By Pinky Khoabane
A JUDICIARY that has either “overstepped” its mandate or a case of corruption in the judiciary or both? These questions took centre stage following Judge Bashier Vally’s ruling that President Jacob Zuma had to give the Democratic Alliance reasons why he fired former Finance Minister Pravin Gordhan and Former Deputy Finance Minister Mcebisi Jonas. The two were fired in a cabinet reshuffle with several other ministers and deputy ministers several weeks ago.
Since the advent of our democracy we’ve been schooled about our democracy as a constitutional democracy which espoused the doctrine of the separation of powers. This principle was made clear in the ConCourt Nkandla ruling:
“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.”
This ruling has been quoted extensively in assisting us understand this doctrine of the separation of powers. It would be impossible to imagine that Vally doesn’t know it.
We’ve also learnt that the Constitution of the Republic confers upon the President powers to appoint his Cabinet without the obligation to disclose his decision to the opposition.
And the question then becomes why Vally would decide to rule in the manner that he did – asking for the executive to explain the Cabinet reshuffle to the Democratic Alliance (DA).
We’ve come to hear from some law experts that the doctrine of separation of powers is not absolute. We now learn that executive decisions must be rational hence the courts can demand and rule on rationality. This gets very interesting. Why was the rationality in appointing a finance minister with a purportedly pharmaceutical degree not questioned and why was the decision to appoint the most academically qualified finance minister in the appointment of Des van Rooyen questioned? I say purportedly since the jury is still out on whether Gordhan did get that qualification. This is not the view of the so-called conspiracy writers – Africa Check reported on this: https://africacheck.org/reports/yes-van-rooyen-is-the-most-academically-qualified-of-zumas-finance-ministers/. But it is not only Gordhan’s appointment as member of the cabinet that is open for debate and whose rationality or lack thereof could have been questioned – it is every member of a cabinet – and this is simply because the appointment and firing of cabinet members is a purely political decision.
Vally’s Ruling Subjective and Political
Vally’s ruling has no legal basis and many law experts – including those that hate Zuma – have already made this decision. It is subjective, political and smacks of a corrupt judiciary. There will be those who will call this an attack on our judiciary but the truth is that this judge has joined the opposition in using the courts to play politics. What Vally is doing is to try and assist the Democratic Alliance to establish the reasons behind their chosen man’s sacking. They want to bring the President to talk about the much talked-about intelligence report which he supposedly used to fire Gordhan and Jonas. The question is whether the President’s decision was based on the report as purported in the media?
Should we question Vally’s political background and his links to the South African Commercial, Catering and Allied Workers Union (Saccawu) which together with some unions have been calling for Zuma to step down?
We also know that the judiciary is corrupt and again this is said by a judge president.
Addressing the Africa Uniting Against Crime anti-corruption conference last year, Judge President of the Gauteng High Court, Dunstan Mlambo said corruption was seeping into government institutions, law enforcement and the courts. “We must prioritise corrupt offences in justice institutions,” he was quoted as saying at the time.
“I don’t want to say that there is no corruption in our ranks. When you look at the evidence presented to you, it comes to me as head of the court. I see these things and I say, I can’t keep quiet.
Social contract between all arms of the state and its citizens
It took an “insignificant” incident to topple Tunisia’s former president, Zine Al Abidine Ben Ali’s regime of 24 years.
It began with an altercation between a policewoman, Faida Hamdy, who confiscated the wares of street vendor Muhammad Al Bouazizi because he was allegedly trading without a licence.
Bouazizi was a 26-year-old unemployed college graduate who had chosen not to join the “army of unemployed youth” and was instead selling fruit on the side of the road.
During the altercation, the policewoman slapped him.
The young man had had enough. He set himself alight in protest.
It took this incident to spark a revolt that would reverberate across the Arab world and topple dictators who had for years trampled on the rights of ordinary citizens.
In the week in which we saw the extent to which the judiciary once again failed its citizens here at home, we ought to heed the lessons of the Tunisian revolution. It will take one “insignificant” event for reasonable citizens of South Africa to declare that enough is enough.
Whether it’s the decision by Judge Colin Lamont to side with racist Afriforum and ban the struggle-song “Dubul’ibhunu” or Vally’s to side with the DA, citizens will rise-up and revolt against any pillar of the state that does not uphold its side of the social contract.