NOTHINGSACRED

PRO­TECT­ING A SA­CRED PRIN­CI­PLE:

Finweek English Edition - - COLUMN - STEPHEN MUL­HOL­LAND

Par­lia­ment now has 18 months to re­visit the

Act that ef­fec­tively killed the Scor­pi­ons and cre­ated the

Hawks

TWO RE­CENT LAND­MARK judg­ments in our courts give cause for cel­e­bra­tion by those who be­lieve that as long as the rule of law is the de­ter­min­ing fac­tor in the ad­min­is­tra­tion of jus­tice in our coun­try we have grounds to be­lieve we can en­joy a sta­ble and safe fu­ture.

There’s am­ple ev­i­dence – im­me­di­ately across our north­ern bor­der in the failed state of Zim­babwe – that when or­di­nary peo­ple lose faith in the fair, im­par­tial and bal­anced ad­min­is­tra­tion of jus­tice, they lose all hope in so­ci­ety.

We have be­fore us con­vinc­ing ev­i­dence of this in the mil­lions of Zim­bab­weans who have fled their lovely and boun­ti­ful coun­try for ex­ile, of­ten un­pleas­ant and un­safe, in South Africa.

As has been widely pub­li­cised – both here and over­seas – our high­est court, the Con­sti­tu­tional Court, de­cided in the Glenis­ter case that SA must be served by a corruption-fight­ing agency that has a level of in­de­pen­dence that shields it from po­lit­i­cal in­ter­fer­ence. Par­lia­ment now has 18 months to re­visit the Act that ef­fec­tively killed the Scor­pi­ons and cre­ated the Hawks.

In an­other mat­ter, the Supreme Court of Ap­peal in­structed the Ju­di­cial Ser­vice Com­mis­sion to re­con­sider its ver­dict that Cape Judge Pres­i­dent Hlophe had not – in dis­cussing pro­ceed­ings against Pres­i­dent Ja­cob Zuma with judges of the Con­sti­tu­tional Court – com­pro­mised him­self and laid him­self open to charges of gross mis­con­duct, lead­ing to re­moval from of­fice.

The Hlophe mat­ter will be re-heard: not in cam­era but in pub­lic and, this time, ev­i­dence will be pre­sented and cross-ex­am­i­na­tion con­ducted. Hlophe will this time be forced to cross the hur­dle of pub­lic per­cep­tion that there’s been proper ap­pli­ca­tion of the law. No more com­radely un­der­stand­ing but rather a rig­or­ous search for legal truth and a dis­in­ter­ested con­clu­sion.

Par­lia­ment is also not above the law. No­body is above the law: we’re all sub­ject, equally and with­out favour, to the rule of law.

For ex­am­ple, a for­mer South African, Lord Steyn, sitting in the House of Lords, found against the Bri­tish gov­ern­ment when the Home Sec­re­tary sought to in­ter­fere in a sen­tence. “Un­less there’s the clear­est pro­vi­sion to the con­trary, par­lia­ment must be pre­sumed not to leg­is­late con­trary to the rule of law. And the rule of law en­forces min­i­mum stan­dards of fair­ness, both sub­stan­tive and pro­ce­dural.”

Of course, the rule of law came un­der fe­ro­cious at­tack by the Na­tional Party regime. In his book South Africa – A Mod­ern His­tory, TRH Daven­port makes nu­mer­ous ref­er­ences to what he terms “statutes le­git­imis­ing puni­tive ac­tion with­out trial”. Those in­cluded the Na­tive Ad­min­is­tra­tion Act, Sup­pres­sion of Com­mu­nism Act, Terrorism Act, Af­fected Or­gan­i­sa­tions Act and nam­ings, ban­nings, house ar­rest, pass­port with­drawals and ex­tra-ju­di­cial in­ves­ti­ga­tions, the last in terms of the Sch­le­busch-Le Grange Com­mis­sion of 1974.

Even as great a leader as Franklin Roo­sevelt wasn’t above tam­per­ing with the rule of law to get his way. He bla­tantly at­tempted to pack the United States Supreme Court in 1937 by ask­ing Congress to al­low him to ap­point six new judges for ev­ery sitting judge over the age of 70.

In his small but riv­et­ing work The Rule of Law the late Lord Bing­ham, one of the most as­tute legal minds of his age, quoted the orig­i­na­tor of the phrase “the rule of law” – Ox­ford’s AV Dicey – who wrote in 1885: “… no man is pun­ish­able or can law­fully be made to suf­fer in body or goods ex­cept for a dis­tinct breach of law es­tab­lished in the or­di­nary legal man­ner be­fore or­di­nary courts of the land”.

Un­der­ly­ing all this is the sa­cred prin­ci­ple that no­body is above the law. We’re all sub­ject to the same law and sub­ject to it in an im­par­tial and ju­di­cially fair man­ner. That’s the heart of civil­i­sa­tion and we tam­per with it at our peril. Our courts are serv­ing us well and we must re­mem­ber John Locke’s warn­ing: “Wher­ever law ends, tyranny be­gins.”

stephenm@finweek.co.za

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