This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Many people view the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission” or “the Commission”) with suspicion, at best, and as a witch-hunt specifically for President Zuma’s associates, at worst.

But is this justified?

A cursory reading of the Commission’s Terms of Reference and Rules reveals that such suspicion can either be blunted or blown out into the open or completely disproved.

ANYONE, whatever his or her status in life, who believes that any person should be called as a witness on specific issues, and be questioned on those issues by the Commission, can ask the Commission Chair to call that person as a witness. All you need do is send a written request to the Secretary of the Commission in which you

  • identify yourself
  • identify the person/s you want called
  • specify the issue/s on which you want the person/s questioned
  • explain why that evidence is likely to be valuable to the Commission in the performance of its work
  • link the issue/s on which you want the person/s questioned to at least one aspect of the Terms of Reference.

(The Terms of Reference – to which a link is provided below – have been amended since first being promulgated in January 2018, but not in a manner that materially affects the discussion here)

In this regard, Rule 9.1 of the Commission Rules says:

“If any person considers that a particular witness should be called to give oral evidence, a written request to this effect should be made to the Commission and shall include the reasons for the request and the likely value of the evidence of such witness. Such witness may be called at the discretion of the Chairperson.”

If the Commission Chair invites the person concerned, s/he must be questioned in terms of Rule 3.2 of the Commission Rules which says:

“A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.”

Since the primary purpose of a Commission of Inquiry is the pursuit of the truth, you are free to suggest a line of questioning to the Commission on the issues that trouble you. Ultimately, whether the person you have identified is invited to give evidence and be questioned at the Commission is for the Chair to decide. But the discretion of the Chair must be exercised judiciously, not on a whim.

If the Chair should refuse your request, you are entitled to reasons. If no reasons are given, or you find the reasons inadequate or irrational or unreasonable, you have a right to challenge the decision on review in the high court.

If the nature of the questioning should strike you as “sweetheart” questioning of the sort that is intended simply to go through the motions without any intention of extracting the truth, you have a right to challenge the process on review to the high court.

Now, the purpose of this brief opinion is this: it is unhelpful to stand on the sidelines hurling invective at the Commission when you can participate in making it a success. We live in what should be a participatory Democracy. PARTICIPATE.

Read an example of a Written Request by clicking on the link below:

Request to State Capture Commission – Website

RELATED DOCUMENTS

State Capture Commission DAY 133 TRANSCRIPT DD 2019-07-15 – Zuma Evidence

State Capture Commission Rules

State Capture Terms of Reference – Original

By |2020-08-16T20:21:58+02:00Aug 16th, 2020|Cases of Interest, South Africa|Comments Off on This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Formal Complaint to BCCSA Against eNCA on Publication of a False Story

On Monday 29 June 2020, at 13h50, eNCA (a 24 hour news channel) published a news report that the Supreme Court of Appeal (the SCA) – the second highest court in the South African hierarchy of courts – had, in dismissing the application of the Public Protector of South Africa for leave to appeal against a judgment of the North Gauteng High Court concerning the Vrede Dairy Farm project, found that

“the Public Protector should pay at least 85 percent of the costs in her personal capacity following the matter between her, the DA and the Casac.”

This statement was patently false. eNCA knew it to be false.

Distortion, exaggeration or misrepresentation of the news is a contravention of the Code of Conduct of the Broadcast Complaints Commission of South Africa (the BCCSA). eNCA subscribes to that Code of Conduct.

The Order of the SCA had been made on 21 June 2020 (more than a week before eNCA published its false statement). It was issued on 26 June 2020 (3 days before). Thus, when eNCA published its false news story, the Order of the SCA had been in the public domain for well over 48 hours.

There was nothing in the SCA Order, on any reading, that said the Public Protector must pay “at least 85 percent of the costs in her personal capacity”. The High Court had ordered that the Public Protector pays 15% of the combined costs of the Democratic Alliance (the main opposition party in Parliament) and CASAC (a not for profit organisation).

The SCA Order said:

“The application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason why an appeal should be heard.”

By the morning of Tuesday 30 June 2020, eNCA had furtively changed the false publication by removing the offending reference to “at least 85 percent of the costs” having to be paid by the Public Protector “in her personal capacity”.

As this “change” did not satisfy the BCCSA Code of Conduct, a complaint was lodged nonetheless.

The BCCSA Code of Conduct says:

“Where it subsequently appears that a broadcast report was incorrect in a material respect, it must be rectified forthwith, without reservation or delay. The rectification must be presented with such a degree of prominence and timing as in the circumstances may be adequate and fair so as to readily attract attention.”

A surreptitious change to the news story, effected seemingly overnight, without “attracting attention” to what has been corrected, is not in compliance with this provision of the Code of Conduct. It is for this reason that the complaint requests the BCCSA to direct eNCA to:

  • to issue an apology for the false report on all its platforms and prominently;
  • to make an undertaking it will never do so again both to the BCCSA and in such prominent apology;
  • to subject the person/s responsible for the false report to disciplinary hearing; and
  • to report back to the BCCSA within a reasonable period on the outcome of such disciplinary proceedings in a full report containing the bases for its findings and sanction, if any.

A bit of context for non-South Africans.

The Public Protector of South Africa is the equivalent of a Super-Ombud established in terms of the Constitution of South Africa to (1) investigate conduct in state affairs including public administration in any sphere of government, (2) report on that conduct, and (3) take appropriate remedial action which is binding until set aside by a court of law.

The current head of that office has been under attack these past two years both in the mainstream media and in the courts for her work, so much so, that a process for her removal from office has been initiated by the main opposition party in Parliament. She has been attacked mainly for her competence and alleged political partisanship. Despite complaining about the inadequacy of her office’s budget, it has now been further reduced, reportedly by about R58 million. And she has been ordered by the high court (now confirmed by a majority of the Constitutional Court) to pay from her own pocket 15% of the costs of an application brought by the South African central bank to have her remedial action against the central bank set aside. That is the context and significance of the eNCA false report.

It was conveyed to the BCCSA that this complaint would be published here, and so, too, the ruling of the BCCSA should it be provided.

Receipt of the complaint was acknowledged. We await the ruling.

Read the Full Complaint by clicking on this link: Complaint against eNCA to BCCSA – Website:

By |2020-07-08T14:51:20+02:00Jul 8th, 2020|Cases of Interest, South Africa|4 Comments

Esau & Others v COGTA Minister & Others: A Summary of the Judgment (26 June 2020)

On Monday 15 June 2020, the Western Cape High Court in Cape Town, South Africa, heard argument in a challenge by 5 university students, a civil servant, a media intern and a data analyst-cum-researcher against the provenance of the National Coronavirus Command Council (the NCCC) and the regulations and directions promulgated, ostensibly, in terms of the Disaster Management Act, 2002 (the DMA).

This took incredible courage on the part of a broad racial and gender mix of young people in 2020 South Africa, reminiscent of the courage of the 16 June 1976 youth who confronted the full might of the apartheid state and paid a heavy – and some the ultimate – price for principle, almost exactly 44 years ago to the day. This is what makes this case special for me. It is why I took it on without charge. It is why I am writing about it.

The courageous youth are:

  • Mr Duwayne Esau, a student at the University of Cape Town
  • Mr Neo Nkwane, a civil servant
  • Ms Thami Jackson, a media intern
  • Ms Lindo Khuzwayo, a student at the University of Cape Town
  • Mr Mikhail Manuel, a research assistant and PhD student at the University of Cape Town
  • Mr Riaan Salie, a student at the University of South Africa
  • Mr Scott Roberts, a student at the University of Cape Town
  • Mr Mpiyakhe Dlamini, a data analyst and researcher

Whatever the ultimate outcome of their courageous challenge, may their names be forever etched in South Africa’s legal history for posterity.

On Friday 26 June 2020, the court dismissed the challenge on all fronts in an 84-page judgment. It ordered that each party pays its own costs. The reason given for this costs order is that the applicants cast a wide net challenge, and the government made a few concessions in relation to the “confusion caused by statements on the role and powers of the NCCC” [para 259]. An unusual standard.

This is a summary of the Judgment not an analysis.

The summary of the Argument on behalf of each party is available here together with all the court papers. But, for your convenience, I recap the summary of the parties’ argument after giving a summary of the judgment.

Summary of Judgment

Short editorial comments are unavoidable in this summary. These are provided where necessary, and they do not constitute an analysis of the judgment.

I, together with 2 colleagues, represented the 8th applicant, Mr Dlamini, in the application. So, commentary is kept to the barest minimum and no analysis of the judgment is embarked upon.

With that foundation, let us now focus on the  summary of the judgment, with some editorial comments. The link to the Full Judgment is at the end.

 As regards trade or clothing directions, the court says the objective of preventing price-fixing and the concomitant unfair competition is authorised by regulation 4(6) and is not inconsistent with the DMA [paras 49 to 51].

[Except, the Trade Minister said in his sworn affidavit he issued his trade directions under regulation 4(10), not 4(6)]

As regards the nature of the NCCC, the court says nowhere in the papers does the COGTA Minister say the NCCC is Cabinet [para 68].

[Except, the applicants did not advance this argument. They said her counsel advanced this argument on her behalf in their written submissions [paras 28.2 & 28.3 of Cogta Heads]]

As regards establishment of the NCCC, the court says

  • this is a function of Cabinet organising itself into committees for which it does not require a law. Section 101 of the Constitution says the President must make decisions in writing if such decisions are made in terms of legislation or have legal consequences. But the President does not have to reduce to writing the establishment of the NCCC even though its decisions have legal consequences [paras 84, 85 & 88].
  • the applicants have not provided any evidence to contradict the averment that the NCCC is merely a Cabinet committee established to deal specifically with covid-19 [para 86].

[Except, this is something that is peculiarly within the knowledge of government.]

As regards the applicants’ formal request for the production of documents, records, transcripts and minutes of meetings on which the COGTA Minister relies for the establishment of the NCCC and for the decisions taken at those meetings in relation to covid-19,

  • the court says these are privileged and cites s 12 of PAIA (Promotion of Access to Information Act) [para 90].

[Except, Mr Dlamini did not seek these documents under PAIA; he did so in terms of the High Court Rules on the basis that if the court is to assess the truth or veracity of government’s claims, it must have access to the documents on which government relies for its probative value and not just on the word of the Minister.]

  • the court cites SARFU 2000 (1) SA 1 (CC) at para 243 for the proposition that Cabinet minutes are confidential [para 91].

[Except, the Constitutional Court also said, in the same paragraph cited by the court, “unless the interests of justice clearly demand”.]

  • the court says “[w]hen the Minister asserts that minutes of Cabinet meetings as well as those of its committees including the NCCC are confidential, there is nothing sinister or un-transparent about it … [as] confidentiality is the mechanism by which Cabinet protects the integrity of its discussions” [paras 93 & 94].

As regards the decisions of the NCCC, the court says they do not have legal consequences because they are subject to acceptance, rejection or modification by Cabinet or individual Ministers [para 96].

[Except the facts, taken as a whole, provide a different picture.]

As regards whether the NCCC usurped the powers of the National Disaster Management Centre, the court says

  • the Centre was not meant to take over Cabinet functions in the event of a national disaster [para 101].

[Except, the applicants did not make this argument]

  • there is no basis for the conclusion that the NCCC unlawfully usurped the powers of the Centre [para 112]

As regards grounds of review,

  • the court cites New Clicks 2006 (2) SA 311 (CC), para 126 for the proposition that the making of regulations under an empowering Act constitutes administrative action [para 121]
  • but the court does not say this. Instead it cites New Clicks for a different proposition regarding procedural fairness and reasonableness, and then concludes this section with references to the COGTA Minister having to balance the saving of lives with the preservation of dignity in the regulation-making process [paras 123 & 124]

As regards mootness – that the determination of the application will have no practical effect – the court says, except for the clothing directions that the trade Minister withdrew in June 2020, the determination of the lawfulness of other regulations is not moot [para 128].

[Except, the government’s legal team left the door open for those clothing directions to come back if the country were to revert to level 4 [para 6 of government heads]]

As regards the public participating process, the court says

  • the DMA does not require a public participation process before the issuing of regulations [para 161]
  • even if the regulations were issued without public participation, the Minister is dealing with a crisis and is in any event accountable to parliament [para 164]
  • the Minister also had to issue regulations urgently and that explains the truncated public participation process [para 166]
  • the requirement in s 59(4) of the DMA that the Minister makes the regulations available to the National Council of Provinces for adoption is also a form of public participation process [para 165]
  • it is not for a court to prescribe to the national executive just how truncated the public participation process should be in the regulation-making process [para 171]

As regards the object of the regulations, the court says

  • absent any evidence of the existence of less restrictive means of slowing the spread of covid-19, the court cannot interfere with the discretion of the Minister in achieving that objective [para 172]. [Except the applicants did provide such less restrictive means but the Minister dismissed them simply as “inadequate”]
  • section 126(2) of the DMA “notionally is broad enough to intrude upon existing legislation … in a disaster situation” [para 175]
  • the primary objective of the regulations is to save lives and health [paras 178 & 179]

As regards the lawfulness, constitutionality and validity of the impugned regulations, the court says

  • regulation 4(6) [which deals with the issuing of directions to protect consumers from predatory pricing of goods and services during national disaster and other competition issues] and regulation 4(10)(a) [which deals with the issuing of directions concerning the dissemination of information during the national disaster] are interrelated and cannot be separated as they are both aimed at dealing with the spread of covid-19 [para 196].

[Except, the Trade Minister said, expressly, in his sworn affidavit he did not issue his trade directions in terms of regulation 4(6) but rather in terms of regulation 4(10)(a)]

  • the clothing directions arose as a result of the national disaster. The dissemination of information in respect of the winter clothing is within the Trade Minister’s powers and so cannot be ultra vires (beyond the scope of) the DMA [para 197].

[Except this does not address the applicants’ argument that the Trade Minister relied not on regulation 4(6) but on regulation 4(10)(a) which says nothing about protecting consumers from unfair pricing and other competition issues.]

  • In any event the clothing directions were withdrawn on 11 June 2020 and so are of no force and effect [para 198].

[Except the government’s legal team told the court that new directions will be determined according to requirements in the event of level 4 being reinstated, raising the possibility that these same directions could return.]

  • Section 26(2)(b) of the DMA does not provide for the Minister to issue regulations that only augment existing legislation [para 200].

[Except the section does precisely that]

  • to augment means “to widen and give more value to” [para 201].

As regards new matter in replying affidavit, the court says the applicants cannot for the first time in replying papers require the government to discharge an onus that its regulations do not amend existing legislation [para 205].

[Except this is a legal proposition, not a factual one, and is perfectly permissible in reply or even heads of argument which the government could have dealt with in written and oral argument]

As regards rationality, the court says

  • there is a rational connection between the lockdown (confining people indoors) and containing the spread of covid-19 because that is the only known method [paras 219 & 220]
  • a deceased person cannot talk, cough, sneeze, or spread covid-19 whereas a living person can and so that is why movement is permitted for attending funerals and not for visiting living people [paras 242 to 244].

[Except this misses the point of the objection entirely. The applicants’ point was the irrationality of permitting up to 50 people to attend a funeral but criminalise one person for visiting a dying relative]

The management of the disaster involves issues of high policy. It is not for the court to prescribe to government how it should exercise its mandate in those circumstances [para 255].

[Except, the applicants never asked the court to do that. In fact, their respective written submissions make this quite clear in the opening paragraphs]

The applicants want regulation 19, which suspends the execution of eviction orders, to be declared unlawful. It follows that the applicants want eviction orders to be executed during lockdown despite the devastating consequences of that during a pandemic [para 257].

[Except, this is not the argument made by the applicants. The point was that regulations cannot amend existing legislation as regulation 19 seeks to do.]

To recap, the summary of the parties’ argument included this:

Summary of The Esau Team Argument

  • The application is not an attack on the choices the executive has made in order to deal with the covid-19 pandemic; it is an attack on how those choices have been made.
  • As regards the mootness point – that determination of the question on the provenance or lawfulness of the NCCC, the legality of its powers and exercise thereof, on the one hand, and determination of the rationality and constitutionality of the impugned regulations and trade directions, on the other, will have no practical effect – the Esau team said this is factually incorrect because the directions issued in terms of the alert levels 4 & 5 regulations have not been repealed by the 28 May 2020 alert level 3 regulations. For this proposition they pointed to regulation 2 of the 29 April 2020 regulations which lists repealed regulations and expressly state [in reg 2(3)] that the directions issued in terms of the repealed regulations remain in force until amended, varied or withdrawn by the minister concerned.

They said in any event, a court cannot avoid dealing frontally with questions of legality and constitutionality. For this proposition reference was made to 3 judgments: Jordaan [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC), para 8; Mohamed 2001 (3) SA 893 (CC), para 70; Pheko 2012 (2) SA 598 (CC), para 32.

Furthermore, the Esau team argued that a court has a discretion to deal even with issues that are moot: Pillay 2008 (1) SA 474 (CC), para 32.

They said the national state of disaster has been extended to 15 July 2020. The applications raise important constitutional questions of great practical importance not just for the applicants but for all South Africans too.

  • As regards constitutionality and validity of the covid-19 regulations, the Esau team argued that the COGTA Minister adopted a broad approach in tailoring the regulations. This runs against the general principle that laws that interfere with basic fundamental rights must be construed narrowly: Dadoo 1920 AD 530 at 552; Pheko 2012 (2) SA 598 (CC), para 37.

The argued that s 26(2)(b) of the DMA confers on the national executive the power to deal with the national disaster in terms of existing legislation “as augmented by” regulations and directions issued in terms of s 27(2) of the DMA. It does not give her the power to amend existing legislation. That is the function of Parliament. Yet the COGTA Minister has purported to amend existing legislation.

  • As regards rationality, they said there is both procedural and substantive irrationality.

On procedural irrationality, the Esau team argued that the invasive nature of these regulations into the fundamental rights of South Africans cried out for broad consultation of the people and not just the relevant portfolio Minister to whose portfolio a given restriction to a fundamental right relates. Promulgating regulations is a law-making process. Public participation is required by law even if not in the empowering legislation, because public participation ensures that the regulations are informed and responsive: Doctors For Life 2006 (6) SA 416 (CC), paras 205-208.

The COGTA Minister says she invited public comments on Saturday 25 April 2020. These had to be submitted by 12 noon on Monday 27 April 2020. By that day, she says she had received 70,000 written submissions. The regulations were drafted the following day on 28 April 2020 and issued on 29 April 2020. She does not say she considered the Public Participation Report provided to her. There is no humanly possible manner in which she and her team could have considered all those 70,000 submissions in less than 2 days, and properly applied their minds. So, for that reason the entire process of regulation-making was vitiated by procedural irrationality and the result of it must fall: DA v Pres, RSA 2013 (1) SA 248 (CC), para 39; Albutt 2010 (3) SA 293 (CC), para 69.

The COGTA Minister says the DMA does not require public consultation before issuing regulations. The Esau team says the Minister is wrong in this regard. In any event the SCA has ruled that even where the empowering Act does not require public participation, the fact that the functionary announces that public participation will take place, but later fails to ensure that it does, means that the functionary’s ultimate decision is for that reason procedurally irrational and unlawful: Scalabrini Centre 2013 (6) SA 421 (SCA), para 72.

On substantive irrationality, the Esau team mounts its attack based on reasonableness under PAJA [the Promotion of Administrative Justice Act, 2000] and the legality principle.

The Minister says the making of regulations is an executive act not an administrative act and so not susceptible to review under PAJA. The Esau team says the Minister is wrong again. When she issues regulations under s 27(2) of the DMA, she is exercising a public power in terms of national legislation, the DMA. She is not making policy. Therefore, the issuing of regulations is administrative action and susceptible to review under PAJA.

In any event, every public power must conform to the principle of legality.

Under these covid-19 regulations, going to work requires a permit; walking outside the home may only take place between 06h00 and 09h00; buying new clothes depends on whether it is a permitted clothing item; and buying a roast chicken or hot pie because you are unable to cook because of a disability or your age, is permitted only if it is delivered to your home, but not bought with your groceries. These are limitations to the right to human dignity. As the Constitutional Court said in Barkhuizen 2007 (5) SA 323 (CC), para 57

 “Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity.

 Summary of the Dlamini Team Argument

  • Mr Dlamini is not challenging government policy or lockdown. His complaint is that he, as all South Africans, is expected to make huge sacrifices in relation to his fundamental rights (such as human dignity and movement) without being told exactly who is making the decisions that so adversely impact on these fundamental rights and on the basis of what law. For that he wants to hold government accountable. But he is constrained by absence of transparency and accountability on government’s part, which are two of the fundamental values and principles of public administration under the Constitution (s 195).

Fundamental rights is the place where Law and Politics collide. This being a Court of Law, the Law must prevail over Politics.

A long line of cases, beginning with Fedsure Life 1999 (4) SA 374 (CC), tells us that it is a fundamental principle of our constitutional order that those who exercise public power and perform public functions may do so only to the extent that such power or function is conferred on them by law.

Mr Dlamini’s case hinges on answers to 3 questions: (1) was the NCCC lawfully established? (2) does the NCCC have decision-making powers in law? (3) has the NCCC made any decisions, including policy decisions?

  • As regards the establishment question, the government has pointed to no law that confers on the President or Cabinet the power to establish the NCCC.

In para 15 of their written argument, Counsel for the government concede that there is no legislative or constitutional provision that empowers Cabinet or President to establish the NCCC or any committee.

Then they point to s 85 of the Constitution as a salutary provision affording a wide berth on the executive to coordinate its functions as it sees fit, including forming itself into committees. The Dlamini team said s 85 does nothing of the sort. At best, s 85 confers a power on the executive to coordinate functions of state departments and administrations. It confers no power on a committee to do such coordination. For the NCCC to perform executive functions you need a delegation of executive power in terms of s 238 of the Constitution. But the President has told Parliament that there has been no such delegation of power to the NCCC. That’s really the end of that.

Counsel for the government say it is normal for Cabinet to establish committees. Yes, says the Dlamini team, but where is the law that confers on it the power to do that? Section 26(1) of the DMA, to which the government team now points belatedly, says nothing different from what s 85 of the Constitution says. It confers a power on the national executive to coordinate national disasters. It does not give the executive the power to form an amorphous outfit to usurp the powers of an existing Centre during an emergency or disaster.

The Dlamini team pointed to a number of examples where it says the NCCC has usurped the powers of the Centre. One such example was s 20(1)(a)(i) of the DMA which confers on the Centre the power of “determining levels of risk” in a disaster; yet on 20 April 2020 the COGTA Minister told Cabinet that the NCCC “determines level of alert for each province and district” which “can be imposed by the [NCCC] as necessary, and the President told the nation on 23 April 2020 that the NCCC  “determined that the national coronavirus alert level will be lowered from level 5 to level 4 with effect from Friday the 1st of May”. The Dlamini team commended sections 15 to 23 of the DMA to the court for other examples.

  • As regards the decision-making powers question, the COGTA Minister has given no less than 6 conflicting versions, ranging from: the NCCC has no decision-making powers whatsoever, to: the NCCC takes “what could be termed critical decisions” to: the NCCC takes decisions only when it sits as Cabinet.

Then, says the Dlamini team, in their written submissions Counsel for the government add 4 more versions, including that the NCCC makes policy decisions, and that the NCCC’s functions, actions and decisions are, in fact, Cabinet functions, actions and decisions.

The Dlamini team argued that the NCCC has no decision-making powers in law in relation to a national disaster. Not in the DMA; not in the Constitution. And the government has pointed to no legislation that confers such decision-making powers on the NCCC.

  • As regards whether the NCCC has made any decisions, including policy decisions, the Dlamini team argued that the COGTA Minister and the President have given contradictory versions. But then their Counsel end the debate by making this submission in their written submissions:

“on some occasions, [the NCCC] is taking decisions relating to COVID-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant”

In other words, says the Dlamni team, the NCCC decisions are Cabinet decisions and are therefore constitutionally compliant, according to Counsel for the government.

But since there is, on Counsel’s own argument, no constitutional or legislative provision conferring a power on the NCCC to make decisions relating to covid-19, these decisions are unlawful and must be set aside.

  • As regards the mootness point – that determination of the question on the provenance of the NCCC and the legality of its powers and exercise thereof will have no practical effect – Mr Dlamini says that this point is bad in its articulation, in fact and in law.

The COGTA Minister is herself uncertain of the point when she says the applicants’ complaints

“would appear to have been addressed in toto by the [28 May 2020] regulations”

This does not inspire confidence in the point.

In any event, the 28 May 2020 covid-19 regulations do not address Mr Dlamini’s complaint about the provenance or lawfulness of the NCCC and its continued making of binding decisions, including policy decisions, that it has no power in law to make. That is the factual flaw of the point.

The legal flaw in the point is that mootness is not necessarily a bar to a court considering a dispute if that is in the interests of justice to do. The Constitutional Court said so in Shuttleworth 2015 (5) SA 146 (CC); 2015 (8) BCLR 959; [2015] ZACC 17, para 27, and the High Court has just said so in NSPCA 2020 (1) SA 249 (GP), paras 36 to 42.

What is more, the government seems to blow hot and cold on whether or not alert level 4 restrictions may return. In paragraph 6 of Counsel’s written submissions they leave that door open; in paragraph 133 they say even if alert level 4 were to return, the trade directions “would not resurrect”. What is certain, though, is that there is no guarantee that alert level 4 may not return – with its restrictions. In these circumstances it cannot be said that the application is moot, or that it is not in the interests of justice to determine it.

  • As regards appropriate remedy, the Dlamini team says Counsel for the government make this submission in paragraph 31 of their written submissions after complaining that the relief sought is “overbroad” and must be dismissed:

 “It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.”

 Mr Dlamini’s case has never been that the NCCC is “unlawfully occupied” or comprises people who should not be there. He says its establishment has no legislative or constitutional provenance, and its decisions have no legislative or constitutional underpinning. But, as regards the relief proposed by Counsel for the government that, upon finding that the NCCC is unlawful and acts without legal sanction, this court should refuse to recognise any further consequences arising from its invalidity, Mr Dlamini agrees.

Summary of the Government Team Argument

  • As regards attacks on the regulations under PAJA, the government team says the application is an attack on government policy. The courts cannot interfere with government policy under PAJA.

The promulgation of regulations in terms of s 27(2) of the DMA is more closely related to the formulation of policy rather than the implementation of legislation. This is so because s 26(1) of the DMA makes the response to disasters an executive function. So, the issuing of regulations aims to combat the disaster which concerns polycentric matters of high policy. It thus resides in the heartland of national executive function: ITAC v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC), para 101. For that reason, the issuing of regulations cannot be attacked under PAJA.

  • As regards the mootness point (that determination of the application will have no practical effect), Counsel for government argue that the issues in relation to the Clothing Directions are moot because alert level 4 has ceased and, together with it, the Clothing Directions.
  • As regards the provenance or lawfulness of the NCCC, the NCCC is a constitutionally permissible structure because s 85 of the Constitution confers a wide power on the President and Cabinet to coordinate executive functions as they see fit. Mr Dlamini’s search for some further statutory or constitutional provision empowering Cabinet to establish the NCCC is misguided. Cabinet’s power to regulate its own affairs is inherent in it being vested by s 85 of the Constitution with the executive authority of the Republic. The Constitution does not address the minutiae of how Cabinet must organise itself. This lack of specific provisions regulating and constraining the President in the organising of Cabinet internal affairs is intentional.

Cabinet’s deliberative and decision-making procedures are inherently political choices which will vary between governments, and when circumstances change: Murray and Stacey “The President and the National Executive” Constitutional Law of South Africa” OS 06-08, chapter 18 page 36.

The use of committees is generally recognised as a welcome and necessary feature for cabinets. The NCCC is a Cabinet structure comprising all Cabinet members. It is in fact a Cabinet committee. In fact, the NCCC is Cabinet by another name.

The interchangeable language used by the national executive between “the NCCC” and “Cabinet” is to be expected because sometimes Cabinet is acting when sitting formally as Cabinet, and sometimes it is acting through the NCCC.

This interchangeable language is constitutionally innocuous. The NCCC is a committee of Cabinet, comprising only ministers. The actions and functions of the NCCC are the actions and functions of Cabinet. Nothing prevents Cabinet from making decisions at the NCCC level, or elevating decisions of the NCCC to a formal Cabinet meeting, or for that matter making the decision at a meeting of the NCCC and then confirming that decision in a formal Cabinet meeting.

The drafters of the Constitution would have been aware that Cabinet would be likely to employ committees and, given the functioning of the modern state, would rely on committees extensively to function effectively and responsibly. If the Constitution was intended to limit the President and Cabinet’s powers to exercise their executive authority by prohibiting them from establishing and using committees, it would have stated as much expressly.

  • As regards whether the NCCC has decision-making powers in law, the NCCC has no decision-making powers reserved by statute for other Ministers and other organs of state.

The NCCC acts as a forum for discussion and debate on covid-19 issues.

It does on occasion make what could be termed “critical decisions” and there is nothing inappropriate with this provided such decisions are subsequently taken by Cabinet sitting as Cabinet.

The NCCC has the power to decide on lockdown alert levels, but this would require Cabinet approval.

The NCCC is a coordinating body given authority by Cabinet to do that. But, as a Cabinet committee, the NCCC is empowered, like Cabinet itself, to take binding decisions, including policy decisions, on behalf of government.

The NCCC is no more than a committee of Cabinet. On some occasions, it is taking decisions relating to covid-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant.

  • As regards whether the NCCC has in fact made decisions, including policy decisions, Cabinet took the decision to enter a strict lockdown phase, not the NCCC.

The NCCC decided to enforce a nation-wide lockdown for 21 days with effect from midnight on Thursday 26 March 2020.

The NCCC met again on 23 April 2020 and determined that the national coronavirus alert level would be lowered from level 5 to level 4 with effect from Friday the 1st of May.

The suggestion by the COGTA Minister and the President that the NCCC determined alert levels and enforced lockdown was simply imprecise language.

  • As regards constitutional validity of the covid-19 regulations, Counsel for government argued that some of the arguments raised in the Esau team’s written submissions relate to new attacks belatedly advanced and were not crisply pleaded in the founding papers. This has deprived government of the opportunity fully to address the arguments raised. In any event, should the Court hold that it may and should consider the issue, the applicants are reading into s 27 of the DMA substantial jurisdictional considerations that do not exist. Further, there is no inconsistency between the pieces of legislation identified by the applicants [the LPA, the Children’s Act, the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998, the Extension of Tenue Act] on the one hand, and the regulations, on the other, and the COGTA Minister was empowered to create offences as the DMA provides expressly in s 27(4) that regulations made under s 27(2) may include regulations prescribing penalties for any contravention of the regulations.

Government also argued that the regulations comply with the Constitution and that the regulations’ purpose of preventing the unmanageable spread of covid-19 is not only constitutionally permitted but constitutionally mandated. The limitations analysis under s 36 of the Constitution must be informed by the fact that any response to the pandemic may require choosing between a number of different and unpalatable options. To implement a rapid reduction of the transmission rate, a lockdown was required in addition to other behavioural tools provided for in the DMA. The right to life and the right to dignity, and the government’s concomitant responsibility to save lives justifies the limitation on other rights. For this proposition reliance was placed principally on Makwanyane 1995 (3) SA 391 (CC), para 144.

  • As regards the necessity of the covid-19 regulations, the lockdown was, and remains, necessary and the regulations were, and continue to be, necessary in order to give effect to the scientific advice that was received.
  • As regards procedural irrationality and the necessity for consultation, the regulations were published following a procedurally rational process, and the only consultation required when regulations are promulgated under s 27(2) is consultation with the “responsible Cabinet Minister”. Public consultation is not required by the DMA at all. This is in contrast to other exercises of powers in the Act. Reliance was placed on DA v Pres, RSA 2013 (1) SA 248 (CC); Albutt 2010 (3) SA 293 (CC); Kyalami Ridge [2001] ZACC 19 (29 May 2001).
  • As regards arbitrariness, Government argues that distinctions between activities are not irrational. To reduce the risk of transmission, the total number of opportunities for transmission must be reduced. This requires an unavoidable decision between allowing some activities that pose a risk of transmission but not others.
  • Regarding the appropriate relief in respect of the NCCC attack, Counsel for the government say the challenge has no merit and must be dismissed. In the alternative, they say: 

“If the Court is against the [government], it is respectfully submitted that the relief in the notice of motion is overly broad. It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.

A similar approach should be adopted here. Decisions that have been taken by Cabinet sitting as the NCCC can then be set aside on a case-by-case basis and with regard to the merits of each decision.”

 As regards appropriate relief in respect of the challenge to the regulations, the government asks the court to dismiss the challenge. In the alternative they say: 

“If the Court is against the [government], and declares any of the impugned regulations invalid, it should suspend the declaration of invalidity to permit an opportunity for the Minister to rectify any deficiencies identified. It is respectfully submitted that a 30-day period is an appropriate period of time for which to suspend any declaration of invalidity.”

Read the Full Judgment here: Esau v Min of CoGTA final judgment (26 June 2020)

By |2020-07-01T18:58:44+02:00Jul 1st, 2020|Cases of Interest, High Court, Judgements, South Africa|Comments Off on Esau & Others v COGTA Minister & Others: A Summary of the Judgment (26 June 2020)

Formal Complaint to Office of the Public Protector on Eskom

On 5 June 2020 a formal complaint was lodged with the Office of the Public Protector of South Africa following media reports that Eskom had “in error” made an over-payment of, variously, R4 Billion or R5 Billion to an undisclosed contractor or contractors.

But the complaint goes further than that and invites the Office of the Public Protector to investigate, among other things:

  • The seven coal suppliers said to have been identified for charging Eskom “too much” and to what extent those contracts are being renegotiated
  • The basis for the Minister of Public Enterprises refusing to disclose to Parliament the prices that companies that supply Eskom charged Eskom for coal supplies, and to direct both the Minister of Energy and the Minister of Public Enterprises to disclose that information to Parliament
  • What the circumstances are surrounding the procurement of other forms of electricity sources in South Africa such as renewable energy, nuclear, etc with IPPs
  • Who the beneficial shareholders are (not just representative shareholders) in each of the IPPs doing business with government and/or Eskom
  • What the true nature and use of the funds recouped by Eskom through its annual Regulatory Clearing Account (“RCA”) application to Nersa is, and how it is accounted for in the Eskom financial statements, if at all
  • “Evergreen Contracts” or long-term contracts that Eskom has with contractors and what impact these have on Eskom’s finances, the price that ordinary domestic consumers of electricity pay to Eskom and National Treasury (or Nersa) that is often called upon to bail out Eskom or inject funds into Eskom
  • The identity of companies which have “evergreen contracts” or long-term coal supply contracts with Eskom
  • Whether the directors of Eskom involved in the making of decisions that are not in the best interests of Eskom and the domestic consumers of Eskom electricity may not be delinquent
  • Whether the internal auditors of Eskom (including members of the Eskom Risk and Audit Committee) and external auditors should not be held responsible for the financial problems at Eskom and/or referred to the South African Institute of Chartered Accountants (SAICA) and/or the Independent Regulatory Board for Auditors (IRBA) for investigation.

The complaint is brought in terms of s 6(5) of the Public Protector Act, 1994 which reads:

“(5) In addition to the powers referred to in subsection (4), the Public Protector shall on his or her own initiative or on receipt of a complaint be competent to investigate any alleged-

(a) maladministration in connection with the affairs of any institution in which the State is the majority or controlling shareholder or of any public entity as defined in section 1 of the Public Finance Management Act, 1999 (Act 1 of 1999);

(b) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a function connected with his or her employment by an institution or entity contemplated in paragraph (a);

(c) improper or unlawful enrichment or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in connection with the affairs of an institution or entity contemplated in paragraph (a); or

(d) act or omission by a person in the employ of an institution or entity contemplated in paragraph (a), which results in unlawful or improper prejudice to any other person.”

In terms of s 2 and s 3 of the Eskom Conversion Act, 13 of 2001, Eskom is a public company with its entire share capital held by the state. It is thus the “institution or entity” envisaged in s 6(5) of the Public Protector Act.  Thus, the Office of the Public Protector has jurisdiction to investigate these matters involving Eskom.

The Office of the Public Protector is a creature of the Constitution of the Republic of South Africa, 1996, established “to strengthen constitutional democracy” in South Africa.  It shares that heavy burden with only 5 other institutions. Other organs of state have a constitutional obligation to “assist and protect these institutions [so as] to ensure [their] independence, impartiality, dignity and effectiveness”.

No person or organ of state may interfere with the functioning of these institutions. It is a criminal offence to interfere with the functioning of the Public Protector. So protected is the importance and functioning of the Office of the Public Protector in South Africa that it is a criminal offence to insult the Public Protector or the Deputy Public Protector in connection with an investigation or to do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.

Any person convicted of interfering with the Pubic Protector or of insulting the Public Protector or the Deputy Public Protector in connection with an investigation could be fined up to R40,000 or subjected to a prison sentence of up to 12 months, or receive both such fine and imprisonment.

Read the Full Complaint by clicking at the links below, together with supporting documents:

RELATED DOCUMENTS

Complaint to Public Protector on Eskom – Website1

Eskom Integrated Report – FY 31 March 2019

Eskom Coal Cost Analysis

Summary on Eskom Coal Costs

CSIR ESKOM 2020 – Study on Electricity Crisis

By |2020-06-30T19:43:22+02:00Jun 30th, 2020|Cases of Interest, South Africa|Comments Off on Formal Complaint to Office of the Public Protector on Eskom

EFF v Gordhan; Public Protector v Gordhan (Cases CCT 232/19 & CCT 233/19) 29 May 2020

On 29 May 2020 the Constitutional Court of South Africa – the highest court in South Africa – handed down judgment in a much anticipated case between the country’s Public Protector and the Minister of Public Enterprises. The second largest political party had intervened.

The case raised at least two issues:

  • whether the Public Protector’s remedial action can be suspended by an application for an interdict pending the determination of a review application
  • whether the high court was right to order the head of the Public Protector Office, a Constitutional Institution, to pay any amount of the costs of an application from her own pocket when no reason is advanced for that order

The Constitutional Court answered the first question in the affirmative and the latter in the negative. Dealing with the second question, the Constitutional Court again re-iterated the applicable standard of “bad faith” and “gross negligence”. It then concluded on the personal costs issue as follows:

“The judgment of the High Court concerned an interim interdict against the Public Protector. The traditional tests of bad faith or gross negligence, albeit with a constitutional flavour, were not satisfied. Ordering personal costs where there is no factual basis to support this may have a deleterious effect on the Public Protector’s discharge of her vital constitutional mandate, whoever the incumbent might be.”

Read the Full Judgment here: Concourt Judgment in Public Protector v Gordhan & EFF v Gordhan – interdict of PP remdial action & personal costs order 29 May 2020

AmaBhungane Centre for Investigative Journalism NPC et al v Minister of Justice and Correctional Services et al (North Gauteng High Court, Pretoria. Case Number 25978/2017) 16 September 2019)

In what can fairly be described as a ground-breaking and far-reaching judgment, both for state security on the one hand, and freedom of the media on the other, one Judge sitting as the Pretoria High Court has declared as unconstitutional a raft of provisions of the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) and afforded Parliament two years within which to remedy the constitutional invalidity.

Until the constitutional invalidity, as declared by the Judge, in those myriad provisions of RICA has been remedied by Parliament, the Judge has, at the instance effectively of the media, directed how various provisions of RICA will read, including adding a new provision, section 16A, which is intended specifically for the protection of journalists and practising legal practitioners.

In terms of the South African Constitution, the declaration of constitutional invalidity as declared by the Judge will take effect only if the Constitutional Court confirms it. But in terms of the order of the Judge, it appears that the provisions read into RICA by the Judge take immediate effect, including the new provision that relates to journalists and practising lawyers. The provision which relates to the definition of “designated judge” takes effect six months after the date of the order by the Judge.

To be clear, Amabhungane did not seek an order that notice of surveillance by the state be given before the surveillance. The order that was sought was that notice be given after surveillance. See paras 86 & 87 of AmaBhungane Heads of Argument below.

Together with the Full Judgment, all sets of pleadings and written Heads of Argument by all parties are provided. Annexures to affidavits have not been provided.

Read the Full Judgment Judgment in AmaBhungane et al v Min of Justice et al – 16 September 2019:

Related documents: Written Arguments

AmaBhungane Heads of Argument

Amicus Heads of Argument

State Security – Court Address

State Security Heads of Argument

Justice, Defence & Police Heads of Argument

Pleadings

Notice of Motion

Founding Affidavit – Sam Sole

Answering Affidavit – SAPS Crime Intelligence

Answering Affidavit – Dep Min of Justice

Answering Affidavit – Chief of Staff SANDF

Answering Affidavit – DG State Security Agency

Replying Affidavit – Sam Sole

DA v Public Protector; CASAC v Public Protector [Case 11311/2018 & 13394/2018]

In a fit of pique (as demonstrated at the hearing of argument), the Pretoria high court, per Tolmay J, (1) declared that the Public Protector failed in her statutory and constitutional duties when investigating complaints in relation to the Vrede Dairy Farm Project in the South African province of Free State, (2) set aside the Public Protector’s Report as being unlawful, unconstitutional and invalid, and (3) held back for later determination its decision on whether or not the Public Protector should pay the costs of both the Democratic Alliance (an opposition political party in South Africa) and CASAC (a not-for-profit organisation) from her own pocket.

That was on 20 May 2019. Argument of four sets of Counsel had been heard on 23 and 24 October 2018.

The application had been launched, on separate occasions and (at least on the face of it) independently of each other, by the Democratic Alliance on the one hand, and CASAC on the other. Pleadings for the Public Protector had been prepared by one legal team in both applications. But a second team was briefed for purposes of argument so that one team would deal with the political party’s application and the other team with the not-for-profit organisation’s application.

On 15 August 2019, the Pretoria high court handed down judgment in the same case directing that the Public Protector pay a portion of both the costs of the Democratic Alliance and CASAC from her own pocket.

At the time of publication of this post, application for leave to appeal against the merits judgment had already been filed, while leave to appeal against the costs judgment was being prepared.

Read the Full Judgment on the merits here and the Full Judgment on costs here:

Related documents: Written Arguments

Public Protector Heads of Argument 3 Sep 2018

Public Protector Court Address – High Court

Public Protector Heads in CASAC Application

DA Heads of Argument

CASAC Heads of Argument in CASAC Application

Pleadings

DA Notice of Motion

DA Founding Affidavit

Public Protector Answering Affidavit in DA Application

DA Replying Affidavit

Vrede-Farm-Dairy-Notice-of-Motion & FA – CASAC

CASAC-v-PP-Supplementary-Founding-Affidavit-FINAL

Public Protector Answering Affidavit – CASAC

CASAC Replying Affidavit

By |2019-08-21T12:05:59+02:00Aug 20th, 2019|Cases of Interest, High Court, Judgements, South Africa|Comments Off on DA v Public Protector; CASAC v Public Protector [Case 11311/2018 & 13394/2018]

Peter Moyo v Old Mutual et al (Gauteng Local Division. Case 2019/22791)

Mr Peter Moyo, Chief Executive of Old Mutual Limited, was first suspended (on 23 May 2019) and then dismissed (on 17 June 2019) by the board of directors of Old Mutual Limited. The reason advanced by the chairman, Mr Trevor Manuel, was that the board had lost confidence in Mr Moyo owing to conflict of interest on Mr Moyo’s part.

Mr Moyo in turn alleged that the reason for his dismissal was that he had raised issues of a triple conflict of interest on Mr Manuel’s part involving a multi-billion Rand commercial project in which he was director of all 3 companies involved, chairing 2 of the 3, and payment by Old Mutual of Mr Manuel’s legal fees in his personal litigation.

So, Mr Moyo approached the Johannesburg High Court in two parts, Part A and Part B. The first part sought relief in the following terms:

  • an order that the application is urgent
  • an order “temporarily reinstating” Mr Moyo as Chief Executive until Part B has been decided
  • an order stopping the Old Mutual board from taking any steps to appoint a replacement for Mr Moyo until Part B has been decided
  • costs in the event of opposition

Mr Moyo had also sought an order declaring that his suspension and dismissal were prima facie unconstitutional and unlawful. But, according to the judgment, he did not persist in these orders under Part A and so the court did not decide that issue.

In Part B, and within 60 days of this judgment, Mr Moyo was to seek relief in the following terms:

  • permanent reinstatement as Chief Executive of Old Mutual
  • in the alternative, contractual damages for breach of employment contract
  • in the further alternative, delictual damages for impairment of his dignity and breach of the Protected Disclosures Act
  • an order declaring the Old Mutual trustees to be delinquent directors
  • costs in the event of opposition

The high court granted all of Mr Moyo’s prayers in Part A, except those in which he did not persist.

The Court also specifically (in paragraph 64 of the judgment) rejected Old Mutual’s contention that the reinstatement sought had final effect.

Old Mutual and its board of directors have indicated that they will take the decision of appeal.

Read Full Judgment Moyo v Old Mutual et al High Court Judgment in Interim Relief

Related documents

Moyo Heads of Argument in High Court – Interim Relief

Old Mutual Heads of Argument in High Court – Interim Relief

Old Mutual Supplementary Heads

Moyo Application and Annexures 

Old Mutual Answering Affidavit

Old Mutual Annexures and confirmatory affidavits

By |2019-08-01T18:24:47+02:00Aug 1st, 2019|Cases of Interest, High Court, Judgements, South Africa|Comments Off on Peter Moyo v Old Mutual et al (Gauteng Local Division. Case 2019/22791)

Court Address in Constitutional Court on behalf of Public Protector in Public Protector v SA Reserve Bank: 27 November 2018

Can the country afford to have the Head of a Constitutional Chapter 9 Institution – any Constitutional Chapter 9 Institution – operating under an ever-present threat of a punitive and personal costs order simply for performing her constitutional functions, and at the behest of powerful institutions (such as the South African Reserve Bank) that seek to avoid accountability?

Is it reasonable, is it appropriate, is it desirable for the Head of a Constitutional Chapter 9 Institution – any Constitutional Chapter 9 Institution – to be mulcted in personal and punitive costs in circumstances where she did not initiate the litigation; and also in circumstances – as in this case – where at least two Judges (Judge Willem Heath and Judge Dennis Davis) have found that the so-called Bankorp Lifeboat was unlawful?

Can it be said on the facts of this case that the Public Protector abused her constitutional powers when she investigated a complaint lodged by Senior Counsel of considerable experience, and when she took the remedial action that she did?

These are the questions that this Court is called upon to determine.

In its deliberations, members of this Court will no doubt be alive (and this has to be said) to the negative public sentiment currently sweeping the media and social media commentary in this country against this Public Protector.

In this specific regard, we can do no better than remind ourselves of the timely observation made by the Chief Justice last week on the occasion of the inaugural presentation of the Judiciary’s Annual Report, where the Chief Justice cautioned Judges (aptly, we submit) against the ever-lurking temptation to sacrifice Justice at the altar of public opinion.

We address the second question first.

THE DECLARATORY ORDER

The Reserve Bank anchors its abuse charge against the Public Protector (for which it wants this Court to make a declaratory order) on what it characterises as the Public Protector’s failure to act independently, impartially and without fear, favour or prejudice as required of her by s 181(2) of the Constitution.

In support of that charge, the Reserve Bank alleges

  • that the Public Protector held secret meetings with the Presidency;
  • that she failed to explain what was discussed at those meetings;
  • that she discussed her remedial action with the Presidency but did not do so with the Reserve Bank;
  • that she discussed the Bank’s vulnerability with the State Security Agency;
  • that her intention was to undermine the Reserve Bank;
  • that her explanation in relation to those meetings with the Presidency are false;
  • that her explanation that she relied on economics experts for her report is false, and that her subsequent explanation in this Court is “too little too late”; and
  • that she was biased against the Reserve Bank because she did not afford it the same courtesy of a meeting that she did the Presidency.

But the Reserve Bank

  • overlooks that the Reserve Bank, like the Presidency, was also given an opportunity to comment on the provisional report, and did (Vol 2, pages 62 to 86);
  • overlooks that the Public Protector had no less than 2 meetings with the Reserve Bank in September 2013 and in September 2016 (supplementary volume, page 879);
  • overlooks that neither of these meetings with the Bank was transcribed, yet there is no conspiracy theory about that;
  • overlooks that the views of the Bank were taken into account (supplementary volume, pages 888 to 889);
  • overlooks the real reason for meeting with the State Security Agency and prefers a conspiratorial reason which resonates with a belief perpetrated by a political party;
  • overlooks that the April 2017 meeting with the Presidency was, as the Presidency email itself shows (vol 9, page 687) for a meet and greet and had nothing to do with the remedial action, but the Bank prefers a conspiratorial purpose as that seems to resonate with media-induced public opinion;
  • overlooks that “the mere fact that audi alteram partem was not observed does not by itself justify an inference of bias” (CompComm v GCB 2002 (6) SA 606 (SCA) para [16]);
  • overlooks that public opinion, however strong, is not an appropriate substitute for the rule of law and is in fact an undesirable and dangerous measure for what is in the interests of justice;

In addition to these, the Reserve Bank overlooks another crucial inquiry in the determination of whether or not the Public Protector has breached her constitutional obligation and it is this.

The Constitution, in s 182(1), confers upon the Public Protector the power

  • to investigate conduct,
  • to report on that conduct, and
  • to take appropriate remedial action.

There is no suggestion that she has not investigated the conduct complained of by an experienced Senior Counsel.

There is no suggestion that she has not reported on that conduct as the report itself attests.

There is no dispute that her remedial action was inappropriate. She is not challenging the high court’s decision in that respect.

But does taking inappropriate remedial action constitute a breach of her constitutional power?

One can answer that question by way of a rhetorical question in relation to Judges. Courts are enjoined by the Constitution in s 165(2) to be independent and apply the law impartially and without fear, favour or prejudice.

Does a Judge who makes a ruling based on wrong legal principles thereby fail to act impartially? If the answer to that question is no, why should it be yes in respect of the Public Protector?

Well, this Court answered that question in the negative in S v Basson 2007 (3) SA 582 (CC).

In that case the State raised a litany of complaints against the trial Judge, accusing him of bias because he “erred consistently and drammatically” and in favour of the accused. Among the examples mentioned were

  • that the trial Judge admitted evidence taken on commission in the USA without permitting the accused to respond to that evidence;
  • that the trial Judge permitted two State Counsel to cross-examine the accused;
  • that the trial Judge “misunderstood much the evidence presented” and made erroneous factual findings that were prejudicial to the State and exculpatory of the accused;
  • that the trial Judge accepted implausible evidence from Dr Basson which was contradictory and not borne out by the record;
  • that the trial Judge dismissed the State’s objection to a line of cross-examination that sought to establish whether the witness had discussed his guilt with his attorney. The ground for the objection was that the information sought was subject to attorney-client privilege.  The trial Judge dismissed the objection on the ground that privilege attaches to the attorney and not the client.

This Court accepted that these were misdirections by the trial Judge. But did it find that this was evidence of bias or failure to apply the law impartially and without fear, favour or prejudice? No! This Court said

“[100] In respect of this second category of complaints, it is clear that at least one of the trial Judge’s interlocutory rulings was based on wrong legal principles and we accept that in many of the examples referred to by the State another court might have reached a different conclusion on the facts. Some aspects of the evidence of the respondent (for example, as to the financial principals) appear somewhat improbable to us. However, this Court is not sitting in judgment on the factual findings made by the trial Court. It is the issue of bias which has to be adjudicated.

[101] The fact that a trial Judge may make an interlocutory ruling mistakenly does not provide weighty material to support a conclusion of bias. Nor does the Judge’s refusal to exercise his discretion to call further witnesses.”

The Public Protector took inappropriate remedial action. She made a mistake or misdirected herself in law.  Why should that be cause for a finding of bias against her when it is not in respect of a High Court Judge?

The Public Protector had a meeting with the Presidency and the State Security Agency at her offices without the presence of the Reserve Bank. She had two separate meetings with the Reserve Bank without the presence of the Presidency and the State Security Agency.  Why should that be evidence of bias when this Court found that admitting evidence on commission without affording the accused the opportunity to respond to that evidence does not amount to bias?

The vulnerability aspect discussed at the meeting with the State Security Agency related to Judge Heath’s media statement concerning a run on the banks. The substance of the report, and the final remedial action, was not discussed at all.

We submit, with respect, that there is no merit in the charge that the Public Protector breached her constitutional obligations.

But the declaratory order was not properly sought. It was raised for the first time in replying papers.  It is impermissible to mount a new case for the first time in replying papers.  This is not a hard and fast rule, and may be relaxed in exceptional cases (Mostert and Others v Firstrand Bank t/a RMB Private Bank 2018 (4) SA 443 (SCA), at para 13).

There are no exceptional circumstances in this case. The Reserve Bank knew when it filed its review application about what it terms “undocumented meetings” and from these it drew inferences unfavourable to the Public Protector.  It should have sought the declaratory order at that stage as that would have afforded the Public Protector an opportunity to deal with it under oath, not in heads of argument.

As it happens, the reply had been deposed to on Monday 27 November 2017 and argument was scheduled for the following Tuesday and Wednesday at which the Public Protector had to resist not just the Reserve Bank’s review application but two other applications by ABSA and National Treasury. We are instructed that all 3 applicants insisted on the matter being heard on those days because of the damage they claimed the remedial action was causing to them. We are instructed also that there was not much sympathy from the Bench either for the Public Protector for a postponement so that she could prepare properly and fully.

The Public Protector never had an opportunity to deal with what is, in effect, an existential prayer. As we know from EFF v The Speaker, a finding that a constitutional being has failed in her constitutional obligations sounds a death knell to any prospects of remaining in office.  With such an outcome in prospect, a prayer such as this cannot fairly be introduced for the first time a week before argument, especially when the Reserve Bank knew all along that this was its intention.

Appropriate relief in this respect is to remit the matter to the high court so it can be dealt with fully and comprehensively under oath, or by this Court after a full ventilation under oath.

In any event, this Court has re-affirmed (in Tasima 2017 (2) SA 622 (CC) at paras 221 to 223 & 231) the principle that a Court is not free to grant relief that has not been sought. At least in SASSA v Minister of Social Development the Minister had been called upon to show cause why a personal costs order should not be made against her. On that ground this Court may dismiss the Reserve Bank’s counter-appeal.

THE PERSONAL COSTS ISSUE

Again, the Reserve Bank ambushed the Public Protector with this prayer in its replying affidavit (vol 7, page 546, para 58). It is an unprecedented prayer as never before has such a costs order been sought against a Public Protector or the Head of any Constitutional Chapter 9 Institution as far as we know.  That alone should have prevailed on the high court to adopt the same approach that it did in relation to the declaratory order, and direct that the Public Protector be afforded sufficient time to consider the issue and deal with it properly under oath.

She was not afforded that opportunity. This was sprung on her a week before the hearing of argument in 3 applications by 3 different applicants with 3 different sets of Counsel.  She had only 1 set of Counsel (1) who had 2 days to draft answering affidavits and settle them, (2) in 3 separate applications (3) 2 days to draft and settle heads of argument (4) in 3 separate applications (5) and just over a week to go through an entire record of 3 separate applications before arguing those 3 separate applications on 5 and 6 December.

This hardly conduces to the resolution of a dispute in a fair public hearing as s 34 of the Constitution requires.

In any event, the personal and punitive costs order against the Public Protector is both undesirable and inappropriate in the circumstances of this case.

  • Making decisions founded on an incorrect appreciation of the law or legal principles does not establish bias or bad faith. This Court tells us in S v Basson (2007).
  • It does not establish incompetence either. many high court judges and in the SCA get the law wrong from time to time and are set right by this Court. No one is suggesting that they are incompetent, or that they have breached their s 165(2) Constitutional obligation or duty. Why should that be so in the case of the Public Protector, or any Head of a Constitutional Chapter 9 Institution?
  • Failing to observe the audi principle does not by itself justify an inference of bias. The SCA tells us in CompComm v The GCB (2002).  So, when the Public Protector met with the Presidency, and did not subsequently meet with the Reserve Bank on what she discussed, she was not being biased against the Reserve Bank.
  • Committing procedural irregularities in an investigation is not to act in bad faith. There are remedies in law for that, including a review application.  It has proved effective in this case.
  • The Public Protector did not act unreasonably in opposing the 3 applications in light of the fact that both the Judge Heath and Judge Davis, independently of each other, concluded that the lifeboat transaction was unlawful.
  • The Public Protector did not discuss the final report or new remedial action with anyone.
  • The high court conflates the principles of fairness on the one hand and bias on the other.
  • The Public Protector did not intentionally file documents in a haphazard manner. She had 3 substantial review applications to contend with.

The high court order has now given impetus to costs orders being sought against the Pension Funds Adjudicator in applications brought against her for the setting aside of her determinations. It will not be long before the same personal cost orders are sought against the Fais Ombud for calling out Ponzi schemes.

Next, personal costs orders may be sought against the Auditor-General (now that he has been given teeth to hold errant organs of state accountable) when reviews are sought against his reports.

On this costs issue, too, the appropriate relief is to remit the matter to the high court so that it can be dealt with fully and comprehensively under oath, or by this Court after a full ventilation under oath, or this Court should set aside the high court decision.

Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996)

F or anyone (whether a South African or a visitor, lawyer or not) who wants to understand the foundation of South Africa’s constitutional project, a reading and understanding of the Certification Judgments is an indispensable pursuit. In these two cases, the Constitutional Court convened to consider whether each of the provisions the Constitution complied with all 34 constitutional principles that had been debated and finally agreed at the Constitutional Assembly comprising all political formations in the country. The task was an onerous one. It entailed the court measuring each and every provision of the new Constitution, viewed both singly and in conjunction with one another, against the stated Constitutional Principles, irrespective of the attitude of any interested party, and then not only recording its conclusions regarding that exercise, but also making plain its reasons for each such conclusion.

In the first judgment, the Constitutional Court declined to certify the Constitution as complying with all 34 constitutional principles. It was in the second judgment that it did.

Dubbed “the solemn pact”, the 34 Constitutional Principles, which are still relevant today in the interpretation of the Constitution and development of SA’s relatively nascent constitutional jurisprudence, are listed in this document.

Of significance is the fact that everyone was invited to provide any objection s/he may have to the certification of the new Constitution and the basis for that objection. In the result, the court heard oral argument over a period of 12 days in July and November 1996. This was a particularly thorough process.

Read Certification here:

Related Documents

Certification 1

34 Constitutional Principles

By |2019-02-08T16:27:03+02:00Feb 8th, 2019|Cases of Interest, Constitutional Court, Judgements, South Africa|Comments Off on Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996)