How the executive responds to the Simelane judgment is pivotal to the future health of our constitutional democracy, writes Pierre de Vos

IN commenting on the (re-)appointment by President Jacob Zuma of Willem Heath SC as the head of the Special Investigating Unit, an editorial in Business Day this week notes that Zuma has acted consistently "to draw around him an iron ring of men he relies on to keep him safe".

It says, further on: "The fact that the fraud and corruption charges against him, expediently dropped before the last general election, could quite easily be resuscitated is at the centre of everything he does."

Part of this pattern was the appointment, early in his tenure as president, of Menzi Simelane as national director of public prosecutions (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the president from future prosecution for taking a bribe from fraudster Schabir Shaik.

Zuma's recent statement that the executive "has the sole discretion to decide policies for the government", that the executive "must be allowed to conduct its administration and policymaking work as freely as it ... can" and that the "powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote", can thus arguably be read as an expression of concern about the Constitutional Court's decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring Zuma had erected around himself .

It is against this background that Thursday's judgment of the Supreme Court of Appeal declaring the appointment of Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others, a unanimous court found that the president had acted irrationally and hence unlawfully when he appointed Simelane and acted in breach of the prescripts of the constitution and the National Prosecuting Authority (NPA) Act.

Perhaps believing that it was required to provide the president with some pointers on the nature of a constitutional democracy, the SCA pointed out that ours is a democratic state founded, among other values, on the supremacy of the constitution and the rule of law. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.

This meant that the president, as the supreme upholder and protector of the constitution, is its servant. Like all other organs of state, the president is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of Zuma, the SCA then proceeded to make the following powerful observation:

No one is above the law and everyone is subject to the constitution and the law. To ensure a functional, accountable constitutional democracy the drafters of our constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The SCA pointed out that institutions of state integral to the wellbeing of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has "awesome powers" and "that it is central to the preservation of the rule of law", it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The NPA Act requires that the national director must, inter alia "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 concerned". This was an objective standard. The president could not decide, based on his own personal views and disregarding all the available evidence, that his choice for national director was "fit and proper".

This is so because the relevant section of the NPA Act does not use the expression "in the president's view" or some other similar expression. Qualities like "integrity" must be assessed objectively.

The president is required to act in good faith and must not misconstrue his powers. In failing to take the findings of the Ginwala Inquiry into account, the president ignored relevant considerations.

The SCA concluded its judgment by responding to the view expressed by the president that he was "the choice of the people. The constitution vests in him the power to apply his value judgment and appoint a NDPP who meets the objective criteria and is a fit and proper person to hold such office".

The SCA dismissed this view by quoting former Chief Justice Ishmael Mahommed.

"The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the constitution. Its mandate is to make only those laws permitted by the constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the constitution itself."

These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.

The judgment could therefore be read as engaging in a dialogue with the executive about the power of the judiciary vis-a-vis the executive. It reminds the president that he is not above the law and that he cannot ignore the law or the judgments of the courts enforcing the law.

I would guess that the judgment would not go down well with Zuma and others who have launched direct or veiled attacks against the judiciary and against the very principle of a supreme constitution enforced by the courts. How the executive responds to this judgment is therefore pivotal to the future health of our constitutional democracy. Attempts to subvert the judgment or undermine the court who made it, would send a signal that the current government opposes the notion of a constitutional democracy. A sober and considered response would go a long way to allay fears among some that the executive is indeed not committed to our constitutional project.

One further issue needs to be highlighted. For the moment Simelane is not legally prohibited from continuing in his post. The Constitutional Court makes the final decision whether conduct of the president is constitutional, and must confirm any order of invalidity made by the SCA before that order has any force. However, as a practical matter, it would probably be in the best interest of the administration of justice and the criminal justice system as a whole if Simelane voluntarily stepped aside until the Constitution Court has either confirmed or overturned the SCA decision.

It must be recalled that we have a system of objective invalidity, which means an unconstitutional act by the president is unconstitutional from the moment it was taken. If the Constitutional Court confirms that the president had acted unconstitutionally, the appointment of Simelane would be void and all decisions taken by him since appointment would have no force and effect unless otherwise directed by the Constitutional Court.

Surely, it would be better if this legal uncertainty is not further exacerbated by the continuing presence of Simelane as NDPP.

If the Constitutional Court overturns the SCA judgment, Simelane could resume his duties and little harm would have been done to the administration of justice. However, if that court confirms the SCA decision and Simelane had stepped aside now, it would not be faced with the difficult issue of what to do about the legality of the decisions taken by Simelane since the SCA found that his appointment was unlawful. It would be understandable if the first reaction of a defiant government and an even more defiant Simelane would be to want to continue in office. Hopefully, after considered reflection, the best interest of the country will weigh heavier than the egos of the personalities involved.

• This is an edited version of the blog Constitutionallyspeaking.com by Professor Vos, who teaches the constitution at the University of Cape Town.