Whatever possessed the DA to lodge a complaint with the Public Protector about money given by Bosasa to President Cyril Ramaphosa, the irony of the consequences cannot be ignored.

Before dealing with this, suffice it to note the further oddity – it is the very complainant in this case, namely the DA, which has requested a debate in the National Assembly to consider the fitness for office of the incumbent of the office of Public Protector. It is hard to get one’s head around this double move – if the current Public Protector is unfit for office (that is presumably why the DA wishes the matter to be debated) – then how does she somehow become fit and proper to deal with a complaint that holds huge consequences for the stability of government at this precarious time in our history?

Recall, for example, that not that long ago two DA MPs, Glynnis Breytenbach and Werner Horn, were in court having accused Busisiwe Mkhwebane of being on the payroll of the State Security Agency. The case was dismissed by the High Court and understandably Mkhwebane demanded an apology from the DA. Whether the case is to continue is beyond the point of this column, but what occurred in the High Court does add to the oddity of the DA’s conduct read as a whole.

Back to the more important question: In 2015, the Constitutional Court found that the Public Protector’s remedial action contained in her report, Secure in Comfort, which dealt with impropriety and illegality in the expenditure incurred by the state in relation to security upgrades at the home of then president Jacob Zuma was binding on the president unless and until it was set aside on review. Much public joy accompanied this decision. Leader of the Opposition Mmusi Maimane and the leader of the EFF, which had brought the application to the Constitutional Court, said the decision was, in effect, a victory for the Constitution and that Zuma had disgraced his office by so wilfully disregarding the founding text .

Four years later and the current president may face a similar situation. To be clear he has not, as yet, been found to have breached any law as the Public Protector is in the throes of her investigation. Second, as a constitutionalist Ramaphosa is very unlikely, in the event of an adverse report from the Public Protector, to exhibit the same wilful disregard for the Constitution as was the case with his predecessor.

But, assume that the Public Protector finds that the president and/or his campaign team that successfully powered him into the highest office within the ANC had acted improperly in accepting money from a dubious source, what will be the consequences? The obvious answer is that the findings and proposed remedial action will be taken on review to the High Court and, if necessary to the Constitutional Court (possibly like the Nkandla case by way of direct access). But even a favourable outcome for the president will take time, for that is the way litigation’s wheels turn – very slowly.

In the interim, one can predict calls for the president to step down pending the outcome of the review (vide the calls made on Pravin Gordhan in a case that, unlike the complaint against the president, had been determined favourably for the minister on more than one occasion) and for Deputy President DD Mabuza to temporarily take over the presidential reins.

Of course, nothing of the kind may happen – the Public Protector can give Ramaphosa the all-clear, the remedial action may not justify a temporary leave of absence, or Ramaphosa can take the view that he is not obliged to do anything until the review process has been completed. All true, but that is to miss the point of this particular column which can be summarised as follows: Once political struggle migrates to the courts, the space for democratic politics contracts.

The political battles of who controls the governance of the country take place in courtrooms, with lawyers rather than political movements being the vehicles for contestation. The one side wins a legal victory and the other retreats to another legal hill from where they launch a counter-attack; hence the context in which the current legal battles are being waged.

South Africa is not the only country where this phenomenon is/will be encountered. Brazil saw a coup by way of a legal process and it is only the truly optimistic who consider that if he loses the 2020 election that Donald Trump will not cry foul and run to the courts with a litany of complaints about the election.

And yes, it may be so that the courts (far more likely in South Africa than in the US with its current Supreme Court) ensure they do not unduly interfere in a democratic process but, while the country awaits a judgment, all manner of political consequences may occur.

The moral: those who use the litigation strategy need to consider the consequences of short-term legal gain at the expense of long-term political loss. DM