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

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Legitimacy, Transformation and Need for Change at the Bar

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

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

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Report of the PIC Commission

By |2022-04-09T16:18:00+02:00April 9th, 2022|Analyses and Reviews|Comments Off on REVIEW REPORT OF THE PROCEEDINGS AND FINDINGS OF THE PIC COMMISSION OF INQUIRY (GOVERNMENT GAZETTE NO. 41979) – by Former Judge Willem Heath

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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SAJEI_Journal_-_Vol_1_-_Issue_1 Original article at page 48

Judging Judges_ Empathy as the Litmus Test for Impartiality

By |2022-04-03T09:49:04+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 |2021-04-30T19:32:25+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 |2021-04-30T19:28:36+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 |2021-04-13T01:21:02+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 |2021-04-07T15:28:36+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 |2020-11-28T20:02:34+02:00November 28th, 2020|Analyses and Reviews|1 Comment

Request for Oral Evidence of Zuma Cabinet et al at the Zondo Commission- By Vuyani Ngalwana SC, Fellow of the Africa Leadership Initiative & Fellow of the Aspen Global Leadership Network

On 25 January 2018, the President of the Republic of South Africa established the eponymously titled Zondo Commission to inquire into “state capture”, corruption and fraud in the public sector including organs of state.

Rules and Regulations were then gazetted to regulate the proceedings and processes of the Zondo Commission.

One of those Rules is Rule 9.1 which affords every person the right to request the Commission to invite any person to give evidence at the Commission on specific issues that fall within the Terms of Reference of the Commission. Another is Rule 3.2 which confers upon the legal team (or evidence leaders) of the Commission to question persons who appear at the Commission as witnesses.

Rule 9.1 is important as it fosters participatory democracy and active citizenship particularly on matters of national interest such as the fight against corruption that seems endemic in South Africa if media reports are any indication. It ensures that the Commission cannot train its sights only on people carefully selected by it (for whatever reason) for investigation to the exclusion of others who are implicated in alleged corrupt conduct.

Where any person believes that persons not called by the Commission to give evidence and be questioned on matters of alleged corruption, “state capture” or fraud, that person is free to ask the Commission to invite such persons to be questioned by the Commission.

This request is intended as an example of how to go about doing so. If there are people you believe should be called to appear at the Commission, you have a right to do so by this means. The Chair, however, has a discretion whether or not to acquiesce in your request. As with the exercise of any judicial discretion, he is duty bound to exercise it judiciously and not capriciously as that may found a ground for the review and setting aside of his decision not to invite the witness, or the setting aside of his entire report for ignoring relevant evidence in coming to his findings and recommendations.

Among the persons in relation to whom the Request has been made are the President, former Deputy-President, former executives at state owned enterprises and current and former senior public service employees.

The Request includes video material that should be helpful to the Commission Chair in the assessment of the Request.

Read the full Request here Request for Oral Evidence by entire Cabinet as Witnesses to State Capture Commission – 24 November 2020

Related Documents

State Capture Terms of Reference – Original

State Capture Commission Rules

By |2020-11-26T15:44:42+02:00November 26th, 2020|Analyses and Reviews|Comments Off on Request for Oral Evidence of Zuma Cabinet et al at the Zondo Commission- By Vuyani Ngalwana SC, Fellow of the Africa Leadership Initiative & Fellow of the Aspen Global Leadership Network

Justice Zondo Got it Wrong – Dr Paul Ngobeni

The Zondo Commission is, according to Dr Paul Ngobeni, fraught with existential, substantive and procedural irregularities.

It blurs the line between the executive and the judiciary, thereby disregarding the separation of powers doctrine; its flirtation with state law enforcement agencies following the president’s extraordinary changing of the rules during the game brings it into collision with the constitutional imperative of judicial independence; its conduct of its proceedings is in sharp contrast with well-established international norms and standards.

All this, says Dr Ngobeni, opens the Zondo Commission up to judicial review.

But will South African courts see it that way? Read for yourself, and decide.

Read the full analysis here: Why Justice Zondo Got It Wrong

By |2020-11-22T08:55:46+02:00November 21st, 2020|Analyses and Reviews|7 Comments
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