Le Roux / Davis Lawfare

Judging Politics in South Africa
1. Auflage 2019
ISBN: 978-1-86842-961-5
Verlag: Jonathan Ball
Format: EPUB
Kopierschutz: 6 - ePub Watermark

E-Book, Englisch, 368 Seiten

What happens when South Africa's tumultuous political life becomes entangled in the courts of law? Throughout the past 50 years, the courts have been a battleground for contesting political forces as more and more conflicts that were once fought in Parliament or in streets, or through strikes and media campaigns, find their way to the judiciary. Certainly, the legal system was used by both the apartheid state and its opponents. But it is in the post-apartheid era, and in particular under the rule of President Jacob Zuma, that we have witnessed a dramatic increase in 'lawfare': the migration of politics to the courts. The authors show through a series of case studies how just about every aspect of political life ends up in court: the arms deal, the demise of the Scorpions, the Cabinet reshuffle, the expulsion of the EFF from Parliament, the nuclear procurement process, the Cape Town mayor - the list goes on and on. This book offers a highly readable analysis of some of the most widely publicised and decisive instances of lawfare. It argues that while it is good that the judiciary is able to shoulder the burden of supporting democracy, it is showing signs of immense strain under the present deluge of political cases. Whether the courts will survive this strain undamaged remains to be seen.

MICHELLE LE ROUX is a member of the Johannesburg and New York Bars, and Adjunct Professor at the University of Cape Town.

Autoren/Hrsg.

Le Roux, Michelle

Davis, Dennis

Leseproben

2

WHY THESE CASES?

‘If [the new constitution is a bridge and] this bridge is successfully to span the open sewer of violent and contentious transition, those who are entrusted with its upkeep will need to understand very clearly what it is a bridge from, and what a bridge to.’1

–ETIENNE MUREINIK

During the long night of apartheid, courts were often sites of vigorous political struggle. They were the places where different visions of South Africa were presented to the public by the competing litigants – usually the state against accused persons or applicants whose rights were at stake.

Since 1994 and the beginning of constitutional democracy, similarly significant contests have taken place in our courts. There is, however, a major difference: litigation now takes place within the context of the Constitution, which provides a vast range of rights for all who live in this country.

This book seeks to examine some of the crucial cases in which battles for justice in its various forms have been fought. It also provides an explanation for how, 25 years into our constitutional democracy, it is the courtroom, and not Parliament or the streets, to which this country has primarily turned to defend democracy and our hard-won constitutional institutions. In this sense, there is a stark and disturbing similarity between pre- and post-apartheid South Africa. Both periods have witnessed the existence of unaccountable forces imposing their will on the citizenry without a scintilla of regard for the rule of law. In the 1980s, it was the securocrats; over the past decade it was the Zuptacrats. But the result was the same: a parallel state was constructed in which (whether allegedly funded by the Guptas or the Watsons) the key business of government was conducted outside of the constitutional framework.

But, first, we must venture into the terrain of the theoretical and the conceptual, and consider the reasons why we have selected these particular cases that are analysed here, and the links between the old and the constitutional orders. These cases provide a useful background for the concluding comments in the book, where we move beyond the stories to speculate about the future of our constitutional democracy.

The cases

It was difficult to make the selection, but our primary reason for choosing the cases that appear here is that all of them contributed to a change – for better or worse – in the South African political landscape. In other words, they were chosen on the basis of their legal and political importance to South Africa at the time they were contested in the courts, and because of their implications for the nature and development of South African society, then and now.

There are, of course, many cases that assumed critical legal and political importance to South Africa at the time that they were litigated. The choice therefore proved to be very difficult, particularly in a one-volume work of this nature. Ultimately, we chose cases for which it can be truly said that the country held its breath awaiting the courts’ decisions.

Legal cases are no more than stories. This may not seem apparent to some, in that laws are framed in arcane texts and legalese, or professional jargon, which the courts interpret and apply to the facts of the case. But cases take place within a particular political and moral context and the unfolding of the case and its outcome are essentially a narrative that directly affects the lives of individual litigants and, possibly indirectly, millions of citizens in this country.

The cases under analysis in this book are therefore stories that tell of our past, present and future. We have attempted to tell these stories without the legalese that complicates them, and with due recognition for the characters who have a role to play in them – i.e. the lawyers and judges who were responsible for the outcomes, and the litigants whose life experiences were the source of these cases.

When all of these (and similar) cases are considered together, they reveal a remarkable faith in the process of law, during the decades of determined efforts by successive racist governments to destroy the rule of law and with it, the failure to achieve a constitutional democracy for South Africa. When democracy finally came, a tangible faith in law’s possibility appeared to have been rewarded.

Law and the government: When the past meets the future

During apartheid, the law created the very foundations essential to the construction of the system that allocated and denied rights and privileges on the basis of race. The cruelty of apartheid was maintained by volumes of laws and regulations. But, by their nature, laws can both promote and constrain the exercise of power. In other words, litigation can be used to undermine the law itself. Let us first examine law as a form of struggle during apartheid.

Many of the legal struggles discussed here were based on the idea that a law may be introduced by government to achieve a pernicious purpose, and yet also be employed by a resourceful litigant for an opposite end. Of course, the outcome could also depend on the approach to law of the judge before whom the case happened to be heard.

Take the case of Dullah Omar, later to become the first Minister of Justice in the democratic South Africa.2 Omar was detained in 1985 without the benefit of a trial under a draconian piece of legislation called the Public Safety Act. His legal representatives argued that, unless the Public Safety Act expressly authorised the President to issue emergency regulations that included a denial of so important a right as the right to a trial, the regulations could not deny a detainee the right to make representations to the authorities as to why he or she should not be detained.

The majority of the court rejected this argument, holding that the president was granted the implied power to promulgate regulations that excluded the rights of detainees to make these kinds of representations. But, in a significant minority judgment, Judge Gerald Friedman insisted that a right as fundamental as that of being heard – when a person’s rights to liberty are affected by an adverse decision – could be removed only by an Act of Parliament. A pro-executive judge might well be prepared to accept as law anything that the government called law, but a judge like Friedman insisted that the bedrock of law is the protection of the rights of citizens, and these, he argued, could be taken away only by an express legal provision, and not by reading an ambiguous text as negating the protection of rights.

In a country where the courts claimed adherence to the principle of the rule of law, certain judges took these claims seriously. But Judge Friedman was in a minority. From time to time, however, his approach did prevail. On occasion, the government was held accountable and this led to unexpected outcomes. Judges would read apartheid statutes in ways that revealed their open texture or ambiguity in their meaning. This would allow these judges to favour an interpretation that could produce an outcome that minimised the impact on the existing rights of individual citizens. They read the law to mean something other than the interpretation claimed by the government. In the early 1950s, the courts often adhered to this model of adjudication. In 1950, for example, the Appellate Division held that a regulation authorising racially separate railway coaches in circumstances where only black passengers were subject to criminal sanction for travelling in the ‘wrong’ coach was illegal because it promoted unequal and discriminatory treatment.3

This approach, as we shall see, became less common as the apartheid state gained strength. Nevertheless, the possibility of similar victories was never completely extinguished. Throughout the apartheid era, a contest between legal results that either preserved or destroyed people’s rights was fought in the courts. In a work that heavily influenced a generation of progressive lawyers in South African to conceive of a legal theory that could justify human-rights litigation, English social historian EP Thompson, in his book Whigs and Hunters: The Origin of the Black Act, clarified the difference between a system of power that claimed adherence to the rule of law and one based on pure arbitrary power without any recourse to law. The key passage of his text reads thus:

The inhibitions upon power imposed by law seem to me a legacy as substantial as any handed down from the struggles of the seventeenth century to the eighteenth, and a true and important cultural achievement … The notion of the regulation and reconciliation of conflicts through the rule of the law – and the elaboration of rules and procedures which, on occasion, made some approximate approach towards the ideal – seems to me a cultural achievement of universal significance … I am not starry eyed about this at all … I am insisting only upon the obvious point, that there is a difference between arbitrary power and the rule of the law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good.4

Thompson understood well that power worked through law but that the power holder was, on occasion, held accountable to a legal text that, given the nature of...