The Gauteng Division of the High Court (Pretoria) judgment handed down by a full bench of judges in the matter between Corruption Watch and others vs the President of the Republic of South Africa and others, delivered last Friday is highly emotive as it is interpreted to be dispossessing the president of his powers to appoint, as set out in Section 179(a) of the constitution the National Director of Public Prosecutions (NDPP).
In this judgment the court, among others, set aside the appointment of the current NDPP, advocate Shaun Abrahams, as it was found to be unlawful.
The court further ruled that the sitting president is in terms of Section 96(2)(b) of the constitution conflicted to appoint, suspend or remove the next NDPP from office.
Many people of high political and public standing as well as some organisations reacted to this judgment by accusing the judiciary of “serious judicial overreach” and disrespect for the separation of powers between the executive, legislature and the judiciary.
Some accusations went to the extent of suggesting that the actions by the high court is tantamount to a “judicial coup d’état”, if not endorsement of one ANC presidential hopeful above the other, in the ANC presidential elections.
These sort of unsubstantiated accusations against the judiciary are unwarranted, as they are not borne out in the body of the judgment.
The finding of a “conflict of interest” of the president in respect of the incumbent NDPP is founded on facts, particularly in the manner in which the NDPP was found to associate himself with the actions of the president in the case, and other previous court cases.
As such the Black Lawyers Association (BLA) views the accusations of judicial overreach and judicial coup d’état accusations as nothing but a means to deter the judiciary from fulfilling its constitutional mandate, as conferred on it under Section 165 of the constitution.
These accusations are also calculated to undermine the independence of the courts. If these accusations are not challenged and refuted, the impression may be formed that there are exerted efforts from some quarters of our society to instil fear in our courts, so that they may also be the subject of capture and unlawful control.
It is unfortunate that people like Minister Bathabile Dlamini, a member of the cabinet and a leader of the ANC Women’s League, use internal party considerations when commenting on the judgment of the court.
It is worse when such people do not appear to have taken time to study the judgment before they venture an opinion.
The governing party of South Africa has been consistent in assuring South Africans that it respects the judiciary and encourages all aggrieved parties to utilise the forums that exist to appeal or review judgments that they believe were made in error or due to unlawful consideration.
This assurance must show itself in the statements of the leaders of the governing party.
The BLA is deeply concerned that accusations continue to be levelled against the judiciary when there is no call upon the executive to conduct itself within the ambit of the law.
None of those accusing the judiciary at this instance suggest how the issue of actual or potential conflict of interest (identified by the court) could differently be addressed, other than as suggested by the court.
The BLA condemns the attacks on the judiciary by prominent people in society who may not be satisfied with the outcomes in cases before the courts, as the courts by their nature are not free to join the discourse and defend themselves.
Courts, like any other arms of the state, are not immune to criticism. But such criticism must be done within the legal framework and preferably through the appeal or review processes.
The BLA notes the intention of the Office of the Presidency and advocate Abrahams to appeal against this judgment.