SA courts make popular judgments at the expense of the law

Posted 28 April 2016 Written by Leon Louw
Category Constitution

Some recent cases have sparked alarm among those concerned with the rule of law in the country. One of them, surprisingly, is the Constitutional Court case ruling over President Zuma's Nkandla residence. The court effectively ruled that a presidential appointee outside the judiciary may make rulings on unproven allegations. In another case, Oscar Pistorius' conviction for unintentional murder has now been turned into outright murder. Something is wrong here, argues Leon Louw in Business Day.

Do you want to live in a country where you are taxed arbitrarily or an official may find you guilty without a fair trial? Do you want to be convicted of murder rather than culpable homicide? Do you want assets confiscated without compensation? Do you want courts to make popular rulings at the expense of justice? You probably do, without knowing it.

The Nkandla, Oscar Pistorius, AgriSA, AfriForum, Renate Barnard, Humphreys and other judgments legitimise popular sentiment and dangerous law. Since jurisprudentially dangerous aspects of each case cannot be argued in a short opinion piece, this column focuses, by way of illustration, on the Nkandla case (Economic Freedom Fighters and Democratic Alliance vs President Jacob Zuma and others, CCT 143/15 and CCT 171/15). Given sufficient interest, other cases might be addressed in future columns.

The predictable knee-jerk response from Mr Zuma’s copious critics was celebration of the fact that "the president is not above the law". In the deluge of delirium, few paused to consider broader implications. According to advocate Martin Brassey SC, the ruling is ominous. The court ruled, in effect, that a single presidential appointee, in the executive branch of government as opposed to the judiciary, may make rulings based on allegations not proven in accordance with judicial checks and balances. Potentially erroneous rulings bind individuals, government departments and even Parliament. Unlike court judgments, they are not subject to appeal, and can be challenged only if irrationality or unreasonableness can be proven. Rulings extend beyond complex questions of law to subjective and abstract concepts of equity and public policy. The fiscus, which is a taxing authority, not a court, decides how much an accused must pay.

Enthusiasm for the judgment presupposes that future appointees will be as seemingly virtuous as the incumbent Thuli Madonsela. The judgment equates the constitutional power to "investigate (and take) remedial action" with the judicial power to find people guilty and impose penalties. It lauds the rule of law, of which a core element is the separation of powers, but it ignores the idea that public policy decisions should be parliamentary, and judicial functions should be in the judiciary and be subjected to merit appeal. "Remedial action" consistent with the rule of law, would be confined to handing findings to prosecutors rather than directly performing prosecution and judicial functions.

The Constitution says that everyone has the right to have "any dispute that can be resolved by ... law decided in ... a court or ... independent and impartial tribunal". It vests judicial authority "in the courts". Regardless of what anyone thinks about Zuma, they should think critically about whether they really want executive officials making judicial and public policy decisions.

The other judgments entail similarly disturbing implications. Regarding the Pistorius case, for instance, popular sentiment wanted and got a murder conviction. During the apartheid years, prosecutors wanted the dice loaded against suspects, especially black activists, by making convictions easy and defence difficult. One of their aspirations was murder convictions when they could not prove murder; to equate recklessness (dolus eventualis) with intent, despite the fact that everyone knows they differ. Unintentional death – which, rightly or wrongly, was the court’s finding – is now regarded as intentional murder. It is like being convicted of murder for having a fatal collision when intending no harm and driving a car with worn tyres or brakes.

During its early years, the Constitutional Court said in the Makwanyane death penalty case that courts should not be influenced by public opinion. Brassey’s lament regarding the Nkandla judgment is "hic sunt dracones" (here be dragons). Before encouraging and celebrating popular judgments, long-term implications for justice, democracy and the rule of law should be considered.

• Louw is executive director of the Free Market Foundation.

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