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TWO recent landmark judgments in our courts give cause for celebration by those who believe that as long as the rule of law is the determining factor in the administration of justice in our country we have grounds to believe we can enjoy a stable and safe future.
There’s ample evidence – immediately across our northern border in the failed state of Zimbabwe – that when ordinary people lose faith in the fair, impartial and balanced administration of justice, they lose all hope in society.
We have before us convincing evidence of that in the millions of Zimbabweans who have fled their lovely and bountiful country for exile, often unpleasant and unsafe, in South Africa.
As has been widely publicised – both here and overseas – our highest court, the Constitutional Court, decided in the Glenister case that SA must be served by a corruption-fighting agency that has a level of independence that shields it from political interference.
Parliament now has 18 months to revisit the Act that effectively killed the Scorpions and created the Hawks.
In another matter, the Supreme Court of Appeal instructed the Judicial Service Commission to reconsider its verdict that Cape Judge President Hlophe had not – in discussing proceedings against President Jacob Zuma with judges of the Constitutional Court – compromised himself and laid himself open to charges of gross misconduct, leading to removal from office.
There’s no appeal against the SCA judgment, as that would be made to the Constitutional Court itself impossibility, given its own justices are involved and, in any event, a quorum couldn’t be assembled to hear the matter.
Thus the Hlophe matter will be re-heard: not in camera but in public and, this time, evidence will be presented and cross-examination conducted.
Hlophe will this time be forced to cross the hurdle of public perception that there’s been proper application of the law.
No more comradely understanding but rather a rigorous search for legal truth and a disinterested conclusion.
Parliament is also not above the law. Nobody is above the law: we’re all subject, equally and without favour, to the rule of law.
For example, a former South African, Lord Steyn, sitting in the House of Lords, found against the British government when the Home Secretary sought to interfere in a sentence.
“Unless there’s the clearest provision to the contrary, parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.”
Of course, the rule of law came under ferocious attack by the National Party regime.
In his book South Africa – A Modern History TRH Davenport makes numerous references to what he terms “statutes legitimising punitive action without trial”.
Those included the Native Administration Act, Suppression of Communism Act, Terrorism Act, Affected Organisations Act and namings, bannings, house arrest, passport withdrawals and extra-judicial investigations, the last in terms of the Schlebusch-Le Grange Commission of 1974.
Even as great a leader as Franklin Roosevelt wasn’t above tampering with the rule of law to get his way.
He blatantly attempted to pack the United States Supreme Court in 1937 by asking Congress to allow him to appoint six new judges for every sitting judge over the age of 70.
Our own Constitution declares in Clause 1 the values on which the nation is founded.
Include “Supremacy of the Constitution and the rule of law.”
In his small but riveting work The Rule of Law the late Lord Bingham, one of the most astute legal minds of his age, quoted the originator of the phrase “the rule of law” – Oxford’s AV Dicey – who wrote in 1885: “…no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before ordinary courts of the land”.
Underlying all this is the sacred principle that nobody is above the law.
We’re all subject to the same law and subject to it in an impartial and judicially fair manner. That’s the heart of civilisation and we tamper with it at our peril.
Our courts are serving us well and we must remember John Locke’s warning: “Wherever law ends, tyranny begins.”
* This article was first published in Finweek.
* To read more Finweek articles, click here.
There’s ample evidence – immediately across our northern border in the failed state of Zimbabwe – that when ordinary people lose faith in the fair, impartial and balanced administration of justice, they lose all hope in society.
We have before us convincing evidence of that in the millions of Zimbabweans who have fled their lovely and bountiful country for exile, often unpleasant and unsafe, in South Africa.
As has been widely publicised – both here and overseas – our highest court, the Constitutional Court, decided in the Glenister case that SA must be served by a corruption-fighting agency that has a level of independence that shields it from political interference.
Parliament now has 18 months to revisit the Act that effectively killed the Scorpions and created the Hawks.
In another matter, the Supreme Court of Appeal instructed the Judicial Service Commission to reconsider its verdict that Cape Judge President Hlophe had not – in discussing proceedings against President Jacob Zuma with judges of the Constitutional Court – compromised himself and laid himself open to charges of gross misconduct, leading to removal from office.
There’s no appeal against the SCA judgment, as that would be made to the Constitutional Court itself impossibility, given its own justices are involved and, in any event, a quorum couldn’t be assembled to hear the matter.
Thus the Hlophe matter will be re-heard: not in camera but in public and, this time, evidence will be presented and cross-examination conducted.
Hlophe will this time be forced to cross the hurdle of public perception that there’s been proper application of the law.
No more comradely understanding but rather a rigorous search for legal truth and a disinterested conclusion.
Parliament is also not above the law. Nobody is above the law: we’re all subject, equally and without favour, to the rule of law.
For example, a former South African, Lord Steyn, sitting in the House of Lords, found against the British government when the Home Secretary sought to interfere in a sentence.
“Unless there’s the clearest provision to the contrary, parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.”
Of course, the rule of law came under ferocious attack by the National Party regime.
In his book South Africa – A Modern History TRH Davenport makes numerous references to what he terms “statutes legitimising punitive action without trial”.
Those included the Native Administration Act, Suppression of Communism Act, Terrorism Act, Affected Organisations Act and namings, bannings, house arrest, passport withdrawals and extra-judicial investigations, the last in terms of the Schlebusch-Le Grange Commission of 1974.
Even as great a leader as Franklin Roosevelt wasn’t above tampering with the rule of law to get his way.
He blatantly attempted to pack the United States Supreme Court in 1937 by asking Congress to allow him to appoint six new judges for every sitting judge over the age of 70.
Our own Constitution declares in Clause 1 the values on which the nation is founded.
Include “Supremacy of the Constitution and the rule of law.”
In his small but riveting work The Rule of Law the late Lord Bingham, one of the most astute legal minds of his age, quoted the originator of the phrase “the rule of law” – Oxford’s AV Dicey – who wrote in 1885: “…no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before ordinary courts of the land”.
Underlying all this is the sacred principle that nobody is above the law.
We’re all subject to the same law and subject to it in an impartial and judicially fair manner. That’s the heart of civilisation and we tamper with it at our peril.
Our courts are serving us well and we must remember John Locke’s warning: “Wherever law ends, tyranny begins.”
* This article was first published in Finweek.
* To read more Finweek articles, click here.
