It has become almost trite to observe that the erosion of democracy is now a global phenomenon. The style of leaders ranging from Donald Trump to Viktor Orbán, Vladimir Putin, Narendra Modi and Boris Johnson has become more the norm than the exception.
In a recent article in the Hague Journal on the Rule of Law, it has been suggested that “economic inequality, political polarisation, cultural backlash against rapid social, moral and demographic change, the scapegoating of immigrants and minorities by political forces, the profound and often negative effect of technology on society and the political system, the rise of non-liberal alternative governance models viewed as successful” have all contributed to the trend of democratic decay.
That decay is particularly evident in the widespread subversion of democratic institutions and the values that these institutions are intended to promote. These contemporary authoritarians, unlike their predecessors, take the form of law seriously, degrade its substantive commitments and use its procedural advantages to perpetuate their enterprise, which is designed to destroy the substantive idea of democracy and reinforce an authoritarian model of governance.
State Capture during the Zuma decade showed not only that South Africa was a victim of this tendency, but that the legislature and executive embraced this vision of governance enthusiastically. The accession of Cyril Ramaphosa to the presidency did not halt this enterprise.
Members of the government assail the constitutional model with impunity, of which Lindiwe Sisulu is perhaps the highest-profile example. In a similar fashion, KwaZulu-Natal Premier Sihle Zikalala recently proclaimed that parliamentary democracy would empower the voice of those voted into power by the majority and that an entrenched Constitution, which has granted the judiciary wide powers of review, has been responsible for the reversal of transformation policies.
Needless to say, neither Zikalala nor Sisulu has provided any plausible evidence to justify these claims, which are designed to undermine the very constitutional model that was so overwhelmingly embraced by South Africans in 1994.
At the same time, members of the same faction of the ruling party and those who sympathise with its cause exploit the protections of the Constitution in order ultimately to destroy the very constitutional model that offers them protection.
The paradigmatic case is that of the long-running saga involving the prosecution of Jacob Zuma. Zuma was first indicted in June 2005 on a range of criminal charges relating to alleged corruption in the 1999 Arms Deal. Almost 17 years later, his criminal trial is yet to begin and there is little sign that this will occur in the foreseeable future.
The latest bout of legal attempts to prevent Zuma from standing trial is illustrative. Just when it seemed that Zuma had run out of imaginative challenges to prevent the Pietermaritzburg High Court from commencing the criminal trial, Zuma accused State prosecutor, advocate Billy Downer SC, of bias and sought to have him removed as the prosecutor. That challenge met with legal defeat in the high court.
True to form, Zuma then petitioned the Supreme Court of Appeal, which acted with commendable expeditiousness and dismissed the petition, only for Zuma to file a reconsideration application to the President of the Supreme Court of Appeal on the basis that the judges of the Supreme Court of Appeal had been incorrect to dismiss the application for leave to appeal on the grounds that there were no reasonable prospects of success and that there was no other compelling reason why the appeal should be heard.
If the reconsideration application is successful, the question of Downer’s removal will be heard by the Supreme Court of Appeal. If the reconsideration application fails, Zuma will doubtless proceed to petition the Constitutional Court for leave to appeal.
Either way, it’s delay, delay and more delay!
Adopting a belts and braces approach, Zuma’s legal teams have recently announced that he intends to launch a private prosecution against Downer, notwithstanding that at this stage there has been no nolle prosequi issued, that is, a notice from the National Prosecuting Authority that it has decided not to prosecute in this case. Doubtless, Zuma’s legal team will seek to procure this certificate and pursue the case, which, in turn, will result in further postponement applications, even if the attempt to appeal against the judgment of Justice Piet Koen concerning Downer’s removal from prosecuting the case is unsuccessful.
Zuma has lost countless cases over the past 17 years. This has not prevented him from seeking to exploit every possible procedure or safeguard guaranteed by the Constitution, all of which strategy is designed to ensure that he will never stand trial. It is a classic example of the degradation of the criminal justice system, which has failed to produce an expeditious and fair result in this case.
The Public Protector, Busisiwe Mkhwebane, has been an equally enthusiastic exponent of the same legal strategy. Her latest venture into uncharted legal territory concerns the judgment of the Constitutional Court penned by Justice Chris Jafta who, on behalf of the Constitutional Court (Mogoeng CJ dissenting) found that Mkhwebane had exceeded her powers and made grave errors of both law and fact in her report on donations to President Cyril Ramaphosa’s so-called CR17 campaign for the leadership of the ANC. Justice Jafta wrote in his judgment:
“The Public Protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake.”
In particular, Justice Jafta found that the Public Protector had sought to alter the wording of the relevant executive ethics code to find against the President, in particular, that he was obliged to disclose donations to the CR17 campaign.
As a result, ironically through a minority judgment written by Justice Jafta which somehow sought to create a right for an application to rescind a judgment of the Constitutional Court, the Public Protector did not require any prodding to bring her own rescission application against this judgment, which attempt failed.
Doubtless in the light of steps taken by Parliament to remove her from office, the Public Protector has extended her strategy. She has now brought a complaint of misconduct against Justice Jafta for his ruling on her findings, asking the Judicial Service Commission (JSC) to investigate Justice Jafta and ordering him to reverse his decision and apologise to her in writing. In keeping with a novel strategy, this latest move totally rides over the express provisions of the Judicial Service Commission Act. Section 14 (4) of the act provides the grounds upon which any complaint against a judge may be lodged.
On its own, the Public Protector’s complaint does not fall within the critical section, section 14 (4). Devastatingly, a reading of section 15 (2) prohibits a complaint to the JSC based solely on a complaint related to the merits of the judgment or order. It is precisely what has happened in this case. The express wording of the act makes it clear that such a complaint has no basis in law. But this takes no account of the strategy: it is aimed at kicking the legal can down the road.
These applications, which seek to prevent the legal system from bringing cases to a conclusion (whether for or against the applicants), undermine the very legitimacy of the system. When this ploy is coupled with the broader problem of an abysmal failure of governance, at the very least, in part, to ensure that the constitutional promises of a life of greater freedom, equality and dignity for all are made a reality, it should prompt great concern about the long-term prospects of constitutional democracy in South Africa.
The judiciary’s failure to respond to a vexatious pattern of litigation notwithstanding, it still remains true that for ordinary citizens the judiciary is the only institution that can compel the government to implement its constitutional obligations, as is illustrated in a number of path-breaking judgments.
But a combination of a determination by populists to employ the Constitution for its own destruction and the failure of the government to take seriously its constitutional obligations continue to pose a frightening threat to democracy in this country. The latest tragedy in KwaZulu-Natal is truly a canary in the coal mine. DM