Mandela respected the courts, warts and all

NO ONE, not even the president, is above being taken to the courts. Much can be learnt from how our presidents deal with the experience.

Shortly after we became a democracy, president Nelson Mandela came into conflict with one of the last bastions of white apartheid rule, the South African Rugby Football Union, and its chief executive, Louis Luyt.

The president believed that fostering sport was a key part of nation building. He appointed a commission of inquiry to investigate allegations of racism, nepotism and corruption in Sarfu. Luyt applied to review and set aside this decision.

Luyt presented his action as a struggle for Afrikaners to preserve their last cultural bastion.

The judge was Willem de Villiers, a veteran judge of the apartheid era with all that entailed – who opposed the admission of black advocates to the Bar.

De Villiers was the product of a court culture that addressed black persons charged with criminal offences as “Beskuldigde!” (accused), as if they were not people; found them to be liars (because their answers to questions were lost in translation from isiZulu or Sesotho to Afrikaans); and passed death sentences on capital charges after concluding that they must have been guilty because they lied.

Mandela’s decision was a policy exercise of presidential power. The scope for review by a court was legally very limited. Luyt alleged that Mandela had not made the decision himself. Mandela swore an oath that he had done so. That should have been the end of the matter. In a universally unprecedented step, De Villiers – at Luyt’s behest – ordered the head of state to appear before him to defend his decision.

Out of respect for the administration of justice, Mandela obeyed. His testimony was corroborated by two unimpeachable witnesses. He was subjected to humiliating cross-examination by Luyt’s counsel for more than a day. Counsel never suggested to Mandela that he was not telling the truth. Yet De Villiers questioned Mandela’s credibility and set aside the appointment of the commission.

Although he was abused by its process, Mandela accepted the court’s decision without demure.

The judgment and credibility finding were emphatically set aside by the Constitutional Court, but not before Luyt had applied for recusal of five – out of a quorum of eight – of the court’s judges.

When Jacob Zuma says that he will not subject himself to an oppressive and unjust court system, the De Villiers court exemplifies what he means. But those days of abuse are past.

Now it is Zuma who abuses the courts. For years, they accommodated Stalingrad tactics employed by Zuma to delay his prosecution on corruption charges. His advocate, Kemp J Kemp, boasted that Zuma’s attritionary tactic was “to fight them (the courts) in every room, in every street, in every house”.

Kemp was replaced by a new, enlarged legal team. They declared that these tactics were a thing of the past. Then they proceeded to redouble the war of attrition.

Zuma’s delaying tactics were paid for with public money. Now that he has no access to this, his legal team has withdrawn. He will probably use this to further postpone his day in court.

Our greatest president, after his election, willingly suffered indignity from a court, and respected the institution of justice, warts and all. Zuma by contrast now calls the court system a “judicial dictatorship”, an entrenched “counter-majoritarian problem”.

The Constitutional Court, in a memorable judgment, described the tactics of a certain litigant as bearing the hallmarks of spin doctoring – knowing that his case will be lost, he lays the ground to discredit the court with the object of undermining a decision which would go against him.

Thus, while his opponents might succeed, it would be a pyrrhic victory since the courts themselves would be delegitimised.

Though this sounds like Zuma’s latest tactic, the court was referring to Louis Luyt. I leave you to draw your own comparison between them.