It is often said that “the Pen is mightier than the Sword”. Quite so, in the South African media space, but not in the sense sought to be conveyed by the epigram.

It is with concern that I watch ordinary South Africans, in the absence of rational and informed voices in the public space, drinking copiously from the font that is the supposed wisdom of “opinion makers” on esoteric matters of law they know little (if anything) about, and are therefore caught up in a maelstrom of ignorance.

The Bar discourages its members from engaging in public debate on matters that are pending in the courts. This may inadvertently be a contributing factor to the dominance in public media of ill-informed, and dangerously misleading, commentary on legal matters. Perhaps, given the changing times and proliferation of fake news and ignorance, it is a prohibition that the Bar should seriously consider revisiting.

In an environment where uninformed legal commentary monopolises the public space, the rule of law is sure to take a back seat while the truth gets lost in the process.

We have seen many examples where court rulings were interpreted based on bias, prejudice, perception and preconceived narratives, instead of the actual basis of the ruling. For example, the persecution of President Zuma in the media on a charge of which he had been acquitted by a court of law; the praising of Minister Gordhan for “winning” a case he had in fact lost, it being suggested that he “achieved what he wanted”; the excoriation of the Chief Justice for dissenting and characterising the majority’s judgment as judicial overreach in a case in which the media seemed intent on the opposite outcome.

Too often we find that the media and, by extension, the general public, expect the court to rule in a particular manner because it fits what to them seems as common sense. One example of this phenomenon comes following a 9 March 2018 High Court order that the assets of the Gupta family be released from state capture (pun intended) because, said the court, there is no reasonable possibility that a confiscation order may be made.

The Gupta Asset Forfeiture Case

Many opinion makers reacted quite emotionally at the outcome of that case! They blamed everything from the (supposed) incompetence of the prosecuting authority to the (supposed) incompetence of the Judge. There was even a theory that the National Director of Public Prosecutions may have deliberately assigned people to the “prosecution” of the case and withheld resources from them so that they failed. That the state was led by Senior Counsel of considerable experience and ability was conveniently disregarded.

When one reacts from an emotional space because one’s preconceived narrative has been disturbed, it becomes difficult to take a step back and objectively assess whether the Judge may have been right in his assessment of the evidence before him, and may in the process have come to the only reasonable conclusion on that evidence.

When you only reason from the script that the Guptas are guilty of state capture (a “criminal offence” of media invention from the Public Protector’s report titled “State of Capture”), it could easily be believed that everything they own is “proceeds of crime”. However, nothing in life is that simple. So, when the Judge deviated from that script, either he or the “prosecuting” team was deemed incompetent.

This is a dangerous phenomenon which poses a serious threat to the Rule of Law.

Let me hasten to state that I express no view on whether the Judge was right or wrong in his finding. I am simply cautioning against being driven by assumptions, especially when fuelled by prejudice, and urge us all to get back to the Rule of Law. Law is not actuarial science. It brooks no assumptions but rebuttable presumptions.

The Gupta case was not a criminal prosecution. It was a civil case brought in terms of chapter 5 of the Prevention of Organised Crime Act (POCA). This is how it works:

  • First, the Asset Forfeiture Unit (AFU) – a unit within the National Prosecuting Authority – seeks a restraint order from the High Court to search the premises of the respondents (the Guptas) and seize all their “realisable property” if they are suspected of having committed a criminal offence. It matters not whether or not the assets themselves are “proceeds of crime”.
  • Second, the restraint order is obtained without giving notice to the respondents for fear they may hide or dispose of them.
  • Third, the order gives the respondents an opportunity to show cause, typically on 24 hours’ notice, why the restraint order should not be made final.
  • Fourth, if they fail to show cause, the order is made final. That means the respondents cannot do anything with those assets and, where feasible, they are removed and placed in the care of a curator appointed by the court at the instance of the AFU.
  • Fifth, at this stage, all the AFU has to show is that there are reasonable grounds for believing that a confiscation order may be made against the respondents in respect of those assets. If it does, the restraint order will be made final. If it fails, the order will be discharged. That means the assets will be released from state capture. A confiscation order is made only once a conviction has been secured on the criminal offence of which the respondents were suspected.
  • Sixth, whether or not the order is made final, the prosecuting authority will, if it still believes that there are reasonable prospects of a successful prosecution, take the matter to trial on the alleged criminal offence. Just to be clear: There is no such thing as a “state capture” criminal offence. It is a media invention.
  • Seventh, once the respondents (accused) are convicted, the AFU will then apply for, and obtain, a confiscation order. That means the assets will be lawfully owned by the state. If the respondents are acquitted, the respondents will be entitled to the release of their assets.

All that has happened in the case against the Guptas in the Bloemfontein High Court is that, after granting the restraint order and affording the Guptas an opportunity to show cause why the restraint order should not be made final, the Guptas took that opportunity and showed that there are no reasonable grounds for believing that a confiscation order may be made. In other words, they showed that there are no reasonable prospects of a successful prosecution and conviction.

That an expectation may have been created in the media that the Guptas’ guilt of “state capture” was a forgone conclusion when their properties were raided to much delirious applause is completely irrelevant.

This does not mean the end of the road for the prosecution of the alleged offences against the Guptas. It does not mean the Judge is incompetent or that the prosecution is incompetent. At best for those of us who believe in the system, it means that the Rule of Law still trumps the Rule of ill-informed opinion leaders in South Africa.

But more than a year has now passed since that 9 March 2018 judgment. The question that arises is whether the state has since pressed on with its criminal case and obtained a conviction. I certainly have not heard anything in that regard. Yet the narrative persists that the Guptas are “guilty” of “State Capture”.

At the risk of being accused of siding with the Guptas, or of being labelled a “Zuptoid”, I must stress that the reality is that until they have been found guilty in a court of law, it remains an allegation and cannot be posed as a foregone conclusion.

Wisdom lies, I believe, not in abrogating our judgment and reasoning capability to the baying mass that is a cohort of self-appointed legal analysts who have never seen the door of a law lecture room.  As journalists play a significant role, which comes with huge responsibility in shaping public opinion, they should be cautious not to run the risk of overreaching in matters of law they know little, if anything, about. There is much virtue in seeking at least a couple of opinions from those trained in the discipline before launching headlong into a definitive lay opinion piece about complex matters of law.

The Rogue Unit Judgment That Never Was

Here is a most recent example of such overreach. In the rogue unit (or investigative unit) skirmish between the Public Protector and the Minister of Public Enterprises a view that the SARS rogue unit is lawful (despite prima facie evidence to the contrary) has now been put forward by a journalist based on a recent judgment in Wingate-Pearse v SARS. This is being put forward as definitive authority for that proposition.

On a close reading of the Judgment, however, it is not.

(I pause here to point out that I refer to the unit as the rogue unit because that is the generally used term.)

There is a clear distinction between the concepts obiter dictum and ratio decidendi in a court judgment. In short, at its most basic definition an obiter dictum is an observation that a judge makes in a judgment but which is not necessary for purposes of the order ultimately made in that judgment. A ratio decidendi is the basis for the order made in the judgment.

An obiter dictum is not binding on lower courts or tribunals but may have persuasive value. A ratio decidendi is binding on lower courts and tribunals. It is also binding on courts of similar status unless the later court is satisfied, in a reasoned judgment, that the earlier judgment is clearly wrong.

Thus, when I read an article such as the one titled “Rogue Unit” ‘lawful’: High Court judgment bolsters Pravin Gordhan’s case against Public Protector, where it is pronounced that the Wingate-Pearse judgment confirms that the rogue unit is lawful, that it must be relied upon by the court now seized with the Minister’s application to interdict and set aside the Public Protector’s report in which she found that the rogue unit is unlawful, and so the Public Protector will lose that case, I cringe.

It is clear to me that the author has not sought legal opinion on a proper reading and interpretation of the judgment on which she relies for her pronouncement. Any lawyer worthy of their robes who has read the judgment will likely find that the judgment does not say what the article purports it says.

But, lawyers being lawyers, there may still be differences of opinion (whether genuine or by design is often difficult to tell) about which aspects of the Judgment constitute obiter dicta. Where there is a will to reach a particular preconceived conclusion in this fractious debate about the lawfulness of this rogue unit, people have shown creative ways of getting there, whatever the facts. Ultimately, it seems to me that only the highest court may finally settle the debate – the sooner the better for us all.

Nowhere, whether in the order or in the text of the judgment itself, does the Johannesburg high court in Wingate-Pearse in fact say the rogue unit was lawful. The journalist appears to have lifted one paragraph, from a 41-page judgment of 87 paragraphs, as authority for the proposition that Judge Meyer found that there was no factual basis for saying there existed a rogue unit within SARS. The paragraph appears under the rubric “Material Disputes of Fact”.

But in that paragraph all Judge Meyer does is relate the Nugent Commission’s “findings” on the issue and Judge Kroon’s evidence before that Commission. Judge Meyer characterises those observations as “findings”. It is not immediately clear how these can be “findings” when Justice Nugent did not investigate the matter. But nowhere does Judge Meyer say he agrees with those “findings”. And nowhere does he make an order to that effect. That renders Judge Meyer’s observations themselves obiter dicta.

In fact, it can arguably be said that the ratio decidendi on this aspect of the case is that the rogue unit was established long after SARS had investigated Mr Wingate-Pearse’s tax affairs, and that it was not at all involved in that investigation. This comes in the very next paragraph lifted by the journalist.

The case concerns an additional assessment for income tax on Mr Wingate-Pearse who was accused of having under-declared his income. Part of his multi-pronged defence was that he had been subjected to unlawful search and seizure operations and unlawful interceptions by an unlawful rogue unit. This is what prompted the Judge to quote from the Nugent Commission report which had been introduced by SARS. He did not say he shares those observations.

The ratio decidendi of the judgment is this:

  • Because Mr Wingate-Pearse did not dispute material factual allegations made by SARS in its affidavits, the Judge had no choice but to accept the SARS version of facts and dismiss Wingate-Pearse’s version and, with that, his application too (this is known as the Plascon-Evans rule);
  • Mr Wingate-Pearse argued that if his prayer 1 for a declaratory order that the rogue unit was unlawful was granted, that would mean that any information obtained by that unit could not be used against him (a so-called “poisoned tree defence”). The Judge said, rightly and with reference to a 1996 Constitutional Court decision, that this is a legally flawed point of departure because it is for the trial court (the Tax Court) to make a determination on whether or not to admit into evidence fruits of a poisoned tree, even if it were to find in his favour. That was the end of that prayer. It was disposed of in 3 paragraphs. The Judge did not rule on the lawfulness or otherwise of the rogue unit because he did not have to do so in light of this finding.
  • As regards the factual disputes about the SARS calculations of Mr Wingate-Pearse’s tax liability, the Judge said, again rightly, this is an issue for the Tax Court to determine as a specialist court.

Everything else is obiter dicta.

The Takeaway

So, it would seem that the article is (wittingly or unwittingly) misleading. This worries me, because too often South Africans rely very heavily on the media as the source of their information. Journalists carry the heavy burden of ensuring that they protect the interest of the public by highlighting the truth and in the process ensuring that they themselves do not deceive, whether by design or out of incompetence.

It is therefore incumbent on journalists to ensure that, when their subject matter relates to a point of law, they must do proper research, otherwise they could tread on dangerous ground and lead the public down the wrong path.

In this case people may now expect – on the assumption that the journalist was right – that the high court seized with the application of the Minister of Public Enterprises against the Public Protector on the latter’s findings and remedial action in relation to the rogue unit must, of necessity, make orders in favour of the Minister because (as the journalist has said) the high court has already found that the rogue unit was lawful.  If that does not happen, the public is then likely to feel that the judiciary is “captured”.

This has already happened in the recent past when another journalist publicly deprecated two Judges of the Supreme Court of Appeal who formed part of the majority (in a 5-panel Bench) for rendering a judgment (in relation to two senior public prosecutors) that departed from the script the journalist had already scripted. This prompted followers of the journalist on social media to join the fray lambasting the judges not so much for their reasoning as for their unpopular conclusion. They wanted to see blood. The judges did not give them blood. So, they concluded the judges are “captured”.

This is dangerous ground and a slippery slope to lawlessness where judges are trusted only if they deliver judgments as expected by opinion makers.

We dare not go there and, dare I say, Journalists stand between us and that otherwise certain reality.