A number of developments this week have offered yet another reminder of how fragile is our reliance on judges to hold society together.
First of all we have had the Heath debacle. The “Caped Crusader” was humiliated twice over the past week. We had Trevor Manuel playing cat and mouse with him, making fun of his somewhat inflated claims as to his value to South Africa in terms of rands and cents.
The judge’s boasts in this regard always smacked of an excusable, if not judicious, exercise in spin-doctoring aimed at protecting his unit and its budget. Manuel’s decision to lay the pretension bare is justifiable from his perspective, and we can also understand the temptation of the former anti-apartheid activist to take time off his busy schedule to enjoy some fun with a former Ciskei judge. But we are not sure the minister needed to take the joke so far as to involve the auditor general.
The second setback for Judge Willem Heath and his team, leading to the withdrawal of litigation against the Minister of Health, Dr Nkosazana Zuma, with regard to the Sarafina II affair was more serious. Judge Heath has attributed the reversal of the decision to the last-minute advice of newly hired senior counsel who seemingly discovered an unforeseen hitch to the case lurking in the Constitution.
We must confess we have had some difficulty in discovering any part of the Constitution which affects the long-held (if little- recognised) burden of responsibility where ministries are concerned – that financial responsibility lies with the director general as accounting officer and, in all but extremely unusual circumstances, the minister shoulders purely political responsibility.
There might well be a case for Zuma’s resignation on grounds of political responsibility (a step, incidentally, we would applaud for putting the national interest, by way of precedent, above personal ambition). But it falls considerably short of a charge of financial maladministration for which monies are recoverable.
The latter is not a charge which should lightly be levelled at a minister of state. The fact that it has been laid and withdrawn by Judge Heath points to a gung- ho approach by his unit which suggests a time may be looming when it needs to be called to closer account with regard to its methods and its efficacy in the fight against corruption.
The other setback for confidence in the judges lies with the Constitutional Court ruling on bar-coded IDs. At a practical level, particularly in light of the party list system, the Independent Electoral Commission’s insistence on these IDs might not be seen as an assault on the democratic system. It could be argued it is sufficient that a “representative sample” of voters will be consulted. But one might as well cede elections to market researchers.
The right to vote is so fundamental to democracy that practicalities are hardly the issue. If the government was sufficiently confident about access to the bar-coded IDs as to rule the older ones no longer valid, we might take a different view. But the fact they have not done so points to a tacit admission that numbers of citizens are likely to be deprived of the vote in breach of the Constitution. Democracy, particularly in the light of our history, must surely be an inclusive process.
We sympathise with Judge Kate O’Regan in her dissenting judgment, against that of Judge Zakaria Yacoob, with which Judges Arthur Chaskalson, Pius Langa, Laurie Ackermann, Richard Goldstone, Tole Madala, Yvonne Mokgoro and Albie Sachs concurred. The respective judgments cover 48 closely reasoned pages, so we can hardly do them justice here. But the following extract, on a key issue relating to the requirement for legislation to be “reasonable”, gives a taste of the majority decision:
“Decisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive competence of Parliament. This is fundamental to the doctrine of separation of powers and to the role of courts in a democratic society. Courts do not review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is not rationally connected to a legitimate government purpose. In such circumstances, review is competent because the legislation is arbitrary.
“Arbitrariness is inconsistent with the rule of law which is a core value of the Constitution. It was within the power of Parliament to determine what scheme should be adopted for the election. If the legislation defining the scheme is rational, the Act of Parliament cannot be challenged on the grounds of `unreasonableness’. Reasonableness will only become relevant if it is established that the scheme, though rational, has the effect of infringing the right of citizens to vote.”
With due respect to the distinguished judges, it is difficult, when faced by such reasoning, to avoid being reminded of the observation by the Russian revolutionary writer Victor Serge, after listening to an examining magistrate for the Cheka in 1920: “I followed his argument with the blank uneasiness which one might feel in the presence of a logical lunatic.”