Is the Democratic Alliance (DA) a blessing or a curse to our democracy?

Five years ago, the DA went to court to challenge the decision of the National Prosecuting Authority (NPA) to withdraw charges of corruption, racketeering and money laundering against President Jacob Zuma. The then acting head of the NPA, Advocate Mokotedi Mpshe, effectively said charges against Zuma had been withdrawn because there were ‘spy tapes’ which contained evidence of a conspiracy against the then deputy president of the African National Congress (ANC). As you know, the DA won its battle at the Supreme Court of Appeal (SCA) and that court gave the official opposition access to the spy tapes. The spy tapes constitute one of the weapons available to the DA in its quest to have the April 2009 decision of the NPA reversed. In other words, Zuma’s fate will probably be determined by the DA.

In Gauteng, the DA aligned itself to the legal challenge to e-tolling and, prior to the May elections, it became part of a legal challenge by some of our opposition parties to have the chairperson of the Independent Electoral Commission, Pansy Tlakula, removed from her post following a damning report by Public Protector Thuli Madonsela. The saga ended with Tlakula’s resignation. And, just recently, the DA won a battle against the South African Broadcasting Corporation in the Cape High Court. Once again, the legal battle followed a damning report by the Public Protector about the corporation’s COO, Hlaudi Motsoeneng.

These are but a few examples of how the official opposition has resorted to court action in opposition to the administrative decisions and actions of State institutions. The question is whether this is good or bad for our courts and the judiciary. But the more important question is whether these court battles are good for our democracy – hence, the question: Is the DA a blessing or a curse to our democracy?

In this regard, it has been argued by some political and legal commentators that the DA and other organisations are too quick to take political matters to the courts. It has also been argued that, in some cases, those who resort to the courts do so when the political balance is not in their favour. In other words, when the going gets tough in political battles, the losers go to court. While this characterisation is not undisputed, what is indisputable is that even in the ruling party and the Congress of South African Trade Unions, the comrades have, from time to time, taken one another to court in an attempt to alter the internal political environment to their advantage or that of the faction to which they belong.

What fascinates me, however, is the discomfort I feel when the DA goes to court to challenge the decisions of the ANC government. What is the source of my discomfort? Before I answer this question, I must hasten to add that I do not always suffer this discomfort. This notwithstanding, there is a need to interrogate it. What is even more interesting is the fact that I suffer similar feelings of discomfort when I believe the DA is correct. To me, this suggests that there may be something subliminal about my orientation towards the DA. As interesting as acts of confession may be to some, I suspect that the answer lies more in distinguishing the subjective from the objective.

In this regard, it is objectively true that our Constitution can be used as a weapon against tyranny and authoritarian tendencies. As George Orwell once warned, the fact that we live in a democracy does not mean we will not be subjected to authoritarianism. If my train of thought is correct, it can also be argued that, objectively, there are times when the DA has gone to court to defend the citizens of this country against the authoritarianism of a democratic State. At the level of the subjective, however, it can, I suppose, be argued that the difference between the objective and the subjective will be in dispute when specific legal challenges are mounted by the DA.

If we make some allowance for this argument, unavoidably, we must make allowances for the possibility that the DA has, at times, gone to court in pursuit of subjective interests that just happen to coincide with the imperative of defending the country from the tyranny of a democratic State. While this is not always good for the judiciary, I am satisfied that we, as citizens, irrespective of our political leanings, must be happy about the fact that some will go to court when, because of our own political leanings, we choose to look the other way.

But I hope no reader will yield too easily to the temptation that the argument I advance here betrays my feelings towards the DA.