President Jacob Zuma is wont to complain that his critics run to court to overturn his decisions at every turn. Back in 2011, he told a group of judges that it would help if "political disputes were resolved politically", saying "we must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections".
But if Zuma ran his administration properly, there’d be no room for his critics to embarrass him in court every other week. If he did his job, in others words, the courts wouldn’t have to.
Last week, the Western Cape high court delivered one of the strongest of its many rebukes against Zuma, setting aside his pet project — the hugely lucrative but opaque R1trillion nuclear energy plan.
The ruling was a thumping victory for small civil society and environmental activists, serving to highlight the arrogance and disdain within government for the proper rule of law while underscoring that some institutions — like the courts — are still muddling along, keeping SA’s democracy project on track against diminishing odds.
It was a crucial victory for Earthlife Africa and the Southern African Faith Communities’ Environment Institute — two nonprofit organisations which had fought the battle for transparency and the correct procedure for nearly two years, against Zuma, his ministers, Eskom and the National Energy Regulator of SA (Nersa).
Their central argument was there had been no proper public participation or consultation before government forged ahead with its plan to build 9,600MW of nuclear power‚ which meant the building plan was "irrational and unreasonable".
Zuma, resistant to anyone telling him what he couldn’t do, flatly dismissed these arguments, saying his determinations amounted to an "executive policy", put together by his policymakers.
Judge Lee Bozalek, however, ruled that the way it was done was unconstitutional and wasn’t part of a "rational and fair decision-making process". He set aside the nuclear co-operation agreements with the governments of Russia, China, South Korea and the US, as well as the "request for information" tabled last year.
What this judgment won’t do, unfortunately, is take the nuclear energy plan off the table entirely. This is because the court was not required to rule on the merits of the nuclear plan but only to scrutinise the processes followed by government. Of course, this means government can simply start the plan afresh, or appeal against the judgment. But the severity of the judge’s criticism over how the nuclear plan flew in the face of accountable governance will, it is hoped, at least give the policymakers pause for thought.
It’s also cause for introspection at Nersa, the energy regulator, which is meant to act in the public interest. Instead, Nersa seems to believe it’s simply a rubber-stamping institution for cabinet ministers.
The upshot is that to make the nuclear plan happen, as Zuma wants, his policymakers will need to add a good deal more transparency to a frighteningly opaque process. They’ll also need to show their plans meet the "prudency requirements" of the Public Finance Management Act.
In other words, government will need to show South Africans why they need nuclear energy, how and how much they’ll have to pay for it — and neither argument will be easy to make.
But, that is what must be done to demonstrate accountable governance, a concept with which Zuma seems distinctly uncomfortable. Last week’s court ruling was a timely lesson in humility. The question is: is it a lesson his administration is willing to learn?