PALI LEHOHLA | Judge Davis’s landmark judgment will have seismic consequences

The end of errors of commission and accidents waiting to happen through impunity might be nigh. Finally South Africa may relive its true value as stated in the constitution. The constitutional dream may yet to be lived and our nightmares may come to an end. Those who were beginning to wonder may now see that, indeed, it was always worth it. The judgment on load-shedding by judge Norman Davis and his full bench on Friday, November 1, as far as the instruction to secure power for institutions goes, represents a pyrrhic victory for the UDM and the litigants who enjoined it. This is because of the convergence of the deeply flawed governance of both political power and electrical power, whose momentum is now on steroids.

But this is no small victory. It has the power of the universe culminating and converging on it in predictable ways. Yet it is going to surprise the perpetrators of this constitutional crime because their eyes were fixated on the trough and not the fast-coming horizon. It is monumental and seismic on all other fronts away from the all-important yet unimplementable remedy for hospitals and public institutions, which will experience ever deepening crisis as the appetite for corruption feeds on the frenzy to fix and follow the judge’s prescripts.

In his judgment judge Davis specifically declared: “These breaches constituted unjustified infringements enshrined in the constitution. These included the right to human dignity, the right to life and the right to freedom and security.”

The litigable elements of theses charges mean people have been denied the right to life and murdered (culpable homicide most definitely), denied freedom, denied security, including personal where bodily harm occurred, denied right to education, right to a bright future and so on. The charge sheet is ready, and where to serve it is also clear. So this is a big victory for democracy and constitutionalism. The sad question to ask is, did it have to come to this in a democracy. But it has and now we are here — the guilty must be prosecuted, otherwise the UDM et al people’s victory could also be as pyrrhic as the intervention the judge correctly demanded, albeit unimplementable.

The power of Davis’s judgment is in its alignment with the precipitous effect of first, continued momentum of discontent, second, the alignment of the forces of good of which the case of Holomisa’s UDM et al case is one but probably the most important, third, the clock of coincidence, and fourth, the cry of the canary.

This judgment is groundbreaking and will shake off the miscreants which have paraded for far too long as defenders of democracy.

Davis’s judgment joins others that have come as a consequence of the continued momentum of discontent, aptly captured in the Indlulamithi Scenarios of 2030, which since 2018 adjudged SA as a land of disorder and disenchantment characterised by the Gwara-Gwara scenario. In their 2035 prospect of SA, the Indlulamithi has among the three scenarios a SA of Vultures. Such a scenario is observed by the barometer, which has added a Gwara-Gwara Plus in its assessment of where SA stands today. If we do not wake up from this nightmare, the Vulture scenario, a worst-case scenario from the Gwara-Gwara, will soon be on us.

Davis’s judgment has won back our constitutionalism and builds on the strength of Mogoeng Mogoeng’s judgment on Nkandla and Zondo on state capture. These judgments conclude that the executive and parliament cannot escape the guilty verdict in the mismanagement of public affairs. Even if they may evade this verdict, they cannot escape experiences in their daily lives with family, friends and the economy. This judgment closes the circle and sets the stage for litigation in the space of remedy, over which there are millions of claimants and trillions of rand at stake. The prospect and reality of such claims will shake the malaise of political mismanagement of our affairs and separate our god-given assessment of good from bad at the highest level. Thus, it will sharpen SA’s ability to choose and restore what Madibaism and ubuntu stand for. This is the Indlulamithi Weaver Bird Scenario which the constitution envisaged.

This judgment is groundbreaking and will shake off the miscreants who have paraded for far too long as defenders of democracy. The implications of this judgment carry further litigation not only at government as an entity, but the executive at a personal level. There are laws in the Public Finance Management Act that make this litigation possible, especially when the guilty verdict has been proclaimed. But more importantly the auditor-general’s new powers of direct claims against individuals makes the prospect an inescapable imperative. Further these litigations at a collective and personal level could have not been more timely. It comes when many aspire for political office. It will serve as a brake to the die-hards of political malfeasance. This is where this judgment is monumental. The temporal convergence of discontent reveals the deep power of the South African constitution. It has the infinite capacity to pull us from the precipice but only if we deploy the evidence from the judges who have shed light on the guilty parties.

Justice Davis has therefore already found the government and its operatives guilty. What remains is litigation for remedy which, according to evidence in the public domain, should be possible and extract remedy for offences at the executive level, including in their personal capacities. The auditor-general’s recent law review was aptly captured in 2020 by Hon Kenneth Meshoe upon the appointment of auditor-general Tsakani Maluleke. He said: “Ms Maluleke, however, will take up the position at a time when the auditor-general’s office has at its disposal greater powers in terms of the Audit Act, to hold officials personally liable for lost state funds. We from the ACDP look forward to more action being taken in this regard. But given the unprecedented public outrage at Covid-19 tender and other corruption, we expect that the counting of all levels of government will be personally held liable for breaches of the Public Finance and Municipal Finance Management Act. That is what we demand and that is what the public demands.”

Now is the time to put joint assurance into operation from the oversight bodies to bring those who are already fingered and yet to be fingered, to account, and this goes up to the World Bank. As with the scandal of rand manipulation. Like a canary Barbara Creecy, the minister of environment and an avid advocate for just energy transition (JET) “turned-state-witness” against the World Bank, has started to sing. In a News24 article titled “A bad guinea pig: World Bank must fix ‘unjust’ Komati transition, says Creecy”, illustrates the magnitude of what Holomisa’s UDM and others have stepped upon. These remarks by Creecy come two days before COP28, where Creecy and company have to report, in Dubai, on the successful closure of Komati and the benefits it ushered in. But no Creecy is pointing to betrayal by the World Bank. Another article by Polity says: “One of the architects of SA’s groundbreaking deal with rich nations to move more quickly away from coal, sounded a note of caution to other countries considering similar agreements. Environment minister Barbara Creecy urged developing nations to make sure energy security and jobs are prioritised in any arrangement.” This is potent material for the litigants to now take the matter to seek remedy, but Creecy’s confessions may exonerate her from standing as a state witness.

To Holomisa’s UDM and company credit is due. The judgment by Davis now has as its accused, the World Bank. Creecy has already prepared the statement and heads of argument for the charges against the World Bank. This line will surely invalidate the wisdom of taking any further loans from the World Bank.

Davis’s judgment represents a crucial omen not only for SA but for the world. Millennia herein after, this judgment will have a commemorative series of anniversaries. It was delivered on the very day that COP28 opened after COP27, where miraculous commitments were made. Miraculous as we will learn from minister Barbara Creecy.

Creecy is quoted saying the World Bank must come and fix the mess. The Komati guinea pig leaves a bad taste.

As a military strategist, General Bantu Holomisa and social democrats who took the time to have this matter heard in court have won for democracy and constitutionalism in SA. The judgment is seismic but only if litigation for remedy commences, which it will because this is not a force majeure calamity. It is man-made. To advance the point will cleanse our democracy of the collective herd mentality and bring into it a precedent of conscience as the basis for public action.

For the first time political parties, especially the ruling party’s conscience, will be tested. This will be because litigation for remedy is bound to follow the prescripts of the law that include the executive as a collective and follows the executives in their individual capacity. Recent judgments have set this precedent of obligation to individual oath of office. This opens the way for cleansing our system of governance of incompetence and impunity. It reveals the correctness of our constitutional democracy and elevates our constitutionalism out of the rut of abuse when many had begun to doubt it.

The constituents that brought the matter to court have trusted in the system and it delivered a stinging judgment on those in power and lays the door wide open for them to be charged in their official and personal capacities. This case and its judgment when followed to its logical conclusion, can catapult and force the often sloganeered matter of accountability to bare not only its teeth but its bite in the flesh and bone of the offending parties in their personal capacities. This will be the day that leadership in politics will cease to be available to the least capable but will present itself to those of high moral fibre, aware of the moral hazard of frailty of judgment and deploying empathy as their defence to temptation.

South Africans might look docile, South Africans might be numbed, but stupid they are not. The tide of disappointment is beginning to reveal itself. They are responding through constitutional means to address this scale of betrayal. Finally South Africans are taking charge of the constitution in cleansing their politics of malfeasance. They are indeed the change they have been waiting for and they are doing it constitutionally. Thus, guaranteeing the staying power of the constitution and the state of SA.

Dr Pali Lehohla is the director of the Economic Modelling Academy, a Professor of Practice at the University of Johannesburg, a research associate at Oxford University, a board member of Institute for Economic Justice at Wits and a distinguished Alumni of the University of Ghana. He is the former statistician-general of SA.