The maze, ambiance and thick smoke in the political atmosphere is so dense that it is almost tangible. There is a dominant narration, which can be summed up in the words ‘this is a victory for democracy.’ To mind, the real question is: whose democracy?
Some of us argued that the concessions made by the Counsel for the President, the learned Advocate Jeremy Gauntlet SC, whose ripple effects adversely affected the rest of the Respondents in the matter (at the last moment), should not have been made. The concessions were informed by political, rather than legal, tact. The talk by the learned Counsel, to paraphrase, of ‘provisional sentence’ for impeachment of President Zuma therefore necessitating concessions was, with respect, alarmist. Those concessions are, in part, the reason why the Constitutional Court judgment lacks incontrovertible jurisprudential guidance and grounding on the powers of the Public Protector (and by possible implication, so called Chapter 9 institutions).
Contrary to the dominant narrative of the fourth estate, this is not the end of the debate on the powers of the Public Protector. In part, because the Constitutional Court did not engage with the text of the Public Protector Act, it fell unwittingly into the error of failing to explain the nature of the powers of the Public Protector. The Court, in passing, made reference to the possible review of a finding of the Public Protector. There is an implied nuance that a finding of the Public Protector is administrative action. If that is so, then the Constitutional Court, with respect, made an error in law in the order it gave for two reasons.
Firstly, if the report of the Public Protector is administrative action, the report can be subjected to review for reasonableness in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Section 6 of PAJA provides that any person, more so an aggrieved person, in this case President Zuma, may institute proceedings to review an administrative decision. In this case, a Court can review the findings of the Public Protector. Without referencing PAJA, the Constitutional Court said as much.
Section 7 (1) of PAJA provides that “proceedings for the judicial review … must be instituted without unreasonable delay and no later than 180 days.” It is clear that it is more than 180 days after the Public Protector made her findings. On the face of it, President Zuma is out of time. However section 7 contemplates that the delay in coming to Court to review the decision should not be preceded by an “unreasonable delay.” Implied therein is the ability of a party to explain and offer good cause for the delay. In the light of the fact that the question of the powers of the Public Protector was novel, and indeed an important question, at least symbolically expressed by the fact that the judgment was written by the Chief Justice himself, it is conceivable and indeed an option open to President Zuma to approach the relevant and competent Court and ask for condonation for the late filing of his application to review the report of the Public Protector. Given the express right to access to Court provided in section 34 of the Constitution, the fact that the Court accepted that there was nothing improper about President Zuma and Parliament instituting their own investigation processes in consequence of the Public Protector finding, prospects of success, at least in so far as the granting of the condonation is concerned, would have and do exist. Courts do not lightly shut a litigant out for technical reasons, unless there is prejudice to the other party that is not capable of being cured by other means. By ordering President Zuma to pay the amounts in the time lines set by the Court, the Court impermissibly shut the review door for President Zuma. The Court overreached.
The submission, therefore, is that it was not open to the Court to make a structural order instructing President Zuma to make payment as determined by the treasury within the time lines given by the Court. The admission by President Zuma that he will pay back the money because, as he conceded, the report of the Public Protector is binding unless set aside on review, does not mean that he agrees with the substantive findings of the Public Protector, much less, to the amount to be set. The two are not the same. I may agree that a police officer may arrest me because he has the powers to do so in law, but that does not mean I agree that his reasons for arresting me are correct. I will have my recourse and remedy on another day and forum, including a Court of law. Put simply, the submission is that this part of the order, the structural order telling President Zuma to pay in so many days, is susceptible to being recalled as it is clearly incorrect and an overreach. The Court made an order it should not have made. What will happen if there is a real and bona fide dispute of fact on the amount to be paid? The Constitutional Court is not a Court to decide disputes of facts. It is not designed as such. In this sense, therefore, if a dispute arises as to how much in rands and cents should be paid by President Zuma, we are up for further interesting, and indeed legitimate, legal battles ahead.
In the opening, I recalled the counsel of President Mbeki. I cannot help but observe that the triumphalism and jingle bells for the Constitutional Court judgment is astonishing. This is the very same Constitutional Court that has essentially held in the past in respect of socio-economic rights that ‘everyone has a right to everything, but to nothing in particular.’ This is the same Court that in 1997 told Mr Soobramoney, a poor man from KwaZulu-Natal, in Soobramoney v Minister of Health (KwaZulu-Natal) ‘you don’t have a right to health care for dialysis.’ He died a few days later. The same Court that in 2009 told Mazibuko and our people in Phiri, Soweto, in Mazibuko v City of Johannesburg, that they don’t have a right to water. The same Court in 2000 told poor residents of Wallacedene drenched by Cape Town’s winter rains that they have no right to housing in Government of the Republic of South Africa v Grootboom. I challenge the student movement to ask the Constitutional Court for a right to free tertiary education, the labour movement to ask for better wages and living conditions. Let the Economic Freedom Fighters go and ask the Constitutional Court for land without compensation and the nationalisation of monopoly capital. The answer from the Constitutional Court is predictable; an effective “no” from all the eleven Constitutional Court Justices. They will refuse the existence of such rights. Will it still be ‘a victory for democracy’? This is why I ask; in this triumphalism of supposed victory for democracy, whose democracy is it? Is this democracy or political activism given a veneer of judicialism?
03 April 2016
Disclaimer: The views expressed here are solely those of the author in his/her private capacity and do not in any way represent the views of Kaya FM.