Even the government is entitled to exhaust legal remedies in asserting its rights, writes Eric Mabuza
There are serious but unsubstantiated allegations against the African National Congress-led government in Jonathan Berger’s article “So much power, so little rule”, which appeared in your publication of April 5. The theme of his article is that the government is engaged in a concerted effort to undermine our constitutional democracy, the independence and integrity of our judiciary. These contentions need to be challenged.
Berger argues that the government’s response to the order of Judge Chris Botha (the execution order) has been to “engage every available legal process[es] and technicality to delay the inevitable provision of health-care services”.
This contention reveals his misconceived appreciation of our legal system. Berger ought to be aware that, however unpalatable it might be to him, even the government is entitled to exhaust all available legal remedies in asserting its rights, including appealing to the Constitutional Court. This is hardly novel in our legal system. It appears Berger does not like the workings of our legal system when such mechanisms seem to be an inconvenience to his objectives. It is said the wheels of justice grind slowly.
Berger further argues that the government’s “[a]buse of court process, however, does not tell the full story”. This argument has no merit. If the government’s appeal against the execution order constituted an abuse of court process, that is, was dilatory, superfluous or vexatious, the Constitutional Court would have unequivocally said so and would have also indicated its disapproval of the government’s conduct by making an appropriate cost order against it. Our courts use this remedy against vexatious litigants.
Whether or not Judge Botha made a policy decision when he ordered the government to make nevirapine available to pregnant women with HIV who give birth in the public health sector will soon be resolved by the Constitutional Court. Berger will agree that it is important that the court brings finality to the question of whether courts have powers to tell the government how to allocate the country’s health budget.
Berger omits to mention to the readers that, by granting leave to appeal against his decision on the merits, Judge Botha accepts that he might be wrong in his decision of ordering the government to provide nevirapine to HIV-positive pregnant women or differently put, that a different court might come to a different decision. If he thought otherwise, he would have refused the application for leave to appeal as he did in the application for leave to appeal against the execution order. Then, how can ventilation of such an important issue by the Constitutional Court be branded “an assault on the Constitution”, as Berger suggests?
Without providing any evidence whatsoever, Berger makes a startling contention that “the state has vigorously sought to undermine judicial independence and integrity”. I challenge him to provide evidence of the state’s interference in judicial independence and integrity. The government unequivocally accepted the ruling of the Constitutional Court on the execution order. On the contrary, we see evidence of the government’s efforts to improve the working conditions of the judiciary, provide access to courts, make the Bench more representative, and so on. In response to the government’s call of “vuka uzenzele”, members of professional bodies are helping to reduce the backlog in our courts (by rendering services in our courts for free during court recess). Does Berger want us to believe that these professionals would lend a helping hand if they thought that the government was undermining the independence and integrity of the judiciary?
We recently witnessed a fiercely contested presidential election in the United States. Appeals and counter appeals were lodged to different courts of that land by the contestants. This process did delay the finalisation of the election. No credible commentator suggested that the processes adopted by the protagonists constituted an “abuse of the courts” and/or that it was sought to “undermine judicial independence and integrity” and/or that either contestant “engaged every available legal process and technicality to delay the inevitable” pronouncement of the winner of the election. One wonders why Berger has a knee-jerk reaction when a similar process to the one described above is adopted in this part of our world. This is real politics, my brother. Berger’s knee-jerk reaction contributes very little towards the attainment of the desperately sought national consensus but merely fuels fear, pessimism and paranoia in the minds of ordinary men and women of our country.
Lastly, Berger argues that the state “values control at the expense of human life”. If the government is uncaringly and letting its people die as he suggests, then it will surely be voted out of office. We do have credible opposition in this country to take over the reigns of power. Berger must accept the notion that, in this new political climate, a liberation movement can or will lose an election if it ceases to be the voice of the people. However, ordinary men and women of our country have stories to tell about how their lives were improved (however moderate) by the government’s efforts in general. These people will continue to be a true barometer of whether or not the government has become uncaring when they cast their votes in the next election.
I accept Berger’s right to express criticism against the government without fear, favour or compromise, but only when he has his facts correct.
Finally, on a lighter note, perhaps it was not such a coincidence that Berger’s article appeared alongside that of Professor Sipho Seepe as they seem to share a passion for vilifying the government. Suffice to say that both of them should be prepared for a gloves-off response from us, your readers.
Eric T Mabuza practises as an attorney in Johannesburg