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President Jacob Zuma is using the “tyranny of the majority” to avoid the courts in connection with Public Protector Thuli Madonsela’s Nkandla report.
This is according to former Constitutional Court judge Johann Kriegler, who said yesterday during a discussion on the rule of law, that Zuma’s conduct in connection with the Nkandla report was a “perfect mirror image” of the apartheid government’s efforts to circumvent the courts.
Kriegler said legislation adopted in 1994 determined that the Public Protector “must issue a report and that someone must then take action”.
“In this instance the executive and the head of the executive [the president] ... did not implement [the Public Protector’s report] nor did the head of the executive see it fit to go to court to have it set aside, possibly mindful that that’s what the rule of law would require of the head of the executive ... instead he resorted to the majority in Parliament to overrule it.”
Kriegler said the situation was a reflection of the apartheid government’s attempt in 1952 to establish a “high court of parliament” in an attempt to circumvent the Supreme Court of the time after the court nullified legislation that denied coloured voters the right to vote.
“When a particular decision of government meets with opposition from the courts, or when it meets with legal handicaps and – instead of trying to deal with it in terms of the law that stands – you go and gerrymander and play trickery and use the majority to overrule what was a legal decision against you which you may have been able to set aside otherwise but which you have to use the tyranny of the majority to affect.”
Kriegler emphasised that he wasn’t commenting on the legality of the Public Protector’s report on Nkandla or on the extent to which her findings retain the force of law, because this was an issue on which the courts should decide.
Kriegler and fellow former Constitutional Court judge Zak Yacoob both took part in a discussion yesterday that was presented by the Centre for Constitutional Rights and the University of Stellenbosch’s School of Public Leadership on the state of the rule of law, given recent attacks by senior leaders of the ANC on the judiciary in South Africa.
Both emphasised that tensions between the executive and the judiciary was a normal feature of a constitutional democracy such as South Africa’s.
Yacoob said the country had not travelled “too far along the road of big trouble”.
“Ultimately we need to keep the debate alive at every level of society and make sure none of these attacks on the judiciary – and they are very serious attacks based on an improper understanding of the constitution and an improper understanding of the separation of powers made with a political motive based simply on the fact people have lost cases – are not tolerated under any circumstances.”
Kriegler said that the comments criticising the judiciary from ANC secretary-general Gwede Mantashe and South African Communist Party leader and Minister of Higher Education Blade Nzimande were not made in the duo’s capacity as members of the executive committee.
“They were the comments of politicians, and politicians of a particular blend and kind, who are more used to Politburo-speak than to the language of the rule of law.”
Kriegler said he was not really worried about the rule of law, but had highlighted the Public Protector’s Nkandla report as an example of a concerning violation of this principle.
