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

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

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

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

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

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

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

Related documents: Written Arguments

AmaBhungane Heads of Argument

Amicus Heads of Argument

State Security – Court Address

State Security Heads of Argument

Justice, Defence & Police Heads of Argument

Pleadings

Notice of Motion

Founding Affidavit – Sam Sole

Answering Affidavit – SAPS Crime Intelligence

Answering Affidavit – Dep Min of Justice

Answering Affidavit – Chief of Staff SANDF

Answering Affidavit – DG State Security Agency

Replying Affidavit – Sam Sole

Is Land Reform a Political or Legal Question: Exploring Amendment of s 25 of the SA Constitution

Former Justice of the Constitutional Court, the late Justice Tembile Skweyiya, once wrote in a seminal judgment of the South African Constitutional Court dealing with the tussle between law and politics, “Courts deal with bad law; voters must deal with bad politics”.

Do South African courts too readily involve themselves in political questions? Is it desirable for the courts to decide political questions? Is the mooted amendment of the property clause, section 25, in the South African Constitution a political question that should be resolved by politicians in Parliament, or is it a question that must be resolved by the courts? Is the Land Question in South Africa one for the courts or one for politicians to resolve?

These are some of the questions that Professor Mtende Mhango, Professor of Law at the National University of Lesotho, teases out in this short analysis.

A more detailed analysis of this question is explored in his recent book, Justiciability of Political Questions in South Africa: A Comparative Analysis (2019) Eleven International Publishers ISBN 978-94-6236-918-4 Available athttps://www.elevenpub.com/law/catalogus/recent  or www.amazon.com

Read Full Analysis and Review Is-Land-Reform-a-Political-or-Legal-Question – PDF1

By |2019-08-29T11:21:20+00:00Aug 28th, 2019|Analyses and Reviews|3 Comments

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

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

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

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

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

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

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

Related documents: Written Arguments

Public Protector Heads of Argument 3 Sep 2018

Public Protector Court Address – High Court

Public Protector Heads in CASAC Application

DA Heads of Argument

CASAC Heads of Argument in CASAC Application

Pleadings

DA Notice of Motion

DA Founding Affidavit

Public Protector Answering Affidavit in DA Application

DA Replying Affidavit

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

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

Public Protector Answering Affidavit – CASAC

CASAC Replying Affidavit

Judicial Activism vs Judicial Restraint: Lessons for South Africa

Judicial activism is often contrasted with judicial restraint. But what is “judicial activism”? Does it have a place in an unequal society? Where does judicial activism end and judicial overreach begin? Where does judicial activism end and judicial abusive language begin?

What is “judicial restraint”? Where does judicial restraint end and “judicial abdication” begin? Is judicial restraint, judicial deference?

One of the panelists observes:

“Choosing not to see something in the record that is there, is a form of [judicial] activism. That is not [judicial] restraint.”

She also observes:

“At the end of the day, if what you want is to see your beliefs become the law, then it actually pretty much doesn’t matter what [evidence] comes before you [as a Judge].”

Is this a desirable form of judicial activism in South Africa?

These are some of the questions explored in this panel discussion. It is a discussion that the South African judiciary would do well to revisit.

Watch here

By |2019-08-05T14:17:52+00:00Aug 5th, 2019|Legal Voices|0 Comments

S v Discovery Health Medical Scheme (Council for Medical Schemes Appeals Committee, 11 April 2016)

This is a Ruling of the Council for Medical Schemes Appeals Committee, a Specialist Tribunal that determines medical aids or schemes disputes between medical aid members or beneficiaries and medical schemes, or between medical service providers and medical schemes, or between medical schemes and the Registrar of Medical Schemes.

The case concerns

  • what the appropriate procedure is when a member is aggrieved by a decision of a medical scheme’s internal dispute resolution committee; and
  • factors applicable in claims for Overseas Treatment Benefit

The member unsuccessfully claimed under the scheme’s Overseas Treatment Benefit for the treatment of her son’s condition (Spastic Deplegic Cerebral Palsy) in the United States on the ground that the procedure (Selective Dorsal Rhizotomy or SDR) is “not routinely available” in South Africa or is “not readily available” in South Africa or no one in South Africa is “experienced enough” to perform the medical procedure.

She then lodged a complaint with the scheme’s internal disputes resolution committee which dismissed her complaint. She had already spent over US$44,000 in the United States for a procedure for which the scheme covers up to R500,000.

From there she was advised, incorrectly, to lodge an appeal directly with the appeals committee of the Council for Medical Schemes under s48 of the Medical Schemes Act, 1998 (the MSA), instead of s47 of the MSA.

Despite this procedural lapse, and the lateness of the appeal, the appeals committee decided to determine the matter on its merits because of the importance of the issue that arose.

The lesson in this case is the importance of reading and understanding the applicable medical scheme rules and benefit option provisions before embarking on costly medical interventions overseas.

Read Full Judgment https://www.medicalschemes.com/files/Judgements%20on%20Appeals/SVsDiscovery_2_20160712.pdf

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

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

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

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

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

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

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

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

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

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

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

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

Related documents

Moyo Heads of Argument in High Court – Interim Relief

Old Mutual Heads of Argument in High Court – Interim Relief

Old Mutual Supplementary Heads

Moyo Application and Annexures 

Old Mutual Answering Affidavit

Old Mutual Annexures and confirmatory affidavits

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

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

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

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

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

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

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

We address the second question first.

THE DECLARATORY ORDER

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

In support of that charge, the Reserve Bank alleges

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

But the Reserve Bank

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE PERSONAL COSTS ISSUE

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

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

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

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

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

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

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

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

The Pen as Sword: The Unbridled Power of Journalists and its Effects on Society

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

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

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

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

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

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

The Gupta Asset Forfeiture Case

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

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

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

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

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

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

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

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

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

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

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

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

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

The Rogue Unit Judgment That Never Was

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

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

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

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

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

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

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

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

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

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

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

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

The ratio decidendi of the judgment is this:

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

Everything else is obiter dicta.

The Takeaway

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

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

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

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

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

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

By |2019-07-19T12:25:30+00:00Jul 19th, 2019|Blog, General, News|6 Comments

Kill Zuma: By Any Means Necessary – A Review

A Judge once directed the jury as follows:

“Gentlemen of the jury, you’ve heard the evidence of the witnesses for the Crown and that of the accused. If you believe the evidence of the Crown witnesses you will convict the accused. If you believe the accused you will believe anything.”

The jury promptly acquitted the accused.

If current popular narrative sweeping urban South Africa is any indication, South Africans generally do not seem to be made of the stuff of which that jury was made. We seem generally to have abdicated our thinking and reasoning capacity to newspaper editors, reporters and self-styled analysts who all seem to agree on almost everything.

Witness how our analysts – at least those to whom media houses elect constantly to expose us on television and mainstream broadsheets – seem all to agree that President Jacob Zuma is “guilty” of “State Capture”, apparently a most serious criminal offence the elements of which, at least as far as I can gather in my 26 years of practising law, are yet to be defined in any judgment or Criminal Law textbook.

Witness, too, how that same cohort of analysts seem all agreed that President Zuma is needlessly “playing victim” or mounting a “conspiracy theory” steed when reporting to the Zondo Commission of Inquiry into “State Capture” the death threats allegedly received by his personal assistant not only to himself but also to his lawyers, or of being mendacious when constantly clearing his throat during his testimony at the Zondo Commission – an irritating habit of his that we have had to bear, by the way, since we had the misfortune of being subjected to his 8 State of the Nation Addresses over a period of 9 years.

One journalist even made much of a photo image of President Zuma’s Senior Counsel’s hand resting on the shoulder of the ruling party’s Secretary-General during a short adjournment at the Zondo Commission, suggesting, by innuendo, a closer relationship than there may have been.

It is because of this thoroughly compromised landscape of our journalism that Gayton McKenzie’s book, “Kill Zuma: By Any Means Necessary” should be celebrated. But, alas, it is a cathartic book that is unlikely to earn him the Alan Paton Award nomination because eNCA newscasters and viewers, Radio702 talkshow hosts and listeners, and BusinessDay writers an readers have directed urban South Africa in terms not dissimilar to those of our rather presumptuous Judge to the jury – and found fertile ground.

This is rather ironic, given that the Alan Paton Award is conferred for books that present

“the illumination of truthfulness, especially those forms of it that are new, delicate, unfashionable and fly in the face of power”.

But it is precisely these qualities that have seemingly earned the book urban South Africa’s obloquy from people some of whom have not even read it.

Power – in Neo-Capitalist South Africa as in others – lies not in governments but in multinational corporations that brook no national boundaries. Governments in such societies tend, by and large, to do the bidding of multinational corporations, and the History books are littered with nationalistic leaders (mostly in developing economies) who have fallen, one way or another, for daring to stand in the way.

The book has been dismissed by the self-appointed police of our national narrative as “pure fiction”, and so urban South Africa, without even having read it, appears to have taken a cue from that. This is demonstrative of the creeping intolerance of those wedded to one world outlook toward another.

As our courts are now increasingly being turned into blunt instruments for quashing any world view that departs from the common narrative, I took the view when the book came out in December 2017 that litigation attempts might spring from its publication if sales should reach “unacceptable” levels thus posing a danger of its contents gaining some traction. That this has not happened is testimony, more likely than not, to the book not exactly flying off the shelves.

It does not take much in mainstream urban South Africa these days to be “outed” as “a bot” or “captured” or “Guptarised”. All you need do is train your searchlight on the suspicious dealings of those revered by mainstream media in urban South Africa. And if you can toss in a bit of common sense amid the mob-like opprobrium for one Indian family, pointing out the obvious that the “capture” of South African institutions did not begin with that family, well, then, you’ll be well and truly scarlet-lettered.

To this, McKenzie seems to have said to himself, “Sod it. Let’s do it!” And do it he did – and in fine fashion, too, on balance.

Fairly early on in the book he makes plain not only what the book is about and aims to achieve, but also what it is not about. The book, says McKenzie, is

“about why and how various agencies and the interests they represent have identified Jacob Gedleyihlekisa Zuma as their enemy”.

He then boldly asserts that the book

“will open your eyes to some of the deepest truths about South Africa that you have probably never thought about”.

He characterises these “deepest truths” as

“jarring and capable of overturning all the casual, everyday assumptions that we as South Africans have come to take for granted”.

He does not muck around either. In the very first page of the first chapter, McKenzie tells us of a cabinet minister being

“summoned to talk to a member of a family that has often found itself in the headlines for various reasons, including allegedly wielding an inordinate amount of influence over the state and the business sector as a whole”.

Three pages later you get a sense of exactly what he means by the “inordinate amount of influence” that he says this family wields, and the “jarring” truths he is talking about:

“I want you to go and tell your president that I looked after Mandela. But if he fires Pravin Gordhan and Mcebisi Jonas, I will destroy this economy. My friends and I will make it look worse than Zimbabwe”.

No. McKenzie is not quoting a member of the much-maligned Indian family. He is quoting a white man addressing a cabinet minister he had allegedly summoned to his lair during the first quarter of 2017.

This allegation has now been officially placed in the public domain, under oath, before the Zondo Commission of Inquiry by President Zuma. It remains to be seen whether anything will come of it, and whether those implicated will be invited by the Commission to give their side of the story thus far ignored in mainstream media.

This narrative is delivered in suspenseful motif which would, at least by South Africa’s cinematic standards, come pretty close to making Alfred Hitchcock nod a hesitant approval. From there, I was hooked, and read on.

*******

The book is not a scorecard on the Zuma presidency or his numerous brushes with the law – real and imagined. Numerous other books, comparatively more warmly received (by all accounts), have cornered that market. It does not even pretend to rescue President Zuma’s image, or whatever is left of it. On the contrary, the book is rather critical of President Zuma for, among other things, doing very little to disturb the prevailing economic landscape in South Africa. McKenzie – in an understatement of which Oscar Wilde would have been proud – even expresses “doubt” that “all his actions as the president are above reproach”.

But concerning that about which you are unlikely to read or hear in privately owned mainstream media, the book is a fast-paced roller-coaster ride.

By the end of 73 pages, we have learnt of “Comrade Fear” and the existential panic he allegedly wrought upon the ruling party in exile.

By page 100 we have learnt how the negotiating team that was to represent the ANC at the CODESA talks had been gerrymandered while Zuma, Mbeki and the then ANC President Mandela were out of the country.

By page 128 we have been reminded of 12 compromises the ANC needlessly made at CODESA, each of which appears to be a capitulation rather than a compromise, and the deleterious effects of which are still plaguing the South African economy today.

The eponymous chapter of the book comes 129 pages into the book. In it we learn of the numerous attempts on President Zuma’s life. One such attempt, McKenzie tells us in remarkable detail, involved tampering with the official presidential jet. That jogged my memory.

I remembered jumping on the opposition DA and privately owned mainstream media bandwagon in criticising the wastage of the President chartering a plane while his presidential jet was perfectly fine. As it now turns out, it was not perfectly fine. Two South American Presidents had in 1981 died within two months of each other in plane crashes that were supposedly “perfectly fine” for apparently bucking the trend of the hegemonic overreach of Western powers and the multinational corporations that feed them.

The BRICS economic union, McKenzie tells us by page 180, is another inconvenience to the insatiable hegemonic pursuits of the West. It appears that the potential that BRICS holds in promise for the economic independence of emerging economies from the World Bank, IMF, EU and US stranglehold (detailed elsewhere in the book) is considered a threat to that hegemony. So, media reports have from inception of the union in 2006 pushed the line that BRICS is a fool’s folly.

The nuclear build programme that President Zuma’s government is rumoured to have negotiated with Russia’s state-owned nuclear agency, McKenzie tells us, plays directly into that space. The affordability of the build programme for South Africa appears to be an Aunt Sally argument. The real purpose seems to be to scupper any Russian involvement in the deal. If it were done with the US or UK that would have been more “acceptable”.

I pause here to mention that I have read many books and international journals about East-West relations covering the period 1947 to 1991. I am fortunate to have attended a well-resourced high school and university. Although the school did not exactly encourage independent thought in History class (I once had a mildly cantankerous exchange with my History teacher about the Yom Kippur War) there was enough information in the library to help one form an independent view instead of one aimed at passing an exam.

And Professor Robert Shrire was nothing if not engaging in his small International Politics classes at UCT during my academic struggles there.

So, thus privileged, I can pronounce that we have been lied to. The fall of the Berlin Wall did not mark the end of the Cold War; the Cold War simply morphed from being a race predominantly about arms and ideological propaganda into a race predominantly about the economy. Understood from that perspective, McKenzie’s ruminations regarding the West’s unease about BRICS and the nuclear build make a whole lot of sense.

*******

Privately owned mainstream media in South Africa is not spared in the book. An entire chapter is devoted to its predilection for scandal, provided it engulfs the usual suspects (namely, President Zuma and the Indian family) and does not touch its own revered champions.

This is not surprising. To make his point, McKenzie anchors this chapter of the book in a poignant quote from a celebrated journalist at a press banquet held in his honour in 1880 America:

“We are the tools and vassals of rich men behind the scenes. We are the jumping jacks, they pull the strings and we dance. Our talents, our possibilities and our lives are all the property of other men. We are intellectual prostitutes”.

McKenzie gives relatively recent examples of this journalistic “intellectual prostitution”. By now, the reader has learnt of the “jarring” and “deepest truths about South Africa” to which the author had promised to open our eyes in his foreword to the book. The intimate detail with which they are told makes nonsense of the naysayers’ dismissal of the book as “pure fiction”.

His criticism of South African media is fair. He does single out a few instances of journalistic intrepidity in the late Barry Sergeant whom he describes as

“a pre-eminent example of a journalist who went against the flow and wrote about the state capture attempts of the kind of big firms that few in our media have had the courage to write about”.

He then proceeds to share some of the stories Barry Sergeant pursued and reported on. It’s jaw-dropping stuff for those accustomed to tales of corporate probity in South Africa.

*******

Now, what are the negatives?

In the final chapter, written in the style of a letter, McKenzie addresses black people in language that rather clumsily conjures up the spectre of Biko’s I Write What I Like, Mandela’s Long Walk to Freedom, and Chika Onyeani’s Capitalist Nigger all rolled up into one. The man seemed unsure whose character among these three he should adopt. So he went with all three.

The chapter reads more like a whistle-stop political speech on a campaign trail in Alexandra than a heartfelt call to economic arms by the oppressed masses across the country.

But the trouble with the book does not end there. I have noted at least 28 instances of rudimentary literary faux pas, ranging from simple spelling mistakes to incomplete and incoherent sentences. One wonders whether his proof-readers were on Regmakers or on a placebo.

These embarrassing mistakes are in addition to at least two factual inaccuracies that I picked up. Maria Ramos was never Governor of the Reserve Bank, and Paul Hoffman SC was never evidence leader in the Arms Deal Commission. Nevertheless, neither of these detract from the force of the book’s content. Perhaps McKenzie will do a Bonang Matheba and publish a more refined second or revised edition of the book.

Judging by the reluctance of some of the major book outlets to stock the book (one white man at a major outlet with national footprint told me they don’t stock it because they “don’t like its cover”) and the general dismissal of it by many who have not even read it, the very idea of the book seems to have touched a raw nerve as people appear to have conceived of it as providing a counter to that other book by a retired journalist-turned-cook-and-now-back again seemingly to push a narrative on the “Rogue Unit”. So, any attempt – real or imagined – at salvaging President Zuma’s image appears to be considered an act of sacrilege by mainstream urban South Africa.

That, if nothing else, is enough for the curious and independent-minded to read the book and judge it on its own merits, not by the identity of its author – an unfortunate favourite South African pastime.

*******

McKenzie, as he himself admits in the book, is a convicted bank robber. But then so, too, were three white South African men, Andre Stander, Patrick McCall and Allan Heyl, now immortalised in a big screen movie production. Does that fact alone render McKenzie incapable of research and writing a book? Of course not. Read the book, not the man’s past.

The book is not a work of art. Very few non-fiction books are. It simply gives you information you would not otherwise obtain from mainstream publications. If you like, it is almost like a book version of Noseweek, giving you “the news you’re not supposed to know” in less than 250 pages. Like Noseweek, it is an easy read. I am a slow and deliberate reader when I read to comprehend rather than to impress. Reading to comprehend, I consumed the book in about five hours, including time spent rechecking some of the facts and highlighting excerpts to which I knew I would want to return – and did.

So, you have a choice: either find out for yourself what lies beneath the cover that a national book outlet finds so offensive, or allow privately owned mainstream media, and others who haven’t read the book, decide for you that the book is “pure fiction”. For me, the book is a breath of fresh air from the staleness of our Guptified existence. I wish more such books become available.

By |2019-07-17T20:58:30+00:00Jul 17th, 2019|Analyses and Reviews|4 Comments

The Sub Judice Rule: A Glimpse into the Position in Today’s South Africa?

What did he know and when did he know it? That is the question that confronted then Deputy President, Cyril Ramaphosa, in Parliament in 2015. It is a question that US President Richard Nixon chose not to answer, rather than face impeachment.  He resigned instead.

The allegation was that President Nixon had stolen (or caused to be stolen) audio tapes of his telephone conversations with various insalubrious characters because those tapes implicated him in unlawful conduct. That was June 1973 in Washington.

A little shy of 42 years later, the same question was put to then Deputy President Ramaphosa inside the parliamentary chamber in Cape Town. It related to the unexplained presence of a signal jamming device in the parliamentary chamber that reportedly made it impossible for journalists to post parliamentary news on social media platforms and elsewhere in the performance of their constitutional role. He, too, performed a deft toyi-toyi around the question and invoked an Aunt Sally in the form and shape of the sub-judice rule.

The then Deputy President had not been asked to pronounce on the merits of the use of signal jamming devices in the parliamentary chamber. In other words, he had not been asked to pronounce on the lawfulness of such use. That question was at the time still being considered by the Western Cape High Court.

The High Court subsequently ruled on the merits question and the matter then served before the Supreme Court of Appeal.

Now that the Supreme Court of Appeal has ruled on the unlawfulness and unconstitutionality of the signal jamming, in September 2016 in Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others 2017 (1) SA 517 (SCA), he to whom the questions of fact were posed has still not answered them.

Fast forward to 2018 and, by then President of the country, he invoked the sub judice rule again in the parliamentary chamber when asked about the future of the then National Director of Public Prosecutions and the appointment of Mr Arthur Fraser at Correctional Services.

Declining to answer the question put to him in Parliament on 25 July 2019, the new Deputy President also invoked the rule when asked about the lawfulness of the investigation unit (also known as the rogue unit) that was established within the South African Revenue Service (the tax collection agency in South Africa) in 2007. That question is reportedly the subject of court proceedings. Opposition parties, citing the need for accountability, objected to the Deputy President’s refusal to answer the question.

But was Deputy President Mabuza correct in declining to answer the merit question about the lawfulness of the establishment of the rogue unit? Does his defence lie in the sub judice rule?

The rule has been invoked by a number of politicians, one could argue, when it appears to suit their purpose at the time. It is difficult to miss the clear pattern. They seem to invoke the rule when a question cuts too close to the bone, but when it is convenient – perhaps with a view to swaying public opinion in their favour – they have no qualms pronouncing on matters that are the subject of litigation. One example is the numerous tousled engagements between the Executive and the Public Protector.

Sub judice is the thin veil of choice by politicians when faced with awkward questions about things they have done or said which are the subject of a court case. It is a source of frustration to many journalists keen on an angle.

But what is the sub judice rule, really?

Of all legal defences known to Man, the sub judice rule is probably the most abused in South Africa. A relic of the trial-by-jury system, it was intended to serve as a shield for juries from possible improper influence of extra-judicial comments about the case on which they would soon deliberate and render a verdict. Thus, juries would be forbidden from talking to anyone outside their number about the case, lest they be improperly influenced.

Hence sub judice or “still under juridical consideration”.

But in South Africa there is no danger of a jury being improperly influenced by the loud factual musings of a Deputy President about a signal jamming device inside the parliamentary chamber, or of a President about the factual details as regards the future of a prosecutor or correctional service commissioner.

Here we have people called Judges to deliberate on these things. Our law affords them the presumption of impartiality, and the Constitution that safeguards their independence. In other words, Judges are presumed to be impartial and not susceptible to undue influence by media reports of what happened inside or outside the parliamentary chamber. It is, of course, a rebuttable presumption. But the point is it is generally accepted that Judges – trained in the discipline of weighing up relevant facts and applying relevant law to those facts based on sound legal principles – generally do not require the quarantine from the outside world to which lay people need be subjected during the hearing of a case.

In any event, what is said in the parliamentary chamber, stays in the parliamentary chamber. It is privileged and cannot be used to hoist a Deputy President by his own petard in subsequent court proceedings.

In short, the sub judice rule does not serve as protection from accountability or the obligation to answer awkward questions in South Africa. Here, section 195 of the Constitution places a constitutional obligation on public servants – which includes Members of Parliament, the President, Deputy President and all cabinet ministers – to be “accountable” and “transparent . . . by providing the public with timely, accessible and accurate information”.

Often the decision of the Supreme Court of Appeal in Midi Television (Pty) Ltd t/a E—TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) is cited for the proposition that the rule does not prohibit fair and accurate reporting of factual content of ongoing judicial proceedings by the media, as long as the report does not usurp the court’s role by prejudging the case or the legal issues involved. The SCA said:

“[12] . . . If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms – including the freedom of the press – are also compromised.

[13] The exercise of press freedom has the potential to cause prejudice to the administration of justice in various ways – it is prejudicial to prejudge issues that are under judicial consideration, it is prejudicial if trials are conducted through the media, it is prejudicial to bring improper pressure to bear on witnesses or judicial officers. . .”

But the Court was not there dealing with the sub judice rule. The case was about an interdict to stop the television broadcast of a documentary that the prosecuting authority felt might prejudice the administration of justice in a pending trial. The SCA articulated the standard as follows:

“In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.”

So, the sub judice rule does not seem to enter into the equation at all. In other words, prejudice caused to the administration of justice can be demonstrable and substantial whether publication or pronouncements are made in relation to an issue before court proceedings begin or while they are underway. It is not the timing of the pronouncement or publication that matters; it is rather the real risk that demonstrable and substantial prejudice may be caused to the administration of justice.

For example, articles have been published which, it may be argued, pronounce on the outcome of the “rogue unit” case in which a cabinet minister has challenged the Public Protector’s findings that the establishment of an investigation unit (also known as the rogue unit) within the South African Revenue Service (the tax collection agency) was unlawful. That case is currently before the courts. Yet, at least one journalist, invoking obiter dicta remarks (remarks that carry no binding legal significance) in a recent judgment of the Johannesburg High Court for the proposition that establishment of the SARS investigation unit in 2007 was not unlawful, has now plainly pronounced on the outcome of the pending case in which that very question is to be determined.

But that is not an instance of the breach of the sub judice rule. It is rather an example of demonstrable and substantial prejudice that such pronouncement may cause to the administration of justice. It matters less that the journalist entered the judicial fray while a court case is pending on that very issue. Of significance is that by her pronouncement she runs the real risk that demonstrable and substantial prejudice may be caused to the administration of justice. How? Because the public (87% of whom, the Chief Justice tells us, instinctively believe what they read in newspapers without question according to a study by the German and American intelligence agencies) will expect the outcome as prejudged by the journalist. If the outcome is different, there is a real risk that the public may start believing that the judiciary (or the legal system) is “captured”.

Therein lies the prejudice to the administration of justice, and that has nothing to do with the sub judice rule.

Another example – this time before legal proceedings have been launched – is the President’s pronouncement last Sunday evening (on 21 July 2019) that the Public Protector’s Report, that he tells us he will be challenging in court, is “fundamentally and irretrievably flawed”. The public has seen and heard that pronouncement. No doubt the judges who will hear the President’s challenge have too. What is the average citizen to expect of the judge hearing the case then?

Some among us will flippantly assert that there is nothing wrong with “a litigant expressing a view” on the prospects of success of his court challenge openly in public. But is it that simple? This is a President we are talking about, not an ordinary citizen. He appoints Judges. He has been portrayed generally in the media as “cleaning up” the state of corruption. Anyone who seeks to hold him to account is generally portrayed as standing in the way of the President’s efforts to clean up. Now he stands before the nation telling us, and the judge who will be assigned to hear his challenge, what the outcome of his application must be. And a Full Bench has recently elevated the President’s political campaign slogan, “New Dawn”, to the annals of South African jurisprudence.

In light of all these objective facts, can it genuinely be believed by an objective observer that the President’s pronouncement poses no real risk of demonstrable and substantial prejudice whatsoever to the administration of justice? Again, the sub judice rule has nothing to do with this inquiry. There was no court case that had been filed when the President made the pronouncement. But does that make any difference whatsoever to the real risk posed by the pronouncement to the administration of justice?

Judicial independence and the presumption of judicial impartiality ought to dispose of any apprehension that Judges may be swayed by the President’s announcement last Sunday – 21 July 2019 – in these terms. But then the Full Bench of the Pretoria High Court did not seem prepared to run that risk when it ordered that the former President was not to appoint the Judge who would chair the “State Capture” commission because, said the court, he was conflicted.

From this, a number of awkward questions arise. Was that not a reflection more on the independence and inherent impartiality of the Judge than on the character of he who ordinarily appoints commission chairs? Put differently, what else could the Full Bench have feared, in making the order that it did, than suspicion that the former President might appoint a malleable Judge? Is that fear itself not an indictment on judicial independence and inherent impartiality?

If the idea in Midi Television (which has been followed in numerous subsequent judgments, including the Constitutional Court) is to prevent the usurpation of the court’s role which happens when prejudging the case or the legal issues involved, did the President not do just that when he told South Africa that the Report he was about to challenge is “fundamentally and irretrievably flawed”? Is that not a breach of the Midi Television standard?

Is Deputy President Mabuza on firm ground when refusing to answer a question on the lawfulness of an investigation unit, a question that is currently before court? In my view, yes. But does the basis for his refusal lie in the sub judice rule? In my view, no. On a proper reading of the Midi Television judgment, it seems to me the Deputy President’s justification may lie in his caution not to run the real risk of demonstrably and substantially prejudicing the administration of justice by pronouncing on the merits of an issue that is yet to be determined by the courts, especially when that process has already commenced.

So, if politicians play fast and loose with a rule of ancient origin intended for lay people in a jury system, and journalists honour it in its breach, what legal certainty does the sub judice rule provide? Has the time not come for the courts to say, as the appeal court said about another anachronistic relic many years ago, “requiescat in pace!” (rest in peace) to the sub judice rule, thereby paving a clear path to true accountability?

By |2019-07-26T15:06:47+00:00Jun 14th, 2019|Blog, General|1 Comment