In this Fourth Segment, Professor Marwala gives us his perspective on, among other things:
In this Third Segment, Professor Marwala gives us his perspective on, among other things:
In this Second Segment, Professor Marwala gives us his perspective on, among other things:
In this First Segment, Professor Marwala takes us through some of the highlights of his formative years in academia. These include: his early flirtation with Science at school and his winning the Science Olympiad the “sanitisation” of his “Bantu education” his views on Leadership his appointment as Rector of the United Nations University and as Under Secretary-General of the UN.
The purpose of this short note is to summarise for the benefit of the general public, what the case was about in the Johannesburg High Court between President Cyril Ramaphosa and former President Jacob Zuma on Thursday 12 January 2023.
Because I represent an organisation that seeks to be admitted as friend of the court (amicus curiae), and I addressed the court briefly on that score, I shall not venture a comment on the merits of the argument of any party.
The object of this note is simply to state what the case is about without venturing into the merits or prospects of either party’s success, and then provide all the pleadings and written argument that is before court. I shall provide the judgment of the court, too, when it comes out. [PS Find the Judgment here –> President of the Republic of South Africa v Jacob Gedleyihlekisa Zuma 20230116
xxx
On Thursday 12 January 2023 extraordinary scenes played out in Court GC at the Johannesburg High Court. It was a day when a sitting President of South Africa faced off with his predecessor through lawyers in court.
President Ramaphosa, the sitting President of the ruling African National Congress (ANC) of Nelson Mandela [and also President of South Africa by dint of that position] had launched urgent court proceedings in which he seeks to be “excused from appearing before this Court on 19 January 2023 or on any other date pursuant to the certificate and/or the summons.”
The summons referred to had been issued by the sitting President’s predecessor, President Zuma, in December 2022. It summoned the President to appear in person at 09h30 on 19 January 2023 in Court GD of the Johannesburg High Court in connection with charges of (1) being an accessory after the fact to criminal offences allegedly committed by a senior prosecutor and a journalist, and (2) in the alternative, obstructing or attempting to obstruct the ends of justice.
The certificate referred to (known as a certificate nolle prosequi or “not to prosecute”) had been issued by a Director of Public Prosecutions (DPP) in November 2022. In it, the DPP certifies that she has seen all the statements and affidavits on which the charges in question are based, and that she declines to prosecute “any person in connection with this matter” at the instance of the State.
In South Africa, private citizens may embark on a private prosecution of another person if the national prosecuting authority (more accurately a DPP) issues a certificate nolle prosequi certifying
The private citizen must have a material interest in the prosecution and may pursue it either personally or through lawyers.
Ordinarily, the certificate not to prosecute specifies the particular persons by name whom the DPP has decided not to prosecute at the instance of the State. That certificate then serves as a licence for the victim or materially interested person to institute a private prosecution against the persons named in the certificate. On this occasion, the DPP did not mention in the certificate the specific persons whom she has decided not to prosecute at the instance of the State in relation to the case in question. She stated that she has decided not to prosecute “any person in connection with the matter”.
Whether the President is “any person in connection with this matter” by reason of his name appearing in the docket as a witness and one to whom a complaint was lodged by the former President in connection with the matter is perhaps an issue that the High Court may decide.
The certificate lapses after 3 months if no private prosecution is instituted.
In his application, and on 12 January 2023, the President also asked the court to stop his predecessor from pursuing a private prosecution against him, or to take any further steps giving effect to the certificate and the summons.
He also sought costs of his application to be paid by his predecessor, alternatively by his predecessor’s legal representatives, and any other respondent that opposes the application, on an attorney and own-client scale, such costs to include the costs of two counsel.
Attorney and client costs are on a higher scale than “party and party” scale of costs. They are usually reserved for litigants who are regarded by the court as litigating vexatiously or in bad faith or recklessly or generally in abuse of the processes of the court.
However, at the start of argument, the President’s lawyers withdrew the costs claim against lawyers and sought costs only against the former President and on the lower party and party scale.
The former President argued that the President’s application is not urgent and that the court has no jurisdiction to entertain it.
In short, the Full Court of 3 Judges of the High Court was asked to consider and decide the following issues:
This is what is referred to as “Part A” of the application. The orders sought in Part A are usually intended to endure until the outcome of the application in “Part B”.
In the same notice of application, and in what is termed “Part B”, the President intimated that in due course he will seek orders in the following terms:
This last order as to costs, as already pointed out, was withdrawn at the commencement of argument. It now appears that costs will be sought on the lower party and party scale against the former President and not against his lawyers.
The main bases for the orders sought in “Part B” seem to be two-fold: the first is that the former President has failed to comply with the requirements of the statute that regulates the institution of private prosecution: the Criminal Procedure Act. The second is that the private prosecution has been instituted for an ulterior purpose.
Driven by legal and constitutional issues that arise in the application, BlackHouse Kollective Foundation filed an application to be admitted as a friend of the court (amicus curiae) in order to address four issues of law. These are:
The court took the view that “the scholarship which [the amicus] has marshalled” may on the face of it be valuable to the main debate in “Part B” and not in the interdict application in “Part A”. The court then invited the amicus to approach the Deputy Judge President for purposes of facilitating a “consent order” (an order by agreement of all the parties) for participation of the amicus in the main debate, perhaps even as an interested party.
As I pointed out at the beginning, I represent the amicus in those proceedings. I shall thus not venture into the merits of the various arguments by any party or by the amicus.
I shall say this, however: the President withdrew his prayer for punitive costs against the former President’s lawyers after the amicus had filed its application and heads of argument raising concern about that very issue and submitting that it may be seen as constituting harassment and abuse of court process. The argument is set out in the written submissions and court address that was handed up in court by the amicus.
The Full Court indicated that it will hand down judgment in Part A of the President’s application on Monday 16 January 2023 at 09h30.
Here are the Pleadings:
Read the President’s Notice of Motion here –>Notice of Motion
Read the President’s Founding Affidavit & Annexures here –>FA & annexures
Read President Zuma’s Answering Affidavit here –> Pres Zuma Answering Affidavit & annexures
Read the DPP’s Answering Affidavit here –> DPP Answering Affidavit
Read the President’s Replying Affidavit here –> Pres Ramaphosa Replying Affidavit
Read the Amicus BHK Application here –> Amicus BHK Application
Read Pres Ramaphosa’s Answering Affidavit to Amicus BHK Application here –> Pres Ramaphosa Answering Affidavit to Amicus Application
Here are the written arguments:
Pres Ramaphosa Argument –> Pres Ramaphosa Heads
Pres Zuma Argument –> Pres Zuma Argument Final
Amicus BHK Argument –> BHK Heads of Argument
Amicus BHK Note for Argument –> Oral Argument
The NPA and DPP did not file any written argument of which I am aware.
Oral argument can be accessed here –> Ramaphosa vs Zuma court case – YouTube
French social psychologist, Gustave Le Bon (1841 – 1931) and American “public relations” theorist, Edward Bernays (1891 – 1995), are generally regarded as propaganda scholars. Their works have been consulted by numerous governments and corporations around the world on how to influence group psychology by manipulating the content of the information that the public consumes. This is a phenomenon colloquially known as propaganda.
In his seminal work, La Psychologie des Foules (1895) – the English translation of which was first published in 1896 under the title, The Crowd: A Study of the Popular Mind – Le Bon wrote about the power to the human psyche of the repetition of an idea or statement. (see The Crowd: A Study of the Popular Mind (Boomer Books, Waking Lion Press, 2006 ed), ch 7: “The Leaders of Crowds and Their Means of Persuasion”, pp 98-99).
Here is some of what he wrote on the power of repetition:
It is in this context that I consider the attack by Marianne Thamm, a white woman who writes for the Daily Maverick, on a select group of Black advocates in an article titled The major foes of South Africa’s constitutional democracy star in Busisiwe Mkhwebane’s Fight of a Lifetime.
The piece comes on the back of “evidence” apparently presented by evidence leaders at the parliamentary inquiry into the fitness of the Public Protector to hold office. It is the presentation of that “evidence” for all to see that set in motion a train of events, including publication of this piece, with potentially ruinous consequences for the Black advocates concerned.
This does not appear to be by accident. It is difficult not to conclude that it may be the beginning of the constant repetition of a narrative aimed at “cancelling” the targeted Black advocates. All four Black Senior Counsel are currently leading in various ongoing litigation against government and the white business establishment on behalf of clients who have a right to legal representation in our democracy:
It would be naïve to exclude this context when considering the Daily Maverick attack on these targeted Black advocates. The only reasonable conclusion would be that the tainting of these targeted Black advocates by constant repetition in the media (by innuendo since there is no evidence of criminality or unprofessional conduct) that we are “beneficiaries” of monies “funnelled” through the office of the Public Protector. That way, it is hoped that our voices will be muted and our professional standing as Officers of the Court is forever compromised. The ripple effect of that is obvious, and that is probably why the names of less senior advocates on brief with us in various matters have also been unfairly published. Either they are also accused of malfeasance or, more likely, the message seems to be a warning to them not to associate with us.
***
Neither the journalist nor the evidence leaders cared to hear the side of the targeted Black advocates on the “facts” before putting out material that suggestive of professional misconduct in the public domain. Neither notice nor hearing was afforded. As it turns out – at least in my case – the alleged “facts” are wrong. The leading evidence leader has admitted as much to me that “the figure was incorrect”, and that she will “correct it”.
But that’s hardly the point. Why was it necessary for the evidence leaders to parade our names (leaving out many others, including white Counsel) in their pursuit of proving the Public Protector unfit to hold office? Why was it necessary for them to do this even without giving us notice? Why couldn’t they verify with us the accuracy of the “facts” on which they rely before going public with such potentially damaging information?
And these are not even allegations or accusation. In my profession, there is a practice known as “self-reporting” if there is an accusation or allegation of unethical conduct, but which has not been formally reported to the Bar Council, or if Counsel suspects there may be something possibly amiss in his or her own conduct that may require the attention of the professional committee. The expectation is that Counsel knows (or should reasonably know) when a matter of his or her own conduct requires the attention of the Bar Council. One need not first be reported.
So, with that in mind, I asked the evidence leader directly:
“Are you accusing me of anything? If so, of what exactly? I ask so that I can decide how to approach what you did this past week.”
Her answer was an emphatic: “No I am not accusing u of anything”.
Then she apologised and said she will do it openly during the parliamentary committee sitting. I look forward to learning of the precise content of the apology.
As part of proving their case that Adv Mkhwebane is not fit to hold office, the evidence leaders (both advocates) had it in their heads that it would be a good idea to expose for public consumption the fees that a select number of Black Counsel had earned from rendering legal services to the Public Protector on instruction from various attorneys (8 in my case) to the glaringly obvious lack of attention on white counsel, white law firms and other black counsel who, it seems in their view, do not fit the narrative they seem intent on putting forth. Did they do this deliberately? The lack of focus on white counsel and white firms makes the attention on targeted Black Counsel a racially slanted exercise.
Anyway, I digress. My purpose here is not to engage with the unpardonably louche conduct of the evidence leaders. I have started a process of dealing with that elsewhere. My focus is the Daily Maverick takedown of specifically targeted Black advocates for doing what advocates in the referral profession do: render legal services to a client through an instructing attorney on fees agreed in advance with the instructing attorney.
That the targeted Black advocates should earn a fee, over a period [4 years and 5 months in my case], from rendering legal services to an institution that is funded by government (ultimately taxpayers) seems to stretch the bounds of credulity for this white journalist. Her interest seems to have been triggered by the amounts the targeted Black advocates are alleged to have earned: “millions of rand”, she pronounces with apparent disgust. One could only imagine what her reaction would be if she were to hear the amounts the white advocates earned.
Labelling these targeted Black advocates variously as “those who are opposed to accountable government”, “a cluster of well-known professionals” and “an A-list of high-powered beneficiaries”, she spares hardly an adjective or verb that is suggestive of criminality. For example, according to her, these targeted Black advocates did not earn their fees from rendering legal services. Instead, they “benefitted handsomely” from the litigation “funnelled through” the Public Protector’s office.
By innuendo, these carefully chosen words are intended to suggest malfeasance or corruption or worse. But on what evidence? Did she even bother to ask the targeted Black advocates she so callously defames? Of course not. That would spoil her broth.
Notice the careful choice of the verb “funnelled”. It seems intended to create the impression that these are monies diverted from elsewhere. Why? Well, because these Black advocates “lost all these cases” – a lie of course, but why would she let facts get in the way of a good yarn?
Quite apart from the fact-free merits of the publication, let us consider the journalistic value of the article.
***
The Daily Maverick article is a wide-ranging piece of work, although labelling it as “work” is rather charitable. The piece lurches imperceptibly from partisan political commentary to didactic UNreasoning to what inevitably comes across as a white superiority sermon. As a journalistic piece it is incoherent, a language understood only by fellow travellers. As a propaganda tool it is blunt and unlikely to persuade a discerning reader.
It is difficult to understand how this piece made it past the sub-editor’s desk, let alone being published. Surely the editor could discern the significant reputational risk to the media house? Perhaps not? Perhaps this is the sort of unbridled attack on Blackness that we should come to expect from the publication?
The measure of a good script is usually a coherent plot. That normally comprises a clear thesis, focused and unwavering reasoning aimed at proving the thesis, and a conclusion that brings everything to a logical end.
Writers are often encouraged to flesh out the plot with colourful characters and vivid settings that will enhance the story and grab the reader’s attention. The journalist does this with aplomb. Characters like Adolf Hitler feature prominently alongside Black advocates. The imagery is disturbing. But that is the point: to shock and awe and, ultimately, cancel the targeted Black advocates by resorting to thoroughly disreputable imagery.
In a work of fiction, this is well and good. But playing Russian roulette with people’s professional careers that could trigger all forms of potentially ruinous consequences is just mean-spirited. Already, there are people who believe – simply on the basis of innuendo – that these targeted Black advocates “looted” the public purse.
But even in a work of fiction – which this article largely is – staying focused on the thesis is key. Nothing is worse than a good plot idea that grows ever more chaotic as the story develops. But Daily Maverick‘s Marrianne Thamm – who has apparently written books – appears to have suspended this rudimentary literary exploit as she lurches directionless from one chaotic sub-plot to the next in quick succession.
For example, what has Ngalwana’s representation of Dr Iqbal SURVÉ to do with Adv Mkhwebane’s fitness for office? Ah! Rogue by association. That’s it. If Ngalwana represented Mkhwebane and now represents Dr Iqbal SURVÉ, then abracadabra, Ngalwana must be a rogue. “Dots have joined …”, she claims triumphantly. Such is the didactic UNreasoning of the piece.
Stumbling from, at once, excoriating and praising politicians (Malema, Sisulu, Zuma – even Pallo Jordan is dusted off from politico-academic oblivion in order to make a desperate point about the Freedom Charter somehow, conveniently, birthing the Constitution) to judges (Hlophe and Sachs) to lawyers (Mpofu, Sikhakhane, Ngalwana, Xulu, Masuku, Seanego – ignorantly making no distinction between attorneys’ and advocates’ roles, if she even understands the distinction) the piece meanders haplessly into a lump of shapeless bile – which in itself inadvertently paints the writer as a foe of democracy.
So, what next? Does one sue for defamation? Perhaps. But the damage is done. No amount of court-awarded damages will undo it. The writer and her lawyers know this. To her and her bosses R500,000 is a small price to pay for the damage they wanted so desperately to inflict on those they consider out of step with their view of the world they still want maintained for posterity. An apology? A retraction? From a media house? What good will that do in a scandal-enthused public?
What about defamation against evidence leaders? Does parliamentary privilege shield them in this case? Is that why they felt no compunction in doing what they did? I find it difficult to believe that a member of the Bar (as I know it) would deliberately seek to malign colleagues in this fashion. At least that is the member of the Bar in me. I suppose time and further developments will prove what the correct position is. But can the same be said of a journalist?
One thing is clear, though. The hard work of freeing South Africa from the shackles of totalitarianism of all sorts continues.
On Friday, 29 July 2022, the Judicial Conduct Committee (JCC) of the Judicial Service Commission (JSC) found that former Justice of the Constitutional Court, Johann Kriegler, had breached the Code of Judicial Conduct (the Code) when he, on 1 March 2021, made a public statement in the media that Judge President John Hlophe of the Western Cape High Court in Cape Town was “unfit to be a judge”.
The specific provision of the Code in question is article 11(f). That provision requires judges, including retired judges, to “refrain from public criticism of another judge” and act with courtesy and collegiality (which the Code says are “indispensable attributes of a judge”) towards other judges.
It is not a breach of the provision if the judge who does the public criticism does so in circumstances where the criticism relates to judicial proceedings in which the judge being criticised is serving as a judge, or to “scholarly presentation made for the purpose of advancing the study of law” (eg, a lecture or symposium or workshop). Ngalwana’s complaint, however, was that Justice Kriegler’s criticism of Judge President Hlophe was none of these but “mean-spirited and seems to have been intended to sting”.
By the hand of a Judge of the Supreme Court of Appeal (in his capacity as Chairman of the JCC), the JCC ordered Justice Kriegler
“within fourteen days (14) days of receipt of this ruling to retract [the] statement … in the form of an email to [Adv Vuyani Ngalwana SC].”
But why Ngalwana SC? This was, so the JCC reasoned, because Ngalwana – not Judge President Hlophe – is the Complainant.
On the face of it, this reasoning seemed odd to Ngalwana since the purpose of the complaint was to vindicate the integrity of the Judiciary. He said his purpose was
“to vindicate the integrity, dignity and independence of the Judiciary and the judicial system which are, in my respectful submission, compromised by the sustained wounding public ad hominem attacks of Justice Kriegler on Justice President Hlophe. The kind of sustained attack mounted by Justice Kriegler on Justice President Hlophe is not an attack only on Justice President Hlophe; it is an attack on the Judiciary and the judicial system of South Africa. Not only that, Justice Kriegler’s attack on Justice President Hlophe has given heart to some Judges of the Western Cape High Court, of which he is the leader, to defy his leadership, including refusing to sit with another judge. This kind of attitude has consequently heralded an open season on judges even by journalists, as demonstrated by the extraordinary attack by a journalist of a publication named Daily Maverick on two Justices of the SCA following the judgment in Jiba and Another v General Council of the Bar of SA and Another; Mrwebi v General Council of the Bar [2018] 3 All SA 622 (SCA) …“
Asked by Ngalwana to clarify whether the order that Justice Kriegler send his retraction to him (Ngalwana) and not Judge President Hlophe had not been made in error, the JCC confirmed that
“the order is correct that Justice Kriegler should send the retraction to you, as the complainant before the Judicial Conduct Committee is Adv Ngalwana and not Judge President Hlophe”
And so it was, that Ngalwana – who expressly sought to vindicate the integrity of the Judiciary and not his own – became burdened with a retraction by a retired Constitutional Court Judge of a statement that was not targeted at him; and this by reason of the coincidence of his being the one who lodged the complaint. So, there the matter rests.
***
I have been asked by numerous members of the media to comment on the ruling of the JCC for “sound bite” purposes. In response I have offered to provide the full Complaint, Justice Kriegler’s Response, and my Reply to Justice Kriegler’s Response. I did so because “sound bites” have an uncanny way of taking the meat out of the bones of a case, and leave a skeleton that is all things to all readers. As I believe that the story of this complaint deserves far better treatment than being left to interpretation of “sound bites”, I decided to publish the entire Complaint, Response, Reply and Ruling at the same time on one platform – here.
The only “sound bite” I shall provide is this:
This Ruling of the JCC is not a moment I celebrate. I am truly sad that a ruling of this sort has had to be made about a judge I still respect for his contribution to South Africa’s constitutional jurisprudence. Indeed, one of my favoured quotes (out of many others) from Justice Kriegler’s judgments as a Constitutional Court judge comes from Key v Attorney-General, Cape Provincial Division, and Another (CCT 21/94) [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR 788 (15 May 1996) where he wrote:
“In any democratic criminal justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale. To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international human rights bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by state agencies in the prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.”
In that case an accused asked the Constitutional Court to exclude from evidence in an upcoming trial certain evidence that he said was obtained by unlawful search and seizure operations. The Constitutional Court (per Justice Kriegler) said that is a decision for the trial court to make, not the Constitutional Court before the trial had been concluded.
Anyway, back to my reason for lodging this complaint.
It is my fervent hope, for the sake of the integrity of the South African legal profession, and the Judiciary in particular, that a similar complaint about a judge does not have to be lodged ever again.
Throughout my involvement in the tiff between Justices of the Constitutional Court and Judge President Hlophe between 2008 and 2011, I have always been driven by principle, not some over-zealous desire to defend a human being under any circumstances. In South Africa, there is a deep-seated culture of treating black professionals as somehow lesser creatures than their white counterparts and of deserving less reverence as professionals than their white counterparts. Part of what perpetuates this culture is our own contribution to it as black professionals. I would have none of it.
An observation by Life and Leadership coach, Dr Claudelle von Eck, at the July 2022 official launch of Strategic African Women in Leadership (SAWIL) stings to me as a black South African. She said,
“Systems tend to resist change, and if we’re not addressing the foundations of the inequalities and the root of the problem, then we’re just speaking to the symptoms and not the cause. And if we’re going to step into a new space but just become carbon copies of the system, to emulate the system, then we can’t expect it to change.”
It was as if Dr von Eck was speaking directly to me. Although the observation (made in July 2022) came long after I had lodged the complaint against Justice Kriegler in April 2021, I feel as if I was driven by a burning desire not to become a “carbon copy of the system” that encourages by condoning the unceasing abuse of black professionals through inertia or supine disinclination to speak out and do more in the face of what has become open season on black professionals in South Africa.
I accept that as Counsel, that should never be the motive for accepting a brief. In fact that is the worst possible reason for Counsel to accept a brief because then the line between your duty as Counsel and your personal feelings can easily become blurred. It is, in part, that realisation that informed my decision to pull out of the legal team that represented the Judge President at the beginning stages of his litigation against the Justices of the Constitutional Court.
Having said that, however, I am reminded of Justice Madlanga’s observation that
“As a judge’s make-up, outloook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”
I believe that this is true of us all. If we are truly honest with ourselves, we are all creatures of the societies or communities from which we spring. I am from a society that fights for what it believes to be right, whatever the circumstances. Therefore, even though I know that accepting a brief for principle is not a good idea (as principle tends to be the enemy of effective advocacy) I cannot rule out the possibility of doing so again. In the South African socio-political climate that is defined by race perspectives, some of the sound counsel of the advocates’ profession are just too difficult to internalise.
For a full perspective of the complaint against Justice Kriegler, here are the links to
Justice Johann Kriegler Complaint – Signed 20 April 2021
Justice Kriegler response – 17 June 2021
Reply to Justice Johann Kriegler Response – June 2021
Decision Adv Ngalwana SC against Justice Kriegler – 29 July 2022
This is a Report by Former Judge Willem Heath on the Proceedings and Findings of the PIC Commission of Inquiry into the affairs of the Public Investment Corporation (PIC).
Some of the findings include
The Report also provides a useful exposition of the purpose of Commissions of Inquiry, what is permissible and what is not. In the process, the Report reminds us all what constitutes evidence and what does not in a Commission of Inquiry setting.
It also provides a timely reminder of what the role of Journalists is in reporting on proceedings of a Commission of Inquiry, and where the obligations (and protections) of journalists begin and end in relation to their reporting on Commissions of Inquiry.
Read Full Report here: REPORT OF THE REVIEW OF THE FINDINGS AND CONDUCT OF THE PIC COMMISSION – ADV W HEATH SC – 6 March 2022
You may also be interested in this:
In his 1946 essay on Politics and the English Language, George Orwell succeeded in surgically peeling off the veneer of prosaic respectability from what passes for “modern” English to expose the ugly lies ignominiously hidden beneath.
Mourning the perversion of the English language – ostensibly in the name of modernism but, in truth, with a view to obfuscating and deceiving – he observed that the decline of a language must ultimately have political and economic causes.
Perhaps unfairly, Orwell’s essay sprang to mind when I read a take by the Daily Maverick on a lecture by Judge President Mlambo. I knew immediately that I had to get my hands on it and read it myself. A quote in the Daily Maverick piece left me puzzled and wishing to understand more.
So, I set out to find the lecture itself, and sat down to read it. Wow!
Daily Maverick quoted the Judge President as saying:
“There are no longer assertions that the law can be kept isolated from politics; while they are not the same they are necessarily and inherently linked”
In fact, what the Judge President said – quoting former Chief Justice Langa – was this:
“[T]here is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked”
Read the two quotes again, carefully, especially the first part of each.
A statement that “there are no longer assertions” about a particular worldview is a very different proposition from a statement that says “there is no longer a place for assertions” of that particular worldview. The former is a statement of fact, and whether or not the fact is well-founded is something that can be pursued with the speaker by fact checkers. The latter, however, is the expression of an opinion which is not measured for its plausibility merely by checking facts. One has to go beyond that and probe the reasoning. Facts answer to questions like “what”, “when”, “where” “who”, “how”. Opinions answer to “why”.
Whether or not there are still assertions that law can be kept isolated from politics is to me irrelevant. As a proposition of fact it does nothing to stimulate the necessary national debate and enquiry about whether or not politics plays a role in the determination of cases in the course of Judges applying, in their minds, the law. Of much interest to me, as a lawyer who appears regularly in South African courts, is the proposition that there is no longer a place for assertions that the law can be kept isolated from politics, and that these are inherently and necessarily linked. Now, that piques my interest.
The Daily Maverick piece left me puzzled and wanting to understand more about the lecture because there is a clear dissonance (at least to me) between the first part of the quote and the second. If there are no longer assertions that law can be kept isolated from politics, then to what end must the reader be told in the same sentence that these two are inherently and necessarily linked, except to call readers to arms to demand that assertions that law can be kept isolated from politics remain a distant memory? In other words, why would the speaker tell me that law and politics are inherently and necessarily linked if he wants to discourage me from asserting that law can be kept isolated from politics? It is this disconnect in the Daily Maverick piece that piqued my interest.
Whether the disconnect is deliberate or a function of editorial negligence I do not know. I am just happy I picked up on it and read the lecture myself.
I have always maintained that Judges should emerge from behind their judicial shield and express their worldview on matters of public interest. The bench is not a monastery or convent where Judges have taken a religious vow not to engage in conversations about matters of national interest wherever they find themselves. They are citizens with socio-political interests and preferences before they become Judges. Those interests and preferences do not vanish upon people donning judicial robes or taking the oath to uphold the Constitution.
Judges are also fathers, mothers, sons, daughters, wives, husbands and taxpayers and are also affected by politics as the rest of us. So, to believe that Judges are immune to political influence or consideration – whether by design or by coincidence – when determining some cases, is in my view astonishing naivete.
That is why the lecture of the Judge President on Transformative Constitutionalism, and the role of Judges in it, comes as a welcome relief for me from the suffocating pretence by many members of the public that Judges are above politics. How can they be when they are political beings, appointed by a politician through a political process and in terms of a document that is a product of political detante: the Constitution?
By saying this I do not for a moment suggest that Judges should turn politicians or that they are politicians. Far from it. The point I make is that Judges are creatures of politics and cannot escape politics whether they wish to do so or not. It is not in their hands. It is in the nature of their work and in the subconscious mind of human beings with socio-economic and political experiences, interests and preferences.
As I understand the Judge President, he posits that Judges in post-apartheid South Africa must, of necessity, break from the self-imposed judicial strictures of unyielding notions of un-rehabilitated common law. He points to a number of cases (known to lawyers who practise in these courts) to demonstrate the reluctance of some Judges to unshackle their judicial grounding from common law that has been overtaken by the new constitutional grundnorm or ethos. The notion that the law exists in a gilded world of its own, unsullied by the politics of the day, is not only imagined by those who hold that view; it is also an impediment to Transformative Constitutionalism. That is what I understand the Judge President as saying.
To that end, the Judge President calls in aid cases like Beadica, a Constitutional Court judgment that reminds Judges that they
“must not lose sight of the transformative mandate of our Constitution. Transformative adjudication requires courts to “search for substantive justice, which is to be inferred from the foundational values of the Constitution . . . that is the injunction of the Constitution – transformation.”
The idea that law and politics should not mix, and that Judges should steer clear of politics, is in my view uninformed. Again, by that thesis one is not saying Judges should turn politicians. But what Judges cannot avoid is make decisions steeped in politics. Whether that is by design or by coincidence only the Judge in question will know. For example, when two factions of a political party battle in court for the leadership of that party, and the court finds in favour of one faction, that decision aides a political project – whether the Judge intended it or not.
I think time has come for us all to disabuse ourselves of the notion that law and politics do not mix. They often do. To suggest otherwise is to deceive ourselves. As Chief Justice Langa himself said those many years ago, and now endorsed by the Judge President, law and politics are inherently and necessarily linked. It is naive to believe that the determination of cases, especially those engaging socio-economic and political rights, is done shorn of political considerations. As the Judge President himself says:
“Judges should take note that every common law case is an opportunity to develop the common law and to construct social and economic relationships in one way or another consonant with the transformative agenda of the Constitution. Every common law decision has implications that are political, moral, economic and distributive“
In my view, if South Africa is to reverse (or at the very least ameliorate) the still lingering vestiges of apartheid, we need Judges who will not lose sight of the transformative mandate of the Constitution; Judges who will actively go in search of substantive justice informed by the foundational values of the Constitution: equality, human dignity, advancement of human rights and freedoms for those historically and currently marginalised or targeted for exclusion in all aspects of life in South Africa. That object cannot be fulfilled by a judiciary that is politically inert or, worse still, a judiciary that is still trapped in the politics that was dominant in 1985.
At some stage, the unpalatable but necessary task of an audit of Judges’ political persuasion will have to be embarked upon if Transformative Constitutionalism is to be realised. Until then, all we shall be doing is tinker at the edges with a system of oppression that continues to wreak havoc with the lives of the very category of persons the Constitution professes to protect and advance.
As Justice Madlanga of the Constitutional Court of South Africa has said:
“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”
If that is so, then what South Africa needs are not politically inert Judges but Judges whose politics aligns with the aspirations and healing of ordinary black people who still bear the scars of apartheid and continue to suffer the indignities of that system even under what is supposed to be a constitutional state founded on a constitutional ethos where everyone has the right to equal protection and benefit of the law, but for whom that is merely a promise in a document.
It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:
“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”
Will the same one day be said of contemporary South African Judges who remain silent in the face of the worst excesses of big business and the executive, putting up their judicial shield of “see no evil, speak no evil” as an excuse for not engaging publicly? Time will tell.
But the Judge President’s lecture is not just about politics and law. This just happens to be the theme that has piqued my curiosity and which, in my view, deserves closer scrutiny.
Read Full Lecture here: Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa
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SAJEI_Journal_-_Vol_1_-_Issue_1 Original article at page 48
In this opinion piece I share my perspective about the state of South Africa’s constitutional democracy as an advocate who practises in all the higher courts of South Africa. Indeed, I thank the avalanche of turgid reaction to Minister Lindiwe Sisulu’s take on the same issue this past week.
While I shan’t engage with the content or even merits of what strikes me as Minister Sisulu’s political manifesto, and the cacophony of squeals and meandering political rhetoric that followed it, I think an opportunity has arisen for practising lawyers to express their views, individually and from personal experience, on the state of South Africa’s fabled constitutional democracy. In a constitutional democracy, lawyers should be free to express their views on this issue free from fear of victimisation by those who control the purse strings of legal work in government and elsewhere. After all, those of us who practise in the courts experience the impact of the Constitution directly at the level that matters most: the judicial adjudication of contesting rights.
I accept that Minister Sisulu has been part of the executive that has failed to deliver her party’s promise of “A Better Life for All”. However, my focus is not the messenger and her track record; it is an aspect of her message.
I accept also that there are some heart-warming good stories to tell about the successful invocation of some provisions of the Constitution in the highest court. But these should not be allowed to drown out the shrill cry of probably hundreds of thousands, if not millions, of South Africans who still, despite the Constitution, suffer the indignities of race and gender unfair discrimination. They are my focus in this opinion, as hardly anyone ever genuinely speak for them without exerting some mileage – whether political or economic – for themselves.
My thesis is this: The Constitution is a document with lofty ideals and aspirational virtues. It is not a panacea to all societal ills. For example, equal protection and benefit of the law (s 9) is a virtue to which we all aspire, not one we all possess. One need only look at how selective the application of the law has been, and continues to be. Some people are persecuted by organs of state and publicly pilloried on mere allegations of wrongdoing. Examples include Mr Matshela Koko (former Acting Chief Executive at Eskom) who is being relentlessly pursued under the guise of “state capture” but in truth seemingly for doing his job at Eskom which, to the chagrin of people in positions of power and their benefactors, meant lost opportunities for pilfering at the state power utility. Admissible evidence of criminality against him I am yet to see. Whether it will come is anyone’s guess.
Others seem protected even after a forensic investigation points to possible defalcation. Examples in this category include former Minister of Health.
The President himself has been implicated at the State Capture Commission in facilitating “state capture”. Yet, not so long ago, the President officially received (and is scheduled to continue receiving) the State Capture Commission Report in tranches as President. He will decide what recommendations made in the Report to accept and which to ignore or reject. But what of the allegations that the President may have facilitated the very conduct that the State Capture Commission was established by the former President to investigate?
Let’s remind ourselves:
The evidence was that Mr Ramaphosa was chairman of the board of directors of Optimum Coal Holdings (OCH) from 26 March 2012 until 22 May 2014. He held a 9.64% shareholding (via the Lexshell company) in OCH and through its subsidiaries, including Optimum Coal Mines (OCM). OCH had provided a parent company guarantee to Eskom to step in if OCM was not able to perform its obligations in terms of the OCM Coal Supply Agreement (CSA). Mr Ephron, OCH and OCM CEO at the time, told the State Capture Commission that Mr Ramaphosa divested his entire interest in OCH on 22 May 2014. At that stage, the Eskom penalties claims against OCM for the supply of sub-optimal coal in breach of terms of the CSA amounted to over R1.4 billion. Mr Ramaphosa had an association with Glencore and its public representatives for a number of years. In his statement to the Commission, he referred to it as a long-standing relationship that started in 2005.
Between March 2012 and May 2014 OCM failed to pay to Eskom the coal penalty claims of over R1,4 billion. The President (still Mr Ramaphosa then) resigned as a director and Chairman of OCH in May 2014 to take up Deputy-Presidency of the country under President Zuma on 25 May 2014.
Between June 2014 and May 2015 the coal penalty claims that were not paid to Eskom by Glencore’s Optimum Mine increased by R740,000 000 to R2.17 billion from R1 431 429 719.
In July 2015 Eskom served Combined Summons on OCM and OCH, claiming payment of the R2,17 billion coal penalties. OCM and OCH elected to go into business rescue rather than deal with the summons in court. They also avoided going through the arbitration proceedings as provided for in the CSA. They demanded that Eskom scrap the R2.17 billion. Eskom refused. The Business Rescue Practitioners elected to sell the business to Tegeta. Glencore claimed that Eskom pressured them to sell by refusing to scrap the R2.17 billion penalties that were rightfully due to Eskom.
In January 2018, Mr Ramaphosa (who had been Chairman of OCH just over 3 years previously and held a substantial shareholding in the company) was now head of government business and Deputy President of the country and of the ruling party. In that capacity, so the evidence goes, he sent an instruction to the Department of Public Enterprises to appoint a new Eskom board and for the new board that was yet to meet to dismiss Mr Koko and other executives. The Labour Court set aside that decision. Mr Koko remained dismissed nonetheless.
That, in my view, is the state of our constitutional democracy.
There is more. The President told the State Capture Commission, under oath, that the ruling party’s deployment committee did not discuss recommending candidates for judicial appointment. It has now reportedly emerged from minutes of the ruling party’s deployment committee that it did. That, by definition, would ordinarily constitute perjury and a serious violation of the law and the Constitution by a sitting President. But, will the President be hauled before Parliament to account to us on pain of a vote of no confidence or, possibly, impeachment? Will the State Capture Commission Report make any recommendation about what appears to be Presidential mendacity under oath? In light of this revelation, will the Acting Chief Justice (and, indeed, the Judiciary and the organised legal profession) still find it appropriate that a President seemingly compromised in this way should still receive the Commission’s Report and be the one who decides which recommendations to accept or reject?
The answers to these questions will further reflect the state of South Africa’s constitutional democracy. It is not the Constitution that is to be judged. Rather, it is to the institutions that have been put in place to give effect to its lofty ideals that we should look: Parliament. The Judiciary. The Executive (Cabinet). Will they fail South Africans once again?
People wax lyrical about a Constitution that guarantees the right to human dignity (s 10), yet we see black graduates at traffic intersections begging for work, any form of work, to make ends meet, alongside decent ordinary South Africans begging for food with toddlers in tow. Whose dignity is contemplated in s 10 if not that of the most vulnerable among us? We extol the virtues of a Constitution that guarantees the right not to be detained without trial [s 12(1)(b)], yet countless numbers of black people who cannot afford bail or effective legal representation for “poverty crimes” like theft of food, or items intended for sale in order to buy food, languish in South Africa’s gaols. Is the right not to be detained without trial guaranteed only for those who can afford a lawyer, or for those lucky enough to be assisted by Legal Aid SA?
We have a Constitution that guarantees freedom of association (s 18), yet “cancel culture” forces people out of business and employment merely for being perceived as being associated with persons of whom the establishment does not approve. Is this freedom reserved only for pre-approved association?
That is the state of South Africa’s constitutional democracy.
We have a right, in theory, to freedom of thought, conscience, belief and opinion [s 15(1)], yet the legal profession seems unperturbed by a provision in the covid-19 regulations that criminalises the expression of a view on covid-19 that contradicts the government’s official position, subject only to the cynical caveat that the view expressed must be intended to mislead. But “intention” can only be determined by the criminal court after criminal prosecution has already been instituted; and so the caveat is open to abuse.
That is the state of South Africa’s constitutional democracy.
The President is talking of plans to force (euphemistically termed “mandate”) people to take injections of what some experts regard as experimental, in order to, apparently, “save lives”, yet there is no evidence that vaccination prevents transmission of the covid-19 virus, or that it prevents death from covid-19 complications, or that vaccination prevents hospitalisation from severe covid-19 effects. We are now told that vaccination “reduces” chances of infection, or hospitalisation or death. If one dares ask basic commonsense questions about the rational connection between compulsory vaccination and so-called “vaccine passports”, on the one hand, and the information that is available as regards the provenance and purpose for which these things are intended, one tends to be “cancelled” and labelled “anti-vaxxer” or “flat-earther” or “anti-science” or “covidiot” and more.
This is the state of South Africa’s constitutional democracy.
The former Chief Justice spoke out, outside the courtroom, on matters of corruption involving the state and private sector. He also expressed religious and other views on matters of state involving Israel. For that he was pilloried and, for the latter, ultimately censured by the Judicial Conduct Committee for “becom[ing] involved in political controversy or activity, in breach of Article 12 (1) (b) of the Code [of Judicial Conduct]”. The former Chief Justice appealed against the censure. Contrastingly, the Acting Chief Justice speaks out, outside the courtroom, in response to a politician’s tirade about matters of state involving the role played by a demographic of the judiciary as she sees it. He is commended, including by a retired Justice of the Constitutional Court. There is no complaint to the JSC of which I am aware that the Acting Chief Justice has “become involved in political controversy or activity in breach of Article 12 (1) (b) of the Code”. How can there be, when a retired Justice of the Constitutional Court and an association of advocates have already lent credibility to what some consider a political intervention by the Acting Chief Justice?
That is the state of South Africa’s constitutional democracy.
There is another serious consideration. Before his public excoriation of a politician for doing what politicians generally do (namely, shoot from the hip for political mileage), did the Acting Chief Justice stop to consider his position (and that of the Judiciary he leads) if Minister Sisulu’s political outburst against a demographic of the Judiciary were to give rise to litigation which engages the politician’s right to freedom of thought, belief, conscience and opinion (s 15) and her right to freedom of expression (s 16), which ultimately ends up in the higher courts, including the Constitutional Court? How impartial can ordinary South Africans expect the courts to be in their determination of a case when the leader of the Judiciary, publicly supported by a retired Constitutional Court Justice and an association of advocates, has already publicly pronounced his aversion on behalf of the Judiciary?
That is the state of South Africa’s constitutional democracy.
Not so long ago, another politician (the Minister of Transport) referred to the State Capture Commission on which the Acting Chief Justice presides as “the place where people go to urinate”. Yet another politician (leader of the third largest party in Parliament) launched an extraordinary broadside at the entire judiciary when he said: “There is gross incompetence at the highest level of the judiciary, starting with the incompetent Acting Chief Justice, Zondo … We are not going to be afraid to talk about incompetent judges of the Constitutional Court who take four months to resolve an urgent matter”. He made this statement seemingly oblivious of how the Constitutional Court goes about its business of judgment consideration and writing. (Clearly he had not watched an episode of this publication under “Judicial Voices” where Justices of the Constitutional Court explain the process). I am not aware of scarcely the sort of outrage we are now witnessing against Minister Sisulu’s tirade from the Acting Chief Justice in defence of the Judiciary.
That, in my view, is reflective of the state of South Africa’s constitutional democracy.
Some large white firms win tenders from state-owned enterprises with the assistance of small black firms and then, on the award of the contract, either terminate the partnership or (playing one black firm against another in their pursuit of bread crumbs falling from the master’s table) replace the original black firm with another small black firm to which it pays lesser revenues than those agreed with the original black firm. On the rare occasion when the termination is challenged in court, all manner of technical points are often raised with the specific purpose of draining the financial resources of the small black firm and, with that, its resolve to fight. In cases of this kind – economic transformation cases – our courts have tended in my experience rather to go with form over substance, technical niceties over justice. Having ruled that former Chief Executive of Vodacom lied when he claimed to have invented a technological application that had in fact been invented by a young black man, why did the Constitutional Court not make a finding in favour of the young black man and award him his claim instead of sending the matter for determination of the amount of damages to be paid back to the Chief Executive of the very company with which the young black man is in dispute? Although this had been the contractual bargain made by the parties themselves, the manner in which Vodacom litigated this case, as lamented by the Constitutional Court itself in its judgment, called for a measure of judicial activism in the interests of justice and in pursuit of a goal higher than a common law sanctity of contract: equity and constitutional redress. An opportunity was lost to develop the common law in a case that cried out for it.
The court’s concluding remarks in Makate v Vodacom are worth reproducing to demonstrate the opportunity lost:
“The stance taken by Vodacom in this litigation is unfortunate. It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea on which its “Please Call Me” service was constructed. The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank. Yet it did not compensate the applicant even with a penny for his idea. No smile was brought to his face for his innovation. This is besides the fact that Vodacom may have been entitled to raise the legal defences it advanced. As a party, it was entitled to have its day in court and have those defences adjudicated. This is guaranteed by section 34 of the Constitution. However, it is ironic that in pursuit of its constitutional right, Vodacom invoked legislation from the height of the apartheid era, to prevent the applicant from exercising the same right.
In not compensating the applicant and persisting in advancing the legal defences even after the trial Court had emphatically found that an agreement was concluded, Vodacom associated itself with the dishonourable conduct of its former CEO, Mr Knott-Craig and his colleague, Mr Geissler. This leaves a sour taste in the mouth. It is not the kind of conduct to be expected from an ethical corporate entity.”
An opportunity was, indeed, lost to develop the common law for the sake of justice, equity and the pursuit of equal protection and benefit of the law as enshrined in the Constitution that we so lavishly celebrate. What is the point of all these lofty constitutional values if our courts are not prepared to stretch their imagination in pursuit of them in cases that cry out for such intervention against a litigant of the kind the Constitutional Court describes in this passage?
That is the state of South Africa’s constitutional democracy.
We have a provision in the Constitution that demands that organs of state implement a procurement policy that favours the advancement and protection of persons disadvantaged by unfair discrimination and the procurement of goods and services from categories of persons disadvantaged by unfair discrimination. Yet the legislation that Parliament enacted in order to give effect to that constitutional provision forces black and women owned firms to compete on equal footing with established white firms on price, knowing full well the impossibility of that competition. In the result, the preferential procurement constitutional provision is an empty promise.
That is the state of South Africa’s constitutional democracy.
In order to give effect to broad-based black economic empowerment as provided for in s 217(2) of the Constitution, Parliament enacted the Broad-Based Black Economic Empowerment Act. But in reality, black people buy shares in existing white companies through new companies with huge loans obtained from banks and other finance institutions to be repaid over time from the appreciation of the share price. The shares are used as guarantees for the repayment of the loan and if the share price should fail to appreciate sufficiently to cover the amount of the loan within the period of the loan, the shares are forfeited to the bank or finance institution that provided the loan. And our courts have ruled that the white company, even though the shares are no longer in black people’s hands, remains “empowered”.
That is the state of South Africa’s constitutional democracy.
In a case where a woman raped by 3 on-duty policemen sought damages against the Minister of Safety and Security, both the High Court and the Supreme Court of Appeal dismissed her claim saying the Minister was not vicariously liable for the conduct of the 3 policemen. The woman had accepted a lift from the 3 policemen after she had found herself stranded in the early hours of the morning. Instead of chaperoning her to safety, the 3 policemen took turns to rape her, and the High Court and Supreme Court of Appeal denied her damages against their boss. Had it not been for Justice Maya’s lone voice on that SCA bench, the case would likely not have attracted the attention of the Constitutional Court and reversed. Had the woman no funds, or her legal team discouraged by the loss in 2 courts, our judiciary would have failed her. How many similar incidents of unresourced women go unreported almost everyday?
That is the state of South Africa’s constitutional democracy.
The controversy surrounding Minister Sisulu’s political assessment of South Africa’s constitutional democracy provides an opportunity for us all in the country – especially lawyers – to take stock of our constitutional democracy, assess how far we have come with it, subject it to stringent review of its shortcomings through public dialogue, come to grips with the failures of implementation of its lofty ideals, and chart a new path if our review should reveal that the fortunes of a more prosperous, egalitarian South African society lie elsewhere.
That begins with discouraging “thought policing” and censorship of socio-political views that do not find favour with some powerful forces in society. No one should have monopoly of thought or conscience or thought leadership in a constitutional democracy. Everyone should be free to express an opinion about the state of South Africa’s constitutional democracy, however unpalatable or even outrageous it may appear to some of us, subject only to the strictures provided for in the Constitution itself: incitement of violence, propaganda for war and advocacy of hatred. Absent any of these, there should be no censorship of free speech whether by a politician, a Judge, a vagrant, a civil servant, a practising lawyer, or any ordinary citizen concerned about the direction his or her country is taking.
That is what the state of South Africa’s constitutional democracy should be.
