SASSA HORROR: An era of impunity under President Zuma

2017-03-02 09:50

Democracies corrode apace when those in government begin to willfully undermine and ignore court rulings. In recent years, South Africans have relied heavily on the courts to curb the excesses of this current administration. The apex court in our judiciary system is the Constitutional Court. Once this court gives a judgement directing what ought to be done, no one can disagree nor pretend such judgement does not exist.

Ignorance of this court’s rulings is unfortunately not bliss, it is tantamount to breaking the law and the Constitution letter and spirit. In a democracy, being at odds with the constitution (an expression of our social contract) should delegitimise you in the eyes of the public, especially when you are unwilling to implement the requisite corrective action. This attitude, to undermine the Constitutional Court, can only indicate that a person or a collective of implicated people have resigned themselves to lawlessness and wish to become a law unto themselves. Such should be rejected and resisted strongly by the public, especially when those that commit such conduct claim to be representatives of the people.

The South African Social Security Agency (SASSA) debacle is another addition to a growing number of instances where the executive thinks it can ignore or dribble judgements of our courts. We saw this with the SABC debacle, where Minister Faith Muthambi would insist on playing dirty tricks to find loopholes in order to appoint Hlaudi Motsoeneng to Executive positions all in the name of exercising power and trying to give the judiciary a middle finger – that finally came to a halt (for now at least). We saw this with the urgent court order given in 2015 for the arrest of Omar Al-Bashir and how the South African government played dirty tricks to whisk away Al-Bashir using backdoor tactics back to his home country. The ANC’s refusal to remove President Jacob Zuma through Section 89(1) of the constitution following the serious Nkandla judgement.

SASSA was told in 2013 by the Constitutional Court that its contract with CPS for the latter to handle payment of grants was unlawful. The court took the view that for the state to meet its constitutional obligations to the most vulnerable in our society, it would allow SASSA to continue using the unlawful contract until such time that a re-run of the tendering system was done and a service provider appointed anew. It is now more than three years and nothing mandated by the highest court in the land has happened. Now, panic and pandemonium abound as the impending reality of a possible non-payment of grants hovers upon society. This is a catastrophe that would affect over 15 million recipients of grants. It is of course to add, a potential political calamity for the governing party to fail its obligation to its biggest constituency.

However, this is not surprising. Some politicians in the governing party have pronounced themselves criticising what they call “judicial overreach” – simply implying that the judiciary is beginning to mandate the executive on what to do. But as former Deputy Chief Justice put it aptly once saying that courts do not bring matters for adjudication before the bench themselves. It is citizens and different organisations, who feel paralysed and failed by the political mechanisms of accountability that often take matters that can be resolved elsewhere to the courts.

While it is important to focus on whether or not grants will be paid out come 1 April 2017, what is more urgent is to pose the question: What next when the executive begins to willfully undermine and ignore judgements of our courts? Does this not risk us sliding to a state of lawlessness, wherein citizens might no longer find the recourse promised and delivered by the judiciary when all else fails. What type of government do we have? Is it still pro-poor? If so, why would it risk placing in jeopardy the lives of so many poor people? Finally who must account for this breach of the constitution? In April 2014 a court order handed down by the Constitutional Court clearly stated that SASSA should “initiate a new tender process for the payment of social grants within 30 days” of that order, a process that would lead to the securing of a new service provider that would render services to SASSA for five years. Clearly had this been done we would not be here.

It is not enough to point fingers at SASSA’s Executives alone. The minute the Constitutional Court made its ruling, given the seriousness of the matter, the President and his Cabinet should have seen to it that the corrective measures mandated by the Court are effected timeously and expeditiously. This did not happen. Indeed Earl Warren was right when he said “law floats in a sea of ethics”. Unfortunately ethics cannot be legislated. If we have leaders whose moral compasses no longer function, they will compromise the promise of law as a corrective mechanism to wrongful and unlawful conduct. This SASSA debacle is a growing testimony on how the years under Zuma’s leadership are corroding our democracy, undermining and ignoring the importance of the rule of law and most unfortunately they are starting to place our courts in a precarious position.

If courts can hand down judgements that can be ignored the rule of law diminishes in its significance. If the Constitutional Court hands down judgements that can be ignored, our very own constitution is threatened and our rights as a people start to be rendered meaningless. This places us at risk of a new untenable social order. We ought to resist such manifestation.

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