Mondli Makhanya: We are a country of laws

2017-12-17 06:10
Mondli Makhanya

Mondli Makhanya

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The strategy and tactics document prepared by the ANC for its policy and elective conferences this year contains the following prescient passage: “Instead of being the centre of transformative and ethical rectitude, increasingly the ANC and the government it leads have occasionally to be directed from elsewhere – in the manner of ‘lawfare’ – to do right. The moral suasion that the ANC has wielded to lead society is waning; and the electorate is starting more effectively to assert its negative judgement.”

How apt, especially considering the events of the past 14 days in the courts of the land. On Friday last week, the Pretoria High Court delivered a blow to President Jacob Zuma and Shaun Abrahams, the national director of public prosecutions. Declaring Abrahams’ 2015 appointment to be invalid, the court found that he aligned himself with Zuma and that it was clear Abrahams had been placed in that position so that Zuma could achieve his objectives “through unlawful means”. This, the court said, was “inconsistent with his prosecutorial independence”.

“Unlawful” and “reckless” were words used to describe Zuma’s conduct during the whole saga. This is something that anyone could have told the president and his advisers. But, as the strategy and tactics document pointed out, they had to be directed from elsewhere to do right.

“Reckless” was again the word that came up when the same court ruled against Zuma’s application to set aside former public protector Thuli Madonsela’s State of Capture report.

The court said his application was underpinned with “reckless misconception” and that he was “seriously reckless” to pursue it. He was “reckless and acted unreasonably”, the judges added. Zuma had no “justifiable basis” and “no acceptable basis in law” to either challenge the release of the report or persist with his efforts to “stymie” it.

Another word the judges used was “implicated”.

“The president is implicated in the State of Capture report and is at the centre of allegations regarding the Gupta family’s involvement in the appointment of Cabinet ministers,” they said when ruling on why he should have no role in setting up the commission of inquiry into state capture.

They added that Zuma’s son Duduzane’s “business interests are heavily implicated by the allegations regarding the award of contracts by state-owned enterprises to Gupta-owned businesses”.

In the personal costs order ruling, the phrases “flagrant disregard”, “clear abuse of judicial process” and “grossly remiss” were on the judges’ lips.

Again, as the strategy and tactics document pointed out, he didn’t need the court to guide him on this. As head of state, he should have been so appalled by the state capture allegations that he should have acted in the interests of the republic. And once his name was mentioned, he should have removed himself from the scene.

His own party, the ANC, should have helped him come to this conclusion, but instead backed him all the way.

On Friday, the ANC was dealt huge blows by the courts. The KwaZulu-Natal and Free State provincial executive committees were dissolved and some branches in the latter were barred from sending delegates to the conference. In North West, the courts disqualified 50 ANC branches from attending the national conference. All of these rulings by the courts – which are averse to interfering in internal party affairs – arose because the ANC failed to do the right thing.

Firstly, provincial leaderships should not have acted in a manner that could have been perceived as rigging by their own members. Once the problem came to the fore and persisted, the national leadership should have acted to resolve the issues before they became full-blown crises. None of this happened, and the courts became the final arbiter on the eve of the conference.

At least – this time – the ANC at the national level has reacted soberly and constructively to the judgments that went against its leader and its structures, encouraging Zuma to do the right thing.

But the satellite organisations that house the party’s fong kong firebrands just don’t get it.

ANC Women’s League leader Bathabile Dlamini, who insists she does not drink alcohol, reacted less soberly.

“Those that are in chapter 9 institutions should not assume the role of political parties. Once they assume that role, political parties are not going to keep quiet. They are going to fight, and fights can be very rough in the political scene,” she threatened.

This lowly newspaperman’s advice to the judges is that they should take heed. Nobody wants Dlamini to get “very rough” with them.

The ANC Youth League accused the judges of “judicial overreach” and of “trying to influence the outcomes of the national conference”.

ANC KwaZulu-Natal secretary Thanduxolo Sabela said: “We are the delegates, we are not going to be influenced by some judge seated somewhere with deep hatred for radical economic transformation.”

What they don’t get is that they should be celebrating the strength of our world-class judiciary, which is the fruit of the democratic era over which the ANC has presided.

We should all be proud of the fact that we are a country of laws with a strong judiciary that protects the rights of all and should be trusted by all.

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