Shame on you, Mr President

The urgent High Court application brought by the victims of incidents at Marikana during August 2012 is designed to compel the President to publish the Farlam Report in the Commission of Inquiry. The application is being opposed by the President. Does our President have no shame? He has been “considering” the report since March.

He has taken the point that the victims, the widows and orphans (who are concerned to know who they should sue for the loss of the lives and support of their bread-winners) ought to have proceeded in the Constitutional Court and that the High Court has no jurisdiction to hear their urgent application.

Civil claims prescribe after 3 years. That leaves very little time between now and August 2015 to decide who to sue for damages flowing from the injuries, and deaths of those killed, at Marikana. There are many potential claimants who will potentially benefit greatly from the analysis of the complicated facts of the matter which is sure to be included in the 600 plus page report handed to the President in March by Justice Farlam.

The prejudice involved in the delay in publishing the report is grave. The delay is inexcusable given the President’s obligation to fulfil constitutional obligations diligently and without delay. The specific obligation in this case is that the President has sworn to do justice to all.

The President is not new to ducking and diving in litigation, especially his personal litigation. When it comes to commissions of inquiry he has been known to take contradictory positions in the past to suit the exigencies of the occasion. So, for example, when activist Terry Crawford-Browne commenced a public interest action in the High Court to compel the appointment of a commission of inquiry into the arms deals, the President took the same point that he is taking against the victims of the Marikana incidents.

Crawford-Browne responded by moving his attack to the Constitutional Court which entertained the matter until the President threw in the towel on the very day on which he was scheduled to reply on oath to the merits of case put up against him.

When Mpumalanga businessman Fred Daniel sought similar relief in the Constitutional Court, without making the apparent mistake of trying in the High Court first, the President took the point that Daniel too was in the wrong court and should have sued in the High Court, just as the widows and orphans have now done. This stance directly contradicts that adopted by the same President in the Crawford-Browne case.

The Constitutional Court has ruled definitively on the matter. It does not regard the power of the President to appoint commissions as a “constitutional obligation” over which the Constitutional Court has exclusive jurisdiction. Publishing a commission report will therefor fall far short of a constitutional obligation of the kind in respect of which only the Constitutional Court has jurisdiction. In its judgment in the Daniel matter, that court draws attention to the power of the High Court to pronounce upon the constitutional validity of the conduct of the President.

Having successfully seen off Fred Daniel on jurisdictional grounds, the President now raises the same arguments as were unsuccessfully raised by Daniel in order to enable the President to thwart the Marikana widows and orphans. This is apparently done to delay the determination of the merits of their case and for no other reason.

The President and his legal advisors are surely aware of their own success in the Daniel matter. They know that the Constitutional Court declined jurisdiction in the matter. The failed point argued by Daniel is raised again in an exercise in perfidy that does the constitutional role of the President no credit.

It does not behove the President to dishonour his oath of office in this way. The manner in which he expressed his successful opposition in the Daniel matter is instructive and is summarised in the judgment itself as follows:

“The President disputes that the section [which gives him powers in relation to commissions of inquiry] imposes a constitutional obligation and submits that the applicant’s claim does not fall within the exclusive jurisdiction of this Court. The applicant [Daniel] is free to approach other courts for the same relief argues the President.”

Why the Marikana victims are not free to do exactly the same is inexplicable and it is shameful that the President has raised the point at all. The President is trifling with the courts and ought to be given short shrift for “see-sawing” his position in this opportunistic fashion. It is improper for anyone to play ducks and drakes with the law. Having made his bed in the Daniel matter, the President is now legally obliged to be consistent.

A critical element of the rule of law is that there should be certainty as to what the law is and what it requires, both procedurally and substantively. This involves consistent conduct by those in positions of authority, a uniform interpretation of the provisions of laws and a respect for and following of precedents that are set in decisions made in cases of similar nature.

As Justice Cameron observed in May 2013, at the Sunday Times literary awards ceremony, judges generally “take certain fundamentals for granted”. Among those he mentioned are “the vital significance of the rule of law and the supremacy of the Constitution.”

In the final analysis, the Constitution means what the Constitutional Court says it means. If it says different things on different occasions, then the most recent pronouncement is the one that is operative. The acceptance of the arguments concerning jurisdiction in matters about commissions as raised by the President is the most recent utterance on the subject by the Constitutional Court. The Daniel judgment was given on 27 June 2013 when the current President was already in office.

The oath of office of all presidents prescribes a duty to obey, observe, uphold and maintain the Constitution and all other law of the Republic while doing justice to all and promoting the well-being of the Republic and all its people.

The Constitutional Court has laid down the law. It says, in effect, that it does not have exclusive jurisdiction in litigation concerning commissions of inquiry. It has ruled that the power of the President to appoint commissions is not a constitutional obligation of the kind that only it has jurisdiction to determine.

The President is bound by these rulings at all times, not just when it suits him. For him to raise dilatory points by throwing the proverbial sand in the gearbox of those who feel constrained to seek the help of the High Court is completely off-side. As prescription of their civil claims is looming in the near future, the Marikana victims are fully justified in asking for the court to correct the dilatory behaviour of the President.

The President knows about, or ought to know about, his victory in the Daniel case. His lawyers ought to know and are duty bound to advise the President that there is no conceivable merit in the “lack of jurisdiction of the High Court” point which he has taken to delay determination of the merits of the application to compel him to publish the Farlam Commission report.

The fact that the President has told Parliament that he intends publishing the report by the end of the month exacerbates the disgracefulness of taking the point that the Marikana victims are in the wrong court.

If the President is so ill-advised as to persist in the point, the High Court may well be requested to make a suitably punitive costs award in dismissing the ill-conceived point. It would be fully justified in doing so.

Paul Hoffman SC is a director of Accountability Now www.accountabilitynow.org.za