Have the courts taken over the executive?

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Judge Bashier Vally has just ruled that President Jacob Zuma must within five days, provide reasons for the cabinet reshuffle. The Judge ruled he must hand over “record of all documents and electronic records, including correspondence, contracts, memoranda, advices, recommendations and reports that related to the making of the decision?” The ruling has prompted a flurry of mixed reaction on Twitter.

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Some are already assuming the ruling could see the reinstatement of former Finance Minister Pravin Gordhan.

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UDM’s Secret Ballot Case

Next week the ConCourt will hear the United Democratic Movement’s application that it forces the ANC to vote in a secret ballot in the next no confidence vote against Zuma.

Writing in the City Press on the UDM’s secret ballot application, this is what Vuyani Ngalwana said:

“I have been wondering whether the vocal people baying for Zuma’s blood – at almost any cost – have any idea what they are asking for, and what they will do with it if they get it.

Let me explain.

I have learnt in the media that an opposition political party comprising a handful of members in the National Assembly has approached the Constitutional Court to seek an order directing Speaker Baleka Mbete to decree that a vote of no confidence in Zuma be done by secret ballot. The rumoured basis for this is that ANC MPs may feel intimidated by their party and not vote freely.

If this is the relief that is sought from the court and it is granted, I believe that our constitutional edifice will be in grave danger. Here is why.

– First, I know of no provision in the Constitution that confers upon a court the power to instruct Parliament on how to conduct its business.

In fact, the Constitutional Court acknowledged this in unmistakable terms last year in the Nkandla judgment when it said: “It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish and which mandate to give them, for the purpose of holding the executive accountable and fulfilling its oversight role of the executive or organs of state in general.

“The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly. Ours is a much broader and less intrusive role. And that is to determine whether what the National Assembly did does, in substance and in reality, amount to fulfilment of its constitutional obligations. That is the sum total of the constitutionally permissible judicial enquiry to be embarked upon…

“Courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution. It is therefore not for this court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved.

“At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the other arms of government.”

The rules of Parliament confer a discretion on the Speaker regarding the mechanics of how Parliament can go about fulfilling its constitutional obligations.

So, if the Constitutional Court were to order a secret ballot as a mechanism for the vote of no confidence in this president, would that not be an encroachment on the powers of the Speaker and, by extension, Parliament?

– Second, it is reported that Mbete’s response to the application is that she has no discretion to allow a vote of no confidence by secret ballot.

That appears to be an incorrect appreciation by the Speaker of her powers because rule 103 of the parliamentary rules clearly confers that discretion upon her.

– Third, it is one thing for a court to compel a decision maker to exercise her discretion judiciously; it is quite another to compel her to exercise it in favour of the particular wishes of a litigant.

The former is perfectly permissible and happens often. The latter seems to me impermissible as the court may as well make the decision for the decision maker and be done with it all. That would be the beginning of the end for separation of powers.

– Fourth, many South Africans – some for honest and patriotic reasons, others for disingenuous and politically convenient reasons – want Zuma gone. I, too, want him gone because I do not view him as an ethical leader.

But a vote of no confidence in the president has failed at least twice in Parliament, ostensibly because ANC MPs are not keen to vote openly against their president – and themselves.

So, the opposition runs to court to change the voting mechanism in the hope – and nothing more – that the result may be different this time around. This would be a corruption of our constitutional system. We should be careful of running to court to change the rules to remove one president.

What happens when a good, ethical and well-loved president is under siege by his own party, whose members are eager to remove him anonymously so that party apparatchiks can loot state resources without hindrance from a frugal president?

Will we rush to court to have this judgment set aside as being inconvenient, arguing it was meant for Zuma?

– Fifth, if parliamentary rules, or the empowering legislation, or the Constitution is an impediment to the removal of a corruptly propped-up president, does the remedy not lie in amending the rules or legislation or Constitution, instead of adopting a scorched earth approach, which could have constitutionally disastrous implications, for short-term political gain?

– Sixth, and on a pragmatic level, even assuming the Constitutional Court grants this order, the Constitution requires not only the president but also his entire Cabinet and deputy ministers to resign in the event of a successful vote of no confidence. Which of the 70-odd ministers and deputies, and their hangers-on in Parliament, will vote themselves out of a job by secret or any form of ballot? Is the constitutionally questionable gambit worth the not-so-guaranteed prize?

We must face the truth and our own demons. The majority of us made this Zuma bed. We must now lie in it. We knew his shortcomings when we voted for the governing party, knowing he was to be president.

At the time, many of us were eager to rid ourselves of a president we considered “aloof”, “arrogant” and “too clever”. We got what we desired in his place, proudly pronouncing him an “unstoppable tsunami”.

Now that he lives up to our expectations, we want to drag the court into a political problem of our own creation to change the rules to remove him.

This is wrong. That it is targeted against a president with a phobia for former finance minister Trevor Manuel’s amorphous markets does not make it right.

Ngalwana SC is based at the Duma Nokwe Group of Advocates and is a member of the Johannesburg Society of Advocates

 

 

10 Comments on "Have the courts taken over the executive?"

  1. Jeff Koorbanally | May 4, 2017 at 8:50 pm | Reply

    This is a wake up call!
    The time has come for all people of color to mobilize & unite to give the ruling party the two third majority to change the Constitution.

    Its my humble view that our constitution has lots of flaws and loop holes in terms of separation of powers.

    The fact that the courts are accepting these applications is proof thereof.

    This suggests that those that negotiated and drafted the constitution failed us !

    In term of the Secret ballot application on the vote of no confidence against the President, its also becoming clear that the court has jurisdiction over the matter, hence will rule in favor of the opposition.

    If the ruling party fails to see this as a regime change campaign, then let them vote in favor knowing that they all going down with the President as the writer correctly spelled it out.

    They also need to acknowledge that they will be betraying our trust as voters that put them there, and further acknowledge the fact that they will also be betraying our liberation movement, and if they can live with their conscious then let it be!

    We are told that its democracy! But that’s not the Democracy we fought for, its not the one our brothers & sisters died for, then maybe the time has come for us to restart the struggle for real democracy, if we die doing so, let it be.

    • Pinky Khoabane | May 4, 2017 at 9:18 pm | Reply

      Jeff, I am about to write a piece about a judiciary that let’s its citizens down. We have a social contract by which we expect it to mete out the rule of law and if they fail to uphold their side of the contract, there will be a revolt.

      Kindest

      PK

  2. PK, I think that is the only way to go. Revolt.
    And what is this Pravin Gordharn doing for DA to want him back so Much? Obviously selling out to White Monopoly Capital. What we must do as progressive people of South Africa, we must mobilise that Pravin Gordharn doesn’t go back to government as a finance minister. We did not vote for the courts, we voted for President Jacob Zuma. If courts want to be opposition to the government of the day, they must register as a political party which will be contesting for the elections in 2019. We are sick and tired of this DA nonsense and the Constitutional Court is doing nothing about it. We much stand up and do something about it.

  3. All progressive people including BLF are urged to take a stand against this government sabotage by the DA. We must stop this Pravin Gordhan glorification as the only God who can rid South Africa of all its financial problems.
    There has already been two financial downgrading by these rating agencies under his watch.
    So why does the DA see him as a messiah of the South African economic well being?
    There is something very sinister here and if we don’t open our eyes, the DA and the COURTS are taking us back to the apartheid era slavery. Why did the DA not take the South African Banks who corruptly fixed the R/$ exchange rate.
    We must stop this madness as people who really care about the well being of the poor or the vultures will win and will feast on us again, like they did in the difficult times of unjust apartheid government regime.

  4. ANC Youth League, ANCWL, MKMVA please assist to restore this democracy we fought so much for or the Kangaroo Courts which have different rules for different people of South Africa and the DA are taking over and we will be back to square one. SLAVERY.

  5. People who are opposing DA’s actions are by far many than those who endorse it but because most of them are poor, they cannot compete with the supper rich corrupt monopoly capitalists from the DA. We must be their voice.
    So, if the courts think that they want to support the DA
    corruption of ruling this country through the courts, then they must be open with us and tell us that they are now on the site of opposition parties like the WMC controlled mainstream media did (remember Cmrd Motale fired by the Citizen Newspaper for not supporting this crazy idea of media player anti-government
    stance).
    This is terrorism but because it is meted out by the people who are supported by the West to the people hated by the very West, it is not considered as such.

  6. The doctrine of seperation of powers was clearly enunciated in the Nkandla judgement.

    Today, l find the cabinet reshuffle judgement baffling as it contravenes the very Constitution that DA purports to defend. The judge was too excitable to the extent of wandering into the Executive terrain. The Constitution is clear as regards the duties of the President of which appointing Cabinet is his exclusive prerogative. The President need not consult anyone nor give reasons for exercising that role.

    What then makes it different this time around? There is no laid down person specification for one to be a minister so the question of rationality falls away. And rating agencies are no factor in appointing Cabinet. Otherwise the courts may as well appoint Cabnet.

    The judge got carried away in the euphoria of opposition politics and wanted to be an overnight celebrity. Naturally this judgement must be appealed right up to the ConCourt if needs be.

    • Pinky Khoabane | May 5, 2017 at 7:55 am | Reply

      Gazebo, I completely agree with an immediate appeal. The president’s legal team should not be wasting any single minute to save our country. Otherwise there will be a revolt in this country.

      Kindest

      PK

  7. I like the twitter comment Afrika Mkangala who says let the judiciary expose itself so that there can be sufficient ground to fix it. Whilst thinking of a way forward on this saga, in the meantime let all progressive forces organise a day’s march to the unConstitutional Court to voice our suspicion of ‘capture’ of the judiciary.

  8. Jeff Koorbanally | May 5, 2017 at 10:00 am | Reply

    Its clear that the constitution & the judiciary system does not recognise the black people in this country, our will and wishes in our majority to put a government in place to fight and protect our rights is undermined and disregarded by the DA, Courts and their coalition partners.

    Yes I agree,
    “ Revolt” is the only option left.

    The DA has made it crystal clear that they are not willing to live in peace and harmony with us, but want us to continue being slaves of colonialism and apartheid system.

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