The reach of the law

THERE is an uneasy understanding in certain circles, particularly in the government and the ruling party, about the propensity of some to seek judicial recourse for matters in which they believe the courts should have no place.

It is a delicate issue and one about which Chief Justice Mogoeng Mogoeng has been unequivocal.

It is not the court’s – any court’s – place to replace the workings of the executive. But equally, that should never be carte blanche for the executive to operate ultra vires, beyond the authority accorded it by the constitution.

In a perfect world, where institutions operate within the laws set down, there should never be an instance for the courts to intervene.

The reality, though, is that this isn’t always the case; sometimes institutions don’t keep to the letter of their own laws. It is here where the courts have to intervene – if called upon by interested parties.

This is the scenario that played out this week in KwaZulu-Natal when the Pietermaritzburg High Court disbanded the ANC provincial executive committee on the grounds that the election in 2015 had been illegal.

This has major ramifications not just for the party, but for the leadership contest for the ANC national presidency in December, as the erstwhile leadership structure was seen to be supportive of President Jacob Zuma and his former wife, Nkosazana Dlamini Zuma.

THE BIGGEST problem, though, is how the decision is received and acted upon. The easiest way would be to heed the court’s decision and urgently regularise the situation, holding elections anew if necessary in time for the all-important national conference.

The problems, though, have been exacerbated by members of the winning faction calling for previous provincial executive committee resolutions to be revoked, particularly around the deployment of mayors and members of the provincial government, among them the former premier.

The solution cannot lie with the courts but through proper political leadership – in keeping with the party’s constitution.

The ANC national working committee will have its work cut out for it on Monday in seeking a solution that is in keeping with its rules and satisfies the needs of a divided broader body politic.