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Certain values in the Constitution were designated as the foundation of our democracy. Such values must then be observed scrupulously because if these values are not observed and their precepts not carried out conscientiously, this would be a recipe for a constitutional crisis of great magnitude in South Africa (SA). This brings the spotlight on the principle of judicial independence, which is fundamental to our democracy and features quite prominently in many international legal instruments. It is also protected and guaranteed by the Constitution, which is why at the adoption of the Constitution, following the thorny issues emanating from Apartheid, the Constitution conceived of a way to give a voice to the poor and marginalised, a beacon of hope, which seeks to heal the divisions of the Apartheid past and seeks to establish a society that is based on democratic values, social justice and human rights.
The Constitutional Court (CC) has over the years, since the attainment of the democratic dispensation, placed the independence and impartiality of the judiciary at the centre of the South African constitutional system. This independence of the judiciary is such that the judiciary should enforce the law impartially and that it should function independently without fear, favour or prejudice. Ironically, it is that constitutional mandate that has left the courts with the short end of the stick. This is mainly due to the role of the courts, which at times entails thwarting or declaring unconstitutional legislative and executive decisions. As such, the judiciary is denounced for supposedly fashioning their judgments with the objective of advancing or colluding with other entrenched interests. As a result, SA is witnessing a resurgence of the legal and political constitutionalism controversy.
That the courts became embroiled in such situations should not be surprising. Judicial involvement was a mere confirmation of the natural order of things; people fall back on the judiciary when disputes are not resolved, just as they rely on the electoral system to get rid of politicians. The court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at para 104 held as follows:
‘The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to “administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”. To this end they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself’.
Undoubtedly, the establishment of the CC was of great significance for SA, considering the history of the country. What this court has done was to extend its jurisdiction to decide also on non-constitutional matters that raise arguable points of the law of general application. It did not come as a surprise in Economic Freedom Fighters and Others (Democratic Alliance as Intervening Party) v Speaker of the National Assembly and Another 2018 (3) BCLR 259 (CC), wherein the president failed to implement the Public Protector’s report dated 19 March 2014 and the court found that his conduct and that of parliament were unconstitutional, the court found that the National Assembly failed to put in place mechanisms and processes to hold the president accountable for failing to implement the Public Protector’s remedial action, and issued an order compelling the National Assembly to convene a committee to investigate whether former President Jacob Zuma was guilty of any impeachable conduct under s 89 of the Constitution.
The Black Sash Trust v Minister of Social Development and Others (Freedom under Law NPC as Intervening Party and Corruption Watch (NPC) RF and Another as amici curiae) 2017 (5) BCLR 543 (CC), put a nail in the coffin in suggesting that there are untenable situations that the courts find themselves in having to intrude into the domain of Parliament. In this case the court was called on to intervene when the Department of Social Development failed to terminate a contract with Cash Paymaster Services (Pty) Ltd, risking millions of South Africans who were in receipt of child support grants, care dependency grants, foster child grants, disability grants, older person grants, war veteran grants and grants-in-aid, in terms of s 4 of the Social Assistance Act 13 of 2004. Indeed, the court itself conceded that this order pushes at the limits of its exercise of a just and equitable remedial power.
On 28 January 2021, the CC handed down its judgment in the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (the Commission) to compel the former President Zuma to appear, and give testimony, before it in the case of the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma (CC) (unreported case no CCT 295/20, 28-1-2021) (Jafta J (Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)).
Dan Mafora (‘An omnipresent jurisdiction – The problem with direct access’ (https://danmafora.substack.com, accessed 14-4-2021)) states: ‘It held that [former President] Zuma was compelled to comply with the summons issued by the Commission and appear before it on a date it will determine; that he will not have the right to remain silent and, therefore, not answer questions; and that he will still retain his privilege against self-incrimination, but that such privilege would not be a blanket privilege and would have to be invoked against every question an answer to which might incriminate him, if he could show it.’
The constitutional crisis manifests itself in the manner in which the court dealt with direct access. In determining whether direct access should be granted, the CC exercises a discretionary power. Like all discretions, the power must be exercised judicially. What this means is that the court must not misdirect itself in relation to the relevant facts and the applicable law. Should an incorrect legal standard be applied, it cannot be said that the discretion was properly exercised. Section 167(6) of the Constitution empowers litigants to bring cases directly to the CC if it is in the interests of justice to do so and leave is granted.
The Commission’s mainstay for seeking direct access was based on urgency. The Commission’s lifespan is to come to an end on 31 March 2021 and it argued that very little time remains for it to complete hearings and compile a report. It concluded by submitting that in these circumstances, it is urgent that the CC makes a final determination of the issues because if it were to approach the High Court, the appeal process, which may ensue would defeat the objective of compelling former President Zuma to testify before the Commission. The Commission argued that the normal procedures are not appropriate in view of the impending termination of its existence. Quite interestingly, the bedrock of the Commission’s argument was that anything other than direct access to the CC would result in its tenure coming to an end without hearing former President Zuma’s testimony.
It is discernible that the Commission was the architect of its own misfortune. However, the court held that the Commission’s maladroit conduct described, was not considerate of the interests of justice issue. It held that this factor must be weighed against other factors, including those that are in favour of granting direct access. These include enabling the Commission to conduct a proper investigation of matters it is tasked to determine; the fact that the matter is not opposed and that it bears reasonable prospects of success. It went further to state that, the public, whose interest would be frustrated if direct access was refused.
Mafora (op cit) notes ‘[t]he court’s reasoning on the direct access point seems to be this:
(1) the Commission must conduct a proper investigation;
(2) it has not been able to do so because of its own conduct;
(3) in order to rectify that, the court has to grant direct access;
(4) therefore, direct access is granted.’
Mafora (op cit) further states that ‘[t]he court rarely grants direct access applications. Where it does so, guided by the interests of justice standard, exceptional circumstances must exist that justify a departure from its regular procedure. Here, it provides none. Indeed, the court stresses the prejudice that would be suffered by “the public interest” were direct access to be denied. But this is not a principled ground on which to assume jurisdiction.’
Mafora (op cit) argues that, ‘[d]irect access serves as a way of by-passing the normal judicial process, skipping the High Court and Supreme Court of Appeal [SCA] and making the court sit as a court of first and last instance. That is fine, in constitutional matters, where the court already has jurisdiction. But what about when jurisdiction still has to be determined? In this judgment, the court does not even bother with this analysis. It departs, essentially, from the assumption that it already has jurisdiction. The question at the heart of this matter is simply a statutory one: Does the Commissions Act [8 of 1947] oblige a witness, when summonsed, to appear and give evidence before it? It is a question that the High Court and [SCA] could answer, barring the existence of any exceptional circumstances. So on what basis does the court assume jurisdiction?’
The court’s granting of direct access was no more than what was once described by Mogoeng CJ as a ‘textbook case of judicial overreach – a constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament. The extraordinary nature and gravity of this assertion demands that substance be provided to undergird it, particularly because the matter is polycentric in nature and somewhat controversial’.
The situation in which the Commission found itself would not have arisen if it had timeously invoked its powers of compulsion of former President Zuma. It is not true that it was only during former President Zuma’s walk-out in November 2020 that the Commission realised that intervention by a court was necessary. The red lights started flashing in July 2019 when former President Zuma unilaterally decided to withdraw from further attendance. Later in September 2020, having berated the Chairperson for not consulting his legal practitioners, he made it plain that he will not participate in the hearings unless the Chairperson recused himself. This was a build-up to what happened in November 2020.
Indeed, the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgling democracy. However, the court’s granting of direct access has seen it shoot itself in the foot, sadly. In granting direct access in this particular case, it has in actual fact thwarted its own rules with the objective of advancing or colluding with other entrenched interests which are somehow politicised.
As stated earlier, like all discretions, the power must be exercised judicially. In granting this undeserving direct access to the Commission whereas this matter could have been disposed of by the High Court or the SCA, rewarding it for its self-created misfortune, the court has actually misdirected itself in relation to the relevant facts and the applicable law by virtue of an incorrect legal standard being applied. Accordingly, it cannot be said that the discretion was properly exercised, resulting in a constitutional crisis of great magnitude for our democratic dispensation. This then in turn jeopardises the institutional security of the judiciary.
Andile Mcineka LLB (UKZN) is a legal practitioner at Mhlanga Incorporated in Durban.
This article was first published in De Rebus in 2021 (April) DR 10.
