Judicial overreach – that’s what you’ll hear a number of experts arguing following this past week’s court decision that the president has no right to appoint the head of the National Prosecuting Authority (NPA).
And it’s easy to arrive at that conclusion because a court clearly stated that SA’s deputy president must now do what the president is constitutionally obliged to do.
Except that the president has not been exemplary in terms of following the constitution.
It is telling that Judge Duston Mlambo went as far as clearly admonishing President Jacob Zuma for his now well-known tactics of dragging legal matters to the last possible moment and then conceding defeat.
This is clearly an abuse of the court process.
The president has for the last eight years demanded that he be given his day in court to clear his name against the documented evidence that he was in a relationship that clearly showed he is corrupt.
While he has verbally pointed out that he is ready to face the music in court, he has displayed a terrible tendency to use all available legal means to avoid having to do what he says: appear in court.
Judicial overreach in normal circumstances would mean that the judicial arm of government has chosen to force the legislative arm of government to act in a particular way or that the courts have gone beyond their defined mandate to usurp the power to govern from the executive.
But what we have here is a unique situation in that the head of the executive, the president, has clearly been shown to have abdicated his responsibilities of appointing the executive.
Most importantly he is clearly conflicted when it comes to appointing the head of the NPA.
The president has been abusing his powers to appoint people who will ultimately decide on whether he gets his day in court.
The appointment of Shaun Abrahams to head the NPA is not the first time Zuma has cast himself in the role of player and referee in matters that involve him. Remember the Arms Deal Commission of Inquiry?
The president had no right to appoint Judge Willie Seriti to head that commission. He was clearly conflicted in that matter – and guess what? The commission lost all credibility.
In her last report as public protector Advocate Thuli Madonsela gave clear instructions that the judge to head the commission to investigate state capture must be appointed by the Chief Justice of the Constitutional Court.
The president has been in court ever since trying to reverse that recommendation so he can be allowed to do what he has been doing all along: appoint a judge he likes.
The judiciary has decided that Zuma’s abuse of court processes cannot be allowed to go on unchallenged. Is that judicial overreach? Maybe.
But surely the courts are not intentionally trying to take over the role of the executive or parliament. In actual fact, the judiciary is doing this because parliament has failed to hold the president and the executive to account.
If the judiciary is erring on the side of protecting our constitution, then it is overreach we must welcome.