Hands off the courts

2010-11-19 00:00

LAST week the DA’s application to remove National Director of Public Prosecutions (NDPP) Menzi Simelane was dismissed by the Pretoria High Court.The footnote status which this major legal event was given by the mainstream media is curious. Judge Pieter van der Byl had to concede: “I am … unpersuaded that it has been shown on the probabilities that Mr Simelane is not a fit and proper person for appointment.”

This comes against the backdrop of a litany of court actions by political parties, including the DA, Cope, IFP and the ANC Youth League attempting to settle in the courts what are really political disputes in need of robust political jostling and/or solutions. If anything the recent dashes to the courts by the DA especially are an indictment of the weak state of opposition politics in South Africa. Why else would they constantly abuse what is a critical tier of the government to settle political scores? This must stop for a number of reasons First, it is not the court’s role to tell the executive what to do. Separation of powers cannot be ignored when it is convenient for a particular political party. Second, critical resources are being wasted on disputes which the DA knows that it won’t win. The legal framework for appointing an NDPP is so open-ended and an opinion by Frene Ginwala has little legal weight. Third, courts are not emotional edifices run by popular opinion. Evidentiary rules and legal principles ultimately hold sway. Lastly and most critically this constant abuse of the courts for political battles makes one wonder why the DA has had a wishy-washy approach towards transformation of the bench that favours the status quo. Could it be that a untransformed bench could help it politically? Van der Byl put paid to that myth.

In 2010 alone we have seen a mad dash to the courts by Cope’s Mosiuoa Lekota and Mbhazima Shilowa seeking an order determining the validity of their office bearers. The ANC Youth Leaguers had to be banned by Luthuli House after they too sought to resolve disputes in court over positions. Zanele Magwaza-Msibi is hoping that the IFP may be saved from the intensive care unit by Judge Chiman Patel in Pietermaritzburg. Fundamental tenets of political success globally are party discipline, electoral appeal, financial strength and solid manifestos. Court orders, no matter how erudite, cannot infuse these tenets into an otherwise dead donkey of a political party. Its political success is ultimately a benefit derived from affection from its electorate and core constituencies. No court order can force the electorate to vote for a dwindling party or a has-been leader or give a party credibility. However, hard work, clear policies, proven anti-graft strategies and a can-do attitude can give any party a kiss of life.

I hold no brief for Simelane but we must give credit where it is due. As a South African citizen, taxpayer and someone skilled in the law, I can only laud Simelane for his prosecutorial work against former KZN head of Treasury and Ithala Bank CEO Sipho Shabalala and his “amigos” along with Intaka Group head Gaston Savoi and John Block in the Free State.The allegations against these individuals are disgusting. How do people in the public service amass that kind of wealth other than by fleecing taxpayers? The matter is sub judice but there is definitely a dark cloud of smoke billowing that besmirches the integrity of the public service in this country. If Simelane, against the odds of the bookmakers, is doing his job, who are we to begrudge that?It is widely known how rotten the tender and procurement system of business is, that stuffed brown envelopes abound and that recipients of many such tenders do not actually do the work that they receive millions of rands for. In fact my own doctoral work on economic justice in South Africa has established that tenderpreneurs are the second biggest threat to service delivery after incompetent bureaucrats. Surely this is what the opposition parties should be dwelling on, not wasting courts’ precious resources and time? The backlog in criminal cases is shocking. To borrow from the pro-Block brigade, “hands off the courts”. Of course the ANC’s greatest strength is its greatest weakness. Within its humungous ranks it is hardly surprising to find intellectuals, political mavericks and men and women of principle in bed with buffoons, kids, alleged thieves and opportunists. Instead of capitalising on what is a gaping political hole represented by shocking corruption allegations, parties like the DA, Cope and the IFP can only rush to the courts. In a climate of such fractious and demented opposition, Jacob Zuma, whatever his weaknesses, will dance all the way to the next ballot box.

If there is a lesson to be learnt from the latest round of DA versus Simelane it is that judges are terrible politicians. Van der Byl may have tried by all means to soothe the audience by noting his reservations about Simelane but ultimately emotions count for nothing when a final binding decision is made. Richard Posner in one of my favourite books, How Judges Think, has posited that there are organisational, economic, psychological, sociological, phenomenological and legalist grounds for why judges decide the way they do. Unfortunately, at times the legal framework is so vague or cast in stone that no amount of forum shopping, prayer or legal bazookas can result in a different conclusion. Just as the ogre of floor crossing was removed from South Africa’s political landscape, so too can this disturbing trend of the abuse of courts for political ends be stopped. A word of advice to the lifeless, limping opposition: start kissing babies, maybe learn a dance move or two, but most importantly, seduce the disaffected voter. That is what wins votes and hearts lately. Judges are not politicians.

• Kevin Sifiso Malunga is a Johannesburg-based advocate and independent legal analyst who lectured law at the then University of Natal.

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