By Hugh Corder

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28 Sep 2022 5

Hugh Corder is Professor Emeritus of Public law at the University of Cape Town.

In seeking to destroy the Constitution or to weaken it into insignificance, Dali Mpofu, Jacob Zuma, John Hlophe and others run the risk of standing undefended in the resulting storms.

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The South African democratic project is threatened. The attacks come from several quarters, most shockingly from within the broad legal profession which is central to its success and has gained so much already from the supremacy of the Constitution. Let me explain why I make these claims.

Only those not yet born nor politically conscious in the 1980s should need reminding of the horrors and injustices imposed on black South Africans through “the law” by apartheid’s “colonialism of a special type” and by its predecessor regimes.

Perhaps it’s because anyone under the age of about 35 did not directly experience the degradation and cruelty of apartheid that they are frequently among those questioning the constitutional settlement of the early 1990s. Yet their parents and elders did, and the legacy of apartheid lives on in so many practices, attitudes, and privileges.

No one alive today should be allowed to forget such injustice. There has inexplicably been insufficient and mostly grudging recognition of their huge privilege by the beneficiaries of apartheid, mainly all white South Africans, both here and abroad.

The means chosen by those negotiating the future form of government from 1990 was the adoption of a Constitution that is premised on the transformation of socioeconomic relationships and participative democratic practices to ensure accountability, responsiveness and openness, all expressed through the law, interpreted and enforced by the courts. These constitutional values are not only set out in section 1 but are repeated and reinforced throughout the Constitution.

It must be strongly emphasised that these values were fundamental to a rich tradition of constitutionalism developed by the African National Congress and like organisations over at least the previous 75 years, not some kind of neo-liberal imposition from Western imperialists. Those who peddle such nonsense should read André Odendaal’s recently published Dear Comrade President for a convincing account of Oliver Tambo’s key role, on behalf of the ANC, in developing the constitutional framework in the decades leading up to 1994.

Inevitably, there were those on both sides of the power divide who wanted it differently, but what we have today was overwhelmingly supported by a diverse assortment of political groupings across the spectrum.

And we should never forget the militant attempts at shipwrecking this agreement through violence from several quarters which marked the first half of the 1990s; nor should we forget that the 1996 Constitution was the product of the first freely elected Parliament resulting from universal franchise in our history.

Through no fault of its vision, values, and formulation, the constitutional promise has faltered, most notably in its transformative mandate in the socioeconomic sphere and in delivering good governance. There are many reasons for this (for further details see the HSRC reports here and here), and it is not my intention to enter the party-political terrain other than to note that much of the responsibility for those failures must be laid at the door of executive government at every level — national, provincial, and local.

The legislative framework is generally in place in support of the constitutional objectives, and the courts have delivered positively and repeatedly in empathetic interpretation of these laws and in holding the wielders of public power to account when challenged.

In the light of the incompetence, negligence, and corruption which have dominated executive governance over the past two decades, it is natural that many have questioned the Constitution out of sheer frustration and desperation. The potential harm to the rule of law and our constitutional democracy from those who in populist fashion seek to harness the legitimate grievances of the poor and powerless is abundantly clear.

I frequently wonder whether those who readily deride the Constitution and the courts realise the extent to which they owe so much of the freedoms which they exploit for themselves to its very guarantees.

What is shocking and saddening however is the well-planned and deviously pursued sabotaging of our democracy by politicians who seek a distraction to excuse their own malevolence and abuse of power, and by participants in the administration of justice who deliberately undermine constitutional values to avoid accepting personal responsibility and its justifiable consequences.

It is to this last set of actors that I wish to devote some attention. It’s a pity that the name Stalingrad has been attributed to the litigation strategy so shamelessly pursued (and mostly at public expense) by those who seek to undermine the Constitution, because the outcome of the siege of Stalingrad was the heroic defeat of Nazism by the city’s Soviet defenders, through their street-by-street resistance campaign.

In our case, the strategy of endless rounds of litigation is a means to avoid taking responsibility by those responsible for what appear to be undeniable and gross instances of unlawful abuse of power.

Let us examine three forms of this strategy, whatever its name, by mentioning key actors in the public domain who have dominated the media’s attention.

First, there is the repeated resort to court (ironically, notwithstanding serial attempts to denigrate the judiciary) through litigating with scant prospects of success through all the levels of appeal and procedural avenues available. No one exemplifies this better than former president Jacob Zuma (who initially asked for his day in court to prove his innocence in the Arms Deal case) whose latest tactic is to attempt a private prosecution of those who have courageously and unrelentingly remained committed to their professional roles.

One has to ask a hard but legitimate question: surely someone with nothing to hide, who has behaved lawfully and ethically, would welcome an open and forthright opportunity before an independent and impartial arbiter to prove their innocence once and for all?

Second, there is the example of Dali Mpofu SC. The current focus is inevitably on his performance before the parliamentary committee investigating the Public Protector’s fitness and propriety to hold office. Mpofu’s conduct seeks deliberately, it seems, to shock and undermine the professional ethics to which he is bound, by virtue of his status as an advocate, an “officer of the court”, who also enjoys Senior Counsel status.

Thus, his behaviour ought to be a guide and inspiration to all young lawyers, as a steadfast servant and defender of the Constitution. Instead, we hear him abusing fellow counsel, disrespecting judges, employing delaying tactics, and issuing threats to the chair of the parliamentary committee. In the face of all this, the Legal Practice Council, which is by law the regulator of the ethics of members of the profession, does nothing.

Thirdly, and in some ways most damagingly, we have the endless saga of the Judge President of the Western Cape high court. Judge John Hlophe has been found guilty of gross misconduct for seeking to influence the outcome of a case in the Constitutional Court fully 14 years ago, and several other sets of allegations continue to swirl unresolved around him.

Yet he sits securely in office, continuing to allocate cases among his judicial colleagues and carry out the other vital duties for a head of court, all the time under a cloud of doubt, if not suspicion, about his past conduct.

As a result of these tendencies in litigation, I argue that the administration of justice is being brought into disrepute and that the popular legitimacy of the judiciary has been deliberately undermined.

These trends feed into the populist narrative that the Constitution somehow represents a pact for the continuation of racist hegemony and even the limited sharing of economic spoils by the wealthy with a select few of those excluded under apartheid.

The Constitution is therefore to be rejected and abandoned, so it is argued, no matter how much it does not fit such a narrative.

Typically, nothing positive nor even rational is offered as an alternative, other than a return to parliamentary sovereignty or to some idyllic past in which forms of autocratic leadership benignly dominated for the common good.

Worse than that, these strategies clearly undermine the rule of law and protection of fundamental rights, the exact instruments which provide authority for the actions pursued by the critics. In seeking to destroy the Constitution or to weaken it into insignificance, they run the risk of standing undefended in the resulting storms.

In other words, if they succeed in destroying the rule of law, there will be no protection for anyone, including the destroyers, against arbitrary autocratic power.

Let those who support such irresponsible behaviour heed the words attributed to Sir Thomas More by the playwright Robert Bolt in The Man for all Seasons, set in England during the turbulent 1500s. Confronted by the righteous indignation of his son-in-law, Will Roper, who wanted to use all means to fight evil, their exchange is captured thus:

More: What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

So, yes, exploit the defences and privileges granted to you by the Constitution and the legal system, but have the common decency to acknowledge how you benefit from this constitutional regime, and ensure that what you say and do does not directly erode those defences. For if your tactics succeed, the ensuing winds will blow us all away.

Beware of what you wish for. DM

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