It may well be that cabinet ministers have been instructed by President Jacob Zuma to respect and obey the courts and the law. But evidence of that supposed respect and compliance was in short supply last week, with two judgments highlighting a lackadaisical ministerial approach.
First was the supreme court of appeal’s decision in the dispute between the Cape Town city council and Sanral over the road agency’s proposed tollroad into the city.
While the judges found the Sanral board failed to "act in accordance with the principle of legality" or to comply with statutory prescripts, the court held that the transport minister, Jeff Radebe, was just as culpable.
The board never met to consider the disputed toll proposal or formally approved the tolling of these roads, something the court found a fundamental and egregious problem.
Despite protests and claims to the contrary, proper deliberation by the board was found to be "sorely lacking".
The Sanral board may have been negligent or worse, but blame was also laid at the door of the minister who misconceived his legal duty. He thought his role amounted to mere "oversight". Wrong, said the judges: the minister’s role "could not be reduced to one that is clerical".
"The national importance of the project ... required the minister, in his role as a member of the executive, to make an independent decision, weighing up all the relevant considerations, including but not limited to financial considerations and the public interest."
The second decision, delivered a day later by the high court, concerned Caine Brothers, a major player in SA cattle farming, trading as Triple A Beef. Caine is challenging the decision of minister of agriculture Tina Joemat-Pettersson to approve the dividing of a piece of agricultural land into smaller portions. As part of the review process in the high court, the minister was obliged to provide a record of the proceedings at which the decision was taken. But this didn’t happen.
The judge said he was "astounded" when her record was a mere 21 pages and, with almost half of those pages relating to another matter completely, the record appears to have been a complete mess.
The court said the duty of an administrator in a review application regarding the furnishing of a record was well established:
"Every scrap of paper relevant to the deliberation process must be furnished."
Then, somewhat mysteriously, 22 volumes of files were delivered to court, though it was never clear who brought them or even what they were, and there was no affidavit by the minister explaining the defective first record.
As to the later volumes, many of the documents were dated after the disputed decision was made by the minister and were thus irrelevant.
The judge said he couldn’t be expected to guess which of the documents were considered by the minister and when. "Failure to provide a proper record" breached the aggrieved party’s constitutional rights, and a fair review by the court could not be made in the absence of the documents. As a result "the only solution is that the decision of the minister has to be set aside".
That won’t be good news to the land owners who must start from the beginning again, with all the attendant costs and delays, if they want to pursue the subdivision. At least the farm owners aren’t responsible for the high court legal costs: citing the "gross ineffectiveness" and "lack of professionalism" of those representing the minister, the court awarded costs against her.
Theoretically, Sanral’s board and both ministers should have learnt a lesson from these judgments about their legal obligations and the lawful exercise of power. But top officials seem particularly slow learners, profiting little from the example of court judgments against their colleagues.
Obviously, since the taxpayer foots the bill, there’s little incentive to do better.