Open any daily newspaper, whether print or online, or listen to any news bulletin, and you will be sure to be informed about one or other legal challenge brought by a disgruntled politician, senior executive of a parastatal or political party.
The popular term for this new phenomenon is lawfare. To be sure, litigation as a political weapon was employed regularly during the apartheid era, and often to good effect, in order to curb the excesses of apartheid rule. The difference is that today politics regularly takes a back seat to lawfare as all manner of disputes previously fought out in different arenas now require determination by courts.
In the past couple of weeks alone, Tom Moyane, the embattled Commissioner of the South African Revenue Service, the equally under pressure Siyabonga Gama of Transnet CEO, a veritable cast of characters implicated in the report authored by Adv Terry Motau SC regarding VBS Bank and most recently Patricia De Lille, at the time of writing still the Mayor of Cape Town, have all sought the intervention of the courts to save their jobs, or in the case of Ms de Lille a claim to defend her reputation.
An issue that is common to some of these cases is that the litigation is brought to set aside a report commissioned by an institution from a law firm, or a senior counsel, or in the case of Mr Moyane commissioned by the President from a retired judge. It is difficult to follow exactly what is the cause of action upon which these litigants base their case. A report that makes findings which do not bind the body that commissioned them and follows up with recommendations that may or may not be implemented may struggle to be the subject matter for a review. It will doubtless be the subject of review if a decision is taken which relies thereon so that the entire process can be seen in substance as one continuous process of decision making. At the highest for an applicant, the investigating body must uphold principles of fairness which thus provides for a very narrow form of review.
There is however a wider point – South Africa is seeking to deal with unprecedented levels of corruption. So long as the investigators comport themselves in terms of basic principles of fairness, the courts need to defer to a mechanism designed to allow daylight to filter into the murky ways in which governance of key institutions have been conducted particularly over the past decade.
The further issue which flows from these recent developments is this – the posts of CEO of Transnet or Commissioner of SARS are not to be equated to the standard employee for whom the protection of the Labour Relations Act was designed.
While a firing of this kind of office bearer may trigger a separate claim for remuneration lost pursuant to the decision by the Board or the President to remove the person from office, the decision to remove should surely be tested in terms of the principle of rationality.
As an illustration, the findings of the Nugent Commission or the information that is set out by Ferial Haffajee in this publication and which is in the public domain (30 October) are surely sufficient to justify a removal from office as Commissioner or CEO of a huge parastatal on grounds that the decision was a rational one based on clear information and obviously in the best interests of the relevant organisation.
The past decade has posed considerable challenges for courts. Courts should not be running the country; that is why we have a doctrine of separation of powers. But the Constitution brought with it a range of procedural and substantive rights which were invariably ignored during the apartheid era. And they re important and should be respected, no matter the identity or reputation of the person so invoking these rights to his or her advantage.
That brings us to the key challenge for the courts – how to balance the pressing public interest in restoring public confidence in the integrity of both state institutions and parastatal organisations with the legitimate constitutionally protected rights of those under investigation. If the courts skew the balance unduly their hard earned legitimacy will rapidly erode. One only has to look at the way Mr Jacob Zuma has employed legal strategy to ensure that he never faces a criminal trial to see what a similar legal strategy writ large can do to the legal system.
The oddity is that it is because the courts have performed so well and with scrupulous fairness that litigation has been so employed. But lawfare carries with it dangers to the legal system in general and the judiciary in particular. Simply put, if politics as a form of dispute resolution cannot be restored, eventually the courts will come under greater scrutiny and attack. Ask the Hungarian judiciary. DM