Legal practitioners fighting for constitutional democracy

May 1st, 2017

By Paul Hoffman SC

At the most recent KwaZulu-Natal Law Society annual general meeting the guest speaker was former President Kgalema Motlanthe. In the article, ‘Role of lawyers in a democratic society discussed at KwaZulu-Natal Law Society AGM’ (2016 (Dec) DR 6), he is reported to have issued a challenge during his address:

‘If we want to invest in the future, the future lawyers should have a culture of fighting for human rights and reinforcing constitutionalism. Lawyers of the future should be equipped with legal skills that will enable them to work towards the realisation of justice for all.’

Reinforcing the form of constitutionalism envisaged in our supreme law, the Constitution with its justiciable Bill of Rights, involves upholding the rule of law, respecting the separation of powers and ensuring a multi-party form of democracy in which openness, accountability and responsiveness are the order of the day.

In such an order the various rights and freedoms in the Bill of Rights must be ‘respected, protected, promoted and fulfilled’ by the state in the manner contemplated in the Bill of Rights. Promoting equality, respecting human dignity and encouraging a non-racial non-sexist approach to governance in which the enjoyment of the various rights and freedoms guaranteed to all become a reality rather than a pious promise on paper is a vital part of the work of the attorneys of the land. Attorneys who fight for human rights are willing to tackle any failure of the level of service delivery that is contemplated by the Bill of Rights. Some rights, chiefly those of a socio-economic kind, are progressively realisable within the available resources of the state. Others have been claimable in full since the dawn of constitutionalism, a most welcome substitute for the form of parliamentary sovereignty, which preceded the introduction of constitutionalism of the kind referred to by the former President in his address.

Cornerstones of the new order include our –

  • free media;
  • independent and impartial judiciary; and
  • public administration that is bound by the wholesome values and principles set out in s 195 of the Constitution.

The state and state owned enterprises are bound by five simple criteria in the procurement of goods and services. They must do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. All too often these requirements are honoured in the breach. The attorneys of the future will equip themselves with the skills to see to delivery of human rights in a manner that involves procurement that is consistent with provisions of s 217 of the Constitution read with the Public Finance Management Act 1 of 1999.

The ‘realisation of justice for all’ is a huge project in a country known for its inequality. Our Constitution expressly states in s 9(1) that: ‘Everyone is equal before the law and has the right to equal protection and benefit of the law.’ This is the first of the rights guaranteed to all in the Bill of Rights. Without it, the right of everyone to inherent dignity rings hollow. Section 9(2) goes on to say: ‘… To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.’

Attorneys of the future, working towards justice for all, will have to re-examine the requirements of this section and hold up legislative and other measures taken since 1994 to critical scrutiny in order to determine their efficacy. Unfair discrimination is presumed and ought not to persist so long after liberation if effective measures to counter it are properly devised and implemented. This is most likely to involve education, skills development, training and mentoring rather than schemes, which have tended to enrich banks and the politically well-connected, while leaving the most seriously disadvantaged, the rural poor women of the land, no better off than they were under the old non- constitutional order in which deliberate discrimination was the order of the day.

Perhaps the greatest challenge facing the attorneys of the future relates to the incidence of corruption in the country. This scourge has received critical examination by our highest court, the Constitutional Court (CC), in the series of cases known as the Glenister litigation (see Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC)).

Most recently, in November 2014, the Chief Justice commenced the decision of the majority with these memorable words:

‘[1] All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

[2] We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act (SAPS Act), as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?’

What the court is envisioning with these dicta is a single, dedicated entity to deal with corruption effectively and efficiently, an entity, which enjoys adequate structural and operational independence to acquit itself of the vital task at hand. The entity, according to the criteria laid down in antecedent Glenister litigation, must be specialised, trained, enabled to function without fear, favour or prejudice, properly resourced and, importantly, its staff should enjoy security of tenure of office.

The Scorpions or Directorate of Special Operations, a unit within the National Prosecuting Authority, was imbued with all of the characteristics required except the last. The Scorpions were a mere creature of statute, a majority in parliament was able to close them down, and did, after the African National Congress (ANC) at its elective conference in Polokwane in December 2007, resolved that this should be done as a matter of urgency.

The replacement of the Scorpions, the Hawks or Directorate of Priority Crime Investigation, a police unit, does not, arguably, comply with any of the criteria laid down by the court in its judgments.

The question posed by the Chief Justice in para 2 of the Glenister judgment – as quoted above –  was answered in the negative by the CC, which then proceeded to amend the supposedly remedial legislation that was being impugned by the two applicants in the cases under consideration by it.

The benefits of hindsight and the after-acquired knowledge of the track record of the Hawks since 2014 indicate that the Hawks still do not comply with the constitutional obligation on the state to establish an entity that is adequately independent to function as an effective and efficient anti-corruption body.

The negative consequences of this failure were spelt out lyrically in the majority judgment of the court in the previous Glenister case (Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)) in the following words at para 166:

‘There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.’

The stunting of sustainable development and economic growth do not only deleteriously affect the future lawyers envisaged by the former president in his speech, these negative consequences of not addressing corruption properly are felt by all of society. Direct foreign investment and indeed all investment dry up, ratings downgrades follow and then the spectre of becoming a failed state looms ominously.

It does not have to be so. The encouragement for the constitutional project from the former president should help more people, and most importantly, more future attorneys, to realise that the ‘Zuma years’ are an aberration on our path to a culture of the enjoyment of human rights in a country devoted to constitutionalism.

It is not as though we were not warned of what was to come should President Jacob Zuma enjoy electoral successes of the kind he had in Polokwane and again five years later in Mangaung. Writing the biography of former President Thabo Mbeki, ‘The Dream Deferred’ (Jonathan Ball 2007) Mark Gevisser observes that:

‘[Mbeki] was deeply distressed by the possibility of being succeeded by Zuma … he believed his deputy’s play for the presidency to be part of a strategy to avoid prosecution … Mbeki allegedly worried that Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation … There was also the worry of a resurgence of ethnic politics, and – given his support from the left – that Zuma’s leftist advisors would undo all the meticulous stitching of South Africa into the global economy that Mbeki and his economic managers had undertaken over 15 years … [T]he possibility of a Zuma presidency was a scenario far worse than a dream deferred. It would be, in effect, a dream shattered, irrevocably, as South Africa turned into yet another post-colonial kleptocracy; another “footprint of despair” in the path of destruction away from the promises of uhuru.’

It is up to the attorneys of the future to act on these dire warnings and to have regard to the failure of the Hawks to live up to the constitutional mandate that has been carved out for them by the CC.

One of the unavoidable consequences of constitutionalism is that the Constitution, in the final analysis, means what the CC says it means. In relation to corruption, the court has held that it is imperative to have adequate anti-corruption machinery of state both as a human rights issue (how can rights be respected and protected when corruption is diverting public money to the corrupt) and as a matter of complying with the international obligations of the state to keep adequately independent dedicated corruption busters of specialised and secure kind in place with adequate and guaranteed resourcing.

The Hawks do not fit the bill. Their work rate has always compared unfavourably with that of the Scorpions and in recent years it has tailed off in alarming fashion. The Hawks of 2016 seemed to be more pre-occupied with political intrigue than with dealing with the corrupt among us.

Future attorneys who are justifiably alarmed by the trends discernible; those who, unlike President Zuma, think that the Constitution comes before the ANC and that it is not true (as the President has insisted in Parliament) that the majority has more rights than the minority, have to take a stand in favour of constitutionalism and effective corruption busting.

All attorneys should give serious consideration to putting their weight behind Accountability Now’s call, currently under parliamentary scrutiny, for an Integrity Commission to corruption-bust. A new Chapter Nine Institution that complements the work of the Auditor General and the Public Protector (both of whom operate only in the public sector) is sorely needed. The machinery of Chapter Nine will adequately protect its independence, its accountability to parliament will effectively neutralise the malevolent effects of executive influence and interference and the calibre of its leadership will all combine to see off the scourge of corruption effectively.

The kind of attorney envisaged in President Motlanthle’s subtle challenge is willing to stand up for human rights and against corruption. The two issues are inextricably interlinked. Corruption is a human rights issue because the corrupt, in effect, steal from the poor.

Paul Hoffman SC BA LLB (Wits) is a director of Accountability Now in Cape Town and author of Confronting the Corrupt (Cape Town: NB Publishers 2016).

This article was first published in De Rebus in 2017 (May) DR 42.