Officials should pay for fighting unwinnable cases

I’ve always believed in doing the right thing as opposed to doing the legal thing. I have too often seen the law being used as a way of justifying things that should never have happened and that could have been sorted out by using common sense.

And before I get accused of promoting lawlessness, let me explain by using some examples.

One of the ways in which the government is trying to transform our economy is through using legislation like Broad-Based Black Economic Empowerment and the Employment Equity Act. Most companies, in my humble opinion, will do just enough to comply with the legislation, not because they agree with the need to transform our economy, but because they it as hindering their ability to make money. They will hire black people and pay them huge salaries to occupy non-decision-making positions with fancy titles.

More recently we have seen how high-profile individuals, including our President and the one-who-should-not-employed-by-the-SABC, have used the courts in order to challenge legal decisions with which they do not agree. We have also seen how Parliament has interpreted legislation in ways that made them comfortable, even if it went outside the bounds of the law and human decency.

And this week, we have seen how the Finance Minister has been charged with what, on the face of it, looks like a trumped-up charge and one that has no reasonable hope of success. It is clear that the charges against the Finance Minister is part of a campaign to get rid of him.

Government spends billions of rands on legal costs every year. Part of it is for legal advice, but part of it is to pay lawyers and advocates, and mainly Senior Counsel, to defend them in court. It would be interesting to see an analysis of how government’s legal costs are spent and how successful they have been in court.

The reason for this big spending on legal costs, in my opinion, is linked to managers not being able to make decisions to do the right thing. Quite often, it is also about finding lawful ways of doing stuff that should not have been done in the first place.

Ultimately, what we call government, the private sector or civil society consists of people who are all prone to making mistakes. Those in government can probably afford to make bigger mistakes than others because they have more resources to defend themselves in court in the case of mistakes.

So, you will often find people rushing to court and, if their application is turned down, they consider an appeal or an approach to the Constitutional Court, until all their avenues have been exhausted. But often, they know at the beginning already that they have no hope of succeeding and are merely delaying the inevitable.

This, obviously, amounts to wasteful expenditure because it is money spent while suspecting what the outcome would be.

One hope, and this is courtesy of the Public Protector report on Nkandla and the ruling in the SABC8 case, is that so-called public servants will in future be held to account for wasting public resources on flimsy legal cases. The Public Protector of course ruled that the President had to pay personally part of the costs for security upgrades at his Nkandla homestead, while executives and managers at the SABC were ordered to explain why they should not be held liable for legal costs in the SABC8 case.

Before I continue, let me hasten to add that I am no legal expert. My legal knowledge is mainly restricted to an understanding of the law as it impacts on newspaper publishing.

But even with my limited knowledge, I can’t help thinking that there is a potential challenge to be made against the abuse of power displayed by the head of the National Prosecuting Authority, Shaun Abrahams, who appeared to have spent millions of rands on an investigation looking for dirt on the Finance Minister, only to finally charge him with what appears to be a misdemeanour at best or worst, depending on your perspective.

The same Abrahams has also spent millions on court challenges in an attempt not to prosecute the President for corruption charges.

What will happen, I think aloud, if the Finance Minister is found not guilty and the President is found guilty? Will Abrahams be forced to resign? And will he be held personally liable for the millions of public money that he has wasted on pursuing what appears to be a political agenda.

Will Abrahams be personally held liable for the billions of rands lost to the economy because of his pursuit of the Finance Minister? Will he do the right thing and apologise to the nation for the harm that his decisions have caused?

The time has come to draw a line in the sand and to say that the days of using the courts to determine the outcome of political battles and as a tool of incompetent so-called public servants, is over.

Before going to court, those in government (but this could also apply to corporates or civil society) should ask themselves whether what they are trying to pursue is right – in terms of our Constitution and in terms of the greater values of liberation for which so many sacrificed. If the answer is ‘no’, then it is probably not worth pursuing in court.

They should also ask themselves whether, in the event of it not being successful, they would be prepared to pay the legal costs out of their own pockets. Again, if the answer is ‘no’, then they should probably stop immediately.

It is time to start doing the right thing, as oppose to the legal thing. But what do I know; I am not an expert.

(First published in the Weekend Argus as a Thinking Allowed column on Saturday 15 October 2016)