20th January 2022 by Editor BizNews

We’ve carried commentary recently about Lindiwe Sisulu’s determined early treading of the Zuptoid path, aimed at regaining and entrenching the ‘rule and benefit at any cost’, approach of Jacob Zuma. Her misguided attempt to rouse the populists by maligning the courts and our Constitution have led to an anguished response from Acting Chief Justice, Raymond Zondo, and outrage in the legal community, academia and among political commentators; not to mention many within her own riven party. Here Paul Hoffman, SC, Director of the Institute for Accountability, tells us what the law makes of a minister who rubbishes the Constitution, misperceives the rule of law and insults judges. Bottom line: she must retract her statements and apologise or face criminal charges. And if President Cyril Ramaphosa refuses to fire her, he’ll be in violation of the rule of law. Hoffman’s argument is a powerful, rational beacon in the seemingly intractable political madness that is South Africa today. – Chris Bateman

Unpacking insults by Lindiwe Sisulu

By Paul Hoffman* 

When the great and the good of the World Justice Project, best known for its Rule of Law Index, last met in The Hague in May 2019 for the most recent World Justice Forum, the delegates issued a declaration in which they confirmed, inter alia, their commitment to:

• Advocate reforms of laws and justice sector institutions to protect all human rights for all and meet people’s justice needs;
• Affirm the rule of law as the foundation of communities of justice, opportunity, and peace;

The rule of law, according to the WJP, is a durable system of laws, institutions, norms, and community commitment that delivers:

“Accountability
The government as well as private actors are accountable under the law.

Just Law
The law is clear, publicized, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights.

Open Government
The processes by which the law is adopted, administered, adjudicated, and enforced are accessible, fair, and efficient.

Accessible and Impartial Justice
Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

These four universal principles constitute a working definition of the rule of law. They were developed in accordance with internationally accepted standards and norms, and were tested and refined in consultation with a wide variety of experts worldwide.”

This formulation is somewhat more elaborate than that devised in the UK by Lord Bingham, but is not inconsistent with his formulation, which reads:

“…that all people and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.

The Minister of Tourism, Lindiwe Sisulu, has in recent days become a prolific correspondent in certain sectors of the media. Her stance has provoked a furore, inter alia, in relation to her views on the rule of law, the Constitution and the lickspittle role of “African” judges in our non-racial post 1994 order. Her criticisms of our judiciary have provoked a controversial response from the Acting Chief Justice, Raymond Zondo, who describes her views as baseless and insulting towards the judiciary. Many other commentators and cartoonists have explored the political, factional and “alliance intrigue” aspects of her utterances. This note is confined to the views expressed dismissing the rule of law and the Constitution and those concerning the allegedly colonialised judges.

The legal order in SA regards the rule of law as supreme. Ministers swear an oath to “obey, respect and uphold the Constitution and all other law” of SA. They undertake to perform the functions of their office conscientiously and to the best of their ability.

Upholding the Constitution can only be achieved by having regard to its values as set out in section 1 of the Constitution. Our multi-party system of democratic government must ensure accountability, responsiveness and openness.

Repudiating the efficacy of the rule of law is a non-starter. In her day job the minister has welcomed the lifting of the red-listed status of SA imposed arbitrarily, capriciously, illegally, invalidly and in an unconstitutional manner by some governments upon hearing of the omicron variant. The invocation of the rule of law is what led to the lifting of the travel ban.

The ministerial pot-shots at the rule of law in SA today are misplaced and wide of the mark. The situations in Nazi Germany and in the apartheid era parliamentary sovereignty for “whites only” are instances of rule by law, not of the rule of law, as can be seen from the efforts of the WJP referred to above. There is no parliamentary sovereignty in SA today – our National Accord abandoned that in favour of a supreme Constitution in which politicians conduct themselves in a manner that is inconsistent with the Constitution at their peril. The constraints of the Constitution render conduct inconsistent with its values invalid.

Any order in which rule by law rather than under the rule of law exists does not deserve to be called a rule of law system. This was the case under the old apartheid regime. As former Chief Justice Chaskalson observed at the first World Justice Forum in Vienna in 2008:

“What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair. And the laws themselves were not fair. They institutionalised discrimination, vested broad discretionary powers in the executive and failed to protect fundamental rights.”

The importance of the rule of law to all South Africans is manifest in the warning words of the former chief justice. Our society can ill afford to regress to a situation in which unfairness, institutionalised discrimination, over broad executive powers and a general failure to protect human rights once again becomes the order of the day.

The preamble of the Universal Declaration of Human Rights recognises the proper role of the rule of law in realising human rights. It states:

“It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

The judiciary did not invent the Constitution, it is the product of a negotiation process, home grown (not imported or imposed) and the work of the political parties active in the period between 1990 and 1996. The ANC rightly claims co-authorship of the Constitution which brought to an end the armed struggle and the apartheid parliamentary sovereignty. It ought also, in the view of Professor Kadar Asmal (a minister in the Mandela and Mbeki cabinets) and many others, to have brought to an end the revolutionary struggle for democracy in which the liberation movements were engaged prior to the negotiation of the Constitution. Good citizens will recall that Asmal resigned from politics in preference to voting for the demise of the Scorpions, a crack anti-corruption entity.

Members of the national cabinet take collective responsibility for the exercise of their powers and the performance of their functions. They have to act in accordance with the Constitution and provide parliament with full and regular reports concerning matters under their control as per section 92 of the Constitution.

The state itself is obliged by section 7(2) to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights.

Had these duties, functions and obligations been better implemented, SA would not be in the parlous state that it is in today.

As regards the unkind or “insulting” words uttered by the minister about the judiciary: she must, as part of her duty as a functionary of the state, through legislative and other measures, assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. She cannot, by purporting to write in her personal capacity, escape these obligations. In turn, the courts are required to be independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. These matters are all dealt with in section 165 of the Constitution, our supreme law.

What then does the law make of a minister who rubbishes the Constitution, misperceives the rule of law and insults some judges so roundly as to prompt an anguished reply from the acting chief justice at a media briefing.

It is true that there is freedom of expression and opinion in SA under section 16 of the Bill of Rights. These rights are not without limitation. Offences such as contempt of court and scandalising the courts still exist, despite these free speech rights which can be limited in reasonable and justifiable ways consistent with our open and democratic system. The effect of the passing into law of the Constitution on these two crimes has been definitively dealt with by the Constitutional Court in S v Mamabola. They survived in pared down form that accommodates non abusive free speech. The take home message of that judgment is that a person can only be convicted of “scandalising the court” for a statement made outside of the court if that statement “really was likely to damage the administration of justice”.

If the minister had no intention of damaging the administration of justice by undermining the rule of law and repudiating the Constitution, she should say so and apologise for the confusion and hurt not only to the judiciary but also to the constitutional project that she has caused through her baseless and unsubstantiated utterances. Many bodies and individuals have called for a retraction and apology. A failure or refusal to do so will strengthen the criminal case for pressing contempt of court or scandalising the court charges against the minister.

Should Sisulu not be prepared to retract and apologise, she should, in the proper exercise of the discretion of the president, be relieved of her ministerial duties as her recalcitrance will demonstrate that she is no longer a fit and proper person to grace the cabinet over which he presides. An arbitrary and irrational refusal or failure to dismiss the unapologetic minister will be a violation of the rule of law, perpetrated by the president.

The hope expressed by the acting chief justice that Sisulu will withdraw her statements is a sensibly measured one given the insults hurled at him and the judiciary. Should Sisulu remain unrepentant and unapologetic, the prosecution authority will have to consider the criminal implications of her stance, it is a creature of our allegedly “palliative” Constitution and has obligations of its own to fulfil.

• Paul Hoffman SC is a director of Accountability Now.