We recently commented on Lindiwe Sisulu’s early determination to go the Zuptoid route, aiming to recapture and entrench Jacob Zuma’s “rule and benefits at all costs” approach. His misguided attempt to rouse populists by slandering the courts and our Constitution led to an anguished response from acting Chief Justice Raymond Zondo and outrage from the legal community, academia and political commentators; not to mention many within his own torn party. Here, Paul Hoffman, SC, director of the Institute for Accountability, tells us what the law does with a minister who flouts the Constitution, disregards the rule of law and insults judges. Conclusion: it must withdraw his statements and apologize or face criminal charges. And if President Cyril Ramaphosa refuses to fire her, he will violate the rule of law. Hoffman’s argument is a powerful and rational beacon in the seemingly intractable political madness that is South Africa today. –Chris Bateman

Unpacking the Insults by Lindiwe Sisulu

By Paul Hoffman*

When the great and the good of Global Justice Project, best known for its Rule of Law Index, last met in The Hague in May 2019 for the latest Global Justice Forum, delegates issued a statement in which they confirmed, among other things , their commitment to:

• Advocate for reforms of justice sector laws and institutions to protect all human rights for all and meet the justice needs of people;
• Affirm the rule of law as the foundation of communities of justice, opportunity and peace;

The rule of law, according to the WJP, is an enduring system of laws, institutions, norms, and community engagement that provides:

“Responsibility
Government as well as private actors are accountable before the law.

just law
The law is clear, publicized, stable and applied uniformly. It guarantees human rights as well as property, contractual and procedural rights.

Open Government
The processes by which the law is passed, administered, adjudicated and enforced are accessible, fair and efficient.

Accessible and impartial justice
Justice is delivered in a timely manner by competent, ethical and independent representatives and neutrals who are accessible, adequately resourced and reflective of the makeup of the communities they serve.

These four universal principles constitute a working definition of the rule of law. They have been developed in accordance with internationally accepted standards and norms, and have been tested and refined in consultation with a wide variety of experts from around the world.

This wording is a bit more elaborate than that devised in the UK by Lord Bingham, but is not inconsistent with his wording, which reads:

“…that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively enacted and publicly administered by the courts”.

The Minister of Tourism, Lindiwe Sisulu, has become in recent days a prolific correspondent in some sectors of the media. His stance has caused outcry, among other things, regarding his views on the rule of law, the Constitution, and the licking role of “African” judges in our post-1994 non-racial order. His criticisms of our system judiciary provoked a controversial response from the Acting Chief Justice, Raymond Zondo, which describes his views as baseless and insulting to the judiciary. Many other commentators and cartoonists have explored the political, factional, and “alliance intrigue” aspects of his remarks. This note is limited to opinions expressed that disregard the rule of law and the Constitution and those concerning allegedly colonialized judges.

The legal order in South Africa regards the rule of law as supreme. Ministers take oath to “obey, respect and enforce the Constitution and all other laws” of SA. They undertake to fulfill the duties of their office conscientiously and to the best of their abilities.

Respect for the Constitution can only be achieved by taking into account its values ​​as set out in Article 1 of the Constitution. Our multi-party system of democratic government must ensure accountability, responsiveness and transparency.

To deny the effectiveness of the rule of law is a non-starter. In her day-to-day work, the Minister hailed the lifting of SA redlist status imposed arbitrarily, capriciously, illegally, invalidly and unconstitutionally by some governments upon hearing of the omicron variant. The invocation of the rule of law is what led to the lifting of the travel ban.

The ministerial pot-shots to the rule of law in South Africa today are misplaced and way off the mark. The situations in Nazi Germany and during the apartheid era, parliamentary sovereignty reserved for “whites only” are examples of government by law, not the rule of law, as the efforts of the WJP show mentioned above. There is no parliamentary sovereignty in South Africa today – our National Accord has abandoned this in favor of a Supreme Constitution in which politicians conduct themselves in a manner inconsistent with the Constitution at their peril. The constraints of the Constitution invalidate behavior incompatible with its values.

Any order in which the rule of law rather than under the rule of law exists does not deserve to be called a rule of law system. This was the case under the former apartheid regime. Like former Chief Justice Chaskalson observed at the first World Justice Forum in Vienna in 2008:

“What was missing was the substantive element of the rule of law. The law-making process was not fair. And the laws themselves weren’t fair. They institutionalized discrimination, gave broad discretionary powers to the executive, and failed to protect fundamental rights.

The importance of the rule of law for all South Africans is evident in the former Chief Justice’s words of warning. Our society can ill afford to regress to a situation in which injustice, institutionalized discrimination, excessive executive power and a general failure to protect human rights are once again the order of the day.

The preamble to the Universal Declaration of Human Rights recognizes the proper role of the rule of law in the realization of human rights. It is said:

“It is essential, if man is not to be compelled to resort, as a last resort, to rebellion against tyranny and oppression, that the rights of man be protected by the State of right.”

The judiciary did not invent the Constitution, it is the product of a process of negotiation, of the vintage (not imported or imposed) and of the work of the political parties active in the period between 1990 and 1996. The ANC claims to rightly the co-authorship of the Constitution which put an end to the armed struggle and to the parliamentary sovereignty of apartheid. It should also, according to Professor Kadar Asmal (minister in the Mandela and Mbeki cabinets) and many others, put an end to the revolutionary struggle for democracy in which the liberation movements were engaged before the negotiation of the Constitution. . Good citizens will remember that Asmal resigned from politics rather than vote for the demise of the Scorpions, an elite anti-corruption entity.

Members of the national cabinet collectively assume responsibility for the exercise of their powers and the performance of their duties. They must act in accordance with the Constitution and provide Parliament with full and regular reports on matters within their control in accordance with Article 92 of the Constitution.

The State itself is bound by Article 7(2) to respect, protect, promote and fulfill the rights guaranteed to all in the Bill of Rights.

If these duties, functions and obligations had been better implemented, SA would not be in the precarious state in which it finds itself today.

With regard to derogatory or “insulting” remarks made by the Minister with regard to justice: she must, within the framework of her duty as a civil servant of the State, by legislative and other measures, assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and efficiency of the courts. She cannot, by claiming to write in a personal capacity, evade these obligations. In turn, the courts are required to be independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favor or prejudice. These matters are all dealt with in Article 165 of the Constitution, our supreme law.

What then does the law of a minister who flouts the Constitution, disregards the rule of law and insults some judges so roundly that it prompted an anguished response from the acting chief justice during a press briefing.

It is true that there is freedom of expression and opinion in South Africa under Article 16 of the Bill of Rights. These rights are not unlimited. Offenses such as contempt of court and scandal of court still exist, despite these free speech rights which may be reasonably and justifiably limited in accordance with our open and democratic system. The effect of the enactment of the Constitution on these two crimes was definitively dealt with by the Constitutional Court in the case of S v. Mamabola. They have survived in a pared down form that accommodates non-abusive freedom of expression. The take-home message from this judgment is that a person can only be convicted of “scandalizing the court” for a statement made out of court if that statement “was truly likely to prejudice the administration of justice”.

If the Minister did not intend to undermine the administration of justice by undermining the rule of law and denying the Constitution, she should say so and apologize for the confusion and the infringement not only to the judiciary but also to the constitutional project that it has aroused through its baseless and baseless statements. Many organizations and individuals have called for a retraction and an apology. A failure or refusal to do so will strengthen the criminal case for contempt of court or outrage the charges against the minister.

If Sisulu is not prepared to recant and apologize, she should, in the proper exercise of the President’s discretion, be relieved of her ministerial duties, as her recalcitrance will demonstrate that she is no longer a person. fit and proper to honor the firm. which he presides. An arbitrary and irrational refusal or omission to impeach the Minister shamelessly will constitute a violation of the rule of law, perpetrated by the President.

The hope expressed by the Acting Chief Justice that Sisulu will withdraw her statements is reasonably measured given the insults directed at her and the judiciary. If Sisulu remains unrepentant and shameless, the prosecution will have to consider the criminal implications of its position, it is a supposedly “stop-gap” creature of our Constitution and has its own obligations to fulfill.

• Paul Hoffman SC is a trustee of Accountability Now.

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