There could be legal precedence in the call from Thuli Madonsela - and, apparently, the president - for the chief justice to appoint a judge, writes Alex Mashilo.
We must combat corporate and all other forms of private capture of public power and resources. In order to do this, we must safeguard our constitution, recognising that the judiciary - and particularly the Constitutional Court - is the final arbiter on related matters.
To this end, we mustn’t leave our constitution in the hands of constitutional experts alone because it applies to all of us with equal force. This view must be carried into future generations too and be taught to our children.
It’s within this context that we need to look at the State of Capture report issued by former public protector advocate Thuli Madonsela.
The report states that President Jacob Zuma can’t institute a judicial commission of inquiry into the problem of the capture of state authorities and entities by private interests because the president is possibly a subject of investigation himself.
This argument was premised from what Zuma is attributed to have said. According to Madonsela, it was Zuma who said he couldn’t carry out such an evaluation himself lest he be accused of being judge and jury in his own case.
She then prescribed that the chief justice must “solely” select a judge to head any such commission.
The SACP was the first organisation to introduce the concept of corporate capture into our national discourse, expressing concerns about the influence of corporate interests in decision-making, policy and regulatory spaces.
Ours was the first organisation to call for a commission into corporate capture, but made it clear, such a commission would have to be consistent with our constitution.
If the president had appointed a commission when these allegations emerged, we wouldn’t be in the situation where the former public protector had to look to remedial action and set her own terms for how this should be done.
Corporate capture occurs through political and business connections created through proximity between decision-makers or those that they have appointed or influenced. It also occurs through the creation of separate entities structured along the lines of “special purpose vehicles” or through support or funding in contested decision-making processes such as tenders or elections for an organisation or public office.
This is where the problem of opaque party, political and candidate funding constitute an entry point for capture. As a manifestation of capitalist competition and dominance through oligarchs, oligopolies or an outright monopoly, corporate capture finds doorways in outsourcing and privatisation, mining and other licences and tenderisation in general.
On November 30, 2014, the SACP said: “There are widespread indications of money politics at play and even of businesspeople having a direct hand in appointments into key positions within the state.”
We warned that unless corruption and corporate capture were dealt with severely, these problems risked becoming systemic and difficult to reverse. There had to be “decisive state action including criminal prosecution of those allegedly involved in corrupt activities”, said the party. We then called for anti-corruption state intervention to be combined with active communities and a mobilised working class.
Others joined in by narrowing the concept of corporate capture to “state capture”. But corporate capture is not limited to the state. It’s to be found in political and non-governmental organisations, trade unions and academic institutions, the media and other key sites of power.
The single thread in this is the pursuit of wealth accumulation on a private basis.
The argument by Madonsela, and apparently the president, that he couldn’t appoint a commission of inquiry into corporate capture because he was a possible subject of investigation, must be examined from the standpoint of our constitution and the history of its implementation.
The president instituted the Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Packages, better known as the Seriti Commission, and the Marikana Commission of Inquiry, while he was a possible subject of investigation.
There were allegations levelled directly against him in the public in both cases. But the appointment of judges in both cases by the president was never declared to be unconstitutional by any court of law.
If Madonsela and the president are right on this occasion, then there may be serious legal implications to both the arms and the Marikana commissions.
Judges must act independently of the authority that appoints them. This is what we believe they have been doing all along - unless the chief justice later agrees with the logic shared by Madonsela and the president in suggesting that we were wrong to believe so.
It might later be proven to be unconstitutional for the chief justice to select a judge for a judicial commission of inquiry. This function has after all been exclusively reserved for the president.
Perhaps on this occasion, however, Madonsela obtained a legal opinion saying it wasn’t unconstitutional for the chief justice to select a judge to an inquiry.
We don’t know.
What we do know is that, as the Concourt has said this year, state organs must apply their minds thoroughly, not second-guess each other. And all their actions - not excluding the public protector's remedial action - must be consistent with the constitution.
It is doubtful that it is constitutional to institutionalise the idea that a judge appointed by the president can’t act independently of the president.
The Concourt may find itself called upon to adjudicate should a dispute arise from the work of an inquiry headed by a judge solely selected by the chief justice. And there is another arm of state affected. That’s Parliament.
In terms of the constitution, it must exercise oversight in terms of the president and the executive.
Why did Madonsela not prescribe - if this is constitutional - that Parliament rather recommend a short-list of judges from which the president could appoint?
There is a legal concept of a point in limine, Latin for a preliminary point that could be raised before a case is heard. A potential or material conflict of interest could arise here, affecting the chief justice if the argument by Madonsela and the president is followed to the letter.
The president has a legal right to take Madonsela’s report to the Concourt for review.
Should that happen, would the chief justice tell the president: “I have a legal right in terms of the constitution to select a judge for you to rubber-stamp”?
If the chief justice were to say so, the president may be entitled to ask: “In terms of which provision of our constitution, Sir, because whoever I appoint as a judge is required to act independently in the same way as I appointed you.
“Are you saying that you are not acting independently of me, my Lord, simply because I appointed you? What would this imply about the other cases you have already presided over affecting me?”
Noting the aforesaid, it is important to acknowledge the importance of a person to recuse themselves from a decision-making process where there is a chance of a material or potential conflict of interest.
The rules must clearly prescribe a mechanism that must take over when that happens.
While this does widely exist, it appears not every office is appropriately covered as seen through the example of the president and Madonsela’s report.
This could in part be what brought us to the terms she set: that the chief justice should select and the president merely give formal consent to the appointment.
If this was proven to be constitutional, it would surely constitute a law-making precedence.
* Alex Mashilo is national spokesperson of the SA Communist Party. He holds an MA in labour policy and globalisation from Wits.
** The views expressed here are not necessarily those of Independent Media.
The Star