The recent majority decision of the Judicial Service Commission not to proceed with formal adjudication of the complaint lodged by the justices of the Constitutional Court against Western Cape Judge President John Hlophe has been widely condemned by legal academics, practising lawyers, political commentators and opposition political parties. Criticism has focused on the fact that the majority decision is irrational, contradicts established principles of evidence and fundamentally leaves unresolved a dispute which has struck at the heart of the integrity of the judiciary in the post-Mbeki era.
However, the Hlophe debacle should come as no surprise to anyone who has paid even cursory attention to South African politics over the past year. We have become accustomed in recent months to increasingly bizarre administrative decisions which do not bear close critical scrutiny. When considered collectively, recent high-profile administrative decisions paint a disturbing picture of administrative decision-making taken in bad faith, and in order to advance covert and legally irrelevant political objectives.
Administrative action occurs when an official or institution exercising public powers or performing public functions makes a decision of a final nature which affects the rights of a person or group of persons outside the institution or organisation which has taken the decision. The public nature of the action means that the exercise of such power must be lawful, reasonable and rationally justifiable with regard to the facts in respect of which it was taken. Administrative action should never be taken on the basis of ulterior motives, or in bad faith.
The first recent high-profile instance of suspect administrative decision-making was former President Kgalema Motlanthe's decision in December last year to dismiss former National Director of Public Prosecutions Vusi Pikoli. This decision was taken ostensibly on the basis of Pikoli's alleged failure to consider national security interests in executing his duties, which supposedly rendered him not a "fit and proper" person to hold his office. In arriving at his decision to dismiss Pikoli, Motlanthe seized upon a single passing reference to national security interests in the report of the Ginwala Commission, which had been established by former President Mbeki to enquire into Pikoli's fitness for office, and ignored the final recommendations of the report.
Thus, the reasoning underpinning the decision to dismiss was unsubstantiated by the findings of the Commission. Ultimately, the Commission had recommended that Pikoli be reinstated, holding that he was indeed a fit and proper person to occupy the position of head of the National Prosecuting Authority. Thus, Motlanthe's decision appeared unfathomable. It was speculated that Pikoli's dismissal was actuated by his perceived independence, which had manifested itself in his handling of the arrest of former National Police Commissioner Jackie Selebi.
Pikoli has been granted interim relief by the Pretoria High Court, pending the final determination of the review in November. Pikoli's victory in the interlocutory proceedings indicates that he succeeded in making out a prima facie case regarding the alleged illegality of Motlanthe's decision, which augurs well for his success the main proceedings.
The decision of Acting National Director of Public Prosecutions Mokotedi Mpshe to abandon the prosecution of President Jacob Zuma on fraud, corruption and racketeering charges is similarly highly unsatisfactory. In general, legal commentators agreed that, objectively, the basis for the decision - essentially, the fact that it appeared, on the face of it, that the former NDPP Bulelani Ngcuka and Scorpions boss Leonard McCarthy may have conspired with one another regarding the timing of the laying of charges against Zuma - did not in the circumstances reasonably justify the wholesale abandonment of the prosecution. Speculation abounded that Mpshe and the NPA had succumbed to political pressure from the ruling party to drop the prosecution. Thus, it was alleged that political considerations, rather than legal ones, were the motivation for the decision.
The release of Schabir Shaik on medical parole in July of this year provoked a storm of outrage in the media and among civil society organisations. In terms of the Correctional Services Act, a convicted prisoner who is in "the final phase of any terminal disease or condition" may be released from prison on medical parole in order to "die a consolatory and dignified death". The controversy surrounding the Shaik decision centred on whether there was a factual basis for the decision to release Shaik on medical parole. It had been extensively reported in the media that Shaik suffered from hypertension, a condition not normally regarded as a terminal disease or condition.
Again, as with Mpshe's abandonment of the Zuma prosecution, the decision to release Shaik appeared to have no rational factual foundation. The intransigent attitude of the Minister of Correctional Services towards any possibility of a review of the decision has only intensified public suspicion that the decision to release Shaik was taken mala fides, and on political instructions.
The JSC's abandonment of a formal enquiry into allegations of gross misconduct against Hlophe must be viewed against this backdrop. The Hlophe decision appears to fit a lamentable pattern of administrative decision-making which is fundamentally at odds with certain foundational principles of our constitutional democracy, such as the rule of law and equality before the law.
It would appear that recent administrative decisions involving individuals closely associated with the ruling party are, in reality, political decisions masquerading as legal ones. What is especially notable in the decisions is the elaborate pretence at legality: there is a striking disjuncture between the stated legal basis for the ultimate conclusions arrived at and the unarticulated political motives which must reasonably be understood to inform them.
The inference to be drawn from the decisions is irresistible: those closely connected to the potentates will be protected, no matter the seriousness of their transgressions or the absurdity of the reasoning employed to ensure this objective. Conversely, those such as Pikoli who incur the displeasure of the powerful will be cast aside by means of flimsy, unsubstantiated decisions which do not bear legal scrutiny.
The decisions discussed above pose a grave threat to the rule of law in South Africa. Ironically, it will be the judiciary which will have to find the courage to set aside such decisions on review if the principle of legality is to be preserved in South Africa. For this reason, the legal challenge to the Hlophe decision brought by the advocacy group Freedom Under Law is to be welcomed as essential in the fight to maintain the institutional integrity of our judges and courts.
James Linscott is a former Commonwealth Scholar and an attorney specialising in public and regulatory law
Click here to sign up to receive our free daily headline email newsletter
