SA ‘a nation of laws – not personalities’
Publish date: 12 September 2017
Issue Number: 73
Diary: A Matter of Justice
Category: A Matter of Justice
One of SA’s leading judges has made a dramatic intervention in the ongoing crisis of corruption in this country, calling for every citizen to become an ‘activist in promoting constitutional values’ and ensure that the poor and vulnerable in particular are not exposed to the ‘corrosive effects of the abuse of power’.
Justice Mahomed Navsa, acting Deputy President of the Supreme Court of Appeal, was delivering the 13th annual human rights law lecture at the University of Stellenbosch. His lecture almost did not take place after the flight bringing him from Bloemfontein was delayed by a number of hours: however, most members of the audience, informed of the problem, remained to hear him speak.
Navsa’s lecture was delivered against the sombre backdrop of an unprecedented wave of corruption in all spheres of South African life, particularly in the highest echelons where proof is increasingly emerging that essential sectors of government have been ‘captured’ by the rich and powerful, from both this country and abroad.
As he regularly presides in matters involving corruption and maladministration Navsa did not mention any pending or past South African case by name, but there was still plenty in his speech to repay attention.
Citing three recent examples, he made it clear that corruption was an international problem. In the UK, for example, the Serious Fraud Office reached a deal earlier this year with Rolls-Royce. The judge presiding in the matter said it could ‘properly be described as devastating’ and ‘of the very greatest gravity’ that the case revealed ‘the most serious breaches of the criminal law in the areas of bribery and corruption (some of which implicated senior management and … controlling minds of the company)’.
The orders against Rolls-Royce for corrupt activities around the world came to about £652m plus a further £13m in costs. The judge warned other companies wondering whether if it would be better to keep quiet about similar corrupt practices and said such an approach ‘carries with it cataclysmic risks’. Being found guilty without self-disclosure would inevitably spell ‘a far greater disaster than has befallen Rolls-Royce’.
The second international corruption scandal mentioned by Navsa involves Volkswagen, which installed illegal software on some of its vehicles to give false readings on the emissions of certain air pollutants. This has led to class action against that company as well as investigations in other countries about possible corrupt practices. He also described the scandal in the health care sector of European Union members states, which found corrupt practices were a widespread problem across the EU, with a 2011 report estimating that about €56bn were lost every year to fraud and corruption in this sector.
Against such a background there should be little surprise that SA was not ‘immune’ to corruption, he said.
Ironically – was it deliberate? – he chose to quote two Cabinet members widely regarded with considerable suspicion over corrupt practices or links. Both the Minister of Public Enterprises, Lynne Brown, and the Minister of Finance, Malusi Gigaba, have made recent statements on the need to combat corruption which they described as ‘the enemy’ of a developing state. These remarks were typical of government’s recognition that corruption poses a serious threat to the health of the nation, said the judge.
But while the government accepted there should be ‘zero tolerance of abuse of power and resultant corruption and maladministration’, was the Constitution an adequate safeguard against these threats? In Navsa’s view the country’s supreme law ‘provides the architecture’ needed, though it was neither ‘self-propagating’ nor ‘self-perpetuating’. The constitutional vision would only be realised, he said, ‘where there is a proper synergy between government and the governed’ about constitutional values and the enforcement of fundamental rights.
Then came a key theme of his address: ‘What is required in the fight against corruption and maladministration is an appreciation instilled in the national psyche, concerning the importance of laws and institutions fundamental to the success of our democracy.’
To achieve a deeply-ingrained understanding of and desire to protect the Constitution, continuous public education was needed that would ‘bring home the point that ours is a democracy based on the rule of law and that we are a nation of laws and not of personalities’.
He revisited crucial sections of the Constitution, showing that it was based on concepts that were ‘the very antithesis of untrammelled power’. He touched on his second major theme here, namely that public officer bearers had to be constantly aware that their power was only to be used in the public interest and for the welfare of the country. ‘We have to reject the notion that the country is privileged to have us and move to a place where it is self-evident that we are fortunate and privileged to serve the nation.’
Judges too were subject to the Constitution and – a recurring theme of the supreme law – were accountable. ‘Their function is to determine where others have overstepped the line drawn by the Constitution, not to step over the line themselves.’
He challenged his audience: if the rule of law was paramount for them, they should make ‘every effort to impress upon children in our schools, students at tertiary institutions and the populace at large that public representatives and office bearers serve at their pleasure and that the many constitutional and legislative tools at their disposal should be utilized to ensure that government and powerful interests are held to account.’
Those with the means and the resources ‘should popularize a rights-based culture’, Navsa urged. It was essential that communities become involved in matters affecting them, action that would at the same time promote democratic values.
He explained the role of the media in ensuring that citizens had access to information, and, speaking of elections, said when people voted in support of promises that were later broken, ‘the democratic model was subverted’. In what might have been a suggestion that the current system of how votes were weighted could be improved, he added: ‘Perhaps greater and focused thought should be given to further refining the democratic ideal to ensure that one’s vote has greater meaning and effect.’
‘People should not fear their government,’ he said. ‘They have every right, guaranteed by the constitution, to hold government to account.’
It was the duty of every citizen to ensure that the poor and vulnerable in particular were not exposed to the ‘corrosive effects of abuse of power’.
‘We ignore the poor and vulnerable at our peril. The constitution holds out a vision of a better society for all. If, after centuries of colonial and apartheid oppression, they continue to be isolated and denied a fair share of the wealth of the country and the benefits of state resources because of corruption and maladministration, our democratic experience will have failed spectacularly.’