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Mkhwebane takes pot shots at courts and constitution

NICOLE FRITZ ● Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.

Bear with me here … In a letter to the state attorney, the public protector’s lawyers now indicate that they will look to challenge and set aside the Constitutional Court’s decision to dismiss her application for rescission of its judgment, which essentially upheld parliament’s procedure for investigating her fitness to hold office. In essence, Busisiwe Mkhwebane plans to have rescinded the court’s decision not to rescind its earlier judgment, which went against her.

I’m tempted to write that this latest proposed challenge is a legal non-starter, but that might incur the public protector’s accusation that in recognising her legal deficiencies, I’m privy to some sort of insider information from the court. Still while the situation is ludicrous, it isn’t funny and I don’t mean to make light of the recent alleged leak by Ismail Abramjee to Andrew Breitenbach, counsel for parliament.

It is a serious matter. The court must investigate how the leak, if it is such, came about — an investigation the chief justice has already announced it is undertaking. If it is found to have been an unauthorised leak on the part of a person or persons connected to the court, that is a grave error that compromises the court’s integrity.

What is striking about the public protector’s announcement of her latest intended legal challenge is that while it is replete with reference to her rights having been grossly violated, and adamant that no “neutral and objective” person could now not be convinced that parliament’s impeachment process must be suspended, not even a suggestion of reasoned argument is put forth as to how the public protector is actually prejudiced by these events.

Instead this error by the court, if it is that, has been snatched up by the public protector in a giddy bid to save, or at least extend, her calamitous legal strategy. As she looks to make a mockery of the court process — contemptuous of fundamental principles such as the finality of judgments — she also seeks to take pot shots at the courts, and the constitutional order itself.

Across the oceans, another leak. There, the publication of a draft opinion from US Supreme Court justice Samuel Alito in the case of Dobbs v Jackson. There also an investigation ordered into the circumstances surrounding the leak.

The leak seems the least consequential aspect of this story. The draft opinion, in which a majority of the justices concur, when delivered would reverse Roe v Wade, which for 50 years has provided constitutional protection of women’s right to secure an abortion. There is no minimising the devastating impact this decision will have on women, particularly those without the means to travel out of state.

This decision is also ruinous of the court’s integrity, the public’s perceptions thereof, and respect for legal process. By overthrowing settled precedent and the doctrine of stare decisis, by which courts are bound by previously decided cases, the opinion signals that legal adjudication is as susceptible to posturing, prejudice and manipulation as everyday politicking. Few could seriously contend that law and its meaning is to be objectively determined. But by making this so crude a fiction, by upending settled principles and rules, the judgment invites us to view the author and concurring judges and their process with derision.

It may be SA’s misfortune that those here who engage in sustained campaigns of mudslinging at our courts, if only to maintain that their legal appeals have never been finally and fairly determined, look to find resonance with and secure legitimacy from global voices that are increasingly sceptical of the law and its process. Look also to the Israeli Supreme Court’s recent ruling that the centuries-observed customary law prohibition of the transfer of occupied populations demands no domestic enforcement.

We need to keep in mind the very real distinctions between here and there lest an alleged leak would bring on a flood.

OPINION

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2022-05-12T07:00:00.0000000Z

2022-05-12T07:00:00.0000000Z

https://bd.pressreader.com/article/281694028372420

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