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

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

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

On 28 July 2020, the President of the Republic of South Africa gazetted some amendments to the Regulations of the Zondo Commission.

These amendments include enabling the National Prosecuting Authority to access information that has been gathered by investigators of the Zondo Commission, during the course of their employment by the Zondo Commission, and using that information in criminal proceedings against persons implicated by that information in criminal conduct.

Adv Malindi SC explores the constitutional challenges that these amendments pose. For example, if a witness called to give evidence at the Zondo Commission at a time when s/he is facing criminal prosecution, what implications does that have on the right against self-incrimination, among other rights of an accused person, if the Zondo Commission compels the person facing such criminal prosecution nevertheless to give evidence before it?

Read the full paper here Zondo Commission and Criminal Prosecution

On 4 August 2020, the Western Cape High Court, in Cape Town, South Africa (the Cape High Court), granted leave to appeal to the Supreme Court of Appeal, the second highest court in the South African hierarchy of courts.

The Cape High Court comprised two Judges. Reading the judgment, one got a sense that there was no appetite to grant leave. Extraordinarily, in a 43-paragraph judgment, it only emerges in paragraph 41 that leave may be granted.

This is an analysis of the judgment by a recent BA(Law) graduate student from the University of Cape Town. He laments the judgment as an opportunity lost to dealing with procedural and substantive rationality from a constitutional perspective, and hopes that the SCA gets to grips with that question.

Read the full paper here Analysis of LTA Esau Judgment – Thabo Nongogo 19 August 2020 Website

Many people at the receiving end of media focus on the basis of information obtained from “sources” about them are often at a loss as regards how it can possibly be permissible for a journalist to publish information about them without ever having spoken to them to check the accuracy of the information.

Not so long ago, the South African Minister of Finance found himself in that position when a headline in a Sunday newspaper screamed:

“Tito Really Wants Out”

He tweeted that the newspaper had not spoken to him for the story. The story itself did not cite “official” sources. It consisted entirely of inferences from the Minister’s past tweets.

In another more recent story, an online publication published a story quoting the Chairman of the South African Medical Research Council as saying cases of malnutrition at Chris Hani Baragwanath Academic Hospital were seen “for the first time” in May 2020 amid the hard lockdown imposed ostensibly to combat covid-19 in South Africa. The publication had not fact checked the assertion because, said the editor

“What she says matters and is deserving of publicity.”

The malnutrition story was subsequently disputed by the Minister of Health in an official cri de coeur, resulting in the publication issuing an ex post facto  “clarification”, with the editor later tweeting that he did not have to do a fact check since the person in question was an authority.

There appears to be disagreement among media experts on this view. One media expert and fact-checker is quoted as saying in a tweet:

“I strongly disagree. Journalists aren’t scribes. And no expert gets it right all the time. At the very least, the journalist should have established if Prof Gray had direct knowledge of the claim she was making about child malnutrition at Bara … The kind of journalism that publishes unverified claims and correct them later is not the kind of journalism that will help the industry build trust…”

So, what exactly are the ethics of fact checking in South African journalism?

This paper explores that question and finds the answer at the highest possible echelons of South African journalism, the South African Press Appeal Panel.

Read Full Analysis and Review here:To Fact Check or Not – Journalism and Ethics in South Africa