Keeping Judge Sandile Ngcobo on as Chief Justice may have seemed perfectly legal to the people whose jobs are first and foremost to uphold and protect our Constitution. But the Protection of Information Bill, the Municipal Property Rates Amendment Bill and, of course, Ngcobo’s term extension all have Constitutional problems.

Thanks to all these controversies and, quite frankly, embarrassing and far-reaching mistakes, the office of the state legal advisor has come under pressure, with its boss, Enver Daniels, being accused of ignoring senior advocates in his Pretoria office. The question that begs to be asked then is: Is it really about his and his chosen people’s incompetence? Or is it actually about attitude?

All of the listed Constitutionally challenged Bills were supposed to have been checked by Daniels and his office. In the past we have always been assured that no bill is cleared and proposed by mistake. In fact, former government spokesman Themba Maseko made this clear several months ago, when he said “no clause gets into a Bill by accident”.  Of course, that further begs the usual question when it comes to badly drafted laws: Are they the results of a conspiracy or just a plain old cock-up. Is Darth Vader really behind the POI, or just a monumental incompetence?

Recently Business Day suggested cock-up was the more likely answer. In the ongoing battle between which is the more worrying, incompetence or corruption, this would seem to swing the argument towards the former. But surely politicians themselves, the ministers who are the political masters of their departments (well, nominally at least), Daniel’s bosses, also have a can to carry.

Last Friday Zuma came out swinging at criticism that what he’d tried to do with Ngcobo was unconstitutional. For him, it was the right thing to do. The day before “#whereisZuma” had started to trend on Twitter. His spokesman Mac Maharaj was doing a good job of keeping his bat straight, but must have been a little frustrated with the sheer number of calls to his phone asking about the Public Protector’s report into Bheki Cele, and a refrain of people nagging “Mac, who’s gonna be Chief Justice?”. The reporting on the Constitutional Court’s decision 10 days ago to rule the part of the Judges Remuneration Act on which Zuma was going to originally rely to extend Ngcobo’s contract had also got under his skin.

So, when he told media owners during a meeting in Centurion, “It was unfortunate that some sections of the media gave the impression that there was an infringement of the law, which we felt misrepresented the facts in this case,” it was clear he was annoyed. Technically, he is right. The section of law that he was going to use was passed unanimously by Parliament 10 years ago. So he was well within his rights, from that point of view, to use it.

However, surely someone in his office, upon hearing that several organisations were going to challenge its constitutionality, should have ensured it was indeed constitutional. As Raylene Keightley from the Centre for Applied Legal Studies, who brought the case, pointed out immediately after the judgment, this is not a difficult aspect of law. It’s easy to interpret, and the principle that a sitting judge on the Constitutional Court should not be placed in a position in which they might like to seek presidential approval for their term to be extended, is fairly straightforward. Presumably the legal advisors knew this. Presumably.

So then we have to ask what question were the advisors asked? Were they asked, “Is this constitutional?”. And were they too meek to say “No. It is not”. Or were they just told to “make it happen”, and had no option but to try. If you are the president of a country in which more than 65% of the people voted for you, a piece of paper that stops you doing things must be quite vexing at times. The temptation to just push until you get what you want must be overpowering. All the more so when the people who take you to court all the time are those who you may feel have not transformed, are from a group of people that did not exactly help you when you were in jail yourself.  (This is not to say Freedom Under Law, CALS or Casac or any of the other organisations involved have any case to answer on this front – that may only be the way Zuma himself perceives things). 

At the same time, we have to examine the track record of government departments in big cases. Overall, it’s obvious they have appealed way too often. Far too many times we hear of a big issue being decided by a high court. You know almost automatically that the government department will appeal, even when it’s clear their chance of winning is comparable to a snowflake surviving in Hell.  Think of then communications minister Ivy Matsepe-Casaburri’s decision to appeal the Altech case, or about the recent decision to take the Walmart/Massmart merger to the Competition Appeals Court. Or about the behaviour of the ministry of safety and security in the Alex Carmichael case. Years after winning her case in the Constitutional Court the ministry refused to pay her out. (She won damages after she was attacked and raped by a man who had appeared in court on similar charges, the prosecution had failed to oppose bail, which the court found made the ministry liable). All of this points to a major attitude problem within government, rather than just bad legal advice.

Then we also have to consider another aspect. In virtually all of these cases, government uses the same advocate. Marumo Moreane is a brilliant man. He has to be consistently in the top three or four advocates you’d pick for any complex litigation likely to find its way to Constitution Hill. But his win/loss ratio in representing government is not great. This is not necessarily his fault. He was arguing cases that no one could really win. At the very least, surely government in particular has a duty to give other black advocates an opportunity. You cannot slam the private sector for not using black advocates when you literally use only one yourself.

All of this feeds into a growing concern about government’s attitudes. About whether there is respect for the Constitution at the highest levels of government, and by implication the ANC and the alliance. SACP general secretary Blade Nzimande sometimes claims there is an “anti-majoritarian constitutionalism” fighting the alliance. What he means is, how dare organisations use the Constitution against the ANC? It’s a point he’s likely to make many times in the future. We must also remember the ANC has respected every court judgment handed down against it. Even when doing so has really hurt – such as in the Nevirapine case (guess who the health ministry’s advocate was?). That is hugely to the party’s credit.

But if the recent legal problems are more to do with a lack of respect for its own legal advisors and the law they represent, rather than with the competence of those advisors, then we have a serious problem. And a very worrying trend. DM

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Grootes is an EWN reporter.

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Photo: Reuters.