Judge Mohamed Navsa, Acting Judge President of the Supreme Court of Appeal, is a judge of high standing who made it clear he is on the side of the poor at an annual Stellenbosch University law school address under the topic: “Human rights and the rule of law: bulwarks against corruption and maladministration?”
The superstitions around the number 13 go back centuries and involve everything from the arrest of the Knights Templar to the Apollo 13 and Concordia disasters. Bad luck, relating to the number 13 and the consequent fear of the number, have generated the term triskaidekaphobia.
On the occasion of the 13th Human Rights Lecture at the University of Stellenbosch law school, the phenomenon struck when the Bloemfontein/Cape Town flight of the guest speaker, Judge Mohamed Navsa, was delayed considerably. The knock-on effect was the consumption of a great deal of good local wine and the taking of an early finger meal to while away the time it took for the guest speaker to arrive. It is testimony to the eagerness of his audience that none of the assembled students, faculty, alumni, practitioners of law, NGO and Chapter Nine staff, and even some local judges succumbed to the temptation of drifting off into the spring evening due to the delay. Instead, all and sundry engaged in earnest speculation on how the juicy topic, “Human rights and the rule of law: bulwarks against corruption and maladministration?”, would be tackled by the guest speaker.
The speaker is a superstar of the Bench, the topic a hot one, no one was going to miss the event.
After the Dean’s formal word of welcome, the guest speaker’s dazzling career, both with the Legal Resources Centre and on the Bench, was sketched by Prof Sandy Liebenberg of the Socio-Economic Rights and Administrative Justice research project of the University of Stellenbosch Law Faculty. Many in the audience were surprised to hear that the judge is a soccer coach in his spare time. The fulsomeness of the introduction made him remark wryly that perhaps his “life has not been such a waste”.
Judge Navsa, currently Acting Judge President of the Supreme Court of Appeal, kicked off with a couple of ice-breaking jokes about hungry, cold and curious monks, enabling him to segue into a 2015 quote from Pope Francis that Catholicism is “against every form of corruption which diverts resources from the poor”.
Ours is a development-oriented Constitution which sets itself against the evil and morally depraved corrupt activities so prevalent today. The judge, a devout Muslim, found himself in agreement with the pope that it is the poor who suffer most when public funds are diverted to corruption. He reminded the audience of the words of the current Chief Justice in April this year when he pointed out that corruption is a key element hampering the alleviation of poverty in Africa. Chief Justice Moegeng told delegates at a conference of judges in Cape Town: “We enjoy the singular honour, as judges of courts on this continent, of eradicating corruption.”
Recent remarks by Cabinet ministers – Malusi Gigaba on “combating corruption” and Lynne Brown identifying “maladministration and corruption” as “enemies of the state” – were used to illustrate Judge Navsa’s point that our constitutional design is one that curbs the exercise of power, ensures accountability and guarantees human rights. The supremacy of the rule of law is entrenched in the Constitution but starvation, discrimination and oppression continue because corruption and maladministration impact negatively on the ability of the state to deliver services to the poor. The disenchantment of the working class (and indeed the unemployed) is obviously fuelled by failures of service delivery.
The judge drew attention to corruption in the private sector, citing the bribery and corruption scandal investigated by the British Serious Frauds Office against Rolls Royce, a large corporate with 50,000 employees in 50 countries. The VW emissions scam also came in for a dishonourable mention.
Closer to home, Judge Navsa reminded his audience that the law reports are littered with instances of maladministration and corruption in SA, with the Sassa debacle at the forefront at present. He drew attention to the Heath decision of the Constitutional Court delivered by its then President, Justice Chaskalson:
“ Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic state.”
The audience was then treated to an informative and almost lyrical summary of the sections of the Constitution that relate to the notions highlighted in the passage quoted from the Heath judgment. The official report of the lecture on the SERAJ website is pertinent:
“He went on to describe the rights and institutions which the Constitution provides for holding those in power accountable, arguing that it provides the architecture for fighting corruption and maladministration. Judge Navsa called upon all sectors of society, particularly the youth, to be vigilant in the struggle against corruption and to make full use of the tools which the Constitution provides.
“In concluding his address Judge Navsa warned:
“We ignore the poor and the vulnerable at our peril. The Constitution holds out a vision of a better society for all. If, after centuries of colonialism and apartheid oppression, they continue to be isolated and denied a fair share of the wealth of the country and the benefits of state resources because of corruption and maladministration our democratic experiment will have failed spectacularly. History will never forgive us.”
What the learned judge did not do, by sticking closely to the question posed in the title of his lecture, was discuss the dysfunction in the criminal justice administration in SA which so plagues the prospects of the poor getting their fair share of public funds currently diverted to the corrupt. The words National Prosecuting Authority, IPID, SIU, the Hawks and the Scorpions did not pass his lips. He did not venture into the contested territory of the adequacy of the Hawks as a replacement for the Scorpions, not a peep was sounded on their controversial location within SAPS, with the (mixed) blessing of the Constitutional Court.
Nor did he utter a word about the capture of the state: the names Zuma and Gupta did not pass his lips, nor did he even mention the possibility of that “silent coup” which has been suggested by a leading Stellenbosch academic, Professor Mark Swilling, in the PARI “Betrayal of the Promise” study with a bevy of leading academics. Much litigation can be anticipated, and the possibility exists that Judge Navsa will sit in judgment in it. The criteria for effective and efficient anti-corruption machinery of state that is constitutionally compliant, as laid down in the seminal Glenister litigation, did not get a mention.
While some of the audience may have been disappointed by the narrow manner in which Judge Navsa interpreted his mandate, he spoke in a way that is respectful of the separation of powers and of the need for the judiciary to be deferential to the other branches of government. This approach is most proper, as befits a judge of his high standing. He is also clearly alert to the role of the judiciary in the corruption battles to come. His approach is unlike his professionally freer colleague from the LRC, Adv Geoff Budlender SC, who suggested in his 2014 lecture, from the same podium, that consideration be given to following the Hong Kong solution to rampant corruption which he described as:
“[T]he strategy of creating independent institutions to investigate corruption, and then drawing a line under the past: making a fresh start by declaring that matters occurring before the date of the new law will not be investigated. … It will be a bitter pill to swallow. But it may well be that it is the only medicine which will cure the cancer of corruption. Unless we take that medicine, we are at risk that the disease will destroy us.”
It seems Judge Navsa is acutely aware of the role of the judiciary in curing the cancer of corruption before “the malady graduates into something terminal” (as the Chief Justice put it in Glenister III). He clearly wants to play his part in the process and he has, in his lecture, made it clear that he is on the side of the poor and ever mindful of the role corruption plays in perpetuating poverty.
As a good soccer coach, Judge Navsa has fired a shot across the goalmouth defended by the corrupt in a way in which it will be impossible for any player in that motley team to prevent him from being the referee when corruption cases come to his court. His pro-poor anti-corruption message is loud and clear and has been delivered in a way that renders him immune to any possible application for recusal in a corruption case. May his 13th annual Human Rights Lecture prove to be unlucky for the corrupt. DM
Article published in the Daily Maverick on 10 September 2017