Putting men and laws in their place

When the Supreme Court of Appeal on Thursday struck down President Jacob Zuma’s appointment of Menzi Simelane as national director of public prosecutions it did more than cite the constitutional and common-law basis for its decision. It also moved explicitly to respond to escalating political attacks on the role of the judiciary.

Zuma, ANC secretary general Gwede Mantashe and Deputy Correctional Services Minister Ngoako Ramatlhodi have all complained loudly of late about what they say is judicial encroachment on the executive sphere.

And lower down the party hierarchy the drums are being beaten in a campaign to rein in the judiciary and repudiate basic constitutional principles that subordinate legislative, administrative and executive action to those of legality and rationality.

The basic thrust of the argument is crude and clear: the majority party and its president were chosen by the people and that mandate is a grant of authority that ought to supersede all else. In an increasingly common variant of this proposition any failure of transformation, job creation and wealth redistribution is to be laid at the door of “reactionary” courts, rather than government policy.

The idea that underpins these propositions is that the Constitution represents a compromise by the ANC, a surrender of both power and principle at the negotiating table that should now be reversed.

It is, of course, a falsification of history.
It was the ANC’s own team in constitutional negotiations that insisted on the deep, rights-based structure of our founding law. As Cosatu general secretary Zwelinzima Vavi pointed out apropos the Protection of State Information Bill this week, constitutional values are “the core values of the ANC and the democratic movement as a whole”.

Responding to the Democratic Alliance’s contention that Simelane was not a fit and proper person to be the national director of public prosecutions, or at least that Zuma did not properly apply his mind to the question of whether he was, the president’s counsel responded with a variant of the “hold back the judges” argument that sought, perversely, to cloak it with constitutional authority. “The president is the choice of the people. The Constitution vests in him the power to apply his value judgment and appoint a national director of public prosecutions who meets the objective criteria.”

On the contrary, as Justice Mohammed Navsa explained, “the Constitution empowers those who govern and imposes limits on their power — Institutions and office bearers must work within the law and must be accountable — ours is a government of laws and not of men and women.”

In the late Etienne Mureinik’s celebrated formulation, the Constitution demands a “culture of justification — in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command”.

In ignoring all the questions swirling about Simelane’s honesty in the wake of the Ginwala Commission, Navsa writes: “The president took a decision in respect of which he ignored relevant considerations. By so doing, he misconstrued his powers and acted irrationally.”

To correct this, he argues is no subversion of democracy. On the contrary, the court protects the essence of democracy when it sets aside laws or decisions that conflict with the constitution.
To gainsay that, is to retreat to culture of pure authority—and that road, thank heavens, is debarred us.

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