I’m very worried about lawfare. Increasingly, as the courts are put in untenable situations, they will sooner rather than later also be seen to be part of the problem.
A few years ago, listening to the eminent Deputy Chief Justice delivering a keynote address in celebration of 20 years of democracy, at Unisa campus, Dikgang Moseneke reminded the audience of a worrying phenomenon which he termed lawfare.
He indicated his and some of his colleagues’ frustration with the fact that increasingly the judiciary is being used and at times abused to settle political scores. Whether it be organised labour versus government or one political party against the other. It was preoccupying the court roll and diverting the attention of the courts away from more important and critical cases involving the citizens of this great nation.
It is akin to political “warfare”, he said, and hence the coining of “lawfare”, meaning war through our courts.
We have since that speech observed lawfare at its best. We have seen the DA and the EFF taking matters to both the high courts and the Constitutional Court in relation to matters of the legislature and votes of no confidence. We have seen the UDM turning to the courts with regards to matters pertaining to the powers of the National Assembly Speaker. We have seen ANC versus ANC in provinces seeking answers from our courts.
And now we see again the courts being placed in the precarious position of pronouncing yet again on the validity of one of the provincial conferences of the ANC in KZN. An appeal is pending.
I’m very worried about this lawfare, for two distinct reasons: one is the fact that increasingly, as the courts are put in these untenable situations, they will sooner rather than later also be seen to be part of the problem and hence their independence will be questioned and increasingly challenged. In a way, we are creating an antagonistic relationship between our judiciary and the other two arms of the State. Second, though we might enjoy the constitutional protection of the independence of our courts, the more we abuse it for our own nefarious reasons, be it political or otherwise, we are actively whittling away such guarantees. The separation of powers is something to be celebrated, but lest we forget, this too can be challenged if not properly managed.
And so, as we limp towards the ANC National Elective Conference in December, I suspect that first, the conference might not take place and second, if it does take place, lawfare is going to be the order of the day.
So we must ask, what are the implications of the ANC elective conference not taking place in December? Who gains the most from the conference not sitting? And will it be the beginning of the end for the ANC?
We saw the chaos that ensued at the Eastern Cape conference. I fear we will see the same at the conference in December but of importance is the fact that once the losing side realised that it did not possess the requisite numbers of votes to sway matters their way, they opted to disrupt and in the end attempted to stop the conference from taking place. Will we be seeing a similar strategy come December?
Things don’t look good for the Zuma faction at all.
The current membership audit suggests that all is not well with the branches of the ANC nationally and though the Secretary-General, Gwede Mantashe, has released a letter indicating that branches must begin to elect their respective delegates that will attend the conference, one cannot be sure that it will take place. Will the ANC be able to be quorate in terms of its constitutional requirement of 70% branches in good standing? Will seven out of the nine provinces be in good standing in order for it to take place? I’m not convinced.
Beside the quorum matter, there is also the trouble generally in the ANC structures currently throughout the country.
Ace Magashule is in trouble in the Free State due to him being challenged by his own comrades. They’ve had just about enough of his dictatorial behaviour and, quite frankly, he has overstayed his welcome as leader of the province. No wonder another court case is looming to force the province to convene the provincial conference which is long overdue and, may I add, unconstitutional.
Mpumalanga is seen as now becoming the kingmaker, given the number of votes it has managed to muster towards conference. Did DD Mabusa play it well or is it simply a case of serious intimidation and the threat of killings, as the province is known for?
KZN is no longer a united force – to the contrary, it’s limping towards the conference.
The NDZ candidate is not finding traction at all – trouble ahead it seems.
Zweli Mkhize has always been known to be a Zuma man, contrary to popular opinion; how will the Cyril crowd deal with him?
North West is getting flak, correctly so, for fruitless and wasteful expenditure on a Zuma statue that costs millions.
In short, the mighty Premier League seems no more – they are a spent force. Just like our President Zuma, a spent force indeed.
It is for all these reasons that I contend that we might not see a conference in December. Too much infighting, too much mistrust and hence there will be too much lawfare.
Can the real ANC please stand up – the courts will be called upon to decide the fate of the ANC and which faction can legitimately claim to represent the membership of this once glorious movement. This split seems inevitable in my mind.
After all, in my estimation the aggrieved party in KZN, meaning those that have appealed the high court judgment, will lose and the judgment nullifying the conference will be upheld. This surely will spell disaster for the province which then will have to try to arrange a conference before December, but since there exists a moratorium on provincial conferences I’m not sure how KZN will resolve such impasse.
Also, even the decision that conference is constituted through individual branches – and hence it does not matter whether provinces have conferences or not – remains a legal battle because unfortunately those same branches came about through fraudulent and unconstitutional means, hence the court’s ruling in this regard, and so those branches are in effect also illegal and should be nullified too.
How did we get here again, I hear some of you ask. Well, when you decide to violate the organisation’s constitution for your own benefit, as was the case in Polokwane, then it becomes very difficult to suddenly want to adhere to it years later.
It brings us back to lack of ethical leadership at the highest level of the ANC. With a rogue as President and with almost all institutions which are supposed to protect our constitutional democracy hollowed out, our courts it seems will continue to be placed in the precarious position of providing light in this political darkness that is engulfing us all.
Perhaps then, and only then, will we know who the real ANC is. DM
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Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is an active fellow of the Mapungubwe Institute for Strategic Reflections (MISTRA) and is a trustee for the Kgalema Mothlante Foundation
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