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Shameless omnishambles around the separation of powers doctrine over Zondo State Capture assertion


Paul Hoffman SC is a director of Accountability Now.

There has been an extraordinary lambasting of Chief Justice Raymond Zondo for allegedly breaching the constitutional doctrine of the separation of powers following his comments on the likelihood of a repeat of State Capture in South Africa. The outcry ignores the fact that the commission was always a creature of the executive branch of government, and that Zondo’s role at the commission was not to preside as a judge, but to conduct an inquiry into a particular question at the behest of the executive.  

The facts are simple: The Chief Justice accepted an invitation from the Human Sciences Research Council to address a colloquium on an important question, namely, whether, post his commission of inquiry, our democracy is at risk. A question worthy of consideration, not only by those who attended the colloquium but by all who value peace with security, progress that is sustainable, and prosperity that is equitably shared.

No one objected in advance to the Chief Justice delivering the keynote address at the colloquium; on the contrary, it was opened by a cabinet minister with vast experience, Blade Nzimande. But, when the Chief Justice answered the question with a resounding and well-reasoned, “Yes, democracy is at risk,” all hell broke loose on the upper decks of the legislature, the executive and in Luthuli House.

The doctrine of the separation of powers was used as a stick with which to beat the Chief Justice and he has been called to account for his utterances, which he should have no difficulty doing.

This is how the doctrine is described by the Constitutional Court itself on its website:

“A crucial function of a constitution — and one of the classic features of democracies — is the division of power among the three pillars of government.

“Constitutions protect democracy by separating state power into three arms. The legislature (parliament, the provincial legislatures and local councils) makes the laws and monitors the executive; the executive (the president, deputy president and ministers) makes policy, proposes laws and implements laws passed by the legislature; and the judiciary tries cases and administers justice.

“The judiciary is unique in that it is not elected, but is independent. This means no one can interfere in the work of the Constitutional Court and the other courts in the country.

“In practice this means each arm of the state keeps watch over the power of the others. The courts can judge the actions of the legislature and the executive but cannot pass laws. The legislature can make laws but cannot hand down judgments or take executive action.

“It’s not easy to keep these in balance. Often the challenge is to ensure that the executive does not wield its authority without being contained by the other branches.”

The executive and legislature are not above criticism in SA; freedom of expression is guaranteed to all in the Bill of Rights. It was in his capacity as head of the commission of inquiry into State Capture that the Chief Justice was invited to give the keynote speech at the colloquium. He did not arrive dressed in his judicial robes; he was there as head of the commission, a body set up to advise the executive on the topic of State Capture.

Having spent over a billion rand on the commission and having lost more than a trillion to looters, the taxpayers of SA are surely entitled to know, in our open and accountable framework, what the commissioner thinks of progress made in the year since he finalised his report, working 36 hours without rest in order to meet the 22 June 2022 deadline set.

Any commission of inquiry of the kind over which the Chief Justice presided is a creature of the executive branch of government and is not part of the judiciary as such. The executive asks the commission to inquire into the facts that inform the subject matter of the inquiry, to report on the facts found and to make non-binding recommendations. It is within the remit of the commission to comment on the implementation of its recommendations, especially when the recommendations have been accepted by government.

In the time available, and given the capacity constraints of the commission, an excellent job has been completed by the commission but has not been acted on by government with anything like the alacrity that is required. Paying lip service to the recommendations made without implementing them simply paves the way for State Capture 2.0. The corrupt see that their impunity is ongoing and are emboldened to continue with the nefarious dealings that comprise kleptocracy, State Capture and serious corruption of the kind that organised criminals indulge in until deterred.

There is no adequate deterrence while the criminal justice administration’s capacity to counter serious corruption is in disrepair and disarray.

Those in charge in Parliament and the executive should know that the Chief Justice is also chairman of the Judicial Service Commission. One of the functions of the JSC is that it may “advise the national government on any matter relating to the judiciary or the administration of justice”. The reason behind the affirmative response of the Chief Justice to the question of democracy being at risk is that those in the executive and national legislature whose business it is to govern in accordance with the Constitution do not appear to be up to the task at hand. Wearing his JSC hat, it is surely the duty of the Chief Justice not to sit on his hands in the current circumstances of SA.

Parliament cannot be expected to arrest, prosecute and try those involved in serious corruption. That is the work of the criminal justice administration. The judiciary has already, a long time ago, ordered Parliament to legislate what is required to deal with serious corruption. The necessary corruption-busting criteria have been spelt out in terms that are binding on Parliament, having regard to section 165 of the Constitution. It is also the constitutional duty of Parliament to ensure that the laws it passes are properly implemented.

In the majority judgment in the third Glenister case, handed down in November 2014, Chief Justice Mogoeng summarised the law in the following words:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The entity envisaged in that judgment does not exist and there are no current plans to establish it.

The findings of the Zondo Commission bear testimony to the startling lack of effective and efficient delivery on its “core mandate” of such anti-corruption machinery as exists. Dysfunction, lack of capacity, shortage of resources, lack of skill, infestation by protectors of the corrupt and sloth are the order of the day in the criminal justice administration insofar as countering corruption is concerned.

In the Zuma era it could be expected that little would be done to sharpen up the post-Scorpions anti-corruption machinery of state, but, with his promises of renewal and clean governance, Cyril Ramaphosa should by now be doing better than Jacob Zuma. In the considered opinion of the Chief Justice, his government is not, thus paving the way for further criminality that imperils the survival of our democracy.

Ramaphosa, when he gave evidence at the commission, did warn that he would not move against those implicated in State Capture until after the dust has settled around the review proceedings threatened by many of those implicated in wrongdoing by the commission. He also defended the noxious practice of cadre deployment in the public administration and state-owned enterprises, identified by the commission as one of the causes of State Capture. Those reviews will only be mounted when criminal proceedings are instituted. As very few cases have been initiated by the National Prosecuting Authority, those named in the report of the commission sail on with impunity.

The illegal and unconstitutional practice of cadre deployment will end when the pending court challenge against it finally succeeds, probably on appeal to the Constitutional Court. The high court and the Chief Justice have already confirmed that cadre deployment flies in the face of the relevant principles and values of the Constitution as set out in its section 195.

The delaying tactics around implementation of the commission’s findings will end when government feels obliged to do what it should have done years ago.

It is bound to implement the Glenister criteria and has not done so. Hopefully, when he meets the Speaker of the National Assembly and the Chair of the National Council of Provinces the Chief Justice will explain the binding nature of the Glenister decisions and the manifest failure to implement them. They are the decisions of the highest court in the land, not “take it or leave it” recommendations of a mere commission of inquiry. It is a disgrace that proper steps to implement them have not been taken, especially as the leadership of the ANC asked Cabinet to do so in August 2020, when the Ramaphosa “new dawn” was still new. Cabinet ignored their instructions. DM


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  • Errol Price says:

    Commissions of inquiry, not only in South Africa but elsewhere, which involve potential government malfeasance are almost universally designed to kick the can down the road. The government hopes that the longer it takes and the more reviews / appeals it generates, the more likely the public are to forget and move on to other things. Thus it is with the Zondo commission.
    For the same reason, the ANC must have heaved a huge sigh of relief when the Guptas were not extradited to face trial. A trial of that sort with all the evidence that would come out is the last thing they need.

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