President Jacob Zuma with IEC chairwoman Pansy Tlakula on a tour of the Election Results Centre earlier this year. File picture: Elmond Jiyane

To paraphrase Mark Twain, stories about Pansy Tlakula’s impending demise are vastly exaggerated, says Paul Ngobeni.

Johannesburg - In what seems to be an unending nightmare for advocate Pansy Tlakula, the Electoral Court has found her unsuitable to continue chairing the Independent Election Commission.

The court has recommended that Parliament be the final arbiter. In doing so, it subordinates its findings to the whims of politicians. There’s something unseemly about this.

Expectedly, the adverse ruling by the Electoral Court has sparked premature celebration among politicians seeking her removal. In the cacophonous vilification of Tlakula, the exceptionally important constitutional questions lurking in the matter have largely been ignored.

As I see it, there are viable constitutional options which may just prove, to paraphrase Mark Twain, that stories about Tlakula’s impending demise are vastly exaggerated.

First is a challenge in the Constitutional Court dealing with questions about the constitutionality of the Electoral Act, judicial independence, competence and the relationship between the judiciary and politicians.

The other option requires boldness and far-sighted leadership on the part of Parliament, that is, a Constitutional Court ruling on the constitutionality of the act before the matter goes to any parliamentary committee.

The Tlakula case reaffirms the wisdom of the admonition of the US Supreme Court in Mistretta v United States which stated: “The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action.”

For obvious reasons reputational borrowing would create a potential to undermine the judiciary’s reputation for independence while giving the other branches an artificial appearance of impartiality.

Our constitution’s doctrine of separated legislative, executive and judicial powers serves to eliminate arrangements that threaten to permit one branch either to aggrandise its power or to encroach on functions reserved for another branch.

Ordinarily non-judicial functions should not be conferred on the judiciary and politicians must not relegate our courts to making recommendations which are subject to a veto by parliament. Independence for our courts essentially means “freedom from influence”.

This ordinary meaning is underscored by the legal definition of judicial independence, namely the lack of subordination to any other organ of the state, in particular to the executive.

Most importantly, judicial independence implies that judges are the authors of their own decisions, and that they should be free from any “inappropriate” influence.

The Tlakula case exposes how incompetent legislative drafting can eviscerate judicial authority enshrined in section 165 of the constitution.

This section states, in keeping with the separation-of-powers principle, that the “judicial authority of the Republic is vested in the courts” and not in some other branch of government. Strangely, under the Electoral Act, the court is restricted to only making a recommendation subject to the caprices and whims of parliamentarians.

This transgresses the constitution and allows not just the borrowing but usurpation of judicial power by the legislative branch.

Further, Parliament’s ability to review, adopt or reject a court decision, even one masquerading as a “recommendation”, is contrary to the principle that judges and other judicial officers are only answerable to the constitution and any other valid laws.

The ability of Parliament to reject a court decision clearly offends the provision that “no person or organ of state may interfere with the functioning of the courts”.

Additionally, Parliament failed through the Electoral Act to live up to the constitution’s command that organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

The act requires the court to investigate an alleged misconduct and then make a recommendation in a manner suggesting that non-judicial functions were conferred on a court subject to political supervision.

Inevitably, this leads to the appearance of a lack of independence – the act puts the court’s independence and impartiality on the line. Certainly, the Electoral Court cannot be invested with power that is incompatible with the exercise of judicial power enshrined in the constitution.

True, South Africa has a long tradition of judges leading commissions of inquiry in matters of public importance, including most recently the arms deal and Marikana inquiries. Typically, these commissions produce non-binding reports and recommendations and the judges involved undertake executive functions in their personal capacity without affecting judicial independence. The Constitutional Court has drawn the line when it comes to a statute conferring non-judicial functions on a judge in his official capacity. In the matter involving Judge Heath, the SIU Act empowered the president to set up special units, including judges, to investigate corruption.

However, in 2001, our Concourt found that the functions conferred on a judge by the SIU Act compromised the separation of the courts from other arms of government and undermined the independence of the judiciary.

From this vantage point, the 1996 Electoral Act impermissibly blurred the line between the courts and other branches of government and conferred non-judicial functions on the judiciary and our courts.

Even more egregious, in cases involving misconduct by IEC commissioners, judges of the Electoral Court are relegated to investigating alleged misconduct and then making recommendations that are subject to a veto by politicians. In a bizarre twist the political parties behind the lawsuit will get another chance in Parliament to review the court’s decision in violation of the precept that no one may be a judge in his own case.

In all fairness, when Mandela’s Parliament passed the law, it did not have the benefit of the Constitutional Court ruling and could not have been expected to possess the clarity of vision that arises only in hindsight. However, it is incomprehensible that Parliament missed an obviously insuperable hurdle in section 165 (5) which expressly states that “an order or decision issued by a court binds all persons to whom, and organs of state to which, it applies”.

In Tlakula’s case the “court” itself is, contrary to section 165 (5), reduced to making non-binding recommendations to Parliament. This effectively places the court firmly in the echelons of administration and reduces the judge to the level of any other functionary accountable to Parliament. Even more puzzling is why the judges of the Electoral Court have acquiesced in this obviously unconstitutional statutory scheme. The constitution dictates that we must have an independent judiciary able to interpret and apply laws based on legal rules and principles rather than on political intentions, expediency or calculations.

Tlakula may also rely on section 34 of the constitution which says everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court, or where appropriate, another independent and impartial tribunal or forum. This provision also undergirds judicial independence, which requires that judges are not directly accountable either to the executive or to Parliament for their decisions. Judges’ primary form of accountability comes from four aspects of judicial process: most court hearings take place in public; judicial proceedings are usually adversarial; judicial decisions must deal with the submissions of the parties; and most decisions may be challenged by appeal to a higher court.

In the Tlakula matter Parliament’s role in reviewing a court’s recommendation seriously threatens the impartial adjudication of cases because the judges’ decisions are subject to veto by politicians with no legal training whatsoever. One shudders to think what would become of a parliamentary debate on the Tlakula court recommendation if the rowdy circus-like atmosphere of the State of the Nation debates was to be replicated.

Substantively, the court’s fundamentally flawed reasoning only highlights the dangers inherent in forcing a court to make recommendations on quintessential political matters as opposed to adjudicating legal dispute in the sterile atmosphere of a courtroom. First, the court took “judicial notice” of a public protector’s report which was heavily criticised by both the ANC and the DA during a debate in Parliament as procedurally flawed.

It completely sidestepped the concerns of the two major parties in Parliament. Secondly, the court misapprehended that the appointment and removal of IEC commissioners follow a constitutionally prescribed process.

It is incongruous to suggest that Tlakula can be found guilty and removed from her commissioner position on the basis of an alleged misconduct committed while she was an accounting officer employed by an executive authority. Tlakula’s conduct before her appointment as a commissioner is not conduct over which the court has jurisdiction.

The court misconceived its role as that of a super-personnel department, weighing evidence of Tlakula’s performance as the chief executive, re-examining the former IEC’s decision not to hold Tlakula accountable, and drawing independent conclusions regarding the ultimate question of whether she was guilty of misconduct as an accounting officer. It conflated the issues of alleged misconduct committed by an accounting officer under the PFMA for which she can be disciplined by the relevant executive authority with that of misconduct by an IEC commissioner, which is only a first step in a constitutionally ordained removal process.

The court not only overstepped its jurisdictional bounds but its over-broad definition of misconduct renders commissioners susceptible to extortion or blackmail, as prior job performance in state agencies can always be invoked to remove IEC commissioners from office.

Parliament has a golden opportunity to take bold and decisive action to end the Tlakula saga.

* Paul Ngobeni is a member of the Progressive Professionals Forum, Western Cape.

** The views expressed here are not necessarily those of Independent Newspapers.

Sunday Independent