During the recent application by the Public Protector to have declared invalid the parliamentary process to decide whether she should be removed from office, it was argued by her counsel that somehow the appointment of retired Justice Bess Nkabinde to chair a panel to advise the National Assembly as to whether steps should be taken to invoke Section 194 of the Constitution and consider removal of the Public Protector, was a breach of the doctrine of separation of powers.
This argument appeared to be based on a very different set of facts to those in which the Constitutional Court set aside the ministerial appointment of a judge to deal with the interception of communications in terms of legislation (the amaBhungane case) and hence sought to expand the doctrine of separation of powers way beyond its established scope. The Bench hearing the application clearly wished to engage with this argument.
This exchange prompted commentators to speculate that the judiciary, reeling under increasingly strident attacks against its institution, was now seeking to be particularly sensitive to the protection of the judiciary; hence the apparent attraction of the Public Protector’s argument.
It is a stretch to extrapolate from an engagement with three judges that the judiciary as an institution, which has stoutly defended the Constitution, is now feeling the heat of the prevailing rhetoric. But the exchange does focus the mind on an important issue: there is a growing tendency by some legal representatives to forgo forensic legal argument in favour of overt political claims which are not connected to any legal principle save in the most tendentious way.
Take the core of the application by the Public Protector to set aside the National Assembly’s decision to consider her removal under Section 194(1) of the Constitution, which provides: “The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on: (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person’s removal from office.”
The Constitution is clear: there is a power given to the National Assembly to remove the Public Protector on grounds of misconduct, incapacity or incompetence. Leave aside the library of cases in which the present incumbent has been found to be incompetent or incapable of diligently carrying out her duties. The Constitutional Court in EFF v Speaker of the National Assembly (2017) held that in the case of the impeachment of the president, the National Assembly was obliged to adopt rules defining the grounds on which the president may be removed from office in terms of Section 89 of the Constitution.
It is a clear line from that finding to the conclusion that the same procedure should be adopted in any decision by the National Assembly to remove the Public Protector.
Hence, the fate of the application depends on a crisp question: are the rules adopted by the National Assembly sufficiently rational for the purpose envisaged in the judgment of the Constitutional Court, and do they in any legally significant way erode the constitutional rights of the Public Protector? This question must be determined on the basis that Section 194 clearly empowers the National Assembly to remove the Public Protector from office.
For this reason, the use of political rhetoric, such as the claim by counsel for the Public Protector that Speaker Thandi Modise is the worst Speaker since Louis le Grange, should have no place in a court of law. It is an egregious insult to our democratically elected Speaker, herself possessed of a history of clear commitment to freedom for all, to be compared to Le Grange, one of the chief architects of brutal oppression in the 1980s. Forget about engaging with the key legal questions and focus rather on political atmospherics.
Sadly, this is not an isolated incident. In the latest round of State v Zuma, one of the finest prosecutors in South Africa, Billy Downer SC, is attacked on grounds that bear almost no relationship to any plausible legal argument. Based on proceedings to date, the Zuma strategy holds very little connection to a legal defence, founded upon established concepts of criminal law and the application of the facts proven in court to the interpretation of the relevant laws.
It is almost exclusively focused on the kind of political conspiracy that would make even Donald Trump blush with embarrassment if that were at all possible. Legal argument and probing the veracity of the evidence presented by the State will come second to conspiracy theories and political soundbites to be taken up by the Zuma-supporting social media bots.
If the strategy is not to argue law or application of the law to proven facts, it is most certainly to attack the legitimacy of the prosecution, whether it be headed by Downer SC, or anyone else, for that matter. It then extends to the lawyers briefed by the National Prosecuting Authority, the essence of the criminal justice system and its integrity and, if all else fails, the attack will in all likelihood extend to the judiciary. The concept of lawfare might have gained traction in legal discourse, but this is not a case of lawfare.
There is now a line of political warfare waged in the courts with the purpose of running as far away from the law and any established legal principle as is possible. It is the stuff of destruction of a legal system and it is being conducted before our courts. We should be worried. DM