Body Blows to the Rule of Law from the President and the JSC

It is a bad week for the rule of law in South Africa when in the space of two days President Zuma and the Judicial Service Commission both reveal that they have scant regard for their respective duties to uphold the rule of law. The president is clearly bound by a Supreme Court of Appeal judgment that requires the National Prosecuting Authority to make a redacted record of what was under consideration by it when it was decided to stop the prosecution of the president on over 700 charges of corruption in 2009. The president is preventing compliance with the order by raising spurious and unfounded objections to the production of the transcript of a conversation that was taped by the National Intelligence Agency and came into the possession of his attorney by means that could only be unlawful and which are still shrouded in mystery. This has come to pass because the attorney in question invokes legal professional privilege in circumstances in which no such privilege can possibly exist. How a tape recording that was bruited abroad in the official announcement of the withdrawal can now be regarded as “confidential” is baffling.

The JSC, in its turn, blithely announced the names of the candidates it recommends for the Western Cape High Court, candidates the president is constitutionally bound to appoint, despite receipt of detailed and well founded objections from retired Deputy President of the Supreme Court of Appeal, Louis Harms, who was the proposer of one of the unsuccessful candidates, Jeremy Gauntlett SC. These objections go to the fitness for office of one of the favoured candidates, Acting Judge Dalamo, and the rationality of the refusal to appoint Gauntlett to one of the five vacancies on the Cape Bench. The rationality of preferring Dalamo over Gauntlett and the irrationality of overlooking Gauntlett yet again are raised in the objections delivered on behalf of Judge Harms well before the announcement was made. Very properly, reasons were requested; none have been forthcoming.

The issues raised go far beyond the ins and outs of the two matters summarised above. They go the root of respect for the rule of law and they both reflect poorly on the attitude of two parties, the president and the JSC, who have lost in recent litigation but who choose to continue on their way as if they have not lost. This tends to undermine public confidence in the rule of law. Without pride of place in our constitutional order, the rule of law will wither and be replaced by corruption and its concomitant chaos, anarchy and decline. The resounding words in section 1 of the Constitution which herald our new order and confirm the supremacy of the rule of law and the Constitution ring hollow when so little regard is had to the way in which the courts have ruled in disputes involving both the president and the body charged with the onerous task of selecting and disciplining the judiciary.

It is perhaps prudent to step back from the hostilities in which these body blows have been delivered to examine the meaning and value of the rule of law in a society such as that which is envisaged in our Constitution. There are many definitions of the rule of law, none better or more carefully considered than that proposed by the World Justice Project, which is the international organisation responsible for the promotion of the Rule of Law Index and with it the value of the rule of law itself. The definition to which it subscribes is:

1. The government and its officials and agents are accountable under the law.
2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.”

It can be seen from this definition that both procedural and substantive elements exist in the rule of law. Any order in which rule by law rather than under the rule of law exists does not deserve to be called a rule of law system. This was the case under the old apartheid regime. As former Chief Justice Chaskalson observed at the first World Justice Forum in Vienna in 2008:

“What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair. And the laws themselves were not fair. They institutionalised discrimination, vested broad discretionary powers in the executive and failed to protect fundamental rights.”

The importance of the rule of law to all South Africans is manifest in the warning words of the former Chief Justice. Our society can ill afford to regress to a situation in which unfairness, institutionalised discrimination, over broad executive powers and a general failure to protect human rights once again becomes the order of the day.

Thabo Mbeki’s biographer in “The Dream Deferred” records that there was a fear that Jacob Zuma has “no respect for the rule of law”. There is now tangible evidence that the fear expressed back then, in 2007 and before Zuma swept to power at Polokwane, was well grounded. His oft expressed views on the functioning of the judiciary and his notion that the majority has more rights than the minority betray this.

The position in relation to the JSC is more subtle but nevertheless no less sinister in its import. The Cape Bar Council confronted the JSC after its April 2011 sitting. In the ensuing litigation the Supreme Court of Appeal has ruled that when the rationality of decision making in the JSC is questioned it is obliged to give reasons for its decisions. The giving of reasons is a part of the substantive and procedural “fairness” features of the rule of law. An accountable JSC ought to respect the admonition to do so (as required by the first element of the rule of law) now that it has been spelt out for it by the courts. Instead, it has adopted a “business as usual” attitude and seems hell bent on ensuring the appointments it recommends are made willy-nilly and despite the objections made by Judge Harms.

The Judge’s objections seem well founded. It is rationally inexplicable that a weak candidate with very little experience, a poor track record on efficiency and a disciplinary record consisting of no fewer than 26 complaints to the law society should be preferred over one whose long and unblemished career is described as “stellar” in the proposal that he be elevated to the Bench. In a society that regards non-racialism as a foundational value, let it not be argued that the constitutionally recognised need to take demographics into consideration in appointing judges can be used as a pretext to appoint a Dalamo ahead of a Gauntlett. That would be racism of the crassest kind and has no place in any society in which unfair discrimination on the grounds of race is proscribed in its Bill of Rights. “Consideration” does not mean “ensure” or “account for” despite what Jeff Radebe said in this regard on “Judge for Yourself”.

The rule of law is resilient. Like Mohammed Ali in his famous “rumble in the jungle” it is capable of effective counter punching, even after many rounds of “rope-a-dope”. If the president is well advised, he will drop (like he has his Zapiro litigation) the objections to the NPA complying with the court order and will also refuse to appoint Dalamo until Judge Harms has been given reasons and has had the opportunity of taking the JSC on review, if so advised. If the president does not do the right thing, the rule of law will be tested further.