Odyssey of Liberation: A Memoir of a Rebel Advocate by Adv MUZI SIKHAKHANE SC – A Review

Odyssey of Liberation: A Memoir of a Rebel Advocate by Muzi Sikhakhane SC is a huge book not only because of its size but also because of the gravity of the subjects it covers. Comprising four parts and covering almost 500 pages – from the author’s foundational Early Years, through Defining Moments at personal and professional level, Trials and Tribulations, and Political Perspectives – the book deserves proper attention and literary treatment. That is why this review is longer than most.

People read books for varied reasons. Some people read a book to confirm their own biases; others to gain new information, knowledge or wisdom on a specific subject; more to meet their New Year’s resolutions. There are also those who read a specific book with a view to gathering ammunition for later use against the author in this “cancel culture” infused era. Then there is the fan base – those who read the same book that others seek to weaponise against its author, as evidence of their loyalty to the author and/or his cause. Muzi Sikhakhane’s Odyssey of Liberation appeals to all these, and more besides.

I have read the book thrice. To be honest, the first reading was that of a fan who sought to confirm his own bias in favour of just about every subject covered in the book. When I read it the second time, my purpose was to clear the fan fog in my eyes and mind so that I could better grapple – hopefully with an open and curious mind – with the observations made about South Africa’s judiciary, the legal profession and NGOs. By the third reading, I had decided to write a critical review of the book, and hope to interview the author in order to understand exactly his state of mind in producing a book of this magnitude.

I have managed to sit down with the author for a chat. We did a deeper dive into several topics that some people may regard as “controversial” in the book. A series of those conversations will be published soon on this website. They are not sweetheart conversations of a fan with his hero. But then, you will be the judge of that.

This book is huge.

South Africans have not really had an open and honest discussion about several aspects of what makes for the true character that is South Africa; the South Africa DNA. For example:

  • Why exactly did the old people who negotiated a “new South Africa” on our behalf prefer a move away from parliamentary democracy that worked perfectly fine for white people before April 1994, and adopt a “constitutional democracy” in which none of the negotiators had any experience?
  • On balance, how is this “constitutional democracy” benefiting the majority of South Africans socio-economically?
  • Is the balance of forces between elected representatives, on the one hand, and an unelected judiciary on the other, a reflection of what a true democracy that works to the advantage of the majority of ordinary South Africans should be?
  • On balance, what role do NGOs (special interest groups) play in South Africa and what is the impact of that role in the advancement of democracy in South Africa?
  • Are state institutions playing the role for which they were established, or are they advancing the interests of the powerful?

These, and more, are subjects that Odyssey of Liberation grapples with. These are issues that should form a staple engagement diet for all South Africans if we are to be truly actively engaged citizens in the crafting of our own future and that of generations to come.

That CODESA (the multi-party Convention for a Democratic South Africa established in December 1991 to embark on a negotiated peaceful end to apartheid) was an opportunity lost is a view I share with the author. With the benefit of hindsight, many thinking South Africans now realise that compromises were made by the leading liberation movement that should not have been made. Chief among these was effectively placing an unelected judiciary higher than elected legislators and an elected Executive on the trias politica hierarchy stakes. This is why, for example, a court could direct a sitting President – at whose pleasure cabinet ministers serve – to explain his decision to reshuffle his cabinet, and provide to the official opposition memoranda of advice that were given to him in that regard [Democratic Alliance v President of the Republic of SA; In re: Democratic Alliance v President of the Republic of SA and Others (24396/2017) [2017] ZAGPPHC 148; [2017] 3 All SA 124 (GP); 2017 (4) SA 253 (GP) (9 May 2017].

In a true democracy, characterised by political representatives being elected by the people to make decisions – including the constitution of their cabinet – as they see fit for the benefit of the people, this should not happen. Even where the ostensible reason for reshuffling his cabinet is a ruse and is not done for the benefit of the people, an unelected judge or court of judges should not have the power to instruct a sitting President (elected through the political party that gained the most votes in a democratic election) to explain the exercise of his prerogative political powers conferred on him by the electorate through his political party.

That is my take on one aspect of what is discussed in the book. Other people will no doubt have differing views. These views should all come out in the open and be dissected for all to see. Sikhakhane’s Odyssey of Liberation invites precisely such debates. It is my wish that South Africans will answer the invitation, and thereby countermand those who will seek to silence a view with which they disagree.

There are areas on which the author and I are not in agreement. One of these is the closeness of counsel to his brief. In one chapter, the author relates a story that paints a picture of a relationship with his brief that resembles one between close comrades than one between a lawyer in the referral advocacy profession and his client. This caused me some discomfort as I believe in order to maintain clarity of judgment and independence there should be clear boundaries beyond which counsel should not venture in his engagement with his brief. The author disagrees. While he acknowledges that many of his cases “present ethical dilemmas due to their high stakes and involvement in political battles that extend beyond the ordinary skills of advocates”, he believes he is “fortunate” because his background as a political activist has “equipped him with the necessary experience to contextualise political battles”.

On briefs with political implications, he holds the view that

“Law is nothing but an offspring of politics. No matter how much it tries to sever itself from politics, it is simply impossible. The sooner society is honest about it, the better. The pretence about the rule of law is itself a political gimmick to dress up a political agenda as something more noble than it actually is. That is just the nature of law.”

I think this proposition requires a separate conversation of its own. It is this kind of thinking – a departure from the advocates profession’s idées reçus – that earns this book a badge of authenticity by shaking the mind from the profession’s ostensible anchor ethic. It is the stuff of awards.

***

The Alan Paton Award has historically been 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”.

In recent years, very few South African books of non-fiction would qualify for this Award ahead of Odyssey of Liberation. Yet, one can’t help sensing that it is precisely the qualities for which the Award is customarily conferred that will likely earn this book and its author the obloquy of South Africa’s mainstream or legacy media and urban South Africa, mainly from people who have not even read it, having consumed its supposed content vicariously through the spin of detractors intent on snuffing out delicate and inconvenient truths. Worse still, the book may simply be ignored in mainstream discourse. That would be a tragedy, and an opportunity lost of coming to grips with our own sensibilities as a “nation”.

The sad reality of what has become South Africa’s irony is that we have become a society that punishes (or cancels) people for telling truths that the ruling class would rather were not told, and reward those who tell tall tales about their flirtation with the “capture” of the state which – more on their sanitised version than on the true facts – they successfully rebuffed.

As I write this review, I would not at all be surprised to learn that there are people already plotting a veritable assault on the author’s person and career, aimed not only at silencing him, but also at sending a strong message to others who may harbour ambitions of following in his path and publishing material that seeks to present stuff of the kind that speaks to the Alan Paton Award.

In today’s South Africa, publication of some truths seems fine; but that does not go for all truths. Some truths, it appears, are too inconvenient for the perceived greater good to be laid bare. This crassly Utilitarian theory of ethics that developed in the 18th Century has no place in a 21st Century constitutional democracy.

Utilitarianism posits that conduct is acceptable if it promotes the greater good, and unacceptable if it drifts against greater good. The trouble with the theory is that those who sit in judgment of what the greater good is, are often the same people (or class of people) who suppress truths that are inconvenient for their continued stranglehold on levers of power.

For example, under apartheid a series of laws aimed at keeping races apart, and advantaging one race above others, was justified by the assertion that, because the various races are inherently different and hold materially divergent values, they must be kept apart for the sake of what Hendrik Verwoerd termed “good neighbourliness”. That is what kept the National Party in power for decades in South Africa. That was their truth which brooked no deviance if they were to stay in power. As soon as the theory collapsed, so too the National Party lost political power.

It is by that same depraved theory of Utilitarianism in today’s South Africa that truths that are perceived by the ruling class as potentially disruptive of the “state capture” narrative must be snuffed out. Once the carefully choreographed baroque that is “state capture” is exposed, that should spell the end of the ruling class tight grip on levers of power both in the state and in the economy.

Odyssey of Liberation seeks to expose this Utilitarian character of today’s South Africa. Whether it succeeds in doing so will depend on each reader’s acquaintance with South Africa’s recent history. As a sceptic – since South Africans have in my view never really unshackled themselves from the binary disposition that characterized social engagement in apartheid South Africa – I venture to suggest it will also depend on the reader’s political or factional leanings. For the more rational among us, however, I hope that good old fashioned common sense will be the measure.

One example of an attempted exposé in the book is the story of the formation of the State Capacity Research Project, allegedly funded by the George Soros Open Society Foundation, by a coterie of academics affiliated to leading South African universities, who in May 2017 produced a document titled “Betrayal of the Promise: How South Africa is being stolen”.

It is in this document, crafted with the help of what the author terms “foreign advisors”, that “a mysterious interpretation” was assigned to commonly known terms such as “repurposing” of state institutions and “state capture” with a view to – as Mr Arthur Fraser puts it in his written statement to the State Capture Commission – “promoting, in a concealed manner, social uprising rather than promoting the Constitutional parliamentary process to resolve social problems in democratic South Africa”.  And so it was, that former President Zuma – together with a motley crew of selected fellow travellers in his cabinet and others “associated” with him – was chosen to bear the cross of “state capture” and “repurposing” of state institutions.

Some may argue that the toppling of former President Zuma owes its success, at least in part, to this State Capacity Research Project. He finally fell on his sword in February 2018 and, a month later – with President Ramaphosa now in charge without an electoral mandate – the national prosecuting authority announced its decision to reinstate corruption charges against him that it had previously withdrawn. Of course, this decision may have been fortified by a judgment of the Supreme Court of Appeal – nine years previously – which set aside a high court decision which had absolved President Zuma from criminal prosecution on the ground that his prosecution had been politically motivated. The SCA found that “[a] prosecution is not wrongful merely because it is brought for an improper purpose”. That judgment probably paved the way for the re-prosecution of President Zuma 9 years later, and immediately after President Ramaphosa had – without a popular electoral mandate – taken over and subsequently started pursuing office on a “state capture” campaign ticket.

The author quotes from a written submission made by Mr Arthur Fraser to the State Capture Commission which had been established in January 2018 – 8 months after the State Capacity Research Project had produced its “Betrayal of the Promise: How South Africa is being stolen” document – to investigate allegations of state capture, corruption and fraud in the public sector including organs of state. Mr Fraser is a former Director General of the South African State Security Agency and was the author’s brief (referral advocates do not have clients; they have briefs).

The author laments that, although various allegations were made in relation to Mr Fraser at the Commission, Mr Fraser was never invited by the Commission to give evidence and elaborate on his written statement. The Commission says he never applied. The author takes the view that part of the reason for not inviting Mr Fraser to testify was to keep the contents of his statement hidden from public view. My own view is that a person implicated in the evidence of others should not have to apply for his version to be heard and considered by the Commission.

The author’s overall take on the Zondo Commission is this: “In the end, I am of the opinion that the Zondo Commission was never established to uncover the truth. Instead, it was established to validate a preconceived grand narrative seeking to absolve some and condemn others”.

He is not the first to make this assessment. Whether or not it is an accurate assessment will depend on the reader’s own objective assessment of the goings-on at the Commission over its four years duration. It will also depend on the reader’s engagement with the author’s extensive discussion of events that led him to this conclusion about the State Capture or Zondo Commission, of course with a sprinkle of the reader’s own common sense.

The author also expresses opinions that I can best describe as “unflattering” about South Africa’s judiciary. It is to this that I now turn.

***

Sikhakhane SC is a practising Senior Advocate or Barrister in South Africa (equivalent of a “QC” or “KC” in England and Wales). Not unlike Lord Jonathan Sumption, former Justice of the Supreme Court of England (formerly House of Lords) who was publicly critical of the manner in which the British government handled management of the covid-19 pandemic, Sikhakhane SC has seen fit to speak out on issues of general public interest that many people, especially in the legal profession, only whisper about in safe echo chambers.

Closer home, the author’s speaking out on principle on what he perceives to be the compromising of judicial standards in South Africa is not unlike the courage displayed by Bram Fischer who was hounded out of the advocates profession by the Johannesburg Society of Advocates for speaking his truth and living according to his conscience. He was later reinstated – decades later – and posthumously conferred a Silk status for that same courage.

One of the issues on which the author speaks out is his views on the South African courts’ approach to political cases or cases that have political implications. For example, the author takes the view that many judges in South Africa’s courts “are unconscious victims of popular sentiment and sponsored grand narratives … [and as a result tend to] dispense injustice in the belief that they are being patriotic and associating with the ‘right’ side”.

This is not new criticism directed at South African judges. During apartheid, there was trenchant criticism in white liberal circles of “executive minded” judges for whom the apartheid government could do no wrong in its spirited enforcement of apartheid ‘laws’. Adopting what some among us regard as “legal positivism”, the attitude of those judges was that their role was to interpret and apply apartheid laws and not to question them (see, for example, ‘The Judicial Process, Positivism and Civil Liberty’ (1971) 88 SALJ 181).

Not unlike white liberals of the apartheid era, the author seeks to expose “legal positivism” and “executive mindedness” of a different kind in today’s South Africa. He identifies an attitude of judges hellbent on never finding against the incumbent President in cases with negative political implications for him. In this regard, the judgment of the Constitutional Court, concerning what has become colloquially known as the President’s “PhalaPhala Farmgate” scandal, should be awaited with interest.

In that case (see the pleadings and written submissions here –> Economic Freedom Fighters v Speaker of the National Assembly and Others) two opposition parties have challenged as irrational, unlawful and unconstitutional parliament’s resolution (by majority) declining to adopt an Independent Panel’s Report (headed by a former Chief Justice) and refer it to the impeachment committee for the possible impeachment of the President following the Panel’s finding that the President may have committed a serious violation of the Constitution (See the Independent Panel’s Report here –> Ramaphosa Impeachment Report – 30 November 2022). This follows the discovery of foreign currency (reportedly far in excess of what is permitted by law) hidden in furniture at the President’s farm residence, a criminal complaint of money laundering against the President by Mr Arthur Fraser at the South African Police Service, and a refusal by the South African National Prosecuting Authority to prosecute the President.

Of course, the disposition of the Constitutional Court towards the President – if any – should be judged by its reasoning for whatever finding it makes rather than by the finding itself. A finding in favour of parliament (and therefore, by extension, in favour of the President) should not by that reason alone constitute evidence of Adv Sikhakhane SC’s view of South African courts’ partiality towards the President. Similarly, a finding in favour of the opposition political parties (and therefore against the President) should not, by that reason alone, be indicative of the courts’ antipathy towards the President. Proof of the court’s [disposition] pudding should be in the [reasoning] eating.

The author also identifies the determination of our judiciary to maintain the “state capture” narrative by ensuring that one Zuma continues to be regarded as the personification of “state capture” and “repurposing” of state institutions. That is why the Constitutional Court (the highest court in South Africa) had to compel President Zuma to appear – again – at the State Capture Commission before a Commissioner (the country’s Deputy Chief Justice at the time) even though Zuma said he harboured a reasonable apprehension that the DCJ could be biased against him for reasons he articulated in his application for the DCJ’s recusal.

The author is critical both of that decision by the Constitutional Court, and of its subsequent custodial sentence of 15 months that it meted out to Zuma – without subjecting him to a criminal trial – for refusing to appear before a commissioner he regarded as biased. Characterising the judgment as “probably the most shameful judgment a post-apartheid court has ever issued”, the author criticizes the court for justifying “its unprecedented decision [in civil contempt proceedings] to order an incarceration of a person without a trial”.

Some readers may agree with this assessment; others may disagree. But this is precisely the sort of debate that South Africans, in an open and democratic society, should have about the application of that concept that the author seems to regard as amorphous or chameleon-like: rule of law. Indeed, the author may in my view have a point in that this rule of law concept seems to take its character and form from the identity of the litigants before courts. It is an issue (even at the level of perception) to which judges must be alerted and be pointed to specific examples; not buried – especially by legal practitioners – for fear of being “cancelled” or targeted for “scandalizing” the judiciary.

The observations in the book about the judiciary will no doubt trigger resentment and harden arteries in some quarters. In other circles, however, the observations will have a ring of truth. They are the author’s opinion deriving from his own experience as a practising Barrister. The question is whether South Africa will prove itself – in reaction to the expression of such opinion – ready for a mature conversation on touchy subjects about institutions that some people consider to be sacrosanct. Should we hold our tongues on matters that concern us, and the professions in which we practise, for fear of wounding the feelings of those who wield power over us?

And what of the book’s literary qualities?

***

Odyssey of Liberation is not a literary masterpiece in the milieu of Ta-Nehisi Coates’ Between the World and Me or Maya Angelou’s book of poems And Still I Rise. But then it was not intended to be. The book probably compares favourably to Steve Biko’s I Write What I Like (although, to be fair, it is more scholarly than the collection of speeches, letters and court testimony that make up Biko’s offering). This is not surprising. Both Coates and Angelou are renowned award-winning authors. Biko was not. Biko’s literary contribution was to tell, in print, truths at a time when telling such truths was, bizarrely, a radical act.

Odyssey of Liberation places Adv Sikhakhane SC in that Biko mould. He teases out truths that you will not read or hear in mainstream media or publications; truths that those who feel exposed by them find inconvenient and therefore want to suppress them and cancel the exponents of such truths.

Those who pick up Odyssey of Liberation and thumb through it expecting demagoguery of the Mein Kampf mould will be bitterly disappointed. The book is a masterclass on the life of a Black professional who does not follow the herd but charts his own path; a crash course on the relationship between Law and Politics; and a lesson on the difference between racism and “playing the race card”, colonialism and coloniality, a lesson on “whiteness” (hint: it is not a reference to white people), a lesson on Blackness (hint: Blackness is a state of mind, not the colour of your skin).

Of enormous value in the book is the insight the reader gains on critical legal-cum-political contestations that we have, until now, only seen through the lens of mainstream or legacy media. The book gives the reader the VIP front-row seats and places the reader right at the centre of these controversies. These include

  • The origins of the complaint by judges of the Constitutional Court against Judge President Hlophe leading ultimately to his impeachment
  • The Sikhakhane Report in relation to the so-called “Rogue Unit”
  • How concepts such as “state capture” and “repurposing” of state institutions came to assume a unique meaning in order to achieve a particular outcome
  • The real reason Zuma did not oppose the State Capture Commission’s application in the Constitutional Court to have him imprisoned, ostensibly for contempt of court
  • Whether there was really a “staged walkout” from the State Capture Commission by Zuma’s legal team
  • Why Arthur Fraser never appeared before the State Capture Commission although he submitted a substantial written statement
  • Why Sikhakhane SC stepped back from “the Zuma cases”
  • What Kemp J Kemp SC’s view of the courts was in relation to “Zuma cases”
  • The abuse faced by Black advocates, including at the hands of advocates with black skin
  • The role of NGOs (special interest bodies)
  • And much more

The book is not without blemish, at least from my perspective. As a literary project, I find it something of a mishmash – fish and fowl at once. It seems the author could not quite decide whether to write a political memoir, a personal memoir, a professional memoir, a political lecture, or a sociological lecture on the vagaries of coloniality. In the final analysis, we end up with a discursive offering that meanders from childhood challenges to a near-death experience at age 20, to a critique of the legal profession and the judiciary, to an entire section (or PART) titled “Political Perspectives” but which contains some chapters the contents of which could, in my view, have been better located under the PART dealing with “Trials and Tribulations”.

I particularly found it curious that there should be a separate PART on “Political Perspectives” since the author is not shy to inject his political perspectives throughout the book – the uncommonly lengthy “Prologue” not excepted – so that these perspectives are scattered all over the book. Why then a stand-alone PART on “Political Perspectives”?

Anyway – sound or not – these are criticisms better directed at the editor and publishers than the author.

Nevertheless, I think this mishmash works to the benefit of the reader who, by it, is treated to more than just a biographical work but also to political consciousness and the inner workings of the legal profession, including judicial proclivities, from a perspective of one who has been (and continues to be) intimately engaged in both.

Another curious feature of the book is the haphazard use of epigrams and other excerpts cited from famous and not-so-famous thinkers at the beginning of some chapters. It appears that by Chapter 5 the author had run out of fitting epigrams until Chapter 11 where he resumes with them, loses them again in Chapter 14, regains them in Chapter 15, loses them again in Chapter 18 until he recalls them in Chapter 23, only to lose them yet again in Chapter 24 until he regains them in chapter 27, and loses them again in the Epilogue, whereas the Prologue kicked off with one.

As an English major who has read many classic works that favour opening chapters with fitting epigrams (George Eliot’s Middlemarch immediately springs to mind) and having tried the exercise myself in my flirtation with authoring a book, I can relate to the difficulty of maintaining epigrammatic introductions to each chapter in a book as long as this. I have found that there are at least two landmines that lie in wait: either you will at some point use an unfitting epigram or you will completely run out of fitting epigrams for each chapter and abandon the whole exercise. Quite why the author persisted after realising that the approach is not sustainable will remain one of life’s engaging mysteries about this book.

So, what now?

***

As I read the book, it strikes me as intended to relate the life experiences of one Black man – in which others of a similar background may find resonance – in an open, frank and un-gilded fashion. Characterised by a level of frankness rarely seen in the advocates profession, the book is a window to a mind unshackled by custom and an assortment of political, ethical and economic idées reçus. By its unadorned diction, it administers “shock therapy” especially to the sensibilities of a judiciary unaccustomed to trenchant criticism since the dark days of apartheid. Will the judiciary “let the dogs out” or pause, reflect and engage open-mindedly? It is my hope that this book will serve as some kind of cathartic moment for the judiciary, rather than invite the girding of the loins which the book does not seem intended to do.

Perhaps when a strong urge emerges to “punish” or “cancel” an advocate for expressing a view dissenting from popular discourse, those feeling the pangs of the urge to punish will do well to pause and reflect on Chief Justice Pius Langa’s words:

“Sometimes the simplest act of dissent can change the course of history… Sometimes the dissenter is the lone voice of reason in the dark. There will be some who privately agree with a dissenter, be it a Galileo, a Saro-Wiwa, a Rosa Parks or a More. The value and courage of dissent comes in standing up and pronouncing the difficult view in public and taking the consequences. It is easy to believe in something, it is much more difficult to speak out.”

And, quoting Bram Fischer,

“When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any ‘offence’ he may commit. On the contrary, it requires an act of will to overcome his deeply rooted respect of legality, and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it, not out of a desire to be immoral, but because to act otherwise would, for him, be immoral.”

Fischer was posthumously honoured by the advocates profession for his principled courage. In the fullness of time, we shall learn whether this honour – in what has become the South African tradition – is reserved for those favoured and pre-approved for the time being by those who wield power over others.

The End

***

By |2025-01-19T08:10:24+02:00January 16th, 2025|Analyses and Reviews|3 Comments

To Robe or Not in SA Courts: A Colonial Vestige or Necessary Decorum in Today’s South Africa? – Vuyani Ngalwana SC [with additional contributions by Adv IAM Semenya SC & Alno Smit]

On 15 August 2024, the Chief Justice invited comments on his mooted amendment of the norms and standards for the exercise of the judicial functions of all courts to require advocates to don robes in the lower courts – magistrates courts and regional courts. Until now, members of the bar have not been required to robe in the South African magistrate’s courts.

The requirement is scheduled to be gazetted on 28 August 2024 and “will” come into effect on 1 October 2024.

The relatively short notice, coupled with the mandatory language as signified by use of the word “will” (not “may” or “could” or qualified by language demonstrative of a willingness to abandon the idea if the weight of argument should tilt the scales against pushing through with the amendment) seems to suggest that the amendment may be a fait accompli. If so, this would be regrettable and taint the entire process in bad faith engagement with the profession.

There are arguments both in favour and against retention of the robing tradition in South African courts. I believe arguments against retention are far stronger than those in favour. I hope I have demonstrated this in this my formal objection not only to the extension of the tradition to advocates in relation to magistrate’s courts but also more broadly in relation to robing in all South African courts.

I have submitted my objection to the Office of the Chief Justice, and live in hope that it will be carefully considered and that, should it not sway the Chief Justice, written reasons will be provided therefor.

Since submitting my own objection, I have received two more submissions on the robing issue, one by Adv Ishmael Semenya SC and another by Adv Alno Smit.

Read Full Objection here: Objection to robing – 18 August 2024

You may also be interested in these:

Judiciary-Norms-and-Standards

Notice – Robing (original)

Adv Semenya SC’s contribution can be found here Objection to Robing in Courts – IAM Semenya SC

Adv Smit’s contribution can be found here In Defence of Robing – Alno Smit

By |2025-01-15T10:12:34+02:00August 20th, 2024|Analyses and Reviews|Comments Off on To Robe or Not in SA Courts: A Colonial Vestige or Necessary Decorum in Today’s South Africa? – Vuyani Ngalwana SC [with additional contributions by Adv IAM Semenya SC & Alno Smit]

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 |2025-01-15T10:12:34+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

REVIEW REPORT OF THE PROCEEDINGS AND FINDINGS OF THE PIC COMMISSION OF INQUIRY (GOVERNMENT GAZETTE NO. 41979) – by Former Judge Willem Heath

This is a Report by Former Judge Willem Heath on the Proceedings and Findings of the PIC Commission of Inquiry into the affairs of the Public Investment Corporation (PIC).

Some of the findings include

  • that the Commission ignored its Terms of Reference and did not investigate material transactions in relation to which evidence had surfaced and of which the evidence leader was aware
  • that the Commission erroneously interpreted its Terms of Reference and that this is a reviewable irregularity which could result in it being set aside
  • that the Commission showed marked bias and prejudice towards certain companies or persons and favouratism towards others
  • that the conduct of one of the members of the panel of the PIC Commission should be referred for investigation to relevant authorities
  • that the Commission failed to comply with the legal principles and doctrines of the Rule of Law, Natural Justice, Fairness (just Administrative Action) and legality, thus resulting in substantial reputational and financial prejudice to some persons
  • that the affected companies and persons should explore legal advice on whether they have a case for delictual damages against the PIC Commission.

The Report also provides a useful exposition of the purpose of Commissions of Inquiry, what is permissible and what is not. In the process, the Report reminds us all what constitutes evidence and what does not in a Commission of Inquiry setting.

It also provides a timely reminder of what the role of Journalists is in reporting on proceedings of a Commission of Inquiry, and where the obligations (and protections) of journalists begin and end in relation to their reporting on Commissions of Inquiry.

Read Full Report here: REPORT OF THE REVIEW OF THE FINDINGS AND CONDUCT OF THE PIC COMMISSION – ADV W HEATH SC – 6 March 2022

You may also be interested in this:

Report of the PIC Commission

By |2025-01-15T10:12:34+02:00April 9th, 2022|Analyses and Reviews|1 Comment

Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa – A Lecture by Justice Dunstan Mlambo, Judge President of the Gauteng High Courts, South Africas

In his 1946 essay on Politics and the English Language, George Orwell succeeded in surgically peeling off the veneer of prosaic respectability from what passes for “modern” English to expose the ugly lies ignominiously hidden beneath.

Mourning the perversion of the English language – ostensibly in the name of modernism but, in truth, with a view to obfuscating and deceiving – he observed that the decline of a language must ultimately have political and economic causes.

Perhaps unfairly, Orwell’s essay sprang to mind when I read a take by the Daily Maverick on a lecture by Judge President Mlambo. I knew immediately that I had to get my hands on it and read it myself. A quote in the Daily Maverick piece left me puzzled and wishing to understand more.

So, I set out to find the lecture itself, and sat down to read it. Wow!

Daily Maverick quoted the Judge President as saying:

“There are no longer assertions that the law can be kept isolated from politics; while they are not the same they are necessarily and inherently linked”

In fact, what the Judge President said – quoting former Chief Justice Langa – was this:

“[T]here is no longer place for assertions that the law can be kept isolated from politics.  While they are not the same, they are inherently and necessarily linked”

Read the two quotes again, carefully, especially the first part of each.

A statement that “there are no longer assertions” about a particular worldview is a very different proposition from a statement that says “there is no longer a place for assertions” of that particular worldview. The former is a statement of fact, and whether or not the fact is well-founded is something that can be pursued with the speaker by fact checkers. The latter, however, is the expression of an opinion which is not measured for its plausibility merely by checking facts. One has to go beyond that and probe the reasoning. Facts answer to questions like “what”, “when”, “where” “who”, “how”. Opinions answer to “why”.

Whether or not there are still assertions that law can be kept isolated from politics is to me irrelevant. As a proposition of fact it does nothing to stimulate the necessary national debate and enquiry about whether or not politics plays a role in the determination of cases in the course of Judges applying, in their minds, the law. Of much interest to me, as a lawyer who appears regularly in South African courts, is the proposition that there is no longer a place for assertions that the law can be kept isolated from politics, and that these are inherently and necessarily linked. Now, that piques my interest.

The Daily Maverick piece left me puzzled and wanting to understand more about the lecture because there is a clear dissonance (at least to me) between the first part of the quote and the second. If there are no longer assertions that law can be kept isolated from politics, then to what end must the reader be told in the same sentence that these two are inherently and necessarily linked, except to call readers to arms to demand that assertions that law can be kept isolated from politics remain a distant memory? In other words, why would the speaker tell me that law and politics are inherently and necessarily linked if he wants to discourage me from asserting that law can be kept isolated from politics? It is this disconnect in the Daily Maverick piece that piqued my interest.

Whether the disconnect is deliberate or a function of editorial negligence I do not know. I am just happy I picked up on it and read the lecture myself.

I have always maintained that Judges should emerge from behind their judicial shield and express their worldview on matters of public interest. The bench is not a monastery or convent where Judges have taken a religious vow not to engage in conversations about matters of national interest wherever they find themselves. They are citizens with socio-political interests and preferences before they become Judges. Those interests and preferences do not vanish upon people donning judicial robes or taking the oath to uphold the Constitution.

Judges are also fathers, mothers, sons, daughters, wives, husbands and taxpayers and are also affected by politics as the rest of us. So, to believe that Judges are immune to political influence or consideration – whether by design or by coincidence – when determining some cases, is in my view astonishing naivete.

That is why the lecture of the Judge President on Transformative Constitutionalism, and the role of Judges in it, comes as a welcome relief for me from the suffocating pretence by many members of the public that Judges are above politics. How can they be when they are political beings, appointed by a politician through a political process and in terms of a document that is a product of political detante: the Constitution?

By saying this I do not for a moment suggest that Judges should turn politicians or that they are politicians. Far from it. The point I make is that Judges are creatures of politics and cannot escape politics whether they wish to do so or not. It is not in their hands. It is in the nature of their work and in the subconscious mind of human beings with socio-economic and political experiences, interests and preferences.

As I understand the Judge President, he posits that Judges in post-apartheid South Africa must, of necessity, break from the self-imposed judicial strictures of unyielding notions of un-rehabilitated common law. He points to a number of cases (known to lawyers who practise in these courts) to demonstrate the reluctance of some Judges to unshackle their judicial grounding from common law that has been overtaken by the new constitutional grundnorm or ethos. The notion that the law exists in a gilded world of its own, unsullied by the politics of the day, is not only imagined by those who hold that view; it is also an impediment to Transformative Constitutionalism. That is what I understand the Judge President as saying.

To that end, the Judge President calls in aid cases like Beadica, a Constitutional Court judgment that reminds Judges that they

“must not lose sight of the transformative mandate of our Constitution.  Transformative adjudication requires courts to “search for substantive justice, which is to be inferred from the foundational values of the Constitution . . . that is the injunction of the Constitution – transformation.”

The idea that law and politics should not mix, and that Judges should steer clear of politics, is in my view uninformed. Again, by that thesis one is not saying Judges should turn politicians. But what Judges cannot avoid is make decisions steeped in politics. Whether that is by design or by coincidence only the Judge in question will know. For example, when two factions of a political party battle in court for the leadership of that party, and the court finds in favour of one faction, that decision aides a political project – whether the Judge intended it or not.

I think time has come for us all to disabuse ourselves of the notion that law and politics do not mix. They often do. To suggest otherwise is to deceive ourselves. As Chief Justice Langa himself said those many years ago, and now endorsed by the Judge President, law and politics are inherently and necessarily linked. It is naive to believe that the determination of cases, especially those engaging socio-economic  and political rights, is done shorn of political considerations. As the Judge President himself says:

“Judges should take note that every common law case is an opportunity to develop the common law and to construct social and economic relationships in one way or another consonant with the transformative agenda of the Constitution.  Every common law decision has implications that are political, moral, economic and distributive

In my view, if South Africa is to reverse (or at the very least ameliorate) the still lingering vestiges of apartheid, we need Judges who will not lose sight of the transformative mandate of the Constitution; Judges who will actively go in search of substantive justice informed by the foundational values of the Constitution: equality, human dignity, advancement of human rights and freedoms for those historically and currently marginalised or targeted for exclusion in all aspects of life in South Africa. That object cannot be fulfilled by a judiciary that is politically inert or, worse still, a judiciary that is still trapped in the politics that was dominant in 1985.

At some stage, the unpalatable but necessary task of an audit of Judges’ political persuasion will have to be embarked upon if Transformative Constitutionalism is to be realised. Until then, all we shall be doing is tinker at the edges with a system of oppression that continues to wreak havoc with the lives of the very category of persons the Constitution professes to protect and advance.

As Justice Madlanga of the Constitutional Court of South Africa has said:

“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”

If that is so, then what South Africa needs are not politically inert Judges but Judges whose politics aligns with the aspirations and healing of ordinary black people who still bear the scars of apartheid and continue to suffer the indignities of that system even under what is supposed to be a constitutional state founded on a constitutional ethos where everyone has the right to equal protection and benefit of the law, but for whom that is merely a promise in a document.

It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:

“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”

Will the same one day be said of contemporary South African Judges who remain silent in the face of the worst excesses of big business and the executive, putting up their judicial shield of “see no evil, speak no evil” as an excuse for not engaging publicly? Time will tell.

But the Judge President’s lecture is not just about politics and law. This just happens to be the theme that has piqued my curiosity and which, in my view, deserves closer scrutiny.

Read Full Lecture here: Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa

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By |2025-01-15T10:12:34+02:00April 3rd, 2022|Analyses and Reviews|Comments Off on Transformative Social Change and the Role of the Judge in Post-Apartheid South Africa – A Lecture by Justice Dunstan Mlambo, Judge President of the Gauteng High Courts, South Africas

THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 2

This is Part 2 of a paper on the fabled “lifeboat” or “bailout” afforded by the SA Reserve Bank to the Bankorp Group and Absa Bank between 1985 and 1995.

As pointed out in Part 1 of the paper, this bailout has been the subject of three investigations:

  • the Special Investigating Unit (“the SIU”), led by Judge Willem Heath, following a proclamation by President Thabo Mbeki, which concluded that the SA Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.
  • the Davis Panel of Experts, led by Judge Dennis Davis, appointed by Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – which reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.
  • the Public Protector who found likewise and went further to direct that the money be recovered from Absa Bank and other beneficiaries.

In this Part 2, we discuss the findings and recommendations of the three investigations and propose the way forward with reference to Constitutional Court authority.

Read the full Analysis here The Unfinished Story – SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 2

By |2025-01-15T10:14:20+02:00April 30th, 2021|Analyses and Reviews|2 Comments

THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 1

In 1999 the Special Investigating Unit (“the SIU”), following a proclamation by President Thabo Mbeki, found that the South African Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.

Instead, Judge Willem Heath who led the probe released a 17-page Official Media Statement on his findings.

Soon after, Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – appointed a Panel of Experts, led by Judge Dennis Davis, to undertake the same investigation that Judge Willem Heath’s Special Investigating Unit had just completed. The Panel of Experts reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.

Then came the Public Protector who investigated the same issue, made findings and took remedial action.

While both the SIU and Davis Panel of Experts found that the transaction was, in effect, a fraud, they stopped short of recommending the repayment of the funds thus procured. So, their findings were not challenged in court. The Public Protector, however, ordered the repayment of these funds. What happened to her next leaves some unanswered questions about why the bailout issue seems to be a no-go area.

In this short paper, I explore this question, beginning with the background to this infamous bailout. In that process, I discuss the findings of these probes, offer my own views and suggest the way forward.

Read the full Analysis here The Unfinished Story – The SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 1

By |2025-01-15T10:14:21+02:00April 28th, 2021|Analyses and Reviews|7 Comments

THE JUDGE PRESIDENT vs JUSTICES OF THE CONSTITUTIONAL COURT – What Are the Missing Facts?

Facts Matter.

The South African public’s understanding of the long-running spat between the Cape Judge President, on the one hand, and Justices of the Constitutional Court acting as an institutional block, on the other, seems informed by much factual ellipsis.

In this short paper, I try to present some of the facts that, in my assessment, seem to have disappeared from public discourse on this case, resulting in some members of the public and analysts making some of the most extraordinary statements about the case. In the process I make some of my own observations about those facts which, if considered, may in my assessment possibly have resulted in a different outcome from the one recently reached by the Judicial Conduct Tribunal of the South African Judicial Service Commission on 9 April 2021.

In writing this paper, I am moved by a concern about the dominant fact-free narrative that seems to be treated as authoritative in public commentary on this case. My purpose, therefore, as the Code of Conduct for Legal Practitioners allows, is to help guide public understanding of the issues that have arisen or may yet arise in the course of the further conduct of this process, if any should follow.

As you read this paper, be aware that I was part of the Judge President’s legal team in 2008 until April 2009.

Read the Analysis here The Judge President vs Justices of the Constitutional Court – What are the Missing Facts PDF

By |2025-01-15T10:14:21+02:00April 13th, 2021|Analyses and Reviews|2 Comments

RADICAL ECONOMIC TRANSFORMATION – A CONSTITUTIONAL PERSPECTIVE

Radical Economic Transformation is anchored in the Constitution of the Republic of South Africa, 1996. Pieces of legislation have been passed in order to give effect to it. The President of South Africa pronounced it in his State of the Nation Address. Yet, the term “Radical Economic Transformation” has become something of a swear word in recent years in South Africa. This raises the question: Why?

This short paper explores this question and more.

Read the full Analysis here RET – A Constitutional Perspective – Website

By |2025-01-15T10:14:21+02:00April 7th, 2021|Analyses and Reviews|2 Comments

Déjà Vu FOR SOUTH AFRICA’s CONSTITUTIONAL DEMOCRACY: HAVE THE PRESIDENTIAL VOTE OF NO CONFIDENCE CHICKENS COME HOME TO ROOST? – By Vuyani Ngalwana SC, Fellow of the Africa Leadership Initiative & Fellow of the Aspen Global Leadership Network

On Thursday 3 December 2020, the South African National Assembly is scheduled to entertain a vote of no confidence motion in the President. The motion was submitted some months ago by the African Transformation Movement (“ATM”) – a minority party in the National Assembly. It requested that the vote be done by secret ballot. The Speaker of the National Assembly, the upper house, refused. ATM demurred and has reportedly given the Speaker until close of business on Monday 30 November 2020 to reconsider her decision or face legal challenge.

Whether that legal challenge will come is anyone’s guess. Should it come, though, the very foundation of South Africa’s relatively nascent constitutional democracy is likely to be tested. And that’s a good thing.

South Africa has been here before, except on that occasion the Speaker asserted that she had no power to direct that a vote of no confidence in the President be done by secret ballot. She was mistaken. The Constitutional Court set her right and told her she does have a discretion so to direct. It armed her with a myriad factors that must be taken into account in the exercise of that discretion. In the end, the Speaker, on that occasion, relented and directed a vote by secret ballot.

The Constitutional Court judgment was in June 2017. The President narrowly survived the secret ballot no confidence vote in August 2017. Another vote of no confidence was scheduled for late February 2018. The President avoided that secret ballot judgment of his peers. He resigned on Valentine’s Day 2018.

Over 3 years later since the last no confidence vote, another President is facing the same hurdle and the Speaker’s decision looks likely to be challenged – again. This time, though, the applicable principles are clear.

Given that money has increasingly taken centre-stage during this President’s term in office, and at least two Members from the opposition benches have been outed as having received money from the President’s 2017 campaign funds the records of which remain sealed by order of court, it seems unlikely that the Speaker has applied her mind fully to the dangers that her decision to refuse a secret ballot poses to a conscience-laden exercise of each Member’s vote in that no confidence vote.

The Constitutional Court’s observations in paragraphs 81 and 82 in UDM v The Speaker and Others (CCT 89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017) [“the Secret Ballot Case] – regarding money or oiled hands determining the voting outcome”, and the voting process degenerating into a fear or money-inspired sham” – are particularly chilling, especially with the ever-looming spectre of the firmly sealed records of donations to this President’s 2017 election campaign in which records the names of many Members of Parliament – both those of his own party and those of opposition parties – could be featuring prominently, and likely to vote gratitude to the President for the largesse s/he may have received than conscience.

The stakes are high and should expose real (not imagined or rhetorical) fissures – if they ever genuinely exist between chameleon-esque politicians. In terms of s 102(2) of the South African Constitution, if the vote of no confidence in the President succeeds by a simple majority of 201 of the 400 Members of the National Assembly, the President and his entire cabinet (including deputy ministers) must resign. For that to happen, at least 33 ruling party Members must vote in favour of the motion and ALL opposition parties must also vote in favour.

Read the full Analysis here Deja Vu For Constitutional Democracy in South Africa

By |2025-01-15T10:14:41+02:00November 28th, 2020|Analyses and Reviews|1 Comment
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