​Pace of lawfare will pick up in the year ahead

The shift from political warfare to lawfare continued apace in 2016. The most prominent example of this development was the decision of the Constitutional Court in the Nkandla case. The result was a foregone conclusion once counsel for President Jacob Zuma conceded that, in the absence of a review by a court, the recommendations of the public protector in a report published by her office are legally binding.

It was, however, in the wording of the judgment and the critical observations made concerning the conduct of the president and the executive that the true significance of the judgment can be found.

There were other important cases: the conduct of the government in refusing to comply with a warrant from the International Criminal Court to arrest Sudan’s President Omar al-Bashir, the controversy about street names in Tshwane, the decision that Hlaudi Motsoeneng can hold no office in the SABC until a proper disciplinary hearing takes place and the constitutionally mandated approach to affirmative action — all followed a similar pattern.

Two cases that were argued and decided by courts in 2016 will be prominent in 2017. In the first, the Supreme Court of Appeal (SCA) overturned a decision of the Pretoria high court, which ordered that a terminally ill patient was entitled to be assisted to die by a medical practitioner who had consented to do so.

The SCA found that, because the applicant died before the order was granted, and because the record produced in the case was wholly inadequate to bear the weight of so important and controversial a decision, the order had to be set aside.

Of greater long-term legal interest was the following passage from the appeal court judgment: “A court addressing these issues needs to be aware of differing cultural values and attitudes within our diverse population. It needs to consider the impact of its decision beyond our affluent suburbs into our crowded townships, our informal settlements and in the vast rural areas that make up South Africa.

“It is in that context that it must determine whether its decision will further undercut the foundational value of the right to life or be supportive of it. The notion of a dignified death must be informed by a rounded view of society, not confined to a restricted section of it. This was not done in this case and could not have been done because of the inadequacies of the evidence and the haste with which it was decided.”

This case is likely to proceed to the Constitutional Court this year. In the light of the extremely cautious approach of the appeal court to the development of the common law to deal with the controversial issue of euthanasia, even in the restricted context described in the high court, it will be interesting to see how the Constitutional Court deals with the approach of the SCA as articulated in the quoted passage.

The second case is far more of a political time bomb. Last year, a full bench of the Pretoria high court held that the decision of the then acting national director of

public prosecutions, Mokotedi Mpshe, to drop 783 corruption charges against Jacob Zuma was irrational — hence the charges had to be reinstated.

The judges went further and refused to grant leave to appeal. The appeal court granted Zuma the right to argue why leave should be granted and, if he was successful, why the order of the high court should be set aside.

If the appeal court follows the approach of the high court, Zuma has but one final throw of the dice: an approach to the Constitutional Court. If this is rejected, Zuma could find himself in the dock.

The current prosecutions boss, Shaun Abrahams, may decide to reject the court order. Even for Abrahams, this would be a significant bridge to cross. On the other hand, the courts could find for Zuma, but the precedent already established is hardly in his favour.

There are three cases about to be heard in the high court that hold similar political implications.

The Pretoria high court will hear the application of Minister of Finance Pravin Gordhan for a declarator that he cannot interfere with decisions of commercial banks about who they accept as customers. Although the report that Gupta-related companies had engaged in suspicious transactions (in the amount of R6.8-billion, according to the Financial Intelligence Centre), as mentioned in the court papers, the relevant legislation prevents their public disclosure. Nonetheless, the response of the Guptas to this application will prove to be more than interesting.

Zuma has already launched a review application against the recommendation of the public protector, pursuant to her State of Capture report, that a judicial commission be appointed to investigate startling allegations about the role of the Guptas in critical state institutions.

This case promises to raise at least two interesting issues: What is the position on a decision to appoint a judicial commission, which is a power given to the president, when the president is one of the subjects of the allegations? And what justification will the president offer for doing nothing in the face of the serious case for investigation, and in the context of the constitutional values of transparency and accountability?

Early in 2017, the Cape Town high court will hear a case dealing with the government’s nuclear policy, which, on the face of it, will impose staggering financial burdens on the country.

Again, this case is likely to go all the way to the Constitutional Court, but even this earlier stage of litigation will cast much-needed light on government’s intentions.

The year ahead will once again see the courts in the front lines of political battles.

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