Zuma's battle with the judiciary is far reaching

South Africa 'dharmed' by taking a leaf from India's book

PRESIDENT Jacob Zuma is, to state the obvious, not a man of scholarship. He harbours no pretensions about it.

He has no reputation of quoting from books. Nor does he claim, directly or indirectly, to have read or to be reading widely.

In fact, he once told students at Vaal University of Technology that solutions to problems can't always be found in books.

I'm still struggling to understand why the students ululated.

He also once told a conference of the South African Communist Party that reading too many books does not necessarily lead to the acquisition of knowledge. He did not suggest an alternative model for knowledge acquisition.

Because of his views on books it is hard to know what he reads other than ANC documents, cabinet memoranda and newspapers.

His speeches are not embellished with quotations as was the case with his predecessor, who almost single-handedly led - and in some cases misled - debates.

Not that Zuma would not be able to quote. His researchers and speech writers could easily spice up his speeches with quotations.

He is surrounded by a chief of staff with a journalism background and a director-general, who is an educationist. Even troubled Mac Maharaj, his spokesman, has detoured to academia at some point in his never-ending working life.

But the fact that the aides are not spicing up his speeches with citations from books he knows little or nothing about, is an indication of Zuma's approach to public speaking. He wants to keep it simple, although not necessarily inspiring.

Zuma has a generally very complicated relationship with books.

Through a trust that bears his name he has, to his credit, contributed immensely to aiding youngsters to attain university degrees.

But while on Robben Island Zuma was not among those leaders who pursued their studies seriously.

Other inmates matriculated and graduated. For example, Dikgang Moseneke, now deputy chief justice.

Some, like Maharaj, graduated.

Others, like Nelson Mandela, who later became the country's president, and the intellectual Govan Mbeki, theorised and wrote extensively about the struggle.

Their works will be there for generations to come.

By the way, this column was not meant to discuss Zuma's approach to education.

The history was merely an off-ramp. The point is, in spite of Zuma's known aversion to quoting scholarly works, he nevertheless cast his eyes wider, across the Indian Ocean, recently.

It must have taken an effort.

"Legality is within the courts' province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule," he quoted Indian Chief Justice VR Krishna Lyer as having said.

Zuma used the line in his speech to Parliament on November 1, while bidding farewell to former Chief Justice Sandile Ngcobo and welcoming new Chief Justice Mogoeng Mogoeng.

In one stroke, Zuma was telling the legislature that it can do what it likes in its capacity as a political entity. He was hoping Mogoeng would get the brief: don't get into politics and dump the practice of judicial review.

But the quote from the Indian chief justice was misplaced. Our judicial system is not the same as that of India's.

Judicial review - the process by which courts could set aside policies and legislation - is at the heart of our constitutional order.

Furthermore, the use of the word "dharma" immediately invokes uniquely Indian political culture and religion, including caste systems which would obviously be unconstitutional in South Africa.

The quote also gives a clue that Zuma's wider battle with the judiciary is far reaching.

His government has recently announced that it intends to commission research to "assess" the impact the judiciary has made on transformation.

If there was any research that needed to be carried out it would be whether the government implements court orders speedily, thereby contributing to the rule of law. The impending "assessment" comes against a backdrop of a battle that has been waged in lecture circles about the role of the judiciary.

Two Constitutional Court judges have recently spelt out their role sharply different to Zuma's "dharma" approach.

In a recent lecture at the University of the Witwatersrand, Judge Zak Yacoob stressed that the Constitutional Court is the final arbiter of the constitutionality of government's actions or inactions.

The government has no option but to obey and implement the court's decisions.

"It is the duty of the courts of our country and of the Constitutional Court to ensure justice and to ensure constitutional conduct on the part of government and Parliament," Yacoob said.

"The courts stand between the vulnerable people in our country on the one hand and the government on the other to prevent abuses of power, to protect vulnerable people and to uphold the Constitution.

"No effort to seek redress in a court of law can ever be minimised, demoralised, objected to, or even regretted by any responsible human being in our country or anywhere else for that matter."

Yacoob said the concerns expressed about the role of the courts is based on the unexpected premise that there is no possibility that the government or Parliament could be wrong in a case.

"Arrogance of this kind is intolerable," Yacoob said.

In another lecture at the University of Cape Town, Justice Moseneke tried to explain the relationship between politics and law - one which the "dharma" approach completely misses.

"The will of the majority when expressed in some formal act through its appointed and elected representatives must be given effect and courts are bound to do so, provided that the democratic will, if translated into law, policy or conduct, bears a rational and legitimate purpose and has been by a procedure authorised by the Constitution."

Moseneke further stated: "Simply put, valid laws bind everyone but one cannot bypass the supremacy of the Constitution by merely asserting the parliamentary or executive will of the people. It must be a will expressed within the constraints of the Constitution."

After reading these lectures, I asked myself why our president went all the way to India to look for guidance.

Pity he ended up with a "dharma" advice which he appears hellbent to implement in South Africa.

It won't wash. Otherwise, we are "dharmed"!