The Collective vs the Judiciary

…..editorial 20 March 2021……

……article dated 20 March 2020….

Ramaphosa continues to dodge..

Surely nobody could have missed, mixed up with all the political machinations of the moment, the far bigger national argument on the separation of powers, the essential element of which is the rule of law.

To put it crudely, the separation of powers is all about the route taken to prevent the abuse of power, the rule of which is that no person can be above the law.  So, with a criminal record no person may hold a position of power, that’s clear.    But in arriving at this rigid outcome there is a whole black hole of legal innocence until proven otherwise.

To be frank, nobody could have dreamt of a situation where six or seven of our leaders and past leaders await trial on a mixture of charges involving theft, corruption and bribery.

The terms we have all been taught to use for the three constitutionally separated pillars of power are Parliament, the Executive and the Judiciary, the powers of each being very carefully outlined in the Constitution.   If any one pillar of government exceeds its powers, it destroys the tripartite balance that protects the democratic nature of a government and inevitably the result is a dictatorship, with the consequent loss of freedoms for those the Constitution is supposed to protect.

Some frightened by the use of the word dictatorship as a consequence use the words authoritarian or repressive.  It makes little difference.

Power break

The cause of the argument in circulation is that the Executive, as one column in the pillar structure, has morphed into something called the Collective, a shadowy idealogical structure which is indistinguishable from the governing party it is supposed to represent in Parliament. The Collective genuinely believes it is a force which is blessed with rights to represent everybody, a good proportion of the Collective believing it is above the rule of law and needs no Parliament.

The trouble with our business community is that we get used to things.  We might complain initially about some outlandish regulation, piece of legislation or political statement which damages the JSE, and we may even put money into an ad in the newspaper, but soon our business leaders just throw up their hands and get on with life.

Individualism

Being an innovative crowd, which is something South Africans are well known for, a plan is made to get around the rock placed in our road and we focus once again on immediate concerns, ones that keep the business going.    Screw it, let’s do it, we say, and we move on.  In doing so, we get used to the rock in the road.

An example of what we have sadly got used to are the powers exercised by the so-called National Command Council, chaired by the President comprising 19 cabinet ministers, any number of faceless directors-general – all cadre deployments, and the head of the SA National Defence Force and the National Police Commissioner.

Parliament never sees sight nor sound of its decisions or sees its minutes, if it has any, until well after the event is pronounced upon. Then a token amendment to a Bill, not even tabled, is presented as an afterthought by faceless public servants and politicians.

Big Sister

In fact, every time the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, extends the national state of disaster as agreed by the Command Council, she does so without consulting Parliament at all.  Rather the matter is first channelled through the ANC national executive for approval by the Collective as is the case with the current round of Covid regulatory adjustments.

In Parliament it can be seen, as with the Judiciary, that the Collective exceeds its powers regularly. Whilst in the last few weeks the Magashule/Mkhwebane/ Zuma /Malema justice dodgers have made an initial breach in the walls that protect the Judiciary, the Collective has been abusing parliamentary powers for years. This is as evidenced clearly in the Zondo hearings.

What is now before Parliament, is some highly sensitive legislation, the Expropriation Bill and the Employment Equity Amendment Bill.  What the Collective directs on these Bills will be conveyed to its MPs and powered through the whip system, messages determined by a governing ANC Executive in the midst of a power struggle. This is not the best way to run a country.

President Nelson Mandela only had a short period of his life to ensure that what had happened before would never occur again. He thus agreed to a democratic approach to deal with the past, one of individualism. That was his legacy.  Should President Ramaphosa, by smoking a peace pipe, accommodate the political misfits of the Jacob Zuma camp within this Collective, then the total collapse of the pillars of democracy could well be his inheritance.