Op-Ed: When the state disobeys the law, people will soon follow

As plumes of black smoke billowed over Tshwane and surrounding townships, SABC COO Hlaudi Motsoeneng and his number one fan, Minister of Communications Faith Muthambi, were consumed with other critical issues on Wednesday – making sure Motsoeneng stays put in his highly sensitive (and lucrative) job despite a Western Cape High Court judgment that his appointment is irrational (and not because he is vainglorious but technically, legally in case you were confused).

Embarking on a Stalingrad Strategy, remarkably similar to uBaba’s (Motsoeneng’s term of endearment for President Zuma) including sidestepping damning findings by the Public Protector, the Minister of Communications on Wednesday applied to the Supreme Court of Appeal (SCA) to appeal a ruling by Western Cape High Court Judge Dennis Davis for Motsoeneng’s appointment to be set aside.

In the minister’s application to the SCA she states that she has “concluded that in light of all the facts available to her, the findings of the Public Protector’s report did not constitute a bar or indeed an impediment to the appointment of Mr Motsoeneng”.

Thuli Madonsela, who soon vacates her office, will be remembered for some of the creative titles that help conjure the contents of many of the reports during her tenure. We are all familiar with her “Secure in Comfort” Nkandla report which was challenged several times before the Constitutional Court finally ruled in March that the protector’s remedial action is legally binding and not an optional matter.

After millions in public money squandered in legal fees and court challenges the ANC government, President Jacob Zuma as well as several ministers who had been summoned to take the fall had their legal tin ear publicly exposed.

The investigation into Motsoeneng’s appointment, released in February 2014, was an unequivocal and unambiguous reflection of its contents, “When Governance and Ethics Fail”.

Madonsela had taken the title from a quote by a former SABC board member who had told her:

“When governance and ethics fail, you get a dysfunctional organisation. Sadly those in charge cannot see that their situation is abnormal. That has been the case at the SABC for a long time…”

Nonetheless, Muthambi and Motsoeneng are determined to fight until the bitter end. The battle so far has raged for over two years, costing taxpayers millions. Judge Davis found that “to ignore a binding report and appoint a person to a permanent position, when that person was required to be subjected to a disciplinary action pursuant to their conduct as an acting COO, is manifestly an act of irrationality which stands to be set aside.”

Muthambi and Motsoeneng appealed that ruling but it was dismissed in May.

In December 2015 the SABC held a “disciplinary” hearing for Motsoeneng – as was required by the PP – but unsurprisingly cleared the COO of all charges.

In a statement on Wednesday the Democratic Alliance, which has been at the forefront of legal challenges that have attempted to wrestle the public broadcaster from the deadly grip of Motsoeneng and his political backers, said the fact that Motsoeneng still worked at the SABC “is indicative of the contempt the ANC and government agencies have for the Rule of Law and due process”.

James Selfe, DA Chair of the Federal Executive, continued that it was this “contempt for constitutional imperatives that has permeated the SABC even informing their draconian decision not to broadcast footage of any protest action or the reading out of newspaper headlines on SABC broadcast platforms”.

The public – no, make that state broadcaster – is currently also the subject of separate legal action to make them reveal their reasons for banning footage of service delivery protests and in so doing failing to give effect to the broadcaster’s legal obligation to operate in the public interest.

In June Last year, speaking to the Human Rights Lawyers’ Association at the international law firm, Hogan Lovells, Judge Thokozile Mapisa warned that if the state did not lead by example in respecting court rulings, there was cause to fear for the future.

During a question and answer session, Mapisa said that the most serious recent violation of a court ruling had been government’s decision allowing Sudanese President Omar al-Bashir to leave the country despite a High Court ruling preventing this.

“The state should be leading by example.... If it does not you really fear for the future ... then you are really heading for trouble. Then ordinary people will start disobeying the law,” said Judge Mapisa.

It was a sentiment echoed by Professor Pierre De Vos:

“Once a government flouts court orders it undermines the legitimacy of the courts – not only in highly charged political matters but also in ordinary matters affecting ordinary citizens. It is a calamity for every citizen – even if this may not at first be apparent to some citizens who might even, in a particular case, support the flouting of a court order and the lawlessness that it entails.”

In April this year, in a relatively under-reported matter, Justice Mandisa Maya, acting Supreme Court of Appeal president, handed down a searing judgement against the former commissioner of the Compensation Fund, Shadrack Mkhonto, for repeatedly flouting a 2009 directive by a lower court to pay out validated claims within 75 days as well as process backlogged claims.

Writing in Business Day, Tamar Khan said that Mkhonto’s flouting of a settlement order to pay claims handler CompSol added him to a “growing list of state officials rebuked for ignoring court orders”. Mkhonto was found guilty of contempt of court and sentenced to three months in jail, suspended for five years.

Passing judgment, Justice Maya said, “It shows the utter disdain of the commissioner, a senior state official entrusted with a vitally important social welfare responsibility and vast public funds (unnecessarily wasted by his persistently contemptuous conduct) for the court procedures and its orders.”

She added that the “worst affront to the court” was that Mkhonto “could not even be bothered to explain why he failed to comply with its order” and that his conduct was “scandalous”.

Mkhonto has subsequently left the Compensation Fund and is employed in the key position of chief operations officer with the Department of Labour.

The Compensation Fund, which deals with claims for work-related injuries and is overseen by the Department of Labour, has been chaotic and dysfunctional for years, prolonging the suffering of injured workers who are in desperate need of compensation.

There are many other instances where government officials have simply ignored court orders including the ruling that textbooks be delivered to Limpopo schools as well as several legal actions against the Department of Home Affairs, a regular culprit when it comes to ignoring or defying the courts.

In July 2015 Judge Segopotje Mphahlele granted an urgent court order in the North Gauteng High Court which would have seen Home Affairs Director-General Mkuseli Apleni and Deputy Director-General Vusumuzi Mkhize spend three months in the slammer unless they complied with a court order granted in June 2015 in favour of a Chinese academic who grew up in South Africa.

Dr Yingwen Zhang, a postdoctoral fellow at the CSIR National Laser Centre in Pretoria, previous month obtained an urgent court order forcing Home Affairs to issue a South African passport or emergency passport to him. Zhang had asked the court to imprison both officials and Judge Mphahlele gave them 48 hours to comply, failing which she ordered the sheriff to arrest Apleni and Mkhize and hand them to Pretoria Central Prison to be detained for three months. Home Affairs was ordered to pay costs in this case.

In February 2016, the Port Elizabeth Refugee Reception Office, which had been shut down by the Department of Home Affairs in 2011, was due to open its doors as ordered by the Supreme Court of Appeal. It simply ignored the court, leaving thousands of vulnerable asylum seekers stranded.

Several courts had all reached the same verdict, that the Refugee Reception Office had to reopen, and in August 2015 the Constitutional Court confirmed a Supreme Court of Appeal decision which required Home Affairs to reopen the Port Elizabeth office by February 9.

The Department cited “logistical barriers” which Daily Maverick discovered was a shortage of funds and personnel as well as “technical challenges” for its failure to respond.

In April 2016 Groundup reported that immigration lawyers accused the Department of Home Affairs of being in contempt of a 2003 Western Cape High Court Order that asylum seekers and refugees be allowed to apply for temporary residence permits and permanent residence without having to cancel their asylum seeker status or give up their refugee status. In February, Apleni suddenly withdrew the instruction as well as another allowing asylum seekers to apply for temporary residence without a valid passport.

There are of course the early Constitutional Court rulings with regard to socio-economic rights including the 1997 Soobramoney judgment (on the universal constitutional right to medical treatment), the 2001 Grootboom judgment (with regard to the state’s obligation with regard to housing – Mrs Grootboom died homeless and penniless eight years later) and the 2002 Treatment Action Campaign victory upholding the constitutional right of pregnant HIV-positive women to access healthcare services to prevent mother to child transmission of HIV (PMTCT).

And while it is the courts that protect and enforce the rights that are enshrined in the Constitution, it is ministers and government officials – those who apparently hold high the values of Freedom Charter – who must uphold and respect the law.

So far it has been an uphill and costly battle for ordinary citizens, NGOs and others.

Increasingly, the ruling party has revealed its true nature in the courts and it is President Zuma who has provided leadership here – from escaping 783 charges of racketeering, fraud and corruption to violating the constitution – and being told so by the Constitutional Court. DM

Photo: South African President Jacob Zuma attends the China - South Africa Economy Forum at a hotel in Beijing, China, 05 December 2014. EPA/DIEGO AZUBEL