Should the Courts interfere in Government?

The ANC and its multitudinous affiliates have started a campaign against the Courts ‘interfering in the rights of the Executive’, referring to the numerous cases that have been brought, in particular, against Jacob Zuma. However they fail to ask why this is so.

As in any situation where a problem is identified, the first steps in solving a problem are to define the problem and then to isolate the cause. Only then can any meaningful progress be made in solving it. Politicians seem prone to forget, or simply to ignore, these elementary steps, and the ‘uncouth rabble’ that makes up such a large proportion of Zuma’s supporters suffer from this syndrome to an extreme.

What is the real problem underlying the increasing recourse to the Courts?

The real problem is that the President and the Executive in general have increasingly ignored the laws that govern them, and particularly the Constitution, treating them as bothersome at best, and irrelevant to their elevated status. They have been supported in this by the ANC Party machinery, which seems to be bent, and bent upon maintaining this criminal President in his office of power. The Executive is running wild, and Parliament, under the stranglehold of the unrepresentative ANC’s NEC, supports the illegalities and lunacies. The sole aim of the majority in Parliament seems to be retaining power, regardless of the duties imposed on the MPs to represent the people, by demanding and obtaining accountability by the Executive, and by demanding that the Executive complies in every respect with the law. In the face of this breach of its duties by the legislature, the Opposition Parties and the people have no alternative other than to resort to the Courts to ensure compliance with the law by the Executive.

Examples of this are legion. Nkandla springs to mind as the prime instance where the President and his crooked Ministers abused their positions of power in an attempt to steal from the people, misleading a compliant Parliament by their transparent lies. The only way to ensure that the rule of law was applied was to seek recourse from the Court. Was that wrong? The only thing that could be said to be wrong about the matter was that it was necessary to go to Court to ensure that the law was applied. If the President and his men, from Ministers down to MPs, had complied with the laws in the first place, the Court would not have become involved. The same situation was applied in the default by the Minister of Social Security in complying with a Constitutional Court Order that the contract with CPS was unlawful. She knew the Order, yet she carefully refrained from doing anything to comply with it. When civil society obtained a further Order from the Court to ensure that the social grants would be paid, the Minister was more than surly, and has since declared that SASSA, which was set up with the mandate to ensure that it was able to pay the social grants itself, will not be able to do so within the next five years. That is a remarkable claim, given that CPS was able to set up the mechanism within a year. The statement by the Minister must, in any responsible society, result in another intervention by the Court. The actions of the Minister since the original Court Order would surely have resulted in the Minister being replaced, if South Africa had not been under the quasi-dictatorship of a gang of criminals, and her most recent statement should have resulted in an outcry by all MPs, regardless of Party, against the continued tenure of a Minister who has sown herself to be, at the least, incompetent, yet the ANC cadres have done nothing. Watch this space for the next Court intervention. The most recent attempt to pay Brian Molefe an ‘early retirement’ amount of R30 million, since replaced by a reinstatement of this tainted deployee as CEO of Eskom, with the blithe explanation that placing a man who could never be viewed as a fit and proper person in control of a major driver of the economy, as well as of bribes, finder’s fees and equity participations in contracting suppliers would be cheaper than fighting a Court battle in respect of non-payment of the R30 million after only two years of service. On this basis alone, Lynn Brown should be sentenced to 30 years of hard labour on Robben Island for treating the public as unthinking morons.

Now that it is clear that the real problem to be solved is the ability of the President and his executive to flout the law, it is possible to devise ways to ensure that the honesty, integrity and law-abiding character of the Courts and the Public Protector (sadly, no longer visible, now that Zuma has replaced a woman of integrity with a compliant puppet in the position) are no longer required to ensure that the letter and the spirit of the Constitution will be observed.

The first of these will be to place the appointment of the Ministers and senior officials of State Departments and State Owned Entities under the control of a Committee of Parliament, consisting of an equal number of governing Party members and Opposition Members, with the mandate to determine whether the candidates are fit and proper persons in respect of their qualifications, experience, conduct and integrity, and having the power to terminate their appointment if it is found that such state of fit and proper no longer exists. Such Committee shall make any appointment approval with a majority of 75%. It is not unreasonable to require that at least three-quarters of the representatives of the public trust the people running the activities that are paid by the Government.

The second would be to require that the President be elected independently by a vote by the electorate, after having obtained the approval of the Committee, with the Committee having the right to call a further election of the President at any time if it considers, by simple majority vote (held under conditions of secrecy) that the President has breached the Constitution or his oath of office, which shall be presumed if a competent Court issues an Order declaring that there has been such a breach.

The third would be to replace the current electoral system with one under which the MPs are directly responsible to their electorate, with the right of the electorate, by a petition signed by at least 25% of qualified voters, to demand a new election for that seat. The MPs would have an obligation to report to the electorate in open public meeting on their voting performance every quarter.

The fourth would be to ban any system under which a Party can force or coerce an MP to vote in a particular way. The requirement would reinforce the principle that MPs are directly responsible to the voters in their Ward, and must take directions and advice from those voters.

The fifth would be to reduce the salaries of MPs, Ministers and senior public officials, including their benefits, to a level commensurate with a similar position in the private sphere, and each such person will be subject to a performance appraisal by a dispassionate person. The performance requirements and the appraisal would be available to the public.

In summary, the intervention of the Courts in the affairs of Government is a vital means to hold of Government to account in its actions. The fact that such intervention has been necessary with increasing frequency is the problem, not the fact that a right which is enshrined in the Constitution should be used. The real problem to be addressed is the fact that the Government of South Africa has been captured by a gang of criminals.