ERROR OF JUDGMENT OP-ED
High court was guilty of judicial overreach when overturning Ramaphosa’s suspension of Public Protector
Courts run the risk of breaching the separation of powers when they invalidate a rationally made decision of the President because of a reasonable apprehension of bias on the part of the President.
Last week, a Full Bench of the Western Cape High Court, in The Public Protector of South Africa v The Speaker of the National Assembly and Others, endorsed the notion that our courts have the power to review and set aside decisions of the President in cases where the President — a politician who heads one of the two democratic branches of government — was conflicted, and this gave rise to a reasonable apprehension that the President was biased when making the decisions.
I worry that the court overreached by impermissibly intruding in the domain of the executive, holding the President to a standard only applicable to judicial officers and other independent tribunals.
I assume some readers will at first find my contention startling. This would not be surprising, given that so many disputes about the exercise of political power end up being resolved by the courts, and given that a bevy of lawyers (including the EFF politician who sometimes plays an angry and shambolic lawyer on TV) has popularised the idea that (some) decisions and processes of the political branches of government had to comply with the exacting standards of impartiality and with the elaborate rules of fairness applicable to adversarial proceedings in criminal trials.
The idea that courts should have the power to invalidate presidential decisions because the President lacked impartiality can also look attractive if one considers the various ways in which former president Jacob Zuma used (or abused) his constitutional powers to try to protect himself from criminal prosecution as well as any form of accountability.
But, as last week’s judgment of a Full Bench of the Western Cape High Court illustrates, courts run the risk of breaching the separation of powers when they invalidate a rationally made decision of the President because of a reasonable apprehension of bias on the part of the President.
In brief, the high court held that Ramaphosa’s decision to suspend Public Protector Busisiwe Mkhwebane was unconstitutional and invalid because he could “reasonably be perceived to be unable to bring to bear an impartial mind when considering whether or not to suspend” Mkhwebane. Ironically, the court relied on the fact that the Constitutional Court had held in the CR17 matter that Mkhwebane had not investigated the President with an “open and inquiring mind” and that she was “unduly suspicious”, suggesting that Ramaphosa wanted to suspend her to prevent Mkhwebane from pursuing the Phala Phala investigation with the same lack of impartiality.
The court ignored the fact that the suspension process was initiated on 17 March, choosing only to focus on the fact that the suspension finally came on 9 June (many months after it should have been done), a day after Mkhwebane had sent Ramaphosa 31 questions relating to her Phala Phala investigation.
For current purposes, I will nevertheless assume (without expressing a view) that the facts in this case did give rise to a “reasonable apprehension of bias” in the mind of a reasonable person in possession of all the relevant facts, that the President might “not bring an impartial and unprejudiced mind to bear” on the decision to suspend Mkhwebane.
Political lawfare between Ramaphosa and Mkhwebane reaches new crescendo
The President’s state of mind
However, the judgment strayed far beyond the question of whether a reasonable apprehension of bias existed, making factual findings about the President’s state of mind seemingly based on suspicions rather than facts. The court suggested that the suspension was triggered by the decision of Mkhwebane to institute an investigation against the President, that the suspension was retaliatory as it was prompted by Mkhwebane’s decision to put 31 questions to the President, and that it was, therefore, “certainly tainted by bias of a disqualifying kind and perhaps an improper motive”.
While the investigation may have influenced the President’s decision (just as Mkhwebane’s decision to send 31 questions to the President may have been aimed at preventing her suspension), the court was not in a position to make factual findings on the President’s state of mind.
The Constitutional Court must confirm the high court’s decision to invalidate the suspension before it will have any force, and is unlikely to do so. But, whatever the outcome, I have no doubt that it will not follow the example of the high court to treat (arguably reasonable) suspicions about the President’s motives as proven facts.
The Constitutional Court will, hopefully, also decline to endorse the high court view that courts have the power to review and set aside decisions of the President merely because of a reasonable apprehension that the President was not impartial when he made the decision. This view was first mooted in the dying days of the troubled presidency of Jacob Zuma in December 2017, when a Full Bench of the Gauteng High Court relied on the “reasonable apprehension of bias” principle in President of the Republic of South Africa v Office of the Public Protector.
In that matter, Zuma had asked the court to review and set aside the remedial action imposed by then Public Protector Thuli Madonsela in her State Capture report, including the remedial action requiring somebody other than Zuma to select the chairperson of the State Capture Commission. The court found that there was nothing wrong with this as Zuma was implicated in State Capture, was thus conflicted, and should not be allowed to select the chairperson of the commission, invoking the “reasonable apprehension of bias” test to justify this conclusion.
Perhaps because “a bad president makes for bad constitutional law”, the high court got it spectacularly wrong. By assuming that Zuma had a duty to recuse himself from selecting the chairperson of the State Capture Commission of Inquiry because a reasonable person would have formed a reasonable apprehension that he would be biased when doing so, the high court ignored the fact that the President is by design not required to be as independent and impartial as members of the judiciary are. Moreover, the high court also ignored the fact that the discretion to appoint commissions of inquiry is that of the President alone, and, in theory, at least, any failures in this regard are for the political process, not the Public Protector or the judiciary, to deal with.
Judges are unelected and are required to resolve legal disputes in a fair and impartial manner. Their decisions are assumed to be guided by the applicable law and the proven facts, not by the policies of the political party they voted for, nor by factional interests, or by the whims of donors. And unlike the President, judges are not directly accountable to voters and cannot be voted out of office. To safeguard the legitimacy of their judgments, it is therefore important to require judges to recuse themselves from hearing a matter when there is a reasonable apprehension of bias on the part of the judge.
The President, on the other hand, is an elected politician, who is accountable to voters, and who can thus be voted out of office. If the President makes bad decisions, the assumption is that he and his party will pay the political price for this. The President is assumed to be guided by the policies of the political party they belong to, and by other political considerations. It is thus literally the job of the President to be partisan and not to be impartial in the way expected of judges.
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A dangerous power grab
It would therefore amount to a dangerous power grab for our courts to accept that all decisions of the President are subject to review based on the “reasonable apprehension of bias” test. I assume that most readers will at least agree with me that it would be untenable for courts to invalidate decisions about the appointment and removal of Cabinet ministers, and other decisions clearly animated by party-political considerations.
Unfortunately, the high court judgment failed to consider this problem at all. It might have argued that courts can review only a specified category of presidential decisions because of feared bias. But how one would do so is not clear to me, as the Constitution grants extensive powers to the President to appoint, suspend and remove heads of constitutionally created bodies in his capacity as the head of the national executive, at least in part in recognition of the fact that we live in a constitutional democracy that requires important governance decisions to be made by the head of government and not by unelected bureaucrats or by judges.
Assuming that I am correct that our courts do not have (and should not have) the power to review and set aside decisions of the President on the ground that there is a “reasonable apprehension of bias” on the part of the President, does this not leave the door open for the President to abuse these powers and leave the courts powerless to intervene effectively to stop it? To this question, my answer would be both a big no and a small yes.
A big yes, first, because the Constitutional Court has long held that any exercise of public power can be reviewed and set aside by relying on the legality principle. (The court can also invalidate decisions that are in breach of any of the rights in the Bill of Rights.) If a decision of the President is not authorised by law or if it is not rationally related to the purpose for which the power was given, the courts can intervene and set the decision aside. Because of separation of powers concerns, a rationality review provides the courts with important but limited powers to review the decisions of members of the executive branch of government.
The court relied on this test in Democratic Alliance v President of South Africa and Others to invalidate Zuma’s appointment of Menzi Simelane as the National Director of Public Prosecutions, not because Zuma was conflicted, nor because there was a reasonable apprehension that he would be biased, but because it was not rational for the President to ignore serious findings made against Simelane by the Ginwala Commission. In this case, the Constitutional Court warned that the rationality test:
“‘involves restraint on the part of the Court. It respects the respective roles of the courts and the Legislature. In the exercise of its legislative powers, the Legislature has the widest possible latitude within the limits of the Constitution. In the exercise of their power to review legislation, courts should strive to preserve to the Legislature its rightful role in a democratic society’. This applies equally to executive decisions.”
ConCourt warning unheeded
It goes without saying that the high court (in both the State Capture matter and the suspension matter) failed to heed the Constitutional Court’s warning that courts should exercise restraint when reviewing decisions of the legislature or the executive. By reviewing and setting aside the decisions of the head of one of the two democratic branches of government, not because the power was exercised irrationally, but because the President was not deemed to have been impartial, the Western Cape High Court failed to respect the rightful role of the President in a democratic society.
Second, an argument is also made that a decision of the President can be reviewed and set aside by a court if the President made the decision in conflict with section 96(2)(b) of the Constitution, which states that the President and other members of the Cabinet may not expose themselves to “any situation involving the risk of a conflict between their official responsibilities and private interests”.
The wording of this section does not in fact state that constitutionally authorised decisions of the President will be unconstitutional and invalid in situations where there is a risk of a conflict of interest, so I am not sure this section is applicable in cases like this. In any event, where the President or another member of the executive make a decision to gain a private financial advantage or an advantage for their party, and not for the purpose for which the power was given, that decision would in any event be irrational and invalid. (It will also constitute a criminal offence in terms of the corruption legislation.)
Interestingly, the high court considered the argument that section 96(2)(b) disqualified Ramaphosa from suspending Mkhwebane due to a conflict of interest. The court assumed without discussion that section 96(2)(b) did apply here. It then proceeded to suggest (but declined to make a finding to this effect) that a breach of the section might have occurred, stating that “it is reasonable to assume that the investigation will relate to the President’s private interests as well; hence, there is a strong argument to be made that the Phala Phala incident involves a risk of conflict between the President’s official and private interests”.
As I suggested above, while courts can use existing grounds of review to limit the abuse of power by the President or other members of the executive, the powers of the courts are limited. Judges cannot fix a fundamentally broken political system by developing ever more invasive forms of judicial review to curb abuses of power by the President and other members of the executive. They can do what they can to ensure that the democratic system of checks and balances continues to work (as the judiciary, by and large, did during the destructive Zuma years), but ultimately voters, not judges, decide who governs. DM
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Thanks, Pierre, for the wonderful and concise clarity. But Phala Phala is a distraction, surely the President was about to suspend her for incompetence and to facilitate an uncluttered and evidence-untampered-with, impeachment enquiry? The Phala Phala timing is unfortunate but irrelevant.
An interesting piece. Prof de Vos is undoubtedly correct in opining that the High Court had no basis for finding as a fact that Ramaphosa was biased.
However, I wonder if Prof de Vos’ other conclusion -namely that a court cannot ever intervene if there is a perception of potential bias can be correct.
Suspending the PP can in no sense be viewed as the routine act of a partisan leader of a political party. Ramaphosa is discharging a constitutional function with all the onerous obligations that entails. In the same way the PP is ostensibly discharging a constitutional function when she poses questions on a matter of public concern.
At the moment these two constitutional functionaries are locked in a dispute. And who knows…. it may turn out that Ramaphosa has been up to no good.
An attempt by the superior in these circumstances to defenestrate the other party inevitably invites a suspicion of the possibility of bias.
It is remarkable to suggest that courts are impotent in these circumstances.
Politicians are by their nature biased – a ridiculous decision. How would the court deal with a perceived positive bias? You can’t appoint this person because you like them?
It is always a pleasure to read an analysis of legal matters by Pierre de Vos. He brings to each article a clarity and depth of legal knowledge, delivered in a calm and rational manner. I suspect too, that he is invariably correct in his analysis, a matter that will probably leave the likes of Mpofu and Mwkhebane apoplectic, given their preference for showmanship over the realities of the law.
THe High Court judgement itself smacks of “political bias”. The fact that the current PP is suspended (or not) makes no difference to the investigation into Phala Phala. The acting PP merely continues the work. The Judgement was clearly influenced by that well know RET Judge. The descent into a failed state continues which I fear will be culminated when the 4000 delegates scurry for favours from the highest bidder in December . I am interested to note that the PP did not rush to investigate the campaign contributions from Watson and company to Dlamini-Zumas effort to buy votes at the last conference. She is so obviously flawed, on top of being incompetent, that I am amazed that this fiasco continues to be dragged out. Sadly No shame as always.
Great article. I agree with the idea that politicians are inherently bias and the executive should be held politically accountable by the people, using their hard fought right to vote. It is sad how many people either blindly vote or do not vote at all. It is one of the greatest weaknesses in our democracy that citizens do not do their duty to to keep the executive accountable.
I agree with your thoughtful assessment, Pierre. If Phala Phala was the singular reason Ramaphosa suspended the PP, the argument that to protect himself personally from an investigation was not the purpose of the power to suspend a PP. But the entire process started long before Phala Phala. In fact, the question of Mkhwebane’s incompetence was initiated by findings of various courts, including the Concourt. Her suspension was called for long before Phala Phala.
I would suggest there should be a second way of suspending an appointed functionary such as the PP. The President should have the power to suspend and even dismiss any such functionary based upon reasonable and sufficient grounds of incompetence, without necessarily involving a whole Parliamentary investigation. Surely the damning findings made on her competence and honesty by a number of courts must be sufficient, even compelling grounds for dismissal.
Democracy requires only fair and transparent actions, not the most roundabout, unnecessary, and expensive ways of dealing with incompetent and dishonest functionaries. It would indeed be a total travesty if Parliament did not find her incompetent, given the many judicial findings against her.
A most cogent perspective ! Out lethargic CR waited and waited while the current PP repeatedly laid waste to and made a mockery of the office she was appointed to … and only with the emergence of the Farmgate issue, before telling her, her time was up.
I don’t think I agree with you John. We should be careful not to make the mistake of giving the President so much power that he/she can act as a dictator. Democracy functions by limitations of powers of the executive; the current powers of the presidency is still based on the in-effect dictatorial powers that the State President had under the old apartheid Tri-cameral parliament, and thus a lot of limitations had to be brought in to prevent the presidency from again having dictatorial powers. If Zuma had more power than he had, maybe we would not have had a democracy any more; as it is, he probably still had too much power for his own good and the good of the nation.
Except that in SA the electorate is too biased in favour of a corrupt liberation movement to vote out the corrupt biased politicians. Indeed they seems to love them. The dichotomy between what is right and good for the nation and the ANC’s narrow self interest that the masses enable seems to be growing ever wider.
The legal exegesis of judgement by Pierre de Vos and his assertion of judicial overreach is rebutted by the very section of the Constitution he bases his flawed legal argument of personal conflict of interest. He makes light of the personal issue of the President and Phala Phala. Any legal person worth his salt would understand the serious issues that the Phala Phala scandal raises of abuse of power and criminality on the part of the President. This issue is of judicial overreach has been raised in the powers of the President to appoint a Commission that are in the Constitution that the courts found that Zuma was conflicted to appoint the Commission and he did not find any judicial overreach in this matter or in his many legal opinions.
What we must avoid as a country , is to say that certain people because of how we perceive them do not deserve the legal protections of the Constitution and the law. If we take this route we must throw the fundamental principles of rule of law and return to the Apartheid days of rule by law. Pierre de Vos, despite my respect, skirts this in his legal exegesis. Other raise the question of Hlophe being the Judge President of what they regard as the Republic of the Western Cape! Cyril and is comflicted on the matter and he does not see what the judges saw that he waited until he received the questions from the Public Protector. I hold no brief for the Public Protector but the processes to deal with her fitness must be both rational and fair.
Your pontification notwithstanding … seems to ignore the fact that several judges have made uncontested findings about the current PP’s incompetence as well as being misguided in her understanding of law … and hence should have been relieved of her duties a long time ago.
I can also not support this ongoing nonsense regarding the firing of the PP. This woman has been proven to be incompetent so many times. If cr had half the b0lls of jz, this matter would have been settled long ago. But cr plays “the long game” and time and again it gets him and the country in the dwang. He will lose his power because of this. (And the sooner the better)
No Cunningham, Pierre de Vos is correct. The only limitation the ConCourt put on the State President in the Zuma case is the requirement of rationality, and there is a big difference between the concepts of “rationality” and “partiality” (i.e. partiality in the sense of bias). It is true that politicians will be biased towards the commitments made to the electorate; that is how the system of multi-party democracy functions. We should keep in mind that the system does not require of the President to get consensus such as happened in the traditional small ubuntu villages; much as it would have been good, had it been possible, there is a radical difference between such small villages and a nation of 50 million + people. In the small village consensus is a reasonable prospect, in a nation of millions of people it is completely impractical. The consensus that the village headman reaches may require an unbiased approach (because if it is biased, it would foster fragmentation) but it does not apply to the nation state, only to the small village environment as I see it.
You must read the various legal basis an administrative action can be declared invalid that de Vos does not even deal with. The basis of declaring are two legal texts, the Constitution and PAJA. The principles he does not even broach are the Oudekraal and Kirland principles. We now get into another area he raises, the question of legal certainty and legality. There is no definition of legal certainty of our law but we have the definition of legality. The President was asked to act in March but decided to Act after the Public Protector sent him 31 questions on Phala Phala. He had not acted since March until the Public Protector delved into his matter and it s not only a conflict of interest but abuse of power. de Vos avoids these facts by saying that there is no “proof” that he acted because Phala Phala. The law would be an arse if we would have incontrovertible proof in every legal matter. We have inference in law that he does not deal with because he thinks he is dealing with legal illiterates and can say any nonsense. There are many confusions and contusions he throws in but he leaves out the legal essence of the decision. He has the temerity to say the Constitutional Court will not confirm the decision but we will be watching and listening as to the legal basis of the court that has to be very far from de Vos to be valid.
This article by Pierre De Vos seems to me to make an irrefutable case against the power of courts to set aside a presidential decision exceept when it is clearly unconstitutional. In that case , it must beca matter for the Constitutional Court and not for the Western Cape High Court.
The problem with de Vos is his failure to put forth the legal basis on which he infers judicial overreach by the full bench of the Western Cape Division. He fails to take into account the considerations the new facts that emerged since March. A review of an administrative decision by courts has to take into account several factors including the conflict of interest. Courts do not carry reviews of administrative decisions very lightly and it is an insult on the three judges who took the decision after applying their minds to the facts and applying the law in arriving at the decision. To actually say that the judges have a low coefficient of thinking is an insult that must not go unchallenged. His skokiaan legal argument is very diffuse and lacks cogency. He fails to understand what Justice Zak Yacoob was quoted saying by Raymond Suttner on the very subject of judicial overreach which is very critical for the understanding of courts. Zak Yacoob stated that in the defence of the Cabinet people overlook the fact that as soon as the executive policy translates into an act or conduct that law or conduct must be consistent with the constitution otherwise courts have to their duty to declare the law or conduct invalid. He corrupts the doctrine of separation of powers in his attack on the judges in particular its purpose and that of the independence of the judiciary. The doctrine of separation of powers is essentially to curb the abuse of power by the executive in a democracy.