HANDS OFF THE JU­DI­CIARY!

Over the years, Pres­i­dent Ja­cob Zuma has in­ter­fered with var­i­ous pub­lic bod­ies and of­fices in a bid to con­sol­i­date his po­si­tion. Is the coun­try’s ju­di­ciary next?

Finweek English Edition - - FRONT PAGE - Ed­i­to­rial@fin­week.co.za Alices­tine Oc­to­ber is a par­lia­men­tary re­porter for Netwerk24.

agame of po­lit­i­cal Rus­sian roulette is play­ing out in South Africa and the danger here is com­pla­cency and ac­cept­ing that “trig­ger-happy” politi­cians are the new nor­mal. This game has many facets. In De­cem­ber 2015 it was the eco­nomic and po­lit­i­cal hor­ror of the so-called Nenegate. Much dam­age was done as the coun­try teetered on the edge of a precipice we would re­turn to again and again.

Pub­lic Pro­tec­tor un­der threat

Fast for­ward to 2016 and the high­est court in the coun­try had to con­firm the con­sti­tu­tional pow­ers of an in­sti­tu­tion which in this age of im­punity ar­guably has be­come one of the most im­por­tant buf­fers against state loot­ing and mis­man­age­ment – the of­fice of the Pub­lic Pro­tec­tor.

Two key in­ves­ti­ga­tions by this of­fice pro­vided kin­dling for the po­lit­i­cal veld­fire that broke out – the in­ves­ti­ga­tion into the se­cu­rity up­grades at Zuma’s pri­vate home at Nkandla and into al­le­ga­tions of state cap­ture.

The vi­tal role this of­fice plays in the fight against cor­rup­tion is un­de­ni­able. Yet Ad­vo­cate Bu­sisiwe Mkhwe­bane, who took over from Ad­vo­cate Thuli Madon­sela as Pub­lic Pro­tec­tor, has al­ready made some moves that sug­gest she has a “softer” ap­proach to cer­tain is­sues. She is drag­ging her feet on the is­sue of whether her of­fice will op­pose the pres­i­dent’s re­view ap­pli­ca­tion of the state cap­ture re­port. Is this line of de­fence also on bor­rowed time?

Other agen­cies un­der threat

Since Nenegate there have been var­i­ous at­tempts to gain ac­cess to the keys of the state cof­fers, in­clud­ing the lay­ing of trumped-up charges against fi­nance min­is­ter Pravin Gord­han. Again the coun­try’s fis­cal san­ity was al­most lost and law en­force­ment agen­cies like the Hawks and the Na­tional Pros­e­cut­ing Au­thor­ity (NPA) seem­ingly sac­ri­ficed in­de­pen­dence for the sake of po­lit­i­cal ex­pe­di­ency – some­thing both deny.

The charges were even­tu­ally with­drawn amid calls for the head of NPA boss, Ad­vo­cate Shaun Abra­hams. Another cri­sis averted. South Africans “sur­vived”. So did Abra­hams, ap­par­ently, with the pres­i­dent re­cently an­nounc­ing that Abra­hams and the two pros­e­cu­tors who laid the charges against Gord­han would not be sus­pended. Again we wait to see what the spin of the po­lit­i­cal re­volver’s cylin­der brings, while the pres­i­dent gig­gles his way through with im­punity.

Cur­rently there is un­cer­tainty re­gard­ing the pay­ment of so­cial grants to al­most 17m South Africans. This time the Con­sti­tu­tional Court was cor­nered to ap­prove a new con­tract with a ser­vice provider it al­ready made se­ri­ous find­ings against.

SA has been forced to bend the knee many a time, but now the ANC ap­pears to be play­ing Rus­sian roulette with the big­gest block in its own sup­port base – the ru­ral poor and marginalised.

Mov­ing against Zuma’s op­po­nents

In the past few weeks the re­volver was aimed at what can be called the last bas­tion of san­ity in a coun­try where po­lit­i­cal lead­ers’ de­ci­sions mostly fail the le­gal test of ra­tio­nal­ity – our courts and who may pre­side in them.

These are the very in­sti­tu­tions that have (to bor­row from Rud­yard Ki­pling) been keep­ing their heads when all about them are los­ing theirs. The pres­i­dent re­cently an­nounced his de­ci­sion to re­place three mem­bers of the Ju­di­cial Ser­vices Com­mis­sion (JSC) – the body that de­cides who will serve as the coun­try’s judges. Ad­vo­cates Du­misa Nt­se­beza SC, Ish­mael Se­menya SC and Andiswa Ndoni will be re­placed.

The EFF has la­belled this de­ci­sion as “un­pro­voked” and an “at­tempt to cap­ture the ju­di­ciary”. Of course, it is the pres­i­dent’s right, un­der the Con­sti­tu­tion, to ap­point whomever he wants to the JSC but amid al­le­ga­tions of state cap­ture and 783 charges hang­ing over his head, it would be po­lit­i­cally naïve to sim­ply take de­ci­sions at face value. Ev­ery de­ci­sion points to the fact that a larger game is play­ing out. Des­ig­nat­ing the “right” peo­ple to the one body that de­cides on who gets to make court rul­ings only makes sense in the game of po­lit­i­cal and per­sonal sur­vival.

At least two of the names of those to be re­placed are among the coun­try’s top ju­rists. Some me­dia have called Nt­se­beza one of “the three le­gal ‘giants’ who fought to bring [South Africans] the state cap­ture re­port” amid at­tempts by the pres­i­dent and later at least two min­is­ters (Des van Rooyen and Mosebenzi Zwane) to op­pose its re­lease to the pub­lic. Nt­se­beza rep­re­sented the EFF. He also rep­re­sented Marikana vic­tims and earned the ire of the pres­i­dency when he ques­tioned the process and out­come of the Far­lam Com­mis­sion into the Marikana tragedy.

Se­menya re­cently went against the pres­i­dent, so to speak, in his le­gal opin­ion on the Fi­nan­cial In­tel­li­gence Cen­tre Act (Fica). The pres­i­dent sent the Fica Amend­ment Bill back to Par­lia­ment cit­ing is­sues of con­sti­tu­tion­al­ity. Se­menya re­futed this. In 2016 he also rep­re­sented EFF leader Julius Malema over his ut­ter­ances that “the Gupta brothers should leave the coun­try”. He re­port­edly also said: “South Africa was not for sale over a plate of curry.” The court granted the or­der that Malema should re­frain from in­sult­ing or threat­en­ing the Gupta fam­ily. So the pres­i­dent may gig­gle, but he doesn’t for­get – es­pe­cially not those who in any way do not toe the line that en­sures the in­su­la­tion of his power and pro­tects those close to him. Spin­ning the cylin­der and aim­ing the gun at the ju­di­ciary will have dire con­se­quences for our democ­racy. And this is the one buf­fer we can least af­ford to lose.

Spin­ning the cylin­der and aim­ing the gun at the ju­di­ciary will have dire con­se­quences for our democ­racy.

Du­misa Nt­se­beza Out­go­ing mem­ber of the Ju­di­cial Ser­vices Com­mis­sion

Bu­sisiwe Mkhwe­bane Pub­lic Pro­tec­tor

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