Introduction
The recent High Court Judgment handed down by Justice Chris Nicholson, in favour of Jacob Zuma and against the Director of Public Prosecutions, has been used by those aligned to the President of the ANC, and indeed by the ANC President himself, as evidence of his innocence. This is both to misrepresent the Court's findings and to ignore a far more fundamental culpability: that is, the systematic perversion by the ANC of those institutions of state designed to be independent.
Accepting the possibility that the Judgment may be overturned, it is convenient for those whose political purposes are best served by its findings to forget that collusion - like bribery - is by its nature an act which involves two parties; and, if there was interference by the executive, there must too have been compliance by the National Director of Public Prosecutions (NDPP) and the National Prosecuting Authority (NPA). And that compliance would, no doubt, have a been consequence of the NDPP's political affiliations which, in turn, were allowed to exist - in whatever form - as a result of the ANC's cadre deployment policy, first adopted by the ruling party in 1997.
Jacob Zuma served as the head of the ANC's deployment committee, a position and system he has defended not only as Deputy President of the ANC, but also of the country. The very instrument through which the state has systematically been subverted is the one Jacob Zuma now claims he is a victim of. And to ignore that problem - the ANC policy that underlies executive interference - is to ignore the ultimate threat to our democracy and the institutions designed to safeguard it.
Indeed, so saturated are current affairs by political agendas and machinations that, often, the careful and considered opinion of the Judiciary enjoys but a fleeting moment in the public eye, before the next scandal or political conspiracy wipes it from the slate of public debate. As a result, Judgments are not properly scrutinised, and the findings they contain are simply acknowledged instead of being appropriately assimilated.
The Nicholson Judgment is a good example. Whatever its implications for Zuma and President Mbeki, the overall picture it paints is a fundamental indictment of the ANC and the government. There is no winner in this case. It represents the attempts of one man to avoid prosecution, where both the High Court and the Supreme Court of Appeal have found his relationship with a businessman to be corrupt and, at the other end of the spectrum, demonstrates the disrespect the executive has for our system of justice and the principles that underlie it. Bridging both those extremes is a party-political system which subverts our Constitution and the state to the whims of the ruling party. It is, if anything, a sorry state of affairs.
It is also not unique. The Judiciary has produced many such Judgments - damning indictments of the ANC government - over the last 14 years, particularly over the last five. Each one weighed up a significant amount of evidence and declared that the attitude and actions of the executive were wrong, and its compliance with the Constitution and the rule of law lacking.
If we are to rightly attach as much significance to the Judiciary and the Constitution as is so often claimed necessary (but not so often properly acted upon), then it is worth taking a step back and looking at the bigger picture: identifying what the Courts more generally are saying about the way in which the ANC governs, and what that means.
This, then, is the purpose of this week's edition of The Real ANC Today. In it, I will set out eleven significant Judgments - eight of which have been handed down over the last five years - and all of them by the three highest courts in the country: the High Court (HC), the Supreme Court of Appeal (SCA) and, ultimately, the Constitutional Court (CC). Together they do not comprise a comprehensive overview of the nature of the ANC government - I make no such claim and space does not allow for such an exercise - but they are instructive and, by properly studying them, they offer a series of valuable insights into the nature of the ANC's administration of the South African state.
For the sake of a more concise analysis, I have grouped them into four distinct categories: poverty, corruption, socio-economic rights and executive maladministration.
At the end of this piece, I shall briefly set out what role good governance plays in an Open Opportunity Society for All, what defines it, and what distinguishes it from poor governance.
Eleven judgments
The eleven Judgments around which this piece centres are as follows:
· CASE 6: Supreme Court of Appeal Judgment: Shaik and Others v The State [2006]
· CASE 7: Supreme Court of Appeal Judgment: Member of the Executive Council: Welfare v Kate [2006]
· CASE 8: High Court Judgment: The State v Shaik and Others [2005]
• CASE 11: High Court Judgment: Zuma v The Director of Public Prosecutions [2008]All-in-all, they run to some 700 pages and, while it might not be possible to read each of them, I would certainly recommend it. As some of the Judgments have implications for more than one of my categories, I have listed them by Court, rather than by subject, and have given them their own case number, for ease of reference.
Poverty
"To be held in poverty is a cursed condition. Quite apart from the physical discomfort of deprivation it reduces a human in his or her dignity. The inevitable result of being unlawfully deprived of a grant that is required for daily sustenance is the unnecessary further endurance of that condition for so long as the unlawfulness continues." [Supreme Court of Appeal]
A large proportion of the South African population is reliant on welfare grants to survive. South Africa's poorest province - and the ANC's political heartland - is the Eastern Cape. Yet the administration of welfare grants in this province is, in a word, appalling. Grants are often not paid or cancelled without reason, and any attempt to deal with the administration is often met with incompetence, indifference and laziness - the consequence of a lack of empathy for the poorest of the poor, weak systems and inadequate leadership. Thousands have turned to the Courts, and the Courts have turned on the provincial administration.
Indeed, almost every court has had to deal with the problem. Cases in the HC run into their hundreds, a number have even made it to the SCA (bear in mind they concern the destitute, who do not have the means to fight costly legal battles) and, recently, even the CC.
I will not attempt to explain the background to each case cited; suffice to say that there is a common pattern. To quote the SCA: "In some cases the failure of the administration lies in not expeditiously considering applications for social grants. In other cases it lies in not paying what is due to beneficiaries once their applications have been approved. At times it lies even in disregard of court orders for the payment of moneys that are due."
The quote above is drawn from Case No. 7, a good example of this. In it, the SCA described the provincial administration as being locked in a "war of attrition" with the poor.
Referring to the endless number of similar such cases brought before the Court (another example being Case No. 4 - which found that "laziness and incompetence" was "at the root of the malaise in the Eastern Cape Department of Welfare") the SCA stated that: "the High Court has all but exhausted its lexicon of epithets in its attempts to drive that point home so that the impasse can be ended."
But that Judgment pales in comparison to the one delivered by the CC earlier this year, with regards to a similar such case (Case No. 2). In it, the CC found that the applicant "was not the only victim compelled mercilessly to suffer the pain, misery and indignity of non-payment. There were literally tens of thousands of others"; and that, "the vast majority of people who were deprived of their disability grants as a result of the bewildering conduct of the Provincial Government are the poorest people in our society. Sadly they eked out a miserable existence and the unlawful denial of their grants was unthinkably cruel and utterly at odds with the constitutional vision to the achievement of which that Government ought to have been committed.
Corruption
"[Corruption can] truly be likened to a cancer, eating away remorselessly at the fabric of corporate probity and extending its baleful effect into all aspects of administrative functions." [High Court]
The most high profile cases are well known - especially those involving Shabir Shaik and Jacob Zuma. Shaik's case was heard before two courts: the HC (Case No. 8 ) and the SCA (Case No. 6) and, in light of the recent Judgment handed down by Justice Nicholson - which did not rule on Zuma's guilt or innocence in this regard - it is worth revisiting some of those Court's key findings.
The HC found, "...a readiness in both Shaik to turn to Zuma for his help, and Zuma's readiness to give it", that the four examples of bribery before the Court "show in our view that Zuma did in fact intervene to try and assist Shaik's business interests" and that "the case on Count 1 not just convincing in total, it is really overwhelming."
(If you cannot remember, Count 1 was that, over a period of time, a total sum of R1 340 078 was paid to Jacob Zuma by Shabir Shaik, that this was done corruptly, the object being to influence Zuma to use his name and political influence for the benefit of Shaik's business enterprises or as an ongoing reward for having done so from time to time.)
Much was made (again, by those aligned to the ANC President) of the fact that the ruling did not contain the phrase that Zuma and Shaik enjoyed a ‘generally corrupt relationship' - despite it often being attributed to the Judgment by the media. Very little was made of the subsequent SCA Judgment, which found exactly that:
" The payments to Zuma, a powerful politician, over a period of more than five years were made calculatingly. Shaik subverted his friendship with Zuma into a relationship of patronage designed to achieve power and wealth. He was brazen and often behaved aggressively and threateningly, using Zuma's name to intimidate people, and particularly potential business partners, into submitting to his will. He sought out people eager to exploit Zuma's power and influence and colluded with them to achieve mutually beneficial results. In our view, the sustained corrupt relationship over the years had the effect that Shaik could use one of the most powerful politicians in the country when it suited him."
There are numerous other instances of the conduct of members of the executive being described as corrupt by the Courts - Case No. 5, for example. A Judgment which ostensibly revolved around defamation was forced to address the conduct of the relevant Minister in doing so. In this case, the Minister was Sankie Mthembi-Mahanyele and the conduct, her behaviour surrounding the Motheo housing scandal (she was alleged to have overseen the awarding of a corrupt tender, which benefited a close relation of hers and which was never properly interrogated). The SCA found that:
"...ultimately authoritative ministerial acceptance... was obtainable from only one person. That was the appellant [The Minister]. She had already recorded a denial of involvement and nobody could expose her to cross examination or interrogation in any available form of inquiry. It was also reasonable to conclude that any other informants either did not know enough to answer the question, or would not alter the stance, supportive of the appellant's denial..." and that "those allegations [that the tender was improperly awarded] had repeatedly been made in the media amidst strident calls for a full, fair and proper inquiry into her role in the scandal. Not only did those calls go unanswered, but the Minister's evasive and contradictory responses did little to erode that perception."
Socio-economic rights
"Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter." [Constitutional Court]
Three cases define much of the state's attitude in this regard. The first two, both from the CC, are famous: The Judgment which compelled the Minister of Health to make anti-retroviral drugs widely available to pregnant women and the Judgment which found that the State's housing policy did not provide for those in desperate need - the ‘Grootboom Judgment' (Cases No. 1 and 2 respectively). In both cases, the primary finding is an indictment in and of itself; but they each contained other comments about the state's approach to these two issues.
In the ARV case, the court found that: "A potentially lifesaving drug was on offer and where testing and counselling facilities were available it could have been administered within the available resources of the state without any known harm to mother or child"; and in the Grootboom Judgment: "There is, however, no dispute that the municipality funded the eviction of the respondents. The magistrate who ordered the ejectment of the respondents directed a process of mediation in which the municipality was to be involved to identify some alternative land for the occupation for the New Rust residents. Although the reason for this is unclear from the papers, it is evident that no effective mediation took place. The state had an obligation to ensure, at the very least, that the eviction was humanely executed. However, the eviction was reminiscent of the past and inconsistent with the values of the Constitution. The respondents were evicted a day early and to make matters worse, their possessions and building materials were not merely removed, but destroyed and burnt."
The third case (Case No. 9) is perhaps the most telling in this regard because it addressed the government's attitudes to orders of the court. It also concerned the state's refusal to provide anti-retroviral drugs, this time to prisoners, and the Judgment addressed the state's refusal to comply with an existing HC ruling on this matter. It found that: "The authorities do not view with particular favour appeals from implementation orders. These have taken place - I gather - on extremely rare occasions. It is somewhat ironic and sad that both occasions relate to the government seeking to avoid the effect of court orders for the provision of ARVs."
And, later:
"If the refusal to comply does not result from instructions from the first respondent, the Government of the Republic of South Africa, then the remaining respondents must be disciplined, either administratively or in an employment context, for their delinquency. If the Government of the Republic of South Africa has given such an instruction then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers. Should that continue the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench."
Executive maladministration
"[The Constitutional Court has] held that any executive action inconsistent with prosecutorial independence would be subject to constitutional control by the Courts. This court must carry out that function, not only in the interests of the present applicant, but also on behalf of all the people of South Africa, who have a very legitimate interest in this fundamental principle." [The High Court]
The final quote from the previous section goes to the heart of the matter, as does the inference by the SCA, in its various welfare grant Judgments, that the executive has little respect for the Courts or the Judgments they deliver. It illustrates a disdain for the principles that should define the executive's behaviour, typified by President Mbeki and adopted by other national and provincial members of the executive.
Two recent Judgments, the first concerning the Erasmus Commission (Case No. 10) and the second concerning Jacob Zuma's prosecution (Case No. 11) serve as powerful evidence in this regard. Both found the executive had acted improperly, with a particular agenda in mind, and with the consequence that the separation of powers - between the state and the justice system - was damaged or undermined.
The key findings with regard to the Erasmus Commission are well documented; but for the purposes of this overview, the Judgment's reference to the inappropriate appointment of Judge to chair the Commission is particularly relevant: "That the government would want to use judges for their purposes is one matter but that judges should allow themselves to be used is quite a different one... The notion of being used by the executive in this way is anathema to the judicial calling and is the very antithesis of the separation of powers."
The Nicholson Judgment is also well documented but again, two quotes are relevant:
"The NDPP states unequivocally that Mr Pikoli was suspended by the President because of a breakdown in his relationship with the Minister of Justice. There should be no relationship with the Minister of Justice - certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards."
And,
"Is it possible that Mr Maduna was on a frolic of his own or acting on instructions? It seems very improbable that in so important a matter as one involving the Deputy President (his political superior) a mere minister would get involved without the President knowing and agreeing... It seems to me that in terms of the law, more especially emanating from the Constitution, there is responsibility attributable to the President and his cabinet for what Mr Maduna did. This would, of necessity, also apply to what Ms Mabandla did."
Putting the pieces together
In any democracy, there will be cases where the Judiciary finds against the state. That reality is unavoidable. However, the Judgments outlined above are not insignificant; among them, they cover a number of critical areas and, in turn, the behaviour of key members of the executive. That the verdict in each case went against the state is significant, but that is only one half of the story.
The other half concerns the type of government described in these Judgments:
· a state which lacks empathy; a bureaucracy that is often incompetent, poorly administered and disregards the instructions of the Courts;
· an administration battling with corruption and a lack of accountability at the highest levels;
· a policy platform that is inflexible and which, often, fails to address the needs of the poorest of the poor; and
• an executive with a disdain for those Constitutional principles that, ideally, should limit the extent of its influence.
The two common themes running through these Judgments are the lack of consequences, on the one hand, and a stubborn refusal to implement the decisions and orders of the court, on the other. Both are indicative of a ruling party that believes it is paramount and its decisions intrinsically correct. That belief, however, stands in stark contrast to the ANC described in those verdicts outlined above.
Conclusion
The relationship between a ruling party and the state is critical to good governance. Importantly, it is not a matter of policy but is defined by the Constitution, which demands their absolute separation. Nevertheless, it remains open to abuse. Former French President George Pompidou once remarked that, "A statesman is a politician who places himself at the service of the nation. A politician is a statesman who places the nation at his service". This distinction captures nicely the way in which the relationship between party and state should be conceived. And the nature of a particular administration will be defined by the emphasis it places upon it.
The desire to subvert this principle and to use the state to one's own political advantage is a consequence of a lust for power. And for those who seek absolute power, what could be more appealing than the possibility controlling society in its entirety. And the threat in that desire is the corruption and abuse of the state at the expense of its citizens. As Edmund Burke put it: "The greater the power, the more dangerous the abuse." The appropriate checks on a ruling party's access to power is thus also essential for good governance.
The other theme running through this week's article is poverty and the way in which the state acts to counter it; both in terms of its policy and with regard to the bureaucracy with which citizens interact. Both need to address the concerns and needs of the poorest of the poor. And an ability to do that properly is dependent on the ruling party's attitude in this regard. In South Africa, poverty is acute and, in turn, the state should be empathetic and its administration caring, helpful and, particularly where the destitute are concerned (for their needs are more pressing and immediate), efficient and competent. The ability to do these two things, conceive and administer policies than improve the nature of the human condition, constitute two defining characteristics of good governance.
In an Open Opportunity Society for All these two elements would form the cornerstone of governance: a definitive break between party and state (accompanied by the appropriate checks on power) and a policy program that responds appropriately to the needs of the citizenry; and, in practical terms, an administration that is efficient and compassionate so that any interaction with the state is, in turn, one defined by competence and empathy.
This article first appeared on the Democratic Alliance weblog, The Real ANC Today, September 21 2008
