It’s the law, stupid!

Submitted by Chris McConnachie

South Africans are a relatively undemanding lot when it comes to our elected representatives. We can look past their dubious private moralities, tolerate their inconsistent public statements or even gloss over their past criminal records. What we do demand from our representatives, at bare minimum, is a level of respect for the principle of legality. At its most basic, legality entails that the government’s actions must be in accordance with the law. A government operating according to vague principles and shaky gut-feel is a certain recipe for capriciousness and the abuse of power. In the spirit of legality we ask just three simple things of our elected officials: To act only where empowered by law, to not exceed the law, and to be governed by the law.

These requirements mean very little without a fourth requirement, one which seemed too obvious to mention until very recently: to actually read and appreciate the law.

The first illustration of the need to explicitly state this requirement is provided by that paragon of good governance, the Eastern Cape Department of Social Welfare. The Department recently squandered several million rand attempting to defend a claim for a paltry R5800 brought by a disabled pensioner. The pensioner was one of thousands of elderly Eastern Cape residents whose pensions were suspended without warning in 1997. The Department seemed so utterly convinced of the validity of their defence against this claim that they decided to challenge it all the way to the Constitutional Court. The slight snag in their plan was a string of court decisions over the past ten years explicitly declaring the suspension of these pensions to be unconstitutional and ordering the Department to immediately reinstate these grants. In dismissing the Department’s appeal, the Constitutional Court wasted no time in pointing out that the Department had clearly not read a single one of these court orders and had simply shelved them away without a second thought. Since court orders have the force of binding law, such a failure to read and appreciate the law simply beggars belief.

One would be forgiven for believing that this problem was confined to the backwaters of provincial government. Instead the problem of not reading or appreciating the law has taken hold of several national government representatives.

In the outcry surrounding the Zimbabwean arms shipment of a few months ago, few analysed the role of the National Conventional Arms Control Committee, the body which initially approved a permit for the arms to be transported across South Africa. In justifying the decision to allow the arms shipment to proceed, the chairperson of the Committee, January Masilela, remarked, “[this] is a normal transaction between two sovereign states. We are doing our legal part and we don’t have to interfere” (My emphasis).

Statements from other high-ranking government officials went further by pronouncing that no law exists, allowing South Africa to prevent international arms transfers. Had the Committee and the various government spokespersons actually scrutinised the legislation regulating arms transfers they would have seen the clear injunction to “avoid contributing to internal repression”. If that requirement was not clear enough, then it is immediately followed by the requirements to “avoid transfers of conventional arms to governments that systematically violate or suppress human rights” and, even more damningly, to “take account of calls for reduced military expenditure in the interests of development and human security”.

Legal interpretation is often fraught with difficulties but there can be no doubting the meaning of these provisions. It is expected that government officials will act with a degree of circumspection in relation to politically charged situations. However, the various governmental statements made on the issue suggested a complete lack of awareness, if not wilful disregard, of the applicable law.

At the risk of dredging up further old news, a final example of the apparent inability to appreciate the law was demonstrated by Deputy Minister for Safety and Security Susan Shabangu’s widely reported appeal to the police to “shoot the bastards”. Now Ms Shabangu ought to have known very well that section 49 of the Criminal Procedure Act expressly outlaws the use of lethal force by the police except in dire situations. Her department spent five long years between 1998 and 2003 convincing the police force of the need for such a limit on what was previously an almost open licence to kill. It would have been understandable had Ms Shabangu simply criticised the present law, questioned its feasibility or called for its amendment. This would at least have acknowledged the law’s existence. It was a very different thing for her to ignore the law completely and to make statements encouraging police officers to do the same. As in the previous cases, these actions suggest either a failure to appreciate the existence of the law or a conscious willingness to openly flout it.

While these examples are isolated they are certainly worrying. All representative democracies have to expect that their elected officials will play fast and loose with the letter of the law from time to time. We even expect that our elected officials will break the law. Such breaches of the principle of legality are detestable in their own right but par for the democratic course. However, it is a different matter entirely for elected government officials to show no knowledge or comprehension of the applicable law. Such ignorance of the law is the ultimate form of disrespect of the principle of legality and a mockery of those who the law is meant to protect. Now would be a good time for our politicians to get out those prescription reading glasses.

Chris is a penultimate year LLB student at Rhodes University.