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How has the most recent judgment concerning Advocate Busisiwe Mkhwebane, affected this vital cog in the democratic framework, asks Hugh Corder.
The South African body politic continues to be characterised by considerable levels of constitutional turbulence. We need reminding that, provided that the overriding objective is the achievement of our constitutional values (we strive to be a participative democracy which stresses "accountability, responsiveness and openness") as set out in Section 1 of the 1996 Constitution, such a troubled state need not give cause for grave concern.
We have experienced episodes of great constitutional strife in the past which we have survived (such as the titanic struggle between the courts and Parliament over the removal of the non-racial franchise in the 1950s). Those who drafted the new constitutional dispensation recognised that a range of mechanisms was needed to address the "democratic deficit" of the past.
Thus it was that the Public Protector’s office was established in the interim constitutional dispensation from April 1994, as one of the "State Institutions Supporting Constitutional Democracy". Appropriately, given their contentious role, the Public Protector is given security of tenure during their seven-year non-renewable term of office. The Public Protector must investigate allegations of unlawful executive and administrative action, and recommend remedies. The actions of a Public Protector cannot be taken on appeal, only reviewed on grounds of exceeding their authority, procedural unfairness (including bias), and irrationality. Each of these concepts, in law, raises complex questions and arguments, and is generally not capable of a simple answer.
How has the most recent judgment concerning the incumbent, Advocate Busisiwe Mkhwebane, affected this vital cog in the democratic framework? In upholding the decision of three judges in the Gauteng High Court that Mkhwebane should pay 15% of the costs of one of the opposing parties, the Constitutional Court has sent a very clear signal of its intense disapproval of the manifestly unlawful manner in which she conducted her investigation. Judges do not lightly make such orders, especially when the target of such a judgment is a public office-bearer whose mandate is the upholding of public accountability.
The majority of eight justices in the Constitutional Court was aware of the possible "chilling effect" of its stance, but sought to reassure both the Public Protector and the public that proper compliance with the lawful limits of her authority would insulate her (and future Public Protectors) from the fear of such an order in future. There are many other strands of legal contestation dealt with in the court's judgments, which cannot be explored here. Suffice to say that the implications of the judgments are serious, and sober reflection is needed by all affected.
Another milestone in political 'lawfare'
What preliminary lessons can we draw? First, this judgment marks yet another milestone in the "lawfare" which marks our political life, being the use of the courts to achieve authoritative decisions in fiercely contested constitutional battles. While this use of litigation is constitutionally endorsed, too-frequent a resort to the judicial process in such matters places the judiciary in the cross-hairs of party political arguments, and risks exposing the courts to unwarranted attack from the losing political faction.
Even more so, and as trenchantly stated by the Chief Justice in a dissent in late 2016, the judges may be tempted by the patent injustice confronting them to intervene when it is not constitutionally proper to do so. This "judicial overreach" goes counter to the doctrine of the separation of powers, and might invite Parliament to consider curtailing the courts’ authority or tempt the executive to take steps to undermine the courts. Let me state emphatically that in my view the judiciary has thus far acted courageously and within the bounds of its constitutional authority in finding time and again against those who have acted unconstitutionally. So the courts have not "overreached", but this remains a potential danger.
A threat to 'judicial comity'?
Second, while it is to be expected that highly-contentious disputes will be met with divided opinions in the judgments of an apex court such as the Constitutional Court, there are signs that collegial tensions within the courts are being expressed in a manner which is seldom resorted to by judges. "Judicial comity" is the quality of mutual respect among judges, which implies that judges use temperate language and refrain from unduly critical or dismissive sentiments in their judgments, particularly about their fellow judges.
In his dissent, the Chief Justice (joined by one other justice) on occasion employs an unusual degree of passionate forthrightness in attacking the High Court judgment in this case, and by implication the majority justices in the Constitutional Court. Does this apparent exasperation reflect wider divisions within the judiciary as a whole? We would do well to monitor this aspect of the judicial process.
Finally, the ten justices who heard this case in the Constitutional Court included four who are "acting". Acting justices are appointed when justices are on leave, ill, or serving in another official capacity, such as chairing a commission of inquiry. However, it is unusual for such a high proportion of justices to be serving in an acting capacity, and this is a less than ideal situation for a number of reasons.
Vacancies in the Constitutional Court have not been filled for at least two years, but the Judicial Service Commission (JSC) finally interviewed applicants for two positions in early April this year, after which a list of five recommended candidates for appointment was sent to the president. While President Cyril Ramaphosa is required to consult with several constituencies before appointing the new justices, he has so far failed to act, which is perplexing, given the inherent instability caused by the continued prominence of acting justices in the Constitutional Court, especially when it is being called on so frequently to resolve highly divisive socio-political issues which generate great public interest.
Of one thing we can be certain, given the nature of our political processes and the constitutional steadfastness of our judiciary to date, there will be many more Constitutional Court judgments in the coming months which will attract controversy and impact on the political terrain. This is not a constitutional crisis, but rather represents the travails of a constitutional dispensation in its "adolescent" phase of development.
We all owe the judiciary strong support based in a nuanced understanding of their role in our constitutional democracy, because those who seek no restraints on their pursuit of power and wealth are not committed to the Constitution and will not hesitate to attack the courts at every turn.
- Hugh Corder is professor of Public Law at the University of Cape Town.
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