Let us begin with the positives.
The appointment to the Constitutional Court of Judge Owen Rogers must surely bring a smile to all who were concerned with the legal health of the country. It is no exaggeration to suggest that the appointment of Judge Rogers is the most sensible that has been made to the Constitutional Court in recent years since the earlier appointments of Deputy Chief Justice Dikgang Moseneke and Justices Edwin Cameron, Johan Froneman and Mbuyiseli Madlanga.
That the President made this appointment represents an important assertion of the principle of non-racialism in South Africa, viewed through the prism in this context of a judge who will make the most important contribution to the development of a coherent, transformed legal system.
Hard on the heels of this announcement was the further decision by the President (suddenly hurling off his previously passive demeanour) to suspend advocate Busisiwe Mkhwebane as the Public Protector.
There will be those who suggest that the President was motivated by his personal difficulties occasioned by the robbery at his farm and the consequent charges brought against him by Arthur Fraser. But consider the uncontested facts of the case against the Public Protector: a panel headed by retired Constitutional Court Judge Bess Nkabinde with two distinguished silks found that there was compelling prima facie evidence of gross misconduct and incompetence against the Public Protector which justified a parliamentary inquiry which could lead to her impeachment.
The jurisprudence which has been triggered by the Public Protector’s conduct in a range of cases can, on its own, fill a law library.
Over the past two years, the Public Protector’s office has been forced to spend more than R67-million of its budget on legal costs to defend decisions of the Public Protector which were taken on review, along with her efforts to prevent her impeachment.
In addition, there had been a string of personal costs orders imposed upon the Public Protector with a consequent deafening silence on whether any of these had been paid.
The context in which this Public Protector was appointed is equally important. She was elevated to this office during the years of the Zuma administration. We now know by way of compelling evidence set out in the various reports of the Zondo Commission that the Zuma administration was bent on a wide campaign of State Capture. To suggest that somehow the important office of the Public Protector, which had been such a thorn in Zuma’s flesh under previous Public Protector Professor Thuli Madonsela, was immune from this overall campaign is to ignore the central strategy of Zuma during his years in office.
There may well be a debate about the timing of the suspension, but the fact that Mkhwebane has been suspended is an important assertion of the importance of the rule of law in South Africa and the commitment of the state to the principle of accountability of public officials.
In passing, it should also be noted that the Public Protector has launched a fundamental assault on the judicial system, accusing judges of impropriety and capture. Revealing no confidence in the country’s judicial system, she has launched a truly bizarre application before the African Commission of Human and Peoples’ Rights, seeking R50-million in compensation for her rights being violated.
One may well ask: who will she approach after the African Commission? The Pope? The Putin?
Significantly, a Full Bench of the Western Cape High Court dismissed an application by the Public Protector for an interim interdict restraining the implementation of the parliamentary process from continuing to decide whether to remove her from office and prohibiting the President from taking any steps to suspend her.
While hardly a model of clarity, legal and linguistic elegance, this judgment makes a number of important points including that the office of the Public Protector “may proceed with any investigation against the President without Adv Mkhwebane” and further that the President has no control over how long the suspension will last as the impeachment inquiry committee may decide against impeachment proceedings, which would mean that the Public Protector will be able to proceed personally with the work of the office.
Furthermore, the court noted that a preliminary suspension is by no means punitive and Mkhwebane will not be denied her salary during the period of suspension.
True to form, the Public Protector lost no time in announcing her intention to review the President’s decision. One can only hope that her legal representatives have carefully studied the judgment of the Full Bench in that its reasoning, which is difficult to fault, runs contrary to any imaginative hope that the review will succeed. It is about time that courts considered appropriate cost orders in cases where the clear objective is Stalingrad delay rather than success in the court granting relief.
On the negative side of the balance sheet, the suspension of the Public Protector raises the troubling question of why the Judicial Service Commission (JSC) has impersonated Lot’s wife and turned into a pillar of salt in the case of Western Cape Judge President John Hlophe.
The President cannot suspend Judge President Hlophe until he has received a recommendation from the JSC. Notwithstanding the crushing legal defeat suffered by Judge Hlophe before the Full Bench of the Gauteng High Court in his attempt to review the proceedings of the JSC, the latter body has been totally silent.
If it reads the Full Bench decision of the Western Cape High Court, a precautionary suspension of the kind directed against the Public Protector is clearly applicable in a case in which a judge is faced with impeachment; in this case, after a decision of the JSC to the effect that he should be impeached. One can only hope that the JSC reads the decision of the Full Bench, fulfils its constitutional mandate and asserts the principle of the rule of law and accountability.
Equally disturbing is the lamentable failure of the President to respond to the charges laid by Mr Fraser.
Let us leave aside the character and motivation of Mr Fraser. There should be no reason why the proceeds of the sale of game should not have been reflected in VAT returns as well as in the annual income tax returns of the entity which owned the game.
There can also be no reason why an explanation cannot be proffered as to whether an amount was denominated in dollars, was reported to the South African Reserve Bank and, if not, why not. The deafening silence of the President in failing to answer these elementary questions raises real concerns about the veracity of the Fraser charges and in turn creates significant constitutional instability in that the Ramaphosa, who is on his record steadfastly committed to constitutional democracy, now continues to govern under a cloud which needs to be swept away as soon as possible.
That answers have not been provided to these elementary questions only adds to the national anxiety.
Were Ramaphosa to step aside, the political consequences could be perilous for the future of constitutional democracy. In the first place, would he be replaced by a constitutionalist? Second, absent his leadership, the ANC would be lucky to garner even 40% in the next election. And if so, would that give rise to an ANC RET-cum-EFF coalition? The sharp point is that the so-called Farmgate saga is a great cause for constitutional concern.
That sums up present-day South Africa. We move confidently forward by one step only to retreat at the next step. Nonetheless, the positive developments should be applauded and may yet form a basis for some measure of cautious constitutional optimism. DM