Do you want to live in a country where you are taxed arbitrarily or an
official may find you guilty without a fair trial? Do you want to be convicted
of murder rather than culpable homicide? Do you want assets confiscated without
compensation? Do you want courts to make popular rulings at the expense of
justice? You probably do, without knowing it.
The Nkandla, Oscar Pistorius, AgriSA, AfriForum, Renate Barnard,
Humphreys and other judgments legitimise popular sentiment and dangerous law.
Since jurisprudentially dangerous aspects of each case cannot be argued in a
short opinion piece, this column focuses, by way of illustration, on the
Nkandla case (Economic Freedom Fighters and Democratic Alliance vs President
Jacob Zuma and others, CCT 143/15 and CCT 171/15). Given sufficient interest,
other cases might be addressed in future columns.
The predictable knee-jerk response from Mr Zuma’s copious critics was
celebration of the fact that "the president is not above the law". In
the deluge of delirium, few paused to consider broader implications. According
to advocate Martin Brassey SC, the ruling is ominous. The court ruled, in
effect, that a single presidential appointee, in the executive branch of
government as opposed to the judiciary, may make rulings based on allegations
not proven in accordance with judicial checks and balances. Potentially
erroneous rulings bind individuals, government departments and even Parliament.
Unlike court judgments, they are not subject to appeal, and can be challenged
only if irrationality or unreasonableness can be proven. Rulings extend beyond
complex questions of law to subjective and abstract concepts of equity and
public policy. The fiscus, which is a taxing authority, not a court, decides
how much an accused must pay.
Enthusiasm for the judgment presupposes that future appointees will be
as seemingly virtuous as the incumbent Thuli Madonsela. The judgment equates
the constitutional power to "investigate (and take) remedial action"
with the judicial power to find people guilty and impose penalties. It lauds
the rule of law, of which a core element is the separation of powers, but it
ignores the idea that public policy decisions should be parliamentary, and
judicial functions should be in the judiciary and be subjected to merit appeal.
"Remedial action" consistent with the rule of law, would be confined
to handing findings to prosecutors rather than directly performing prosecution
and judicial functions.
The Constitution says that everyone has the right to have "any
dispute that can be resolved by ... law decided in ... a court or ...
independent and impartial tribunal". It vests judicial authority "in
the courts". Regardless of what anyone thinks about Zuma, they should
think critically about whether they really want executive officials making
judicial and public policy decisions.
The other judgments entail similarly disturbing implications. Regarding
the Pistorius case, for instance, popular sentiment wanted and got a murder
conviction. During the apartheid years, prosecutors wanted the dice loaded
against suspects, especially black activists, by making convictions easy and
defence difficult. One of their aspirations was murder convictions when they
could not prove murder; to equate recklessness (dolus eventualis) with intent, despite
the fact that everyone knows they differ. Unintentional death – which, rightly
or wrongly, was the court’s finding – is now regarded as intentional murder. It
is like being convicted of murder for having a fatal collision when intending
no harm and driving a car with worn tyres or brakes.
During its early years, the Constitutional Court said in the Makwanyane
death penalty case that courts should not be influenced by public opinion.
Brassey’s lament regarding the Nkandla judgment is "hic sunt dracones"
(here be dragons). Before encouraging and celebrating popular judgments,
long-term implications for justice, democracy and the rule of law should be
• Louw is executive director of the Free Market Foundation.
This column was first published in Business Day on 27 April 2016