Increasingly, the courts are being called on to settle disputes that should be dealt with by other constitutional or political institutions.
Jacob Zuma. Picture: REUTERS/Rogan Ward
SA is awash with court cases between political actors. Hardly a week goes by without a civil society organisation or a political party approaching the courts on important matters of national concern.
Just to take the most important, President Jacob Zuma is appealing against the ruling that the 783 fraud and corruption charges were erroneously dropped way back in 2009. There is a court case on the topic of whether a commission of inquiry should be set up as recommended by the public protector into the state-capture report. There is now a court case pending on the investigative unit established at the South African Revenue Service, and a separate case on whether the head of the National Prosecuting Authority, Shaun Abrahams, is fit to hold office. There is a similar case on whether the head of the Hawks, Berning Ntlemeza, is fit to hold office after he lied in court under oath.
Behind this bewildering number of cases lies a deep constitutional issue, the notion of a separation of powers between the operational, legislative and judicial arms of government. Increasingly, the courts are being called on to settle disputes that, arguably, should be dealt with by other constitutional or political institutions.
Parliament is notionally the institution that should be holding the executive to account, but because it is failing in this duty the only real alternative is to seek redress in the courts, which are strictly speaking, not designed to solve these kinds of problems. The Nkandla report of then public protector Thuli Madonsela is a case in point. The ANC in Parliament refused to heed opposition warnings that the remedial action ordered by Madonsela was binding and that attempts to bypass it would be unconstitutional. It went ahead and adopted a resolution absolving Zuma of repaying any of the money spent on his Nkandla home in defiance of the ordered remedial action.
In the end, the Nkandla saga went all the way to the Constitutional Court, where it was found that both Zuma and Parliament had failed to respect the Constitution. Had Parliament’s ad hoc committee not been so hell-bent on protecting Zuma and, had it applied its collective mind to the law, this should never have happened.
In far too many other matters, the executive is challenged for abusing one of the most basic principles in the Constitution: that there should be wide consultation with the public before executive actions are implemented. This simply should not happen and if it does, it should fall to the appropriate committee in Parliament to get the minister to go back to the drawing board and consult.
A significant part of the problem is that for the past 22 years SA has been a kind of one-party dominant state in which the ANC could dominate parliamentary decisions with the use of its huge majority.
Also, the proportional representation electoral system, which places all the power in the hands of the party bosses, means there is no space for MPs to vote against the party line and still keep their jobs.
As in the Nkandla matter, when the governing party abuses its majority and takes unconstitutional decisions, there is literally nowhere to go but to the courts. But this should not involve every decision that the opposition does not like.
It was, for instance, correct to go to court over the presence in the National Assembly chamber of police officers who evicted the opposition EFF forcibly. The challenge to the withdrawal from the International Criminal Court, in contrast, was arguably premature.
The courts should not be the first port of call in a political dispute, but if Parliament continues to defend the indefensible then, at times, dissenting voices will have little or no option.
This article first appeared in BusinessDay on 22 November 2016.
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