Threat to democracy

The president’s commitment to uphold the law will be judged by deeds not words

HAVING hoisted his campaign on the platform of moral rectitude, many had expected that President Cyril Ramaphosa wouldn’t hesitate to “take appropriate disciplinary action against Pravin Gordhan for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on members of the cabinet in terms of section 92(3)(a) of the Constitution to act in accordance with the Constitution”.

From a distance, it seems that the president is faced with a conundrum. Will he uphold the Constitution or disregard clear court rulings in favour of personal ambitions of those who have played a critical role in his ascending to the office of the president?

The president’s prevarication on this matter is incongruous compared to the haste with which he acted on the recommendations from the Yvonne Mokgoro and Nugent commissions.

The commissions looked at the fitness or otherwise of Tom Moyane to lead Sars and that of Nongcobo Jiba and Lawrence Mrwebi in the office of the National Prosecuting Authority. The president proceeded to fire them, despite them launching review applications.

The Concourt could not have been clearer in with regard to the public protector’s remedial actions. It stated that “the disregard for remedial action by those adversely affected by it, amounts to taking the law into their own hands and is illegal. No binding and constitutionally or statutorily sourced decision may be disregarded willy-nilly. It has legal consequences and must be complied with or acted upon. To achieve the opposite outcome lawfully, an order of court would have to be obtained.”

President Ramaphosa’s (mis)interpretation of the Constitutional Court ruling on the binding nature of remedial actions of the public protector in the Gordhan matter would have been understandable if lower courts had not pronounced themselves on similar cases. Publicly available expert advice seems to have eluded those providing counsel to the president.

For instance the Supreme Court of Appeal said as much in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA). “Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.”

This view was reaffirmed in a later case of SABC v DA 2016 (2) SA 522 (SCA), in which the Supreme Court of Appeal reasserted that “until a decision is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked”.

This appears to be one of those cases where personal interest seems to prevail over judicious application of the law. Of the many precepts that underpin the edifice of our jurisprudence is the constitutional injunction that all are equal before the law.

Failure to effect remedial actions when they affect those close to one can only be construed as application of double standards. The rule of law must be applied consistently, to friends and foes alike.

This injunction is central to the idea of fair application of the law. In this regard, there should be no high, no low, no rich and no poor as it relates to the application of the law.

It is precisely for this reason that the Constitution requires that institutions of democracy must carry out their mandate without favour, fear or prejudice.

The above is all good in theory. But society is not made of saints. Ambition and political expediency have a way of contaminating our sense of justice. Now and then we falter. Fortunately life has a way of rudely reminding us that what goes around comes around.

We are given an impression that the rule of law should not apply to those the media had deemed to be saints, hence there is a scurry to reinterpret and misrepresent the court. We have been here before.

The recall of former president Thabo Mbeki from office was such a lesson. Mbeki was forced to step down by his party after a court had made adverse comments about him. Four years earlier Mbeki had used adverse commentary by the court to release Jacob Zuma from office. The case in question involved Shabir Shaik, Zuma’s erstwhile financial advisor. Mbeki was forced to swallow his own medicine.

Somehow we never learn as we seem to be straddling the same terrain. Not long ago, there was a wave of palpable jubilation and high fives when the Constitutional Court erroneously ruled that the remedial actions of the public protector are binding until and unless they are reviewed by a court of law.

The ruling was celebrated because it involves the person of Jacob Zuma. Now that it affects someone they care about, they are second guessing their earlier understanding. Nothing short of consistent application of the law is expected.

In the final analysis, the real test of Ramaphosa’s commitment to upholding the law, and rebuilding institutions of democracy will be judged by deeds not words.

When you allow yourself to be projected as a symbol of morality and impeccability, people expect nothing less than transparency and honesty.