The literal application of the law can yield unintended results, I suppose. Even with the first rule of juridical interpretation – namely that ordinary words must be given their ordinary meaning – sometimes the strict application of the law can lead to bizarre consequences.
Such was the case in Shakespeare’s Merchant of Venice, where the pound of flesh wagered had to be carved from the defaulting Antonio.
“Shed thou no blood; nor cut thou less nor more, but just a pound of flesh,” was Portia’s verdict.
Similar strict application of the law would have ensued in SEK Mqhayi’s Ityala Lamawele.
Last Friday the Pretoria High Court ruled that President Jacob Zuma was disqualified from appointing a national director of public prosecutions (NDPP). Understandably so – he is fighting to ward off 783 counts of fraud and corruption.
The media quoted the court as being guided by Section 96 of the Constitution of the Republic of South Africa, 1996.
There should be general unanimity on this aspect of the judgment by the public.
Where the law has shown itself to be above human logic, is where the court went on further to direct that the new NDPP be appointed by the deputy president, who must act as president in the event that the president is unable to so act (in this instance because he was disabled by the same court).
We are told that the court was guided by Section 90 to arrive at this conclusion.
Students of management would see the deputy president as a subordinate of the president and therefore deriving his authority from the president.
At all times, he must be seen to be supporting his senior, the president.
Were relations between them cordial (and there is no reason to presume otherwise), he would seek advice from his senior on this matter.
Crudely speaking, the guiding principle here is that you cannot bite the hand that feeds you – for the sake of job satisfaction, job continuity and so forth.
The problem raised here is the break in the so-called chain of command.
Using the analogy of a school, if the deputy principal exercised a power not flowing from the principal and therefore the school inspector and all those above him, he would be deemed to have exceeded his authority and the action emanating from the exercise of that authority would be rendered null and void.
Indeed, the deputy president has on numerous occasions stated unashamedly that “I am employed by the president who has the power to hire and fire me” – another legal truth and yet illogical, seeing that he was elected deputy president of the ANC, and therefore presumably of the country, by the ANC.
As an aside, this justifies then president Thabo Mbeki’s public broadcast when he fired his deputy president, Zuma, in 2005.
The same legality and yet illogic was applied by President Robert Mugabe when he fired Emmerson Mnangagwa as deputy president without seeking the acquiescence of Zanu-PF. This resulted in his own political demise.
The other management principle that crops up here is that an agent (the deputy president) cannot have more rights than his principal (the president), otherwise all sorts of conflicts could occur between them. And secondly, and more importantly, occur between them on the one side, and the general public on the other.
What then appears to be a management solution? Logic would first recognise that the power the president has been correctly stripped of flows from parliament, which elected him. In the event that power is taken away, it reverts to the hand that bestowed it (parliament) and parliament must surely then resolve who should exercise it.
With this approach, you solve the paradox of an agent having more power than his principal, an unwarranted yet unavoidable collision between senior and subordinate, with issues such as misplaced trust for example.
The collision between law and logic also appears to have raised its ugly head in the Constitutional Court (Concourt) judgment against the Minister of Social Development Bathabile Dlamini and the SA Social Security Agency (Sassa) in March this year.
It shall be remembered that in 2014 the Concourt deemed the Cash Paymaster Services (CPS) contract to be invalid and ordered Sassa to begin to migrate to an alternative service provider.
Sassa, for a variety of reasons, failed dismally to meet the deadline it was given of March 31 2017.
The dilemma the country, and therefore Concourt, faced was what should be done about social grants payments come April 1 2017. Concourt was not at all amused by the defiance of its own order.
Yet grants had to be paid, otherwise the country would be on fire.
In a scheme of rearrangement, as financial analysts would call it, Concourt grudgingly extended the contract of CPS by a year – a very humanistic stand on the face of it.
However, by extending this contract, Concourt inadvertently blessed the contempt of its own order.
Were this a conglomerate company, the managing director (Concourt) would first have penalised Sassa for defiance of their instructions and then, say, triple or quadruple penalised Sassa for each month that grants were at risk of not being paid.
Logically Sassa, on its own, would extend CPS’s contract to avoid paying millions of rands as a penalty.
And Concourt would not be the one blessing the contempt of its own court.
By the way, the grounds on which the Pretoria High Court disqualified President Zuma from appointing the NDPP were those of conflict of interest.
Our government takes this principle so seriously that at all meetings the agenda must detail any possible conflict of interest and resultant recusal.
However, unguarded, the application of this principle can be counterproductive.
I remember once working for a development corporation, and the managing director would, when appropriate, declare his conflict of interest and recuse himself, leaving me to chair the meeting.
His subordinates would still find it awkward to openly vote against his interest.
He ultimately agreed that voting would be by secret ballot every time a conflict of interest was declared.
Such a declaration of conflict of interest is not a Western concept, I used to tell students. Even in our traditional courts, if a conflict was detected, the affected councillor would be urged to take leave – read AC Jordan’s Ingqumbo Yeminyanya.
Professor Mncedisi Jordan taught and supervised accountancy students at the universities of Fort Hare and Walter Sisulu. He now researches on indigenous cultures
OPINION: Norm in conflict of interest is one of recusal
Such was the case in Shakespeare’s Merchant of Venice, where the pound of flesh wagered had to be carved from the defaulting Antonio.
“Shed thou no blood; nor cut thou less nor more, but just a pound of flesh,” was Portia’s verdict.
Similar strict application of the law would have ensued in SEK Mqhayi’s Ityala Lamawele.
Last Friday the Pretoria High Court ruled that President Jacob Zuma was disqualified from appointing a national director of public prosecutions (NDPP). Understandably so – he is fighting to ward off 783 counts of fraud and corruption.
The media quoted the court as being guided by Section 96 of the Constitution of the Republic of South Africa, 1996.
There should be general unanimity on this aspect of the judgment by the public.
Where the law has shown itself to be above human logic, is where the court went on further to direct that the new NDPP be appointed by the deputy president, who must act as president in the event that the president is unable to so act (in this instance because he was disabled by the same court).
We are told that the court was guided by Section 90 to arrive at this conclusion.
Students of management would see the deputy president as a subordinate of the president and therefore deriving his authority from the president.
At all times, he must be seen to be supporting his senior, the president.
Were relations between them cordial (and there is no reason to presume otherwise), he would seek advice from his senior on this matter.
Crudely speaking, the guiding principle here is that you cannot bite the hand that feeds you – for the sake of job satisfaction, job continuity and so forth.
The problem raised here is the break in the so-called chain of command.
Using the analogy of a school, if the deputy principal exercised a power not flowing from the principal and therefore the school inspector and all those above him, he would be deemed to have exceeded his authority and the action emanating from the exercise of that authority would be rendered null and void.
Indeed, the deputy president has on numerous occasions stated unashamedly that “I am employed by the president who has the power to hire and fire me” – another legal truth and yet illogical, seeing that he was elected deputy president of the ANC, and therefore presumably of the country, by the ANC.
As an aside, this justifies then president Thabo Mbeki’s public broadcast when he fired his deputy president, Zuma, in 2005.
The same legality and yet illogic was applied by President Robert Mugabe when he fired Emmerson Mnangagwa as deputy president without seeking the acquiescence of Zanu-PF. This resulted in his own political demise.
The other management principle that crops up here is that an agent (the deputy president) cannot have more rights than his principal (the president), otherwise all sorts of conflicts could occur between them. And secondly, and more importantly, occur between them on the one side, and the general public on the other.
What then appears to be a management solution? Logic would first recognise that the power the president has been correctly stripped of flows from parliament, which elected him. In the event that power is taken away, it reverts to the hand that bestowed it (parliament) and parliament must surely then resolve who should exercise it.
With this approach, you solve the paradox of an agent having more power than his principal, an unwarranted yet unavoidable collision between senior and subordinate, with issues such as misplaced trust for example.
The collision between law and logic also appears to have raised its ugly head in the Constitutional Court (Concourt) judgment against the Minister of Social Development Bathabile Dlamini and the SA Social Security Agency (Sassa) in March this year.
It shall be remembered that in 2014 the Concourt deemed the Cash Paymaster Services (CPS) contract to be invalid and ordered Sassa to begin to migrate to an alternative service provider.
Sassa, for a variety of reasons, failed dismally to meet the deadline it was given of March 31 2017.
The dilemma the country, and therefore Concourt, faced was what should be done about social grants payments come April 1 2017. Concourt was not at all amused by the defiance of its own order.
Yet grants had to be paid, otherwise the country would be on fire.
In a scheme of rearrangement, as financial analysts would call it, Concourt grudgingly extended the contract of CPS by a year – a very humanistic stand on the face of it.
However, by extending this contract, Concourt inadvertently blessed the contempt of its own order.
Were this a conglomerate company, the managing director (Concourt) would first have penalised Sassa for defiance of their instructions and then, say, triple or quadruple penalised Sassa for each month that grants were at risk of not being paid.
Logically Sassa, on its own, would extend CPS’s contract to avoid paying millions of rands as a penalty.
And Concourt would not be the one blessing the contempt of its own court.
By the way, the grounds on which the Pretoria High Court disqualified President Zuma from appointing the NDPP were those of conflict of interest.
Our government takes this principle so seriously that at all meetings the agenda must detail any possible conflict of interest and resultant recusal.
However, unguarded, the application of this principle can be counterproductive.
I remember once working for a development corporation, and the managing director would, when appropriate, declare his conflict of interest and recuse himself, leaving me to chair the meeting.
His subordinates would still find it awkward to openly vote against his interest.
He ultimately agreed that voting would be by secret ballot every time a conflict of interest was declared.
Such a declaration of conflict of interest is not a Western concept, I used to tell students. Even in our traditional courts, if a conflict was detected, the affected councillor would be urged to take leave – read AC Jordan’s Ingqumbo Yeminyanya.
Professor Mncedisi Jordan taught and supervised accountancy students at the universities of Fort Hare and Walter Sisulu. He now researches on indigenous cultures
Would you like to comment on this article?
Register (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.
Trending Now
Latest Videos