Of­fi­cials should pay for fight­ing un­winnable cases

Weekend Argus (Saturday Edition) - - FRONT PAGE -

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.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.