Complex choice: A Black Sash member outside the constitutional court during the social grants hearing. Even though the tender for the payment of social grants was awarded irregularly, annulling it would be the greater social ill for poor people. Photo: Alon Skuy/Sunday Times/Getty Images
The rule of law is a founding value of our democratic state, alongside equality, human rights and freedoms, non-racialism, non-sexism and regular elections. So says section 1 of the Constitution. Many South Africans rely on it and believe that it stands between us and the abyss.
It has been criticised by opportunistic fake intellectuals as “Western” and “foreign to Africa”. One should be open to philosophical and legal notions different from what we are used to. But, could we ever survive in a society ruled not by law but by the will and wishes of an absolute monarch, dictator, mob, or warlord with the most machine guns?
Our courts have dealt with it. Modderklip farm near Benoni was illegally occupied by thousands of people. The owner obtained a court order to evict them. Neither the sheriff nor the police were willing and able to execute the order.
Their numbers, and the problem, grew by the day. The owner approached the Pretoria high court for an order against numerous respondents, including the president, police, army, municipality and government departments, to evict all the occupiers by a specified date. Compliance would have been impossible. Eviction was ordered.
The supreme court of appeal overturned the judgment and ordered the municipality to purchase the property. Afterwards it could consider the future of the occupiers. The constitutional court confirmed this. At the core of its decision was the rule of law. Court orders cannot be ignored and left to fade into nothingness.
Like rights, values sometimes compete with one another. Difficult choices and hard thinking then become necessary.
In the first All Pay case the constitutional court found that the tender awarding the payment of social grants had been granted irregularly. What now? To deem the contract that had resulted from the unlawful process valid and keep it alive would violate the rule of law. To annul the contract would require a new tender process, leaving millions of old and other poor people without their only income for many months — a matter of life and death. The Constitution protects the rights to life and to human dignity, another founding value.
In a long, complicated order the court suspended the invalidity of the contract and attempted to regulate and speed up the process to bring about a new legitimate contract. The warring parties returned to court several times. And the minister, Bathabile Dlamini, landed in hot water.
Earlier, the Azanian People’s Organisation challenged the legislation behind the truth and reconciliation process. Perpetrators of politically motivated crimes during apartheid, who fully disclosed their actions, received amnesty against criminal prosecution.
As in, for example, Chile and recently Colombia, the weighing of justice and the rule of law against the need for peace and reconciliation is never easy. The legislation was based on the interim Constitution though. The constitutional court upheld it.
Many suspected perpetrators did not receive amnesty, or did not even apply. The lack of prosecutions over more than 20 years has caused anger. About the task team in this regard, announced by the justice minister last year, nothing or little has since been heard. The national director of public prosecutions, Shamila Batohi, reportedly conceded to a parliamentary portfolio committee in December 2021 that many cases may never be prosecuted.
Getting away with murder, quite literally. And, what about those perpetrators who shamed themselves and their families by graphically and tearfully illustrating to the world the atrocities they had committed? Was their respect for the law unnecessary, naïve and foolish?
For the law to continue to “rule”, it must be seen to do just that. It must be applied by state institutions with the power and duty to do so. Appropriate sentences must follow criminal convictions. Proper sentencing takes extenuating and aggravating circumstances into account.
There is even room for “a measure of mercy”, in the words of a former judge of appeal. But mere forgiving and forgetting, based on a lack of political will, incompetence, laziness, corrupt motives, or even universal love, is out.
Absolute objectivity is humanly impossible. Fairness is the best that judges can achieve. This is crucial for the rule of law.
But it sometimes seems as if courts, to be seen to be fair, lean over so far backwards to accommodate the “Stalingrad” tactics of former president Jacob Zuma, suspended public protector Busisiwe Mkhwebane and others, that the image of the courts is tarnished.
To avoid accusations of favouring the presently dominant faction of the ANC, courts may appear to be captured by the Stalingraders, who use legal procedures to evade or postpone justice “until Jesus comes” — in the words of Zuma in his heyday.
Their endless technical points and applications even for the rescission of judgments against them, on grounds way outside the ambit of the rules on rescission, are often entertained by courts.
Judicial colleagues in several Southern African states followed last year’s attempt to have the constitutional court’s judgment about Zuma’s imprisonment rescinded — including advocate Dali Mpofu’s lengthy verbose onslaught on law and logic — with bemusement, amusement, shock and fear for the future of law in Africa.
What is going to happen to those “very promising suspects” (in Woody Allen’s words) in our sad saga of state capture and corruption? The Zondo commission pointed some of them out. Several crimes, from fraud to money laundering and technical financial offences, appear to have been committed. Here is no need to weigh the rule of law against food for the poor or peace and reconciliation.
Much has been said about the danger and immorality of not prosecuting suspected state capturers. Retribution is a perfectly acceptable aim of criminal punishment. People want it. This is not revenge, for which there is no place in a respectable legal system; as also for the primitive urge to see an old man being humiliated and pining away in a prison cell.
The message to aspirant wrongdoers that crime pays, or that the powerful are above the law, is an important consideration, but not the main one. To punish merely to deter others, to use people as social engineering tools, is grossly utilitarian and violates human dignity. Ultimately the rule of law is at stake. Inaction and failure by law enforcers can destroy it.
Some progress has been made. Zuma stands accused before the high court on the age-old arms deal. The case has repeatedly been postponed. Former SAA board chair Dudu Myeni pleaded guilty on a charge of defeating the ends of justice and was fined R200 000. The Estina dairy farm case has been withdrawn. The apparent plan is to re-enroll it, with Atul and Rajesh Gupta added as accused, once they are extradited.
According to Anton du Plessis, Batohi’s deputy, the Investigating Directorate (ID) has “enrolled over 20 matters and charged 65 accused”. The Asset Forfeiture Unit has obtained freezing orders to the value of R5.5‑billion, including a restraint of R3.75-billion regarding Optimum Coal Mine, a major Gupta asset.
According to rumours, allegedly originating from within the ID, former senior Eskom and Transnet officials would have been arrested last month. Not so. In this newspaper Emsie Ferreira reported on serious concerns about capacity inside the National Prosecuting Authority to pursue the Nulane Investments fraud and corruption trial, on which the Gupta extradition application rests.
In an interview, Batohi stated that state capture cases had been prioritised. She pointed out that there had to be reasonable prospects of a conviction before suspects are charged.
A criminal court is not a commission of inquiry. All the elements of a crime, including intent, which implies knowledge that one’s conduct is unlawful, must be proven beyond reasonable doubt. This is not easy in complex commercial matters.
Acquittals by courts, even if only on the basis of reasonable doubt, will be portrayed by the accused as victory, proof of their innocence and that Chief Justice Raymond Zondo was captured.
But a “winnable case” does not build itself. Dedication, skill, persistence and hard work over long nights are required. Please save our rule of law.
Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
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