Officials should pay for fighting unwinnable cases

I’VE always believed in doing the right thing as opposed to doing the legal thing. I have too often seen the law being used as a way of justifying things that should never have happened and could have been sorted out by using common sense.

And before I get accused of promoting lawlessness, let me explain via some examples.

One of the ways in which the government is trying to transform our economy is through using legislation like Broad-Based Black Economic Empowerment and the Employment Equity Act.

Most companies will do just enough to comply, not because they agree with the need to transform our economy, but because they don’t want it to hinder their ability to make money.

They will hire black people and pay them huge salaries to occupy non-decision-making positions with fancy titles.

More recently we have seen how high-profile individuals, including our president and the one-who-should-not-be-employedby-the-SABC, have used the courts to challenge legal decisions with which they do not agree. We have also seen how Parliament has interpreted legislation in ways that made it comfortable, even if it went outside the bounds of the law and human decency.

And this week, Finance Minister Pravin Gordhan has been charged with what, on the face of it, looks like a trumped-up charge with no reasonable hope of success. The government spends billions on legal costs every year.

Part of this is for legal advice, but part is to pay lawyers and advocates, and mainly senior counsel, to defend politicians and officials. It would be interesting to see an analysis of how successful these lawyers have been in court.

The reason for this big spending is linked to managers not being able to make decisions to do the right thing. Quite often, it is also about finding “lawful” ways of doing stuff that should not have been done in the first place.

People are naturally prone to making mistakes. Those in government can afford to make bigger mistakes than others because they have more resources to defend themselves in court .

But often, they know at the beginning they have no hope of success and are merely delaying the inevitable. This, obviously, amounts to wasteful expenditure.

One hope, and this is courtesy of the public protector’s report on Nkandla and the ruling in the SABC 8 case, is that so-called public servants will in future be held to account for wasting public resources on flimsy legal cases.

The public protector of course ruled that the president had to personally pay part of the costs for his Nkandla homestead, while executives at the SABC were ordered to explain why they should not be held liable for costs in the SABC 8 case.

I hasten to add that I am no legal expert. Even so, I can’t help thinking there is potential for a challenge to the abuse of power by the head of the National Prosecuting Authority, Shaun Abrahams, who appears to have spent millions on an investigation looking for dirt on the finance minister, only to finally charge him with what appears to be a misdemeanour at best, or worst, depending on your perspective.

The same Abrahams has also spent millions on court challenges in an attempt not to prosecute President Jacob Zuma on corruption charges.

What will happen if the finance minister is found not guilty and the president is found guilty? Will Abrahams be forced to resign? And will he be held personally liable for public money wasted pursuing what appears to be a political agenda?

Will he do the right thing and apologise to the nation for the harm his decisions have caused?

The time has come to draw a line in the sand and to say the days of using the courts to determine the outcome of political battles and as a tool of incompetent so-called public servants are over.

Before going to court, those in government should ask themselves whether what they are trying to pursue is right – in terms of our constitution and in terms of the greater values of liberation for which so many sacrificed. If the answer is “no”, then it is probably not worth going to court.

They should also ask themselves whether, in the event of their case not succeeding, they would be prepared to personally foot the bill. Again, if the answer is “no”, then they should probably stop.

It is time to start doing the right thing, as oppose to the legal thing. But what do I know? I am not an expert.