Delegates are slowly beginning to arrive to attend the 54th ANC Conference which is a day away. An eventful week in many aspects is about to culminate in the much awaited election of a new leadership collective.
There is much vested in this conference as diverse sectors of society defined in business, civil society, organised labour, tripartite alliance members and also now the judiciary appear to have inserted themselves into this election with the intent of shaping the outcome. We know that monopoly capital, which in SA is white, is hugely invested in this outcome.
This past Wednesday Judge Dunstan Mlambo accompanied by a full bench of the Gauteng High Court Division dismissed the president’s application to set aside the public protector’s remedial actions on the State Capture report. The president sought relief in this regard to afford him the space to establish a judicial commission as the constitution affords him. Justice Mlambo separated the rulings and first handled the aspect of costs, in which he found against the president, concluding the litigant as responsible for the costs. In his 11am ruling Justice Mlambo gave an adumbrated version of the events that led the court to its decision to dismiss the case in its totality and instructed that the remedial actions of the public protector stand and is to be given effect with the appointment of a judicial commission within 30 days from his ruling.
This ruling is significant for it stands in the same tradition of an earlier ruling Mlambo with a full bench made that the appointment of the National Director of Public Prosecutions Shaun Abrahams be set aside as nullified. Justice Mlambo in a strange sense opted not to have the former NDPP, Mxolisi Nxasana reinstated. It can be argued he accepted the compromised status of the then NDPP and relied on that to equally deny Nxasana as unfit to just be brought back into his resigned job. Mlambo went further to direct that the deputy president Ramaphosa instead of the president appoint in 60 days the new NDPP. This ruling is the subject of an appeal from a few quarters including the president and the NPA, among others.
In any season the rulings of Justice Mlambo may have been considered dispassionate and standard despite its constitutional complexities and definite challenges. However, this is South Africa where out of apartheid the judiciary has seldom been impartial and in democracy has strayed into what is generally referred to as judicial adventurism. Judicial voyeurism, the exercise where the roles of the distinct arms of state become blurred. In a sense we are in unchartered waters where the constitutional frame of SA is tested to its limits. We should not be surprised if these rulings end up in the constitutional court.
Unfortunately Mlambo’s collective rulings have a bearing and plausibly their own designated influence on this conference and its anticipated outcomes. Regardless to the accepted acknowledgement that in democracy the judiciary in pursuit of justice functions in its own frame, time and paradigm dispassionate to whatever informs the dictates of a specific epoch, as not to be influenced by the unfolding events of either the political or economic spheres, there are still those who are of the view that Mlambo could have been sensitive to the timing of his ruling. On the other hand this argument naturally would render the whole subject of a judiciary in pursuit of justice as questionable when it has to prove considerate to events happening when and where and for what interest.
Justice Mlambo is no stranger to watershed rulings – we will not forget that he in the Al Bashir case ruled against the State in summation of the following words, “A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations and fails to abide by court orders”.
However Mlambo’s earlier findings on the invalidity of the current NDPP, Shaun Abrahams raised some constitutional challenges. Advocate Paul Ngobeni in his comment on this verdict outlined the fact that “Nxasana was compromised with allegations/charges against him as not fit and proper to lead the NPA, this was informed by his violent acts for which he was acquitted, denial of security clearance and based on the fact that he was at war with his subordinates”. Ngobeni remonstrates that instead of Nxasana fighting his case in a disciplinary hearing, he compromised and settled for and accepted R17-million payment (approximate value of his remaining contract) and resigned.
Ngobeni therefore argues “it remains a valid question whether compromises or settlements in the face of discipinary charges can be nullified where both parties bargained for and received benefits they sought.” He advances, “once the resignation was duly accepted, the NDPP position was vacant and the President was entitled to appoint a successor”. It is his contention that “even a later declaration that the resignation was unconstitutional would not retroactively make the vacated NDPP position ‘not vacant’.”
On the matter of reassigning to the Deputy President the Constitutional duty to make NDPP appointment valid and constitutional as directed by the court, Ngobeni reminds us that the SCA consistent with the separation of powers, referred the matter back to the NPA for its decision on whether or not to proceed with the charges. We know the NPA has appointed a team of senior prosecutors to review the entire record and accused’s representations and advice on whether to reinstate the criminal charges. Ngobeni asserts “it follows inexorably that Judge Mlambo has no idea what the NPA will decide in regard to Zuma and whether the criminal charges will ever be re-instated. It is premature for the judiciary to speak of a conflict of interest on the basis of pure speculation and guesswork.”
According to Ngobeni, Judge Mlambo used a potential NPA decision that remains unknown as directed by the SCA as the bases for his claim of a conflicted Zuma. Clearly this particular case of the NDPP is open for constitutional challenge.
In a sense this first ruling compromised the court and plausibly set the scene for the latest ruling. Meaning if the Judge who relied on the questionable conflicted Zuma reasoning NDPP case, the court would not suspend that in this case to now afford the president his constitutional right to execute his functions. Not only will the court be inconsistent in these separate cases but it also would question its own ruling in the first NDPP matter it entertained.
In each instance the Court relied on a notion of a conflicted Zuma to inform its rulings. While these are separate cases the common factor remains Zuma, the president of South Africa and head of the executive, and in each instance his right as afforded by the constitution to appoint be it the NDPP or a Judicial Commission. Therefore linking these two cases in court outcomes is not out of the ordinary since the principle matter is the power of the president to appoint where it is claimed he is conflicted.
It is then here that questions can be directly asked as to intent on the part of the court when it in claim of attempt of upholding the constitution can equally rule in an unconstitutional manner against the President for attempting to execute his functions. The critical question therefore is to what extent the court in its rulings has determined the president not capable to appoint when it does not deny him the capability to execute all other functions as afforded by the constitution?
Another challenge with denying the president the right to appoint as advanced by the then Public Protector, is an unspoken but subtle claim of a potential judiciary that can be bought to favour the president. While the safeguards of a judicial service commission that vets appointment, we have seen how the Judge Seriti Commission into the Arms Deal was considered a whitewash as favourable to the president and the ANC. I have raised this as far back as when the Public Protector made her ruling in 2016. In that instance I asked is the public protector in a subliminal sense cautioning us against a judiciary that can be bought?
I ask now again does the ruling of Mlambo in this instance as upholding the remedial actions as directed by the public protector confirm an acceptance that some in the judiciary are compromised and therefore open for influence in this instance by the president?. At another level if remotely it can be argued that some in the judiciary are compromised to be bought, can we also consider that the very full bench of judges is not exempted from that very claim? Is the appointment of the Chief Justice of any judge to preside an automatic guarantee of a judge or court not bought, if so why? This question may be considered silly in some circles but it remains a question nevertheless particularly since our judiciary like any part of our society is not exempted of the reality of corruption.
In some circles it is difficult to accept that Mlambo’s rulings do not have any political undertones. We are not sure if Mlambo is lifting his hand to be the one that will preside over the state capture investigation. It appears his mind is made up and he has already determined the guilt of the president, a guilt that renders him conflicted and therefore incapable to execute his constitutional roles. Effectively Mlambo has unilaterally declared Ramaphosa the president of SA when the existing president is still in office.
Mlambo on another level appeared to have usurped the role of the ANC branches of the ANC to decide its next president, by potentially directing them from a SA presidency frame. We must ask did Mlambo with his ruling on the NDPP not also expose Ramaphosa? We equally must ask was Mlambo court ever capable of ruling the president fit to appoint a judicial commission on state capture when his court already had a predetermined mind of the president as conflicted.
That the ANC is facing its most difficult conference is without doubt, since the factional reality of the ANC is more amplified and the aforementioned vested interests more pronounced in this season. It must be accepted that we simply cannot have the judiciary claiming to be defending the constitution when it proves captured in political conclusion and inserting itself into the political life of SA in determining a conference outcome by appointing a new president when South Africa has a president who happens to be the ANC president.
Clyde N. Ramalaine