/ 25 June 2024

The role of public perceptions in strengthening our constitutional democracy

Lady Justice
Statue of Lady Justice at Roemer

Our constitutional democracy embraces, among others, the value of public participation and dialogue. Reasonable minds can, and indeed should, differ — but differ reasonably. Certainly, when it comes to matters of the Constitution, points of divergence must be constructively expressed — the spirit of collaborative constitutionalism requires as much. 

This “spirit” is echoed in the salutary Statement of Intent of our new government of national unity (GNU), which underscores, among others, the need for “nation-building”, “social cohesion”, “peace and stability”, “accountability, transparency and community participation in government”. The GNU also commits itself to the principles of “integrity, good governance and accountable leadership”.  

These commitments are most welcome. And, insofar as public participation is a “check” on the machinations of government — be it via NGOs or the academy — such “checking” must also be done with a degree of comity and professionalism.

Where differences of opinion play out in the media, proper “checking and balancing”, is especially important. That is to say, because the media is our precious fourth estate, it is vital that it be well-placed to provide commentary that is balanced, accurate, and hence, justifiable and defensible. For the purposes of this particular contribution, legal accuracy — and thus justifiability — is the ultimate objective. 

It is, however, unfortunate that this follow-up contribution has been necessitated by a piece delivered by Paul Hoffman in the nature of a cross-examination. Be that as it may, for every cross-examination, there must be a reply. This contribution is that reply and it is one that states the law plainly and clearly, indeed as it is reflected in our law books and law reports. 

Hoffman commences his piece by stating that, “the law is quite simple: the anti-corruption machinery of the state, among other attributes, is required to be independent of executive interference”. While the legal principle so expressed is accurate, the statement that, “the law is quite simple” is not. 

South African law — particularly constitutional and administrative law — is in fact rather complex, nuanced, layered and fast evolving. But this is not to say that it cannot be clearly and accurately distilled. After all, this is a core part of the work of an academic, who often fulfils this role as a delicate kind of “check” on the judiciary itself

So, what does Hoffman have to say about the law and what does the law — properly, purposefully and holistically considered — actually tell us? 

Hoffman laments the government for “behaving” as if it is not “bound” by the constitutional court’s majority finding in Glenister II. This allegation is made because the Investigating Directorate Against Corruption (IDAC) has been brought into being under the National Prosecuting Authority Act, as a permanent body, while we still hope for the establishment of a standing anti-corruption body in chapter 9 of the Constitution. 

Hoffman dismisses the relevance of the case of Sonke Gender Justice (“Sonke”) to a consideration of Glenister II, in a throw-away, bracketed line. Yet these cases must be read together — certainly insofar as they pertain to all bodies that fulfil oversight roles, and which, by virtue of their nature as such, must all be independent. This is important to ensure proper detection, prevention and combating of all manner of corruption, in a multi-stakeholder approach. 

Furthermore, we operate in a common-law tradition and case law must be read and analysed holistically, and as it evolves. Glenister II was handed down over a decade ago and its principles have since been built upon by our apex court. 

The Sonke court rebooted and reloaded the Glenister II style of reasoning in finding that the Judicial Inspectorate of Correctional Services — a statutory watchdog or oversight body and not, as Hoffman would have us think, a mere “inspecting judge of prisons” — failed the test of adequate independence, within the meaning of Glenister II.  

But the ripple effects of Glenister II do not end here. As recently as September 2022, the court in AmaBhungane applied Glenister II to the issue of political party funding. Judge Steven Majiedt, writing for a unanimous constitutional court, noted that:

In Glenister II, this court extensively explicated on the state’s international commitments and obligations in section 7(2) of the Constitution, to combat and prevent corruption. It said, albeit in the context of the need to establish an independent anti-corruption unit, but equally relevant here.

Glenister II is thus back with a boom — it is here, there and everywhere. But what did the majority in that case actually hold? 

The first point to note is that it held that there is a duty on the state to act reasonably in creating effective and “efficient anti-corruption mechanisms”. Further, the court found that the effectiveness of such mechanisms boils down to a determination of their attributes of structural and operational independence.

The emphasis on the plural, “mechanisms”, in the aforementioned quote is deliberate. The court in Glenister II did not insist upon, nor envisage, only one such “mechanism”. This is precisely why the applicants in Sonke relied on Glenister II, and why the court saw fit to apply its principles to political party funding in AmaBhungane

Second, the Court in Glenister II — as reiterated in Sonke — emphasised that there are “many ways” in which the state can fulfil its duty, and the courts “should not be ‘prescriptive as to what measures the state takes, as long as they fall within the range of possible conduct that a reasonable decision-maker in the circumstances may adopt’”. As we have previously argued, there is no actual, evidentiary reason to suggest the IDAC is not such a reasonable and effective measure.

Third, in giving meaning to the requirements of independence in Glenister II, and again in Sonke, the court did so, in part, by virtue of its consideration of “other independent institutions”. In Glenister II, the court stated that, 

“To understand our native conception of institutional independence, we must look to the courts, to Chapter 9 institutions, to the NDPP, and in this context also to the now-defunct DSO. All these institutions adequately embody or embodied the degree of independence appropriate to their constitutional role and functioning.”

Of course, the Glenister litigation ensued because the “DSO” — or “Scorpions” — which in fact operated successfully under the prosecuting authority, was disbanded and replaced with the “Hawks” and so instead located within the South African Police Service. 

This very point is indicative of the status and position of the prosecuting authority within our constitutional scheme. And one should not conflate the matters of constitutional status, positionality, and hence independence of state institutions, with how they operate in practice — certainly not practice of the past. 

Our apex court has, since the dawn of democracy, repeatedly emphasised the “constitutional guarantee of independence” of the prosecuting authority . Which is why, in considering the independence of anti-corruption, and other oversight bodies, the court has often looked to the likes of “the Chapter 9 institutions”, the judiciary and the “prosecuting authority”.

This brings us to our fourth point in response to Hoffman. He states that the NPA, like the police, is a “component” of the “public administration”. This is a patently incorrect, and deeply disconcerting, assertion. The prosecuting authority is not part of the public administration. 

Indeed, for this very reason, the Promotion of Administrative Justice Act, 2000 — read with applicable case law — explicitly excludes decisions pertaining to the institution and/or (dis)continue of prosecutions from the remit of reviewable “administrative action”. This is, in part, due to the importance of “safeguarding the independence of the prosecuting authority by limiting the extent to which review of its decisions can be sought”. 

Furthermore, the prosecuting authority is not an executive adjunct. It is constitutionally enshrined in chapter 8 of the Constitution, the “Courts and Administration of Justice”. And, like the judiciary and the Judicial Service Commission — the other two state institutions included in chapter 8 — it too must act independently and without “fear, favour or prejudice”. 

The prosecuting authority is in fact an Integrity & Accountability body of the highest order in our constitutional scheme. As such, it falls under the fourth branch of the South African state — and it is high time it be recognised, respected, capacitated and used as such. 

The prosecuting authority itself seems to be trying its best to act in furtherance of integrity and accountability. As we usher in this new era of multi-party democracy, let us encourage such efforts, rather than quash them without good cause.

Lauren Kohn is a legal scholar in various public-law fields. She is Young Research Fellow of the University of Cape Town where she lectures in, among others, administrative and constitutional law. Kohn is also an admitted attorney of the high court of South Africa with over a decade of experience in public-law advisory work.

Theunis Roux is professor of law and head of the School of Global and Public Law at the University of New South Wales, Sydney. Before moving to Australia, he was the founding director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law.