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The Long Term Effects of Skewed Briefing Patterns in South Africa and Some Solutions – Vuyani Ngalwana SC

Recently, Judge Mandlenkosi Motha of the Pretoria High Court caused something of a stir when he directed legal practitioners – all white – who appeared before him in a black economic empowerment case to explain the lack of race diversity in their legal teams.

The outrage is, in my view, misdirected, tone deaf, shortsighted and lacks discernment in many fundamental respects. I discuss these in this paper, citing observations made in the past by the Constitutional Court, the Judge President of the busiest courts in South Africa, and other eminent jurists on the subject of Transformation and its Legitimacy.

I submit that skewed briefing patterns that favour white legal practitioners are a legitimate concern that should be addressed expeditiously and sustainably because of the deleterious effects they have on the development of our jurisprudence and on the legitimacy and competence of the Judiciary in the long run, and the explicitly racist stereotype they reinforce in the legal profession.

I then offer some solutions and invite legal practitioners to engage with this content so that we can arrive at a solution that is sustainable and to the benefit, ultimately, of the country.

Read Full paper here: The Long Term Consequences of Skewed Briefing Patterns in SA & Some Solutions

You may also be interested in these:

Legitimacy, Transformation and Need for Change at the Bar

By |2024-03-10T14:41:28+02:00March 10th, 2024|Analyses and Reviews|Comments Off on The Long Term Effects of Skewed Briefing Patterns in South Africa and Some Solutions – Vuyani Ngalwana SC

Judicial Conduct Committee Dismisses Justice Kriegler’s Appeal – 02 FEBRUARY 2024

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”.

On 30 August 2022, Justice Kriegler appealed against the ruling. On 25 November 2022, the complainant (Vuyani Ngalwana SC) filed a response to the appeal and cross-appealed in relation to the other complaints against Justice Kriegler that the JCC had dismissed.

The JCC appeal panel, comprising Justice Jafta (ex Concourt Judge), Justice Shongwe (SCA) and Justice Saldulker (SCA), have now issued an appeal ruling on 2 February 2024 dismissing Justice Kriegler’s appeal. In paragraph 7 of its appeal ruling, the panel says: “There is no appeal against the dismissal of the other complaints”. This is a factually incorrect statement. It would appear that the panel may not have received Ngalwana’s cross-appeal of 25 November 2022, which was acknowledged by the JCC secretariat on 28 November 2022.

For a full perspective of the complaint, ruling, appeal and appeal ruling, 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

Judge Kriegler’s notice of appeal 30082022-signed

Annex A to Justice Kriegler notice of appeal

Response to Justice Johann Kriegler Appeal – November 2022

JCC Appeal Ruling- Adv Ngalwana v Justice Kriegler complaint – 02 February 2024

By |2024-02-04T22:52:55+02:00February 4th, 2024|Blog, General, News|Comments Off on Judicial Conduct Committee Dismisses Justice Kriegler’s Appeal – 02 FEBRUARY 2024

SA Heritage Resources Agency et al v Dr Makaziwe Mandela et al (15867/2022) (4 December 2023)

This case considers the importance of national heritage and its preservation.

The S A Heritage Resource Agency (“SAHRA”) sought interdictory relief stopping First and Fourth Respondents and their agents selling outside SA any of 29 items (“the Mandela Objects”) that it had declared to be heritage objects in terms of s 32(2) of the National Heritage Resources Act, 1999 (“the Act”) until they had first repatriated those items from the USA to SA and obtained an export permit from SAHRA for their re-exportation.

It also sought an order directing the First and Fourth Respondent and their agents to take all reasonable steps to ensure the repatriation of these Mandela Objects back to SA within 30 days of the order, and report to it in writing when this has been done.

The First Respondent – a daughter to the late President Mandela – launched a counter-application for the review and setting aside of SAHRA’s decision to declare the Mandela Objects as “heritage objects”, and an order that the Applicants jointly and severally pay the costs of her counter-application for such review, including the costs of senior and junior counsel. She also sought the dismissal of SAHRA’s application with costs.

The counter-application hinged on the belief that SAHRA declared the Mandela Objects specifically as heritage objects, and not under the broad category of types of objects as envisaged in s 32(2) of the Act.

The Fourth Respondent – President Mandela’s former gaoler-turned-friend – made common cause with the First Respondent’s counter-application for the review and setting aside of SAHRA’s alleged decision to declare each of the Mandela Objects specifically as heritage objects. He also sought dismissal of SAHRA’s application for interdictory relief against him.

No relief was sought against any of the other Respondents.

The court considered 3 issues:

  • Jurisdiction where one of the Respondents is resident outside its area of jurisdiction.
  • Whether the Mandela Objects are heritage objects within the contemplation of the Act.
  • The First Respondent’s counter-application for the review of SAHRA’s decision to declare the Mandela Objects heritage objects.

Jurisdiction

The Respondents challenged the jurisdiction of the court on the ground that the Fourth Respondent is resident outside the area of its jurisdiction. This point was rejected. The court reasoned that SAHRA’s interdictory relief is sought against the First Respondent (resident in Gauteng) in relation to some of the Mandela Objects, and against the Fourth Respondent (resident in the Western Cape) in relation to others. Conceivably, SAHRA could have launched these proceedings in the Western Cape High Court where the Fourth Respondent is resident. But then the First Respondent could conceivably have raised the same jurisdiction point that the Fourth Respondent raises.

The court reasoned further that it is now a legal position of some long standing that when a Division of the High Court has a matter before it that could also have been brought in another Division, it has no power to refuse to hear the matter, except where considerations of abuse of process are in play [Goldberg v Goldberg 1938 WLD 83 at 85–86; Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W), at 817J – 819E]. Thus, SAHRA had a choice to initiate these proceedings either in the Western Cape High Court or in the Pretoria High Court. It chose to do so in the Pretoria High Court. It was entitled to do so. That choice having been made, the Pretoria High Court has no power to refuse to entertain the matter in the absence of an abuse of process claim [TMT Services & Supplies (Pty) Ltd v MEC, Department of Transport, KZN & Others 2022 (4) SA 583 (SCA), at paras 30-35]. No abuse of process claim has been made.

It reasoned further that in any event it has jurisdiction over any person who, being outside its area of jurisdiction, is joined in a cause over which it has jurisdiction [Superior Courts Act, s 21(2)]. Since the Fourth Respondent, being outside the court’s area of jurisdiction, is joined in a cause over which the court has jurisdiction (by reason of its jurisdiction over the First Respondent), the court has jurisdiction over him.

Heritage Objects

On whether the Mandela Objects are heritage objects as contemplated in the Act, the court reasoned as follows:

  • The long title and preamble of the Act provide much insight into what type of object should be declared a heritage object. These are objects that “define our cultural identity”; objects on which the country’s spiritual well-being and nation-building depends; objects that “shape our national character”, objects that deepen our understanding of one another, and facilitate national healing from the ravages of apartheid and material and symbolic restitution.
  • Section 3(1) of the Act considers and recognises only heritage resources “which are of cultural significance or other special value” as falling within the philosophy and reach of the Act. A “cultural significance or other special value” is conferred by the object’s (a) importance in the community, or pattern of South Africa’s history; (b) its possession of uncommon, rare or endangered aspects of South Africa’s natural or cultural heritage; (c) its potential to yield information that will contribute to an understanding of South Africa’s natural or cultural heritage; (d) its importance in demonstrating the principal characteristics of a particular class of South Africa’s natural or cultural places or objects; (e) its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; (f) its importance in demonstrating a high degree of creative or technical achievement at a particular period; (g) its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons; (h) its strong or special association with the life or work of a person, group or organisation of importance in the history of South Africa; and (i) sites of significance relating to the history of slavery in South Africa [s 3(3)].
  • Section 5(3), which deals with general principles for heritage resource management, says the laws, procedures and administrative practices by which heritage resources are managed must be “clear and generally available to those affected thereby”.
  • Section 32(1), which deals specifically with “heritage objects”, says an object or collection of objects, or a type of object or list of objects – whether specific or generic – that is part of the national estate [as defined in s 3], and the export of which SAHRA deems it necessary to control, may be declared a heritage object. Section 32(2) says “For the purposes of this section, an object within a type of objects declared to be a heritage object is deemed to be a heritage object”. This is the provision that SAHRA invokes for its argument that it has declared the Mandela Objects “as a type of object” that fits the definition of “national estate” in s 3, generically and not individually or specifically.
  • Section 32(19) prohibits the export of a heritage object without SAHRA’s export permit, and section 32(20) prohibits the removal of a heritage object from South Africa other than through a customs port of entry.
  • Of the types of heritage resources enumerated in the gazette of 18 April 2019, SAHRA lay emphasis on:

“3.3   Objects assessed according to criteria in S32(24) if the NHRA and identified as being of cultural, historical or aesthetic significance, whether originating in South Africa or elsewhere, that have been in South Africa for more than 50 years which includes … [3.3.13] Awards and associated memorabilia associated with significant figures awarded in South Africa or awarded to South Africans            …

3.5     Objects related to significant political processes, events, figures and leaders in South Africa.

3.6.    Objects related to significant South Africans, including but not limited to: writers, artists, musicians, scientists, academics, educators, engineers and clerics as well as events of national importance.”

  • Section 32(19) of the Act, when read together with s 51(1)(a), is a penal provision. While the conduct that it proscribes is clear and unambiguous (“No person may export or attempt to export from South Africa any heritage object without a permit issued by SAHRA”), it is far from clear how far the “heritage object” net spreads. Put differently, the language that describes a “heritage object” in the Act, and the regulations that SAHRA invokes, is so overbroad that just about anything that President Mandela touched, or is “associated” with, or “related to” him, can be considered a heritage object. That – and considering the clear intention to confine heritage resources to objects of national significance, as demonstrated by the language of the long title and preamble – could not have been the legislature’s intention.
  • SAHRA deemed the Mandela Objects to be heritage objects by regulation published on 18 April 2019. It did so pursuant to s 32(2) of the Act which says: “For the purposes of this section, an object within a type of objects declared to be a heritage object is deemed to be a heritage object”. One example of types of objects declared by SAHRA to be heritage objects under the section is: “Objects related to significant political processes, events, figures and leaders in South Africa” [Regulation 3.5 in GG 42407 of 18 April 2019]. Section 3(3)(h) confers that status on objects which have “strong or special association with the life or work of a person … of importance in the history of South Africa”.
  • While there is no question that President Mandela was a significant political figure, a significant leader and a person of importance in the history of South Africa, tens or hundreds of Springbok Rugby jerseys or ruling party attire autographed by President Mandela on the campaign trail, or tens or hundreds of copies of his book “Long Walk to Freedom” autographed by him over the years – although “related to” a significant South African, a significant political process, a significant political event, and a significant political figure – could not (when considered within the broad context of the Act as a whole, its long title and its preamble) have been intended by the legislature to be regarded as heritage objects. The description simply does not satisfy the general principle in section 5(3) of the Act that the law by which heritage resources are managed must be “clear and generally available to those affected thereby”. For that reason, it would be unpardonably louche of the court to expose the First and Fourth Respondents to a possible criminal sanction in these circumstances [S v Toms; S v Bruce 1990 (2) SA 802 (A), at 808A-C]. Given their ordinary grammatical meaning, phrases like “related to” and “associated with”, when used to describe objects for purposes of bringing those objects within the net of heritage objects, are so wide as would court an absurdity.
  • But even when considering the purpose and context for which the Act was enacted, there is no reasonable measure by which all 29 items can – holus bolus and by a simple act of declaration, even after a process of public consultation – be deemed to be heritage objects as envisaged in the Act. This is because the long title and preamble make plain that not every object that is merely “related to” or “associated with” a significant political event or process or person is a heritage object. On a purposive and contextual reading of the Act through the prism of its long title and preamble, the object must, for example, (1) be a resource of national significance; (2) be instrumental in the nurturing and conservation of a legacy worthy of being bequeathed to future generations; (3) be unique and precious in a manner that cannot be renewed; (4) help us to define our cultural identity; (5) lie at the heart of our spiritual well-being; (6) foster in us the power to build our nation; (7) have the potential to affirm our diverse cultures; (8) shape our national character; (9) contribute to redressing past inequities; (10) educate, deepen our understanding of society and encourage us to empathise with the experience of others; (11) facilitate healing and material and symbolic restitution; and (12) promote new and previously neglected research into our rich oral traditions and customs.
  • On these lofty ideals, it is difficult to imagine how a pair of sunglasses and an autographed book fit the mould described here.

Counter-application: Review

As regards the counter-application, the court dismissed it on the ground that SAHRA plainly did not make the decision sought to be set aside. It declared the Mandela Objects as heritage objects under the broad sweep of s 32(2) as types of objects and not – as contended for by the First Respondent – specifically and individually as heritage objects. That declaration came in the form of the regulations finally published in the gazette of 18 April 2022 after following the process described in s 32(5)(b), not s 32(5)(a) which applies where declaration is specific to an object or item. This is clear from the undisputed facts. There is thus no decision of the kind alleged by the First Respondent. Consequently, there is nothing to review and set aside.

Costs

On costs, the court said there is no reason why costs should not follow the cause in both applications.

It found that the review application was a “Hail Mary” It reasoned that, judging by the clear terms of the founding affidavit that point indisputably to a declaration not of each individual item as a heritage object but of the declaration of the list of types of heritage resources, the review application should not have been brought. Regrettably, the First Respondent persisted in this exercise even after this was confirmed in SAHRA’s subsequent affidavits. SAHRA should not have been put by the First Respondent to the unnecessary cost of producing a rule 53 record and resisting a clearly ill-conceived application.

In the circumstances, the court considered it fair that the costs in SAHRA’s interdict application and those in the First Respondent’s review application should cancel each other out.

The court found that the Fourth Respondent, while making common ground with the First Respondent, is in a different position. He did not seek a record, and Counsel did not press the review with vigour in argument but focused on the main question of whether the two items pertaining to the Fourth Respondent are truly heritage objects as envisaged in the Act. It found that he is entitled to his costs in resisting SAHRA’s application without pressing the counter-application. Those costs are to include the costs of junior Counsel (as Senior Counsel appeared pro bono) and the disbursements of Senior Counsel.

Order

In the result, the court dismissed SAHRA’s interdict application and ordered that it, jointly and severally with the Second and Third Respondents, pay the Fourth Respondent’s costs, including the costs of Junior Counsel (but not of Senior Counsel who appears pro bono) and the disbursements of Senior Counsel. It also dismissed the First Respondent’s counter-application.

Read Full Judgement here –>SA Heritage Resources Agency et al v Makaziwe Mandela et al – 01 December 2023 Final

By |2023-12-20T19:07:51+02:00December 20th, 2023|High Court, Judgements, Ngalwana judgements|Comments Off on SA Heritage Resources Agency et al v Dr Makaziwe Mandela et al (15867/2022) (4 December 2023)

Mogoai et al v City of Tshwane Metropolitan Municipality (120856/2023) (4 December 2023)

T his case considers what a court’s options are when confronted with a set of facts that call for vindication of the rule of law in urgent court but in circumstances where urgency is discounted by the applicants’ own conduct.
In other words, when there is tension between lack of urgency in urgent court, on the one hand, and the need to vindicate the rule of law and the Constitution on an urgent basis, on the other, is striking the application from the roll for lack of urgency the proper approach?
Read Full Judgement here –> Mogoai et al v City of Tshwane – 4 December 2023 

By |2023-12-20T11:40:20+02:00December 20th, 2023|High Court, Judgements, Ngalwana judgements|Comments Off on Mogoai et al v City of Tshwane Metropolitan Municipality (120856/2023) (4 December 2023)

In Conversation with Prof Tshilidzi Marwala: Fourth Segment

In this Fourth Segment, Professor Marwala gives us his perspective on, among other things:

  • Technology and its implications for the Legal Profession, including the Judiciary & the training of Lawyers
  • His book, “Leadership Lessons from Books I have Read”
By |2023-04-28T11:52:38+02:00April 28th, 2023|Legal Voices|Comments Off on In Conversation with Prof Tshilidzi Marwala: Fourth Segment

In Conversation with Prof Tshilidzi Marwala: Third Segment

In this Third Segment, Professor Marwala gives us his perspective on, among other things:

  • whether South Africa is one nation
  • how SA economy can be grown
By |2023-04-30T09:44:44+02:00April 27th, 2023|Legal Voices|Comments Off on In Conversation with Prof Tshilidzi Marwala: Third Segment

In Conversation with Prof Tshilidzi Marwala: Second Segment

In this Second Segment, Professor Marwala gives us his perspective on, among other things:

  • leadership: What is a good leader? What is an effective leader?
  • SA electoral system: How should it be improved?
  • Are South African voters getting their votes’ worth?
By |2023-04-28T11:53:02+02:00April 26th, 2023|Legal Voices|Comments Off on In Conversation with Prof Tshilidzi Marwala: Second Segment

In Conversation with Prof Tshilidzi Marwala: First Segment

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.

By |2023-04-26T14:27:03+02:00April 19th, 2023|Legal Voices|Comments Off on In Conversation with Prof Tshilidzi Marwala: First Segment

President of the RSA v Jacob Gedleyihlekisa Zuma, DPP: KZN, NPA, Registrar: Jhb High Court (Cases ZAGPJHC 27676/2022)

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

  • that s/he has seen all statements and affidavits in the docket
  • pertaining to a particular case
  • and declines to prosecute any person in relation to that case

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:

  • Is the President’s interdict application urgent?
  • Does the court, sitting as Motion Court, have jurisdiction or power to decide issues that, according to former President Zuma, ought to be decided by the Criminal Court?
  • Should the court, sitting as Motion Court, excuse the President from appearing in the Criminal Court on 19 January 2023 to answer the criminal charges preferred against him?
  • Should the court, sitting as Motion Court, stop former President Zuma from pursuing a private prosecution against the President?
  • Should the court, sitting as Motion Court, stop former President Zuma from taking any further steps giving effect to the certificate and the summons?

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:

  • an order declaring that the summons is unlawful, unconstitutional, invalid and of no force or effect, and is set aside.
  • an order declaring that the certificate nolle prosequi is unlawful, unconstitutional, invalid and of no force and effect, and is set
    aside.
  • an order declaring that the private prosecution is unlawful, unconstitutional, invalid and of no force or effect, and is set aside.
  • an order that the costs of this application are to be paid by the former President, alternatively his 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.

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 requirement of a certificate nolle prosequi may serve as an impediment or unjustified limitation to the section 34 right of access to courts. A comparative study with private prosecution regimes in Canada, New Zealand and the United Kingdom seem to demonstrate that a certificate issued by the prosecuting authority is not necessary for successful private prosecution.
  • The national prosecuting authority ought to conduct itself without fear, favour or prejudice, and politics and politicians ought to play no role in the functioning of the prosecuting authority as currently seems to be permitted by the NPA Act.
  • The President’s seeking of costs on a punitive scale (attorney and client scale) against the legal representatives of his prosecutor is tantamount to what the Constitutional Court has recently termed a SLAPP suit (short for Strategic Litigation Against Public Participation). It may reasonably be seen, by reasonable observers, as intended to send a strong message against any legal practitioner who may dare consider representing anyone who should cross the President. This is a clear threat to our Constitutional Democracy, especially when engaged in by the President of the country.
  • As regards the equality principle, it is worth noting that in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) the Constitutional Court sentenced the former President to a term of imprisonment for his failure to present himself at the Commission of Inquiry as directed by the Concourt, notwithstanding a pending court challenge by him to the lawfulness of the Inquiry. The Constitutional Court had directed that he appear at the Inquiry despite the review challenge that was then pending in the high court. By this application the President is challenging the lawfulness of his prosecution. That is why he seeks to interdict it. The same considerations should apply to him. A different decision by this Court will leave more than just an impression that different rules apply to the sitting President, thereby breaching the equality principle enshrined in section 9(1) of the Constitution.

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

By |2023-01-16T12:50:28+02:00January 14th, 2023|Cases of Interest, South Africa|Comments Off on President of the RSA v Jacob Gedleyihlekisa Zuma, DPP: KZN, NPA, Registrar: Jhb High Court (Cases ZAGPJHC 27676/2022)

When Race Politics Drives Journalism: A Response to a Takedown

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:

  • “Affirmation, however, has no real influence unless it be constantly repeated, and so far as possible in the same terms . . .”.
  • “The thing affirmed comes by repetition to fix itself in the mind in such a way that it is accepted in the end as a demonstrated truth. . .”
  • “This power [of repetition] is due to the fact that the repeated statement is embedded in the long run in those profound regions of our unconscious selves in which the motives of our actions are forged. At the end of a certain time we have forgotten who is the author of the repeated assertion, and we finish by believing it. . .”.
  • “If we always read in the same papers that A is an arrant scamp and B a most honest man we finish by being convinced that this is the truth, unless, indeed, we are given to reading another paper of the contrary opinion, in which the two qualifications are reversed. . .”.
  •  “When an affirmation has been sufficiently repeated and there is unanimity in this repetition . . . what is called a current of opinion is formed and the powerful mechanism of contagion intervenes. . .”.

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:

  • Mpofu SC represents the Public Protector in her impeachment inquiry by a parliamentary committee and has successfully challenged her unlawful suspension by the President a day after she announced that she was investigating his “Dollargate” This is the scandal that threatens to derail the President’s bid for a second term as President. Mpofu SC also represents former President Jacob Zuma in his criminal trial by the state, and in the private prosecution of a senior public prosecutor and a self-styled “legal” journalist. He also represented the former President in that unprecedented conviction and sentencing of a private citizen by the apex court.
  • Sikhakhane SC represents Mr Arthur Fraser (former State Security Agency Director-General) who lay criminal charges against the President in relation to his “Dollargate” or PhalaPhala scandal which may possibly scupper his ambition for a second term as President. He also represented former President Zuma at the State Capture Commission and sought recusal of the (now) Chief Justice. Also among his clients is the Sekunjalo Group of Companies in the main proceedings of the Equality Court against the banks and financial industry regulators including the South African Reserve Bank, the Financial Sector Conduct Authority and the Financial Intelligence Centre.
  • Masuku SC also represents former President Zuma in his criminal trial. He also leads a team that is challenging the review of the Mpati Commission of Inquiry on behalf of the Sekunjalo Group of Companies which are being targeted for closure by the banks and mainstream media, like the Daily Maverick, in South Africa. The banks and mainstream media are using the Mpati Report as a basis for targeting the Group. Masuku SC also represents Judge President Hlophe of the Western Cape High Court who has been in the crosshairs of certain persons in the legal profession.
  • Ngalwana SC represents the Sekunjalo Group of Companies against the banks which closed the Group’s bank accounts on the basis, principally, of the Mpati Report. The Equality Court and the Competition Tribunal have ordered the re-opening of these accounts and have interdicted the banks from closing them. Some of the banks are challenging the Competition Tribunal’s decision on review and appeal. Ngalwana is also leading a team that is challenging the State Capture Commission on review. He also leads a team challenging the freezing out of Black companies from state contracts. He has successfully lodged complaints against 2 white judges for gross misconduct and is a vocal opponent of the President’s incumbency for reasons he has articulated on social media.

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.

By |2022-11-09T14:43:42+02:00November 9th, 2022|Blog, General, News|1 Comment
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