Ann Eveleth
THE Durban High Court ruled this week that President Nelson Mandela has the right, if he chooses, to appoint biased and partial commissions of inquiry, and that citizens have no legal recourse to oppose them.
The ruling by Judge Ron McLaren followed the leak of documents from a secret October 1996 meeting between Education Minister Sibusiso Bengu, four members of the University of Durban-Westville (UDW) council and Durban attorney Linda Zama. Zama is a member of the commission of inquiry appointed last May to investigate unrest on the UDW campus.
The documents, described by the court as “aides-memoires”, suggested that the participants planned to use the recent problems at the university to justify ministerial involvement in the appointment of a new vice- chancellor. They also mention establishing an “intelligence network” on the campus.
UDW’s Combined Staff Association (Comsa) and nine other individuals, including six Comsa members and three students, had gone to court seeking an interdict to prevent Zama from participating in the commission, arguing that her participation in the meeting was “unlawful” and suggested her role in the commission was not impartial.
But delivering judgment after a tense day of argument, Judge McLaren dismissed the application with costs, saying the court “has no power to interfere with the composition of the commission or to grant the relief sought by the applicants”.
Judge McLaren said in his judgment that “it is the prerogative of the state president to decide who to appoint to a commission … If the commission is comprised of non-impartial members, it is the status of the commission which will suffer.”
Observers said the judgment was likely to cause renewed conflict on campus after six months of calm
Comsa’s counsel Archie Findlay, SC, argued that the interim Constitution — applicable when the commission was formed in May 1996 — assured citizens a right to “lawful and fair administrative action” against the absolute nature of presidential prerogative held by previous governments.
But the court heard that Deputy President Thabo Mbeki, who in Mandela’s absence had signed the proclamation appointing the UDW commission, had invoked the 1947 Commissions Act.
The act enshrined presidential prerogative with respect to the operation of the commission and its terms of reference. Only the office of the president could determine whether such a commission was bound by the Constitution or other rights.
Quoting historical cases, Zama’s counsel, Malcolm Wallis, SC, said the nature of presidential commissions of inquiry was such that they were not legally binding judicial bodies, and that the constitutional protections demanded by Comsa did not apply to their operation. The commission was “merely an advisory body to the executive” and its functions were therefore not open to judicial review.
Judge McLaren further accepted Wallis’s contention that Comsa and its fellow applicants had failed to prove that their application was “urgent”, or that Zama’s conduct, or the contents of the secret meeting, were “sinister” or in any way compromised the work of the commission.
“[Zama] gave unchallenged evidence that she told [Bengu] she did not want to discuss the manner in which the commission does its work … she said `I deny that I have a pre- determined policy, perception and agenda with respect to the university … My involvement at UDW and in the commission is dispassionate and professional,'” Judge McLaren said.
The judge added that even if he did have the power to grant relief in terms of the application, he “would not exercise that power in [the applicants’] favour”.
Describing the application as “ill-founded”, he suggested that Comsa should give evidence to the commission in terms of subpoenas issued to several of the applicants the commission has accused of criminal and/or disciplinary offences.
Comsa has boycotted the commission since its inception and within weeks of the commission’s appointment sent letters to commission chair Johann Gautschi and Mandela alleging Zama and co-commissioner Jerry Coovadia could not be impartial.
Responding to the court ruling, Comsa said: “While the Constitution of South Africa gives us certain rights and protections, the court refused to help us … The struggle to keep political interference out of education has begun.”
But Bengu this week blamed “a small element” of people for trying to dislodge the commission and said this was “because they have something to hide”. He denied the meeting had been “secret” and claimed the minute-taker had been “creative” in his record of the proceedings.
UDW vice-rector Pitika Ntuli said it was ironic that the campus had been the “most united in its entire career” in the week preceding the exposure of the secret meeting.
“Then the document hit our desks with the suggestion of the possibility of the creation of a network of spies, with serious questions for academic freedom. To even suggest such a thing raises a spectre we have just emerged from in the dark days of apartheid. After months of building a united front between students, Comsa and management, that document has come like a bolt from hell’s kitchen, barbequeing our hopes for this campus.”
University of Natal constitutional law professor Kathie Govender, who is also a member of the Human Rights Commission, said the courts had been divided on the issue of presidential prerogative in the post-1994 era, with two judges coming to opposing conclusions in separate cases.
“What one is saying is there is an area of executive competence which is beyond the constitution,” she said. “I’d have been safer with a ruling that says the court does have jurisdiction to constrain the president’s actions.”