State fights hopeless court battles, say experts

Charl Du Plessis and Hopewell Radebe

The Office of the State Attorney, which has been criticised by several judges for gross dereliction of duty and for causing significant unnecessary expenditure of public funds, continued to bleed this week as it lost two more significant cases in the Constitutional Court.

These losses have been met with mixed reaction by legal experts. Questions have been raised as to whether government departments, including the presidency and the legislature, exercised due diligence before deciding to fight a case in the courts, sometimes up to the level of the Constitutional Court.

This week, the Constitutional Court ruled that Police Minister Nathi Nhleko did not have the legal power to suspend police watchdog head Robert McBride. The ruling boosted the independence of the watchdog, the Independent Police Investigative Directorate (Ipid).

A unanimous judgment — penned by acting Justice Ronnie Bosielo — said sections of the Ipid Act that permitted the minister to suspend the Ipid head did not sufficiently insulate him from potential political interference.

Helen Suzman Foundation director Francis Antonie said the foundation had on several occasions applied to friends of the court, which the government then opposed, only for the foundation to be vindicated in court. Their intention, said the foundation, has always been to fix a law that gives a minister power to interfere with an institution which “must be protected from executive interference”.

“We must admit that in most cases brought before the courts, the executive has foolishly engaged parties in fruitless legal battles that cost taxpayers millions,” Antonie said.

Among other victories, the foundation won against the state in a case that reinforced the independence of the Hawks, and this week it celebrated when the court toughened the legislative parameters of Ipid’s independence.

Lawson Naidoo, executive director of the Council for the Advancement of the SA Constitution, said that some of government’s recent appeals were just “mind-boggling”.

“If you take, for example, the McBride case, what was the point of appealing it? Especially when the minister in the end just capitulated. That’s a waste
of money. At the moment, appeals are, in some cases, simply being used by government to delay decisions, and I’m not just talking about the spy tapes case; they just keep things caught up in legal proceedings to avoid having to take a decision on it,” Naidoo said.

The Public Service Commission (PSC) undertook a study into the effectiveness and efficiency of the processes and practices of the Office of the State Attorney between the 2013/14 and 2014/15 financial years.

“According to public perception, the majority of the court cases against the government, which are estimated at seven out of 10 cases, are lost, thus resulting in massive financial implications for government,” the PSC said.

Subsequently, its report, which was released in June, found that in the 2013/14 financial year the police had spent R291.36 million, which then increased to R340.20 million in the 2014/15 year.

Correctional services was the second-highest spender at almost R42.84 million in the 2014/15 financial year, followed by defence and military veterans at R30.02 million, and public works at almost R22.47 million.

Ben Winks, an independent constitutional consultant, said there had been widespread examples of government opposing valid lawsuits and that the state had a “hopeless record” in embarking on appeals.

“The problem is that the state attorney doesn’t consider its job to be legal advice; they take instructions from the executive. So the state attorney will spend the state’s time and money presenting that case, even if it lacks legal merit.

“In private practice, an attorney will say to his client: ‘Look, even if we win, it may cost you more money than you can actually recover, so it may be more sensible to settle or withdraw.’ There are many state bodies, for instance the SABC, that use private attorneys who give incorrect legal advice, but who keep getting work from the state,” he added.

But one member of the Johannesburg Bar, who asked not to be named, said there were “complex cases in which the government might be ultimately wrong, but are entitled to have a higher court pronounce on it.”

SAMPLE OF CASES LOST RECENTLY

In August 2014, Parliament suspended and withheld the salaries and privileges of EFF MPs after they disrupted a question-and-answer session of President Jacob Zuma and chanted “pay back the money”. The EFF approached the Western Cape High Court, which ruled in their favour and instructed Parliament to pay the salaries with immediate effect.
In November 2014, the Constitutional Court agreed with parts of the Helen Suzman Foundation’s argument that the current legislation governing the Hawks unit did not ensure adequate structural and operational independence. The court emphasised the need for an independent anti-corruption unit.
In February, the DA took Parliament’s presiding officers, Baleka Mbete and Thandi Modise, as well as the government to court after armed police entered the National Assembly and removed EFF MPs during the state of the nation address. The DA argued that it was unconstitutional for police to enter the chamber and forcefully remove MPs. The court ruled that the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act was inconsistent with the Constitution and therefore invalid.
In March, the Constitutional Court handed down judgment in favour of the power of the Public Protector to “take appropriate remedial action” and that her finding regarding Zuma paying back a reasonable portion of the money spent on installing non-security upgrades at his private residence at Nkandla was binding.
On Thursday, Lawyers for Human Rights celebrated yet another Constitutional Court judgment that ensured that the landless, as set out in section 26 of the Constitution, are protected. The high court had previously set aside a rule nisi granted against the applicants for the removal of about 200 families from a tract of municipal land, and had ordered ordinary eviction proceedings.