Nkosana Sibuyi

Posted by Nkosana Sibuyi: 13 December 2011

South Africa recently celebrated the fifteen years anniversary of the Constitution. When former president Nelson Mandela signed the constitution on 10 December 1996, he bequeathed to us a constitutional democracy to be proud of. Married to this, Deputy President Kgalema Motlanthe’s recent lighting of ‘the Eternal Flame of Democracy’ represents the cenotaph and a site that radiates the latent potential reflective for the common weal for constitutional democracy. It can be inspiring that the document is a personification of excellence. It is an icon of purity. It played a role in the epitaph of constitutional democracy and governance. Doubtlessly, the constitution is a touchstone of uprightness, sincerity and sedateness. It represents an epic moment and timeless phenomenon of change as a permanent process. It continues to exercise the minds of the ordinary and thus invoke memories of law, constitutional dispensation and politics.

Conversely, the Cabinet decision on 23 November 2011 to do an assessment on the transformation of the judicial system and the role of the judiciary in a developmental state to be carried out with a reputable research institution is noteworthy and ambivalent. At the centre of this assessment is to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic. To an ill-trained mind, these proposals sound cunning and long overdue. It could be argued that this decision seeks to affirm the separation of powers enshrined in the constitution. That argument is as desirable as it is fallacious. It may conflate policy development and implementation. Significantly, it must be noted that judges are accountable to the constitution as opposed to the executive or the ruling party in a given moment. Not handled with maturity, this assessment may compromise the bellwether and DNA of South Africa’s constitutional democracy. In this context, the corollary of the constitutional text and practice at the backdrop of the cabinet decision warrants considered analysis and robust reflection.

Two respected legal minds have added their voice in providing clarity to the cacophony of people’s power, role of the courts and role of separation of powers doctrine.

Justice Kate O’Regan, on the occasion of the Helen Suzman Memorial Lecture said that the power of the Executive and the Legislature is being curtailed by courts in policy formulation. President Zuma recently said that those who do not agree with the ruling party are using the courts “to co-govern” the country. Judge O’Regan, in her analysis of the conduct of presidents, contends that the power of the executive, legislature and judiciary is checked or restrained by the other. The silhouettes of the separation of powers do change the grain, landscape and orientation of the supremacy of the Constitution. This objective reality does not in any way arrogate the responsibility of one at the expense of the other in the stewardship of the ideals and founding values of the Constitution.

Notably, Adv Geoff Budlender, when delivering the Bram Fischer Memorial Lecture said “If we were simply to be governed by virtue of the "mandate given by the people in a popular vote" on a five-yearly basis, we would not need a Bill of Rights. We would not need our elaborate Constitution”.

Clearly, the Cabinet assessment ought not to be captured by circumstantial temptations and testimonial betrayal of the imprimatur of the constitution. Further, it must not be misguidedly perceived to be a stratagem for the executive to annex powers whose jurisdiction lie in both the judiciary and the legislature. That would be demonstrably false. It will falsify the content and substance of South Africa’s constitutional democracy. From this standpoint, the nation cannot afford to derive succour from silence and inaction. The nation must take on the holy cows. As Adv Geoff Budlender cautions, members of cabinet are not elected by popular vote but are appointed and serve at the pleasure of the President.

This brings one to William Butler Yeats’ magisterial poem, Second Coming in which he pronounces that the “ things fall part, the centre cannot hold, mere anarchy is loosed upon the world, ceremony of innocence is drowned, surely some revelation is at hand”.

Out of Butler’s poetic observation in a South African context, raises four fundamental interrelated challenges.

Firstly, immanent in this is recognition of the paralysis in the justice, crime prevention, safety and security landscape. This is concretely reflected in the suspension of the national police commissioner, General Bheki Cele, the Supreme Court of Appeal (SCA) declaring Advocate Menzi Simelane’s appointment as the National Director of Public Prosecution (NDPP) “inconsistent with the constitution and invalid.” In the same vein, the appointments of the Chief Justice, Justice Mogoeng Mogoeng, Advocate Michael Hulley and Advocate Willem Heath as the Head of the Special Investigating Unit (SIU) constitute the tomatoes, olives and feta cheese of the justice, crime prevention, safety and security salad seventeen years into South Africa’s constitutional democracy.

There are a number of conventions that could be drawn from the current wretched state of this landscape. Put simply, section 9 (1) of the National Prosecuting Authority Act 32 of 1998 provides that any person to be appointed as national director, deputy national director or director must-

(a) posses legal qualifications that would entitle him or her to practice in all courts of the Republic, and
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned

The Supreme Court of Appeal (SCA) judgment on the inaptness of Advocate Menzi Simelane’s appointment as the National Director of Public Prosecution (NDPP) raises a variety of questions. Do his malfeasance and malleable approach arrogate to him the possibility of being appointed to so crucial a position as the NDPP? Does Advocate Simelane meet the basic requirements for an appointment as the NDPP? When he was appointed into this position on 25 November 2009, what was the content of the legal advice Minister Jeff Radebe proffered to President Jacob Zuma?

Without any compunction, it is patently clear that the president did not receive quality, apposite and sound legal advice at the time. It could be rightly argued that Adv Simelane’s lack of integrity was exposed at the Competition Commission, Ginwala Commission of Enquiry on the NDPP and the report of the Public Service Commission (PSC). The PSC, in a report submitted to former Minister of Justice, Mr Enver Surty on 6 April 2009 recommended a disciplinary enquiry into Advocate Simelane’s conduct. Nonetheless, Minister Radebe disregarded the PSC recommendations on 23 November 2009 by refusing to institute a disciplinary action against Mr Simelane.

Without taking an adversarial complexion and dim view about Mr Simelane, Ginwala Commission of Enquiry Report in to NDPP expressed “displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which was found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.” In essence, the advice offered to the President about Mr Simelane’s fitness and propriety for office did not go “through the eye of a needle” and thus compromises the integrity and decorum of the office of the NDPP. The SCA judgment is both a representative of the cri de coeur of a victory of constitutional democracy, respect, integrity and confidence of the NDPP in the context of the justice, crime prevention, safety and security landscape.

The other critical matter that has not escaped the public mind and discourse is Advocate Willem Heath’s recent interview with the press. In the interview, he made harsh allegations against former President Thabo Mbeki, Bulelani Ngcuka, former national director of public prosecutions and his wife, former deputy President Phumzile Mlambo-Ngcuka. He alleged that “Mbeki initiated Zuma’s prosecution and he dictated to the NPA what decisions they had to take–not only as far as the corruption charges were concerned, but also on the rape case.” The gravity of his allegation, their flippant malleability and wrongness, like Simelane, raises ethical and legal questions about his suitability to hold the office of the Special Investigating Unit. One of the assumptions that could not be ruled out is that, perhaps, this is part of his 100 days plan for his office.

The second possibility is that Adv Heath may be a mere pawn in the Zuma political survival chessboard. Unknowingly, as a disciple of the Zuma Presidency, he may as well be a pawn in the bigger scheme of things. Interestingly, the Presidency has distanced itself from Heath’s statements and postulated that they were “made in his personal capacity”. What does this suggest? It suggests that Heath’s triumphalism on his re-appointment created an excitement that was too complex for him to manage. His conduct is devoid of any respect for his position and the office he leads. Adv Heath’s overzealousness brings into question his fitness, integrity and propriety to hold such a monumental office.

The third interrelated contradiction is the challenge to strike a balance between meritocracy and brinkmanship. Meritocracy as a philosophy proceeds from the premise that appointments into positions must be based on skills, professionalism, competence, merit, aptitude, impeccable credentials and firm understanding of the dynamics of the responsibilities. In time, these are the material conditions that fertilises passion and performance, thus embedding them into our constitutional democracy. This matter has also arisen in the National Development Plan Vision for 2030 in which it is outlined that South Africa needs to gravitate towards building a professional public service and a capable state. It is this kind of approach that Professor Linda Weiss intimated on professional insulation against corruption, political favours, and special interests. All of these are an antidote for more effective decision making and confluence of major possibilities in governance. Insulation, to a remarkable degree, is an anti-thesis of recruitment and promotion on the basis of their political or personal connections.

The third interrelated challenge, relates to the complexity of state and governance. Mesmerised by the frolics of the moment, the inherent paralysis in the justice, crime prevention, safety and security landscape will remain bereft of any dynamic social compact. This calls for change of attitude, latitude and strategic approach. Constructive contestation of ideas on the society we seek to create and become requires scrupulousness and honour. Playing to the gallery and adopting an ostrich approach will not embed values in the affirmation of a constitutional democracy and developmental state.

The last interrelated challenge is linked to the first one. It has to do with power and how it is exercised. Thus, like appointees in the justice, crime prevention, safety and security, the nation’s impulse to embrace meritocracy remains remote. Handled in this way, the public good as the defining benefit of society becomes a cardinal pillar of power in its usefulness. Perhaps Lord Acton was aptly correct when he eminently said: “All power tends to corrupt, and absolute power tends to corrupt absolutely.” The nation must learn the art and skills to confront this paradox in the context of the current socio-political and geo-economic trajectory.

To paraphrase from William Butler Yeats’, surely some revelation is at hand. At the core of state and governance, the inexactness of these complex challenges has reached the end of their tether. It is imperative to learn that the ideal of a free and open society has not yet developed. There is no doubt hitherto that one could hear the knives being sharpened for utilisation during the centenary celebration of the establishment of the ANC. Equally, this will also play itself out at the ANC national conference where the movement would be standing at the edge of precipice. The apocalypse that WB Yeats wrote about in 1919 may come to determine whether or not the ANC will witness another centenary thus depositing to or denying the country a sumptuous scrap.

Following the template provided by the paralysis in the justice, crime prevention, safety and security landscape, the question that arises is whether the constitutional watchwords guide the doctrine of legality and rule of law. The question is whether they remain the orchestra for constitutional ordering, openness, transparency and responsiveness to unashamedly enhance constitutional democracy, civic dignity and administrative justice. Perhaps, Professor Eskia Mphahlele was correct to posit that the odyssey of the imagination and alienation are a concrete allegory of innocence lost and never to be regained.

REFERENCES:

(1) Cabinet Statement. 23 November 2011
(2) Dr Frene Ginwala: Report of the Enquiry into the fitness of Adv VP Pikoli to hold
office of the National Director of Public Prosecutions. 4 November 2008
(3) Prof Eskia Mphahlele. 2002. Eskia. Stainbank and Associates: Johannesburg
(4) Geoff Budlender. People’s Power and the Courts. Bram Fischer Memorial Lecture, 2011
(5) Justice Kate O’Regan, A Forum for reason: Reflections on the role and work of the
Constitutional Court. Helen Suzman Memorial Lecture. 22 November 2011. Johannesburg
(6) Linda Weiss: Transformative Capacity and Developmental States: Lessons for South
Africa. Public Lecture prepared for Policy Analysis Unit/Centre for Africa's
Social Progress, Human Sciences Research Council, Pretoria, 18 February 2010
(7) National Planning Commission. National Development Plan Vision for 2030. 11
November 2011
(8) William Butler Yeats. Second Coming. 1919
(9) The Supreme Court of Appeal (SCA) Judgment: 1 December 2011