That key constitutional institutions have been weakened significantly over the past few years should be obvious to all but the most uncritical of government supporters. As has been noted on many occasions in this column, the National Prosecution Authority is in a shambles.
This was in the spotlight again at the extraordinary Supreme Court of Appeal (SCA) hearing of the president’s appeal against a Pretoria high court decision ordering the so-called “spy tapes” to be handed to the Democratic Alliance, which sought access to them in order to pursue its review of the decision to drop the charges of corruption initially brought against the president. The charges were dropped by the NPA in 2009, just before Jacob Zuma became president.
Within half an hour of the start of the hearing, advocate Kemp J Kemp SC, counsel for the president, was compelled under pressure from the Bench to concede that he had no case.
This prompts the obvious question: If there was no legal basis for the appeal, what, other than delay, was the purpose of an appeal, yet again at the expense of the taxpayer?
Was this a case of the president being provided with very questionable legal advice, or was it another example of the deferral tactics so often employed by him, rather than adhering to the principle of accountability to the public?
Even more disturbing was the criticism the admirable Justice Mohamed Navsa directed at the NPA and, in particular, advocate Nomgcobo Jiba, who was the acting head of the NPA at the time the case began.
Jiba made a deposition in support of the appeal. Navsa was scathing in his assessment of the quality of her affidavit. Tellingly, he observed: “It is to be decried that an important constitutional institution such as the office of the national director of public prosecutions is loath to take an independent view about confidentiality.”
This observation goes to the heart of the problem: institutions that should be independent act contrary to their constitutional mandate. In a democracy that takes its Constitution seriously, such a stinging judicial rebuke would have consequences but few who read this column are likely to hold any such expectations.
This is partly a result of the ineffective nature of Parliament, which in 2014 is a pale shadow of its promising 1994 version, when the country commenced its democratic journey. The recent rowdy conduct in Parliament of the Economic Freedom Fighters (EFF) MPs is hardly conducive to a model of deliberative democracy, as envisaged by the Constitution. But many members of the public appeared to sympathise with the EFF protest when Zuma, for the umpteenth time, sought to circumvent making any comprehensive response to the allegations of hugely inflated state expenditure on his private home.
Responding comprehensively to the findings of the public protector would show a commitment to accountable government, but the president has not done that. And the ruling party, with 62% of the seats in the National Assembly, continues to rally around the president.
The Constitution is based on the principle of a separation of powers between the executive, the legislature and the judiciary. Parliament exists in part to ensure that the executive performs. And, even in cases of independent institutions such as the NPA, one of its functions is to deal with the sort of criticisms made by the court.
But Parliament long ago jettisoned its key role – that of holding the executive accountable to the people.
Can any MP be truly satisfied with a response from the president that he will leave it to one of his ministers to decide whether he should repay any of the cost of the expenditure on his private estate? Small wonder, then, that many citizens who may otherwise be wary of the EFF were not averse to its parliamentary protest.
In this fraught context, the courts are asked to perform much of the heavy political lifting in matters of political controversy. The judgment of the appeal court in the spy tapes case is a brave and vital judgment in ensuring that the constitutional values of openness and transparency are maintained and indeed promoted, the tepid performance of Parliament notwithstanding.
But the courts, staffed by judges with differing judicial philosophies, cannot be expected to save the system on their own.
The consequence of the spy tapes judgment is a fine example. While the appeal court judgment was being analysed, a disappointing judgment in the Western Cape high court in the case of Sanral vs City of Cape Town prevented the long-awaited manifestation of deliberative democracy as envisaged by our Constitution.
Although the case dealt with Sanral’s fight to deny the public access to documents it was compelled to disclose to the city, pursuant to a review of toll roads in the Western Cape, it has had an echo of the spy tapes saga, keeping them out of the public domain – for now, at least.
The court held that, when a litigant is forced by the rule of discovery to provide its opponent with documents in the build-up to a legal hearing, there is an implied undertaking that these documents cannot be made public except when they are already part of the public record.
One would have thought that the concept of open justice, albeit qualified by the Constitutional Court in Independent Newspapers vs Minister for Intelligence Services, would deter a court from circumscribing this important value no more than is absolutely necessary, if only to promote another constitutional value – privacy – particularly when the animating ideas of the Constitution are read as a whole.
Sadly, the contrary position was taken by the court, and the public will have to wait until a review hearing commences before the kind of information the NPA was compelled to hand over to the DA can be made public.
Parliament’s lack of a spirit of independent inquiry and this latest judgment continue to weaken the implementation of the openness that is so critical to our constitutional health.