Thumb­ing nose at courts is not new

CityPress - - Voices - Charl du Plessis voices@ city­press. co. za

When the Omar al-Bashir mat­ter hit the head­lines more than three weeks ago, it was South African con­tro­versy like only we can do it. It was the death of con­sti­tu­tion­al­ism, the rule of law and all things great about South Africa. This was not what Man­dela fought for, and all that. But in fact – un­like what many de­clared in shrill tones at the time – the al-Bashir case was not the first time this gov­ern­ment had ig­nored a court or­der.

And, as per usual, in most cases, those cases had not in­volved front-page head­lines about the death of the rule of law be­cause the peo­ple in­volved were not the high and mighty, but some of the worst-off among us.

If it were not for the stoic work of the NGOs in­volved, these cases might never even have seen the in­side of a court­room.

Some fairly ba­sic re­search re­veals a sub­stan­tial list of cases in which or­ders were ig­nored or side-stepped.

In the wake of scathing at­tacks on the ju­di­ciary by se­nior tri­par­tite al­liance politi­cians fol­low­ing the al-Bashir con­tro­versy, Chief Jus­tice Mo­go­eng Mo­go­eng on Wed­nes­day an­nounced that he would be tak­ing the un­prece­dented step of re­quest­ing a meet­ing with Pres­i­dent Ja­cob Zuma to dis­cuss “un­founded crit­i­cism”.

When asked for spe­cific ex­am­ples of court or­ders that had not been com­plied with, Mo­go­eng re­ferred to a list of ex­am­ples that I had sent to him a week be­fore.

He said that with the ex­cep­tion of one “eye­brow-rais­ing mat­ter”, it had only been “a few in­stances” where or­ders had not been com­plied with. Here is that list:

A 2013 in­ci­dent when the Johannesburg metro po­lice pre­vented hawk­ers from trad­ing in the in­ner city, thereby ig­nor­ing an ur­gent Con­sti­tu­tional Court in­ter­dict. When an at­tor­ney from the So­cio-Eco­nomic Rights In­sti­tute (Seri) tried to ex­plain this to the metro po­lice in­volved, they sim­ply ar­rested her.

Also in 2013, Ad­vo­cate Nomg­cobo Jiba, then head of the Na­tional Pros­e­cut­ing Au­thor­ity (NPA), was heav­ily crit­i­cised by the Supreme Court of Ap­peal (SCA) for the lax at­ti­tude adopted by the NPA in fail­ing to en­sure that a pre­vi­ous SCA judg­ment or­der­ing the NPA to hand over the spy tapes was com­plied with.

In 2012, Lawyers for Hu­man Rights (LHR) ob­tained an or­der set­ting aside the clo­sure of the Port El­iz­a­beth Refugee Re­cep­tion Cen­tre. The depart­ment of home af­fairs ig­nored the or­der. LHR went back to court for another or­der, which was also ig­nored. In a scathing judg­ment, the SCA later said it was a “most dan­ger­ous thing for lit­i­gants, par­tic­u­larly a state depart­ment and se­nior of­fi­cials in its em­ploy, to wil­fully ig­nore an or­der of court”.

Sec­tion27, an NGO that fights for the rights of pupils, has also had to ob­tain three sep­a­rate court or­ders in its at­tempt to get the depart­ment of ed­u­ca­tion to de­liver text­books to Lim­popo school­child­ren. This mat­ter is now headed for the SCA.

In May this year, the Ekurhuleni mu­nic­i­pal­ity had a close brush with con­tempt of court af­ter a num­ber of or­ders of the Con­sti­tu­tional Court were ig­nored in a case in­volv­ing the re­set­tle­ment of poor fam­i­lies in a Baps­fontein com­mu­nity. The Con­sti­tu­tional Court at the time cited a list of cases in which court or­ders had been ig­nored. “What they show is not merely that state par­ties are fail­ing in a very se­ri­ous way to meet their con­sti­tu­tional obli­ga­tions, but these fail­ures have real and se­ri­ous con­se­quences for those whose in­ter­ests they are there to serve,” it said.

The LHR has pointed to two oc­ca­sions on which the depart­ment of home af­fairs de­ported for­eign na­tion­als de­spite on­go­ing court pro­ceed­ings chal­leng­ing their de­por­ta­tion. One of those in­volved the de­por­ta­tion of a man fac­ing the death penalty, illegal un­der South African law.

LHR at­tor­neys were also re­cently re­fused ac­cess to peo­ple who were ar­rested by po­lice dur­ing gov­ern­ment’s con­tro­ver­sial Op­er­a­tion Fiela. An ur­gent court or­der was ob­tained to se­cure ac­cess, but po­lice still re­fused to grant the LHR ac­cess un­til the fol­low­ing Mon­day.

Asked about gov­ern­ment’s at­ti­tude to­wards the courts, revered for­mer Con­sti­tu­tional Court Jus­tice Zak Ya­coob re­cently said “gov­ern­ment has been will­ingly com­ply­ing with the let­ter of the law, but not quite with the spirit”.

“What they have done in re­cent times, in­stead of em­brac­ing that duty, they have re­lied on ev­ery con­ceiv­able tech­ni­cal ob­jec­tion to evade re­spon­si­bil­ity. It is this at­ti­tude gov­ern­ment al­lows its lawyers to take which has cast some se­ri­ous doubt on gov­ern­ment’s com­mit­ment to de­liv­er­ing ser­vices for its peo­ple.”

Jackie Du­gard – an as­so­ciate pro­fes­sor of law at Wits Univer­sity and the then head of Seri when it re­peat­edly re­turned to court to get the City of Johannesburg to com­ply with court or­ders in a case in­volv­ing the evic­tion of in­ner-city res­i­dents – said the trend of gov­ern­ment non­com­pli­ance with court or­ders could be seen in the in­creas­ing fre­quency of courts grant­ing struc­tural in­ter­dicts.

A struc­tural in­ter­dict or­ders a party to do some­thing and then mon­i­tors their progress in com­ply­ing with it.

Du­gard said that in the fa­mous 2002 Treat­ment Ac­tion Cam­paign (TAC) case about an­tiretro­vi­ral drugs, the Con­sti­tu­tional Court de­clined to grant such an in­ter­dict, rul­ing that “gov­ern­ment has al­ways re­spected and ex­e­cuted or­ders of this court”.

How­ever, said Du­gard, you now see “judge af­ter judge hav­ing to en­force is­sues with en­force­ment or­ders”. “I think the so­lu­tion is for the courts to be­come more ro­bust. With the TAC, it was ar­guably ap­pro­pri­ate [not to grant the in­ter­dict], but I think that, by now, the court should have changed its per­spec­tive and said: ‘Hold on, we now have se­rial nonen­force­ment go­ing on; the facts have changed and, there­fore, the ap­proach should change.’”

Mark Hey­wood, ex­ec­u­tive di­rec­tor of Sec­tion27, agreed. “I would say that the alBashir thing is pos­si­bly the norm rather than the ex­cep­tion, and court or­ders are rou­tinely not com­plied with un­less there is close mon­i­tor­ing by civil so­ci­ety or­gan­i­sa­tions to make sure that an or­der is car­ried out.”

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