Wednesday, June 20, 2012

Two statutory interpretation cases and why they matter: Case 2, from South Africa

The second statutory interpretation case I want to discuss is Democratic Alliance v President of the Republic of South Africa and Others, 2012 (1) SA 417 (SCA 2011; available at the court's website). This case is a decision from South Africa's second-highest court, the Supreme Court of Appeal, issued in December 2011. It addresses a challenge brought by the Democratic Alliance, South Africa's official, and largest, opposition party, against President Jacob Zuma's 2009 appointment of an advocate (barrister) named Menzi Simelane as the National Director of Public Prosecutions (NDPP). The gist of the Democratic Alliance's case was that the questions about Simelane's fitness were so grave, and Zuma did so little to resolve them, that Simelane's appointment was unlawful.

The underlying facts are ... remarkable. They grow out of the gathering political crisis at the end of the presidency of South Africa's second president, Thabo Mbeki, and continue over into decisions made by the man who ousted him and ultimately replaced him, Jacob Zuma. As explained by the Supreme Court of Appeal, President Zuma wanted to appoint Simelane to replace the previous NDPP, Vusumzi Patrick Pikoli. Pikoli had been suspended in 2007 by President Mbeki, who was post-apartheid South Africa's second president until he was pushed from power by Jacob Zuma and his allies later in December of that same year.

Pikoli, as South Africa's chief prosecutor, had contemplated arresting yet another person, Jackie Selebi, who was then the Commissioner of Police. Bridget Mabandla, who in 2007 was serving as Minister of Justice and Constitutional Development  under President Mbeki, instructed NDPP Pikoli to hold off on arresting Selebi while she (Mabandla) decided whether in her opinion an arrest was justified, but Pikoli declined. After the arrest was made President Mbeki suspended Pikoli.

Then Mbeki appointed Dr. Frene Ginwala to head an enquiry (referred to by the court as the Ginwala Enquiry) into Pikoli's fitness to serve. That Enquiry found that Pikoli was fit to serve, but he was ultimately removed from office nevertheless. Subsequently Selebi was convicted of corruption charges, while Pikoli settled his lawsuit challenging his dismissal and was paid 7.5 million rands in the settlement.

Where did Simelane come in? Among other things, it turned out that Simelane, as the senior staff member of the Ministry of Justice and Constitutional Development, drafted the letter in which Minister Mabandla tried to require NDPP Pikoli to hold off on arresting Selebi. Then Simelane participated in preparing the government's submissions to the Ginwala Enquiry, and he himself testified before it. The Ginwala Enquiry report commented very harshly on Simelane's role, saying that his submissions and testimony were "in many respects ... inaccurate or without any basis in fact and law"; that "[h]e was forced to concede during cross-examination that the allegations he made against Adv[ocate] Pikoli were without foundation"; that these allegations "were spurious, and are rejected [as being] without substance, and may have been motivated by personal issues"; and that Simelane had shown "disregard and lack of appreciation and respect for the import for an Enquiry established by the President." (Quotations from the Ginwala Enquiry report, drawn from the Supreme Court of Appeal's judgment at paragraph 24; the bracketed words "[as being]" are included in the SCA's quotation.) And there was more as well, which I don't need to review here.

How had President Zuma made the decision to appoint Simelane despite all this? He answered, in an affidavit, that he relied on the advice of his Minister of Justice and Constitutional Development (Minister Radebe), his own personal knowledge of Simelane, and Simelane's curriculum vitae. Simelane's CV was the only document Zuma had before him. (Judgment, paragraphs 5 and 45.)

The Supreme Court of Appeal concluded that this process was unacceptably thin. Unacceptable by what standard? Here at last we come to the statute in question. Section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998 provides that: 
(1) Any person to be appointed as National Director ... must ...
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office ....
To interpret this statute, the court looked to the constitutional provision that had mandated the law's enactment, section 179(4) of the Constitution. That section says simply: "National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice."

Emphasizing that the Constitution says that this national legislation must accomplish this end, the Supreme Court of Appeal wrote: 
That is the primary purpose of the Act. It will falter at the starting post if it is not insistent about the qualities the head of the institution must possess in order to lead the NPA [National Prosecuting Authority] on its constitutional path. Section 9(1)(b) must consequently be construed to achieve that purpose.
For that reason, the Court says, it accepts the position of the Democratic Alliance that "at least the following" are required in the appointment process (paragraphs 107, 98):
(a) Obtaining sufficient and reliable information about the candidate's past work experience and performance;
(b) obtaining sufficient and reliable information about the candidate's integrity and independence; and
(c) in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.
These are, the Court declares, "the least that 'we the people' can expect and that s 9(1)(b) demands."

I will have more to say about this interpretation in my next post. But I'll close this one by inviting readers to compare the text of the statute, quoted a few paragraphs above, with the court's interpretation. It's clear that we are far from the textualism of the United States case I posted about the other day. That may be cause for concern or celebration, but the distance between the statutory text and the judicial interpretation is profound -- and is a distance traversed by the Court not by parsing the words of 9(1)(b) or even the words of section 179(4) of the Constitution but rather by giving dramatic force to the values the court sees expressed in the constitutional text.

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