OPINION: Rule by the whim of the powerful

One of the most defining moments of Nelson Mandela's presidency was when he took the stand in the case of the President of the RSA and Others v South African Rugby Football Union & Others in 1999_. _

In 1998 President Mandela appointed a commission to investigate allegations of racism, nepotism and corruption against Sarfu.

Sarfu approached the court in order to stop the work of the commission. Judge William de Villiers saw fit to subpoena the president himself to give evidence as to why he ordered the probe. This sparked much debate about whether the president should have to defend his every decision in court. Mandela chose to do so in this case and was subjected to a lengthy cross-examination by Sarfu's legal counsel, Advocate Maritz. De Villiers eventually ruled in favour of Sarfu, setting aside the government's inquiry and called Mandela 'an unsatisfactory witness'.

This is an important bit of legal history.

That Mandela was prepared to place himself in such a position of scrutiny before a court was a singular act of leadership, possibly the most important of his presidency. It not only showed his commitment to the rule of law and the Constitution, but was also a visible reminder that no one, not even the president of the republic, was above the law or above being held to account for his actions.

It was an action aimed at embedding a culture of constitutionalism during a period of intense political and social change. The final Constitution was adopted in 1996, a product of negotiations and public participation on a scale South Africa had not experienced before. Yet Mandela knew only too well that a Constitution is only really as strong as the ability or inclination of those in power to submit to it, as well as its ability to transform the lives of citizens.

One therefore must wonder what Mandela would have made of the current ANC leadership's attacks on the judiciary and its flouting of court orders such as we have seen in the Omar al-Bashir matter? Secretary-general Gwede Mantashe launched a scathing attack on the courts, citing them as 'problematic' and that there are 'some sections' of the court system driven by a desire to 'create chaos for governance' in South Africa. His deputy Jessie Duarte followed suit with similar criticisms.

But these attacks on the judiciary are not new. In 2012, Ngoaka Ramathlodi launched a scathing attack on the judiciary while delivering a lecture in honour of ANC president AB Xuma. Ramathlodi accused the judiciary of seeking to undermine the executive.

The ANC clearly feels insecure in power. They should too. The latest StatsSA figures on unemployment show the number of unemployed rising, specifically youth unemployment. In metros like Johannesburg and Nelson Mandela Bay, the ANC will come under serious electoral pressure if they are unable to turn their governance ships around. In addition, we seem to have lost our ability to negotiate and find each other despite political differences. Parliament, so hamstrung by a partisan Speaker, has failed dismally in its ability to find consensus on issues. This has left some opposition political parties with no choice other than to approach the courts for resolution of matters for which the courts are not designed.

Where the courts increasingly have to deal with political matters, inevitably questions will be raised regarding a blurring of separation of powers between the legislature, the executive and the judiciary.

Doing democracy in this is tiring and time-consuming, not to mention costly. In addition, there are unintended consequences that creep in.

The al-Bashir case has raised some very uncomfortable questions regarding the International Criminal Court (ICC) and its mandate which have been and are still being debated. Yet, that specific case aside, South Africa faces a crisis when the court orders are blatantly flouted. Where does that actually take us?

The president himself has shown very little regard for the rule of law. He has consistently questioned the Public Protector's recommendations in relation to Nkandla and her authority to even make such recommendations. By his very actions he undermines a constitutionally mandated body. What incentive might there be for government departments to adhere to court orders on the implementation of, for instance, socio-economic rights when the executive, or the ANC leadership believes it is in a position to cherry-pick which court orders it will adhere to or not?

Last week a court found the directors of Aurora, including the president's nephew, Khulubuse Zuma, guilty of stripping Pamodzi Gold's mines. Might Zuma's nephew then be inclined also to ignore the findings of a court? After all, what's good for the goose is good for the gander, right? And herein lies the danger of the impunity of the 'al-Bashir' moment. Once those in power believe that the law no longer suits their purposes and flouts it, that might apply to all manner of things, from tax compliance by citizens to the private sector failing to implement the laws or orders of court.

Mandela recognised that the alternative to a constitutional democracy was rule by the whim of the powerful, which was anathema to the struggle for justice. It is time for the current ANC leadership to revisit the Sarfu case and its significance for present day South Africa.

Judith February is based at the Institute for Security Studies.