Putting democracy to the test
When the ANC majority acts above the law, the opposition takes the fight to the courts, writes Gareth van Onselen. The DA has run 101 court cases since 2009
SINCE 2009, the DA has waged 101 court cases. It is a staggering number and symptomatic of the state of national politics. In the face of an ANC majority increasingly hostile to and cavalier about its constitutional obligations, the justice system — as opposed to parliament — has become the de facto battleground for democracy.
How has the DA become so fundamentally enmeshed in legal advocacy?
James Selfe is chairman of the DA’s federal executive and the second-most powerful person in the party. All the DA’s legal activity originates in and flows through his office, and its legal advocacy is to him as much about principle as it is personal.
Enigmatic, meticulous and relentless, he is the centre that holds. He has held his position through three federal leaders. The last of the original seven Democratic Party members elected in 1994 still in active politics, he was heavily involved in the drafting of South Africa’s constitution.
Selfe says: “There was a point when the government seemed to decide it was above the law, activated by a kind of majoritarian disdain that first manifested around 2008-09. From there, that majoritarianism has taken on a new stridency. We took a somewhat reluctant decision — because of the cost — to make extensive use of the courts as a means of holding the executive to account.”
Jacob Zuma assumed the presidency in May 2009 and Selfe agrees it was with his election that this disdain was ushered in.
“The democratic space in parliament has been shut down,” says Selfe. “It is deeply disturbing.
“It simply becomes a matter of ‘If you have the numbers, you are therefore right’.” He argues that, under president Nelson Mandela, it was the force of ideas that mattered. “As Mandela often said: ‘We are not always right.’
“Contrast that with the National Assembly today,” says Selfe, “where you are not allowed to say something is ‘rubbish’. There is more freedom on the Grand Parade than in the National Assembly. You try and make such arguments, and use reason and evidence, and in the end it matters not.”
Selfe is not exaggerating the cost. The party has spent about R10million on its legal centrepiece alone, a seven-year attempt to prove that the 2009 decision by the National Prosecuting Authority to drop 783 charges of fraud, corruption and racketeering against Zuma was irrational and unjust.
State funding to parties — through the Independent Electoral Commission or parliament — cannot be used to fight such legal battles. The party relies entirely on private donations to run them.
After years of legal obfuscation and delaying tactics from the NPA, in which everything from the DA’s legal standing in bringing the application to the confidentiality of those representations Zuma made to the NPA at the time was contested, the party has systematically and patiently overcome every ob- stacle in its way.
This month, the case finally reached its zenith, as the High Court in Pretoria heard formal arguments. Judgment has been reserved and South Africa now awaits its finding.
There are three criteria the DA uses to decide whether to pursue an issue in the courts. First, it is prepared to approach the courts when it believes one of its members has been unfairly treated. An example would be the announcement this week that the DA may seek a legal review of the manner in which the parliamentary ethics committee has treated its leader, Mmusi Maimane. It believes the committee violated proper procedure in finding him guilty of failing to declare certain interests.
Second, if it believes there has been flagrant disregard for the rule of law or irrational action on the part of the executive. The DA’s successful application to have the appointment of Menzi Simelane as head of public prosecutions declared irrational fits this particular bill. The case went all the way to the Constitutional Court, which found, in October 2012, that: “The president’s decision to ignore [evidence damning of Simelane] was of a kind that coloured the rationality of the entire process, and thus rendered the ultimate decision irrational.”
Third, and finally, the DA will approach the courts if it believes such action will correct or supplement existing civil law. The Zuma case, in part, speaks to this objective: can a decision to drop charges be open to review in the same way a decision not to pursue charges is? The DA believes establishing the principle is just as important as how it is then applied.
The DA is not alone in approaching the courts for relief. The EFF, which, with the DA, has taken the Nkandla matter to the Constitutional Court, is equally disdainful of parliament’s ability to provide proper oversight these days, but it has a few caveats.
EFF spokesman Mbuyiseni Ndlozi says that from the EFF’s perspective, it depends on the issue. “You can’t go to court to win a policy question, such as the min- imum wage.” But, so far as accountability is concerned, “the courts have been far more helpful than parliament . . . The ANC has rendered parliament useless in that regard,” he says.
“It shouldn’t be that way,” says Ndlozi. “It is a big concern. But the strategy of the EFF is to use the courts as the very last resort. We do not seek to run to courts.”
Both parties face something of a double-edged sword on this front. On the one hand, using the courts successfully demonstrates influence and power. On the other, admitting that their respective roles in parliament are effectively null and void in the face of an ANC majority suggests weakness and irrelevance. It is a fine line they walk, so far as public perception goes.
But Selfe believes the two are connected: a powerful legal precedent can strengthen the opposition’s hand in parliament. “To some extent we are fighting political battles in court, which on occasion the courts are not happy with.
“Far more important, however, is to create those binding legal precedents that are going to sustain our constitution and jurisprudence going forward, so that we don’t have to go down that route again.”
At any given time over the past five years the DA has had between 10 and 15 court cases on the go. They split roughly between the three categories Selfe identifies. The party’s record is impressive. It has won a number of significant victories, including the appointment of SABC chief operating officer Hlaudi Motsoeneng (which the high court found invalid, but this is on appeal) and the right to bring a motion of no confidence against the president.
Often these cases take an inordinate amount of time, as the wheels of justice grind slowly. Selfe says: “When I started out in politics I knew only the currency of the long haul. Nothing in my experience has changed that point of view.” Case by case, this is true, but so big is the DA’s legal repertoire now that hardly a month goes by without one or other court delivering a significant judgment. And, as parliament continues to devolve into chaos and anarchy, it is not just the public looking to the courts for clarity, reason and principle, but the opposition too.
To some extent we are fighting political battles in court, which on occasion the courts are not happy with