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THE TRUTH ABOUT RACE-BASED REMEDIAL MEASURES IN SOUTH AFRICA – By Vuyani Ngalwana SC

I am a Black South African and a senior legal practitioner in South African higher Courts with more than 25 years’ experience especially in public law and commercial law. I have also appeared in neighbouring Namibian Courts. My legal practice is mainly focused at appellate level. For the first 14 years of my life, I grew up in South Africa’s dusty black townships that resemble Nazi concentration camps in their design, an idea largely of the apartheid white South African government – through a series of pieces of legislation beginning with the Group Areas Act of 1950 – aimed at fostering its idea of “separate development” of various race groups.

As a lawyer of many years’ experience in South Africa, I am driven by many recent developments to offer this Constitutional law-based perspective. These recent developments range from a traditionally white-interests political party (that is in a coalition government with Nelson Mandela’s African National Congress) threatening to collapse the coalition over South Africa’s President’s signing of a new Expropriation Bill into law, to the outlandish pronouncements and observations made by the policy head of Afriforum, a self-proclaimed white sectional interest group, in a recent interview with Tucker Carlson.

These recent developments have brought into sharp focus the question of the constitutionality of race-based remedial measures aimed at redressing the race-based imbalances caused by the socio-economic monstrosity that is apartheid, as a coterie of organisations that go under the umbrella of Afriforum and Solidarity (a white mainly Afrikaner trade union) have travelled to the United States determined to portray South Africa as a genocidal, racist and rapacious state that seeks to take away property from white people without compensating them. This comes in the wake of President Cyril Ramaphosa signing into law a piece of legislation styled the Expropriation Act, 13 of 2024, replacing an old pre-Constitution (1975) piece of legislation bearing a similar title.

It is not my purpose in this short paper to discuss that piece of legislation, save to say that the claim that this new Expropriation Act seeks to deprive white people of land without any compensation is rooted in mendacity of a most disingenuous and dangerous kind. I suspect the people who spread this falsehood know that they are either lying or are grossly overstating their position. After all, if they truly believe what they are propagating, they would already have challenged the constitutional validity of this piece of legislation in the courts and, if they are correct in their claim, the South African courts will set aside the legislation as unconstitutional – a power or competence that the South African Constitution confers on higher courts in South Africa.

This is because section 25(1) of the South African Constitution – which became the supreme law in South Africa in December 1996 but came into effect in February 1997 – prohibits “arbitrary deprivation of property”. Although property ownership or possession is not an absolute right in South Africa for everyone, there are very stringent justification grounds that government would have to satisfy for the limitation of a right to property to pass constitutional muster.

The South African Constitution – hailed around the world as the most liberal Constitution in the world – provides that the rights contained in the Bill of Rights Chapter of the Constitution (and these include property or land rights) can only be “limited” (not taken away, but limited) in terms of “law of general application” (not edicts or “executive orders”) to the extent that such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” (not based on a politician’s whim or presidential “executive order”). Such limitation, says the South African Constitution, must factor in (1) the nature of the right; (2) the importance of the purpose of the limitation; (3) the nature and extent of the limitation; (4) the relation between the limitation and its purpose; and (5) less restrictive means to achieve the desired purpose. So, for example, if there exist less invasive means of achieving the desired governmental purpose than limiting a property right or expropriating land, the South African courts – which are the final arbiters in these matters, not politicians – will not allow expropriation.

My purpose in this paper is to place what Afriforum and company claim about South Africa in a proper and Constitutional law-based perspective without political spin or damaging propaganda content. It is my hope that those not familiar with the South African constitutional and justice system will gain a better understanding of what the real objective truth is as regards race-based remedial measures in South Africa.

The purpose of Race-Based Remedial Measures

The South African Constitution emerges from many years of multi-party negotiations (at least that is the idées reçus) between those who were oppressors on the one hand (predominantly, but not exclusively, the Afrikaner section of the white population in South Africa) and those who were oppressed under the apartheid system on the other (all Black South Africans). Its provisions are a product of agreement or compromise by all political parties in South Africa. These include parties that overtly represent the sectional interests of white people, including those whom Afriforum claims to represent in its denigration and deprecation of my country, South Africa, in a foreign country, the United States.

The proper perspective is vastly different from what the United States has been told by Afriforum, in its recent visit there.

Before the Constitution was passed into law in December 1996 (and before its interim predecessor in 1993), Black South Africans were not allowed by law to own property or land in South Africa. Numerous pieces of legislation, including the Group Areas Act, 1950, saw to that. Even ingenious ways by Black South Africans to own property or trade in so-called “white areas” within their own country through corporations were quashed by the apartheid courts’ executive-minded interpretation of legislation. Instead, successive apartheid white governments carved out pockets of unproductive land in what they cynically called “homelands” or “bantustans” and decreed that Black South Africans must live in those pockets and govern themselves there. These were divided according to ethnicity, so that Zulus (AmaZulu) had their own “homeland”, Xhosas (amaXhosa) their own, Sothos (baSotho) their own, and so on.

Black South Africans had no voting rights in South Africa and so could not influence laws and political policies within South Africa. Black townships (concentration camps) were designed to serve as temporary residential areas from where white companies and families could source labour at slave wage levels, and in order to reside in those townships and secure “employment”, adult male Black South Africans were required by law always to carry a work and residence permit (the dompass) on their person and produce it on demand by any police official (and by any white person who served as an extension of the apartheid “influx control” system).

Because Black South Africans were not considered citizens in South Africa, they became victims of many forced removals from their land which was taken for white occupation and “ownership”.

It is from this perspective that Race-based Remedial Measures in South Africa should be understood. Far from being “reverse racism” or “revenge racism”, these measures aim at redressing apartheid’s socio-economic vestiges. They are a concept that has been accorded some notoriety in recent years in South Africa, and now seemingly in the United States courtesy of Afriforum and Solidarity. This is unfortunate as it diverts the attention of all South Africans and the world away from where it should be: building a South African nation that is moored on the constitutional foundation of sustainable equity, fairness and the rule of law.

As I understand it, Race-based Remedial Measures are rooted in the Constitution of South Africa and, as a “measure designed to protect and advance categories of persons disadvantaged by unfair discrimination”, it has found support in numerous judgments of the Constitutional Court of South Africa, the highest court in the South African court hierarchy – an equivalent, if you like, of the United States Supreme Court or the British Supreme Court.

This is not surprising. Following the war, largely in Europe, between 1939 and 1945 – although human rights abuses against the Jewish people of Europe date back to at least 1933 soon after the Nazi Party came to power in Germany – reparations for Jewish people have continued unabated. To this day, more than 8 decades after the end of that war, one still reads about reparations for Jewish folks and perpetrators of human rights abuses against them being hunted down. It is generally accepted that about 6 million Jews were murdered and their property taken from them over that period between 1933 and 1945.

By comparison, countless numbers of Black South Africans have suffered genocidal intent at the hands of successive white apartheid governments, their women and children raped, and their land taken away from them over decades. No one is pursuing the hunt for perpetrators of those atrocities because Black South Africans agreed to “let bygones be bygones” as the last apartheid Prime Minister FW de Klerk infamously and cynically put it. But, at the very least, one would have expected that Reparations of the kind offered to the Jews of Europe would not only be welcome but also demanded by the nations of the world, including the United States.

How did we end up with what is otherwise a noble concept of reparations or remedial measures sitting in the gutter and being used as a blunt political instrument that has the potential of reversing the negotiated settlement that gave birth to what is widely termed the miracle that is the “New South Africa”? I see a number of players contributing to this unfortunate state of affairs, but we could probably group them into two broad categories.

There are those who mischievously use the term in a negative sense, primarily because their economic interests seem to lie in the suppression of the Transformation of South Africa’s economy. Simply put, if the South African economy were to be transformed so that the Black majority can have a seat at the economic table, some people would need to give up the economic power they have held for eons. Thus, in creating a diversion, to what has now become an emotive issue, the South African people do not see the full picture.

Then there are those who do not see the connection between a diversion of attention, on the one hand, and the lack of transformation, on the other. And so, by their ignorance, they tend to serve as witting or unwitting conveyors of the first lot for the message that Race-based Remedial Measures mean the looting of privately owned land or property. And thus, without much effort, a term that should have a positive meaning in South Africa has become a weaponised “swear word”.

Now, let us consider the anchor for Race-based Remedial Measures and what makes them in perfect sync with the South African Constitution – and, I dare say, with Public International Law if the Jewish experience is any indication.

The SA Constitution and the Legislation that gives effect to it

The starting point, as always, is the SA Constitution. Sections 9 and 217 of the SA Constitution are the provisions that anchor Race-based Remedial Measures in South Africa’s economic transformation agenda. Section 9, in relevant part, says:

“(1)    Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2)      Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3)      . . .”

Section 217 says:

“(1)    When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

(2)      Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for

          (a)      categories of preference in the allocation of contracts; and

          (b)      the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.

(3)      National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented.”

But, in their current phrasing, it would seem that these constitutional provisions do not make the taking of these measures, that are designed to protect or advance persons, or categories of persons, disadvantaged by apartheid, compulsory. They seem to leave that task in the discretion of each government administration. Whether that is commensurate response to the magnitude of the problem sought to be addressed, is a question I leave to you.

But once that discretion has been exercised favourably, there can be no valid complaint, except on the basis of the test laid down by the Constitutional Court in Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) in these words:

“When a measure is challenged as violating the equality provision, its defender may meet the claim by showing that the measure is contemplated by s 9(2) in that it promotes the achievement of equality and is designed to protect and advance persons disadvantaged by unfair discrimination. It seems to me that to determine whether a measure falls within s 9(2) the enquiry is threefold. The first yardstick relates to whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; the second is whether the measure is designed to protect or advance such persons or categories of persons; and the third requirement is whether the measure promotes the achievement of equality.”

The Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (the Equality Act) is one of the “measures” envisaged in s 9(2) and s 217(3) of the SA Constitution. Its preamble sets out in clear and unambiguous terms the values that inform its passing into law and the legitimate governmental purpose it aims to achieve:

“The consolidation of democracy in our country requires the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people;

Although significant progress has been made in restructuring and transforming our society and its institutions, systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy;

The basis for progressively redressing these conditions lies in the Constitution which, amongst others, upholds the values of human dignity, equality, freedom and social justice in a united, non-racial and non-sexist society where all may flourish;

South Africa also has international obligations under binding treaties and customary international law in the field of human rights which promote equality and prohibit unfair discrimination. Among these obligations are those specified in the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Elimination of All Forms of Racial Discrimination;

Section 9 of the Constitution provides for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality;

This implies the advancement, by special legal and other measures, of historically disadvantaged individuals, communities and social groups who were dispossessed of their land and resources, deprived of their human dignity and who continue to endure the consequences;

This Act endeavours to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom…”

Now, what has the Constitutional Court – the highest court in the South African court hierarchy – said about all this?

Constitutional Court pronouncements on Race-based Remedial Measures

The South African courts, including the SA Constitutional Court, have ruled in support of measures taken pursuant to s 9(2) of the Constitution, for the protection and advancement of people disadvantaged by apartheid. Let us be clear; the persons, or categories of persons, disadvantaged by unfair discriminationthat s 9(2) of the SA Constitution references are mainly and predominantly Black South Africans.

In Stoman v Minister of Safety and Security and Others 2002 (3) SA 468 (T) at 477F-H (cited with approval by van der Westhuizen J in Barnard 2014 (6) SA 123 (CC) at para [137]), the North Gauteng High Court said:

“[T]he recognition of substantive equality means . . . that equality is more than mere non‑discrimination. When a society, and perhaps the particular role players in a certain situation, come from a long history of discrimination, which took place individually, systemically and systematically, it cannot simply be assumed that people are in equal positions and that measures distinguishing between them amount to unfair discrimination.”

In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) at para [60] the SA Constitutional Court said:

“It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in the past are eliminated.  Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes are eliminated, and unless remedied, may continue for a substantial time and even indefinitely.  Like justice, equality delayed is equality denied.”

In South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC), the Constitutional Court said (at para 29):

“At the point of transition, two decades ago, our society was divided and unequal along the adamant lines of race, gender and class. Beyond these plain strictures there were indeed other markers of exclusion and oppression, some of which our Constitution lists. So, plainly, it has a transformative mission. It hopes to have us re-imagine power relations within society. In so many words, it enjoins us to take active steps to achieve substantive equality, particularly for those who were disadvantaged by past unfair discrimination. This was and continues to be necessary because, whilst our society has done well to equalise opportunities for social progress, past disadvantage still abounds.”

In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) the Constitutional Court said:

“The essence of restitutionary measures is to guarantee the right to equality for the reason that, without such measures, the achievement of equitable treatment will continue to elude us as a society. The Labour Court (Waglay J as he then was) commented, in Harmse v City of Cape Town, that the implementation of employment equity orientated measures is a duty placed upon designated employers by the Employment Equity Act which also provides them with affirmative action as a defence against claims of unfair discrimination. Commenting on that decision, Prof Carole Cooper states that employment equity orientated measures ‘do not amount to an exception to equality but are integral to its achievement’ which is in essence ‘substantive equality’.”

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) it said:

“[75] The commitment to achieving equality and remedying the consequences of past discrimination is immediately apparent in section 9(2) of the Constitution. That provision makes it clear that under our Constitution ‘[e]quality includes the full and equal enjoyment of all rights and freedoms’. And more importantly for present purposes, it permits ‘legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’. These measures may be taken ‘[t]o promote the achievement of equality’.

[76]  But transformation is a process. There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them. The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goals we fashioned for ourselves in the Constitution. What is required, though, is that the process of transformation must be carried out in accordance with the Constitution.”

Again, in Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC), the SA Constitutional Court made it clear that measures implemented to redress past imbalances are not a deviation from, or invasive of, the right to equality, but rather contribute to the constitutional goal of achieving equality in order to ensure the full and equal enjoyment of all rights. Justice Moseneke said:

“[30]  Thus, our constitutional understanding of equality includes what Ackermann J in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Another calls ‘remedial or restitutionary equality’. Such measures are not in themselves a deviation from or invasive of, the right to equality guaranteed by the Constitution. They are not ‘reverse discrimination’ or ‘positive discrimination’ as argued by the claimant in this case. They are integral to the reach of our equality protection. In other words, the provisions of s 9(1) and s 9(2) are complementary; both contribute to the constitutional goal of achieving equality to ensure ‘full and equal enjoyment of all rights’. A disjunctive or oppositional reading of the two subsections would frustrate the foundational equality objective of the Constitution and its broader social justice imperatives.

[31]  Equality before the law protection in s 9(1) and measures to promote equality in s 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes, which I need not discuss now. However, what is clear is that our Constitution and in particular s 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised underprivilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.”

The South African equality jurisprudence is clear. The taking of measures aimed at advancing persons or categories of persons disadvantaged by apartheid is to be celebrated and reinforced, not ridiculed. Race-based Remedial Measures fall among that category of measures envisaged in s 9(2) of the SA Constitution. Those in the executive of government, and who swore an oath to protect and uphold the Constitution, who either actively campaign against Race-based Remedial Measures or who fail to implement it, are failing in their constitutional obligation and there is a remedy in the SA Constitution itself against an executive which is guilty of such conduct. Section 89(1)(a) of the SA Constitution says the National Assembly (Members of Parliament) may remove the President for “a serious violation of the Constitution or the law”.

If Members of Parliament should themselves fail to hold the President to account for his failure to fulfil his constitutional obligation of Race-based Remedial Measures, citizens can approach the courts to force them to do just that. We have a perfect example of precisely the exercise of that right by citizens through a political party in South Africa’s Constitutional Court’s so-called Secret Ballot case [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)].

SA Government Policy

Not only are Race-based Remedial Measures under the umbrella of Radical Economic Transformation anchored in the SA Constitution, they also, rightly, spring from a resolution of the ruling party and a policy of government. On 9 February 2017, the then President of the ruling African National Congress and of South Africa unfurled the policy of Radical Economic Transformation at his State of the Nation Address. He said:

“The skewed nature of ownership and leadership patterns needs to be corrected. There can be no sustainability in any economy if the majority is excluded in this manner. In my discussions with the business community, they accepted these transformation imperatives.

Today we are starting a new chapter of radical socio-economic transformation. We are saying that we should move beyond words, to practical programmes. The State will play a role in the economy to drive that transformation. In this regard, government will utilise to the maximum, the strategic levers that are available to the State. This includes legislation, regulations, licensing, budget and procurement as well as Broad-based Black Economic Empowerment charters to influence the behaviour of the private sector and drive transformation…

During this year, the Department of Economic Development will bring legislation to Cabinet that will seek to amend the Competition Act, 1998 (Act 89 of 1998). It will, among others, address the need to have a more inclusive economy and to de-concentrate the high levels of ownership and control we see in many sectors. We will then table the legislation for consideration by Parliament. In this way, we seek to open up the economy to new players, give black South Africans opportunities in the economy and indeed help to make the economy more dynamic, competitive and inclusive. This is our vision of radical economic transformation.”

The Competition Act was indeed amended in 2018 to bring public policy considerations within the competition law landscape. The Competition Appeal Court (CAC), in eMedia Investments (Pty) Ltd South Africa v Multichoice (Pty) Ltd and another [2022] 2 CPLR 23 (CAC) has now highlighted the breadth of the meaning of the word “participation” within the context of the Competition Act, so that it covers not only firms that participate in a given market but also those that do so sustainably, whether they are competitors or customers of the dominant firm. It said (at para 90):

“An amendment to the Competition Act in 2018 introduced various definitions making them wider and ensuring closer consistency with the transformative goals of the Competition Act.  The word “exclusionary act” is defined in section 1(c) to mean an act that impedes or prevents a firm from entering into, participating in or expanding within a market.  A further amendment in section 1(h) of the Act defined “participate” as referring to the ability of or opportunity for firms to sustain themselves in the market. …”

There are disingenuous attempts at drawing a false parallel between remedial measures aimed at redressing apartheid’s insidious effects on Black South Africans on the one hand, and apartheid’s crude and murderous racial discrimination against Black South Africans on the other. While these race-based remedial measures are anchored in what the world accept as the most liberal Constitution in the world, and are subject to constitutional scrutiny by the courts, the apartheid policy was declared a Crime Against Humanity by the United Nations General Assembly in 1966 which was endorsed by the Security Council in 1984. There is simply no comparison or equivalence.

Conclusion

Race-based Remedial Measures are a constitutional imperative in South Africa. They are rooted in the Constitution itself. The South African courts, including the Constitutional Court, supports their implementation as remedial measures intended to address the economic exclusion of Black people under apartheid. The association of these measures with “apartheid” or “unfair race discrimination” is mischievous and, I venture, intended to suppress Transformation of the South African economy. Right-thinking South Africans and world leaders should not be deterred from a constitutional path by mischievous misalignment of a perfectly constitutional project.

I would respectfully urge those – in the United States and elsewhere – who are not familiar with South Africa’s Constitutional landscape and jurisprudence to familiarise themselves with it before accepting at face value everything they are told by persons and organisations that seek to promote their own sectarian interests at the cost of their own country’s security and economic interests. The collapse of the South African economy is in no one’s interest, including the United States.

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By |2025-03-07T08:41:00+02:00March 5th, 2025|Blog, General, International|Comments Off on THE TRUTH ABOUT RACE-BASED REMEDIAL MEASURES IN SOUTH AFRICA – By Vuyani Ngalwana SC

The Judge Mbenenge Inquiry – A Response to Dr Ramphele

In an opinion piece published yesterday – on 22 January 2025 – on News24, Dr Mamphela Ramphele attacks a colleague for his line of questioning a complainant in a gross misconduct inquiry into a Judge’s conduct involving alleged indecent behaviour and improper cellphone text message exchanges with a woman staffer in the division of the high court of which the Judge is Judge President.

It is tempting to dismiss Dr Ramphele’s criticism as the usual bluster of a politician who has found an election campaign angle for the 2026 local government elections and beyond. But Dr Ramphele is a respected leader outside the rough and tumble of the cesspool that is politics, and so her criticism commands a measure of respect and must be addressed on its merits.

It is not my place to comment on the merits of the complaint that is currently before the Judicial Conduct Tribunal (JCT) and I expressly decline to do so. It would in any event be inappropriate. I focus only on two aspects of Dr Ramphele’s criticism as these touch on the process of which I am familiar as a legal practitioner.

Dr Ramphele writes:

“The line of questioning by advocate Muzi Sikhakhane suggesting that Andiswa Mengo enjoyed the harassment and played along with it, is testimony to the unreconstructed patriarchal attitudes that assume women are playthings that just need to be coerced into acknowledging their enjoyment of being the centre of attention of men. How appalling.”

She continues:

“It is also this approach by defence lawyers that discourages many women from reporting harassment and abuse for fear of being subjected to ridicule and disrespect as Mengo is experiencing at this Tribunal.”

Then, having appealed to the Chief Justice “as a woman … to intervene and stop this abuse”, Dr Ramphele turns to the Chairman of the panel that is tasked with making a finding on the gross misconduct complaint:

“I appeal to Judge Bernard Ngoepe, the chair of this Judicial Tribunal, to not be a passive bystander in the face of the violation of Mengo. Judge Ngoepe, you are enjoined by our Constitution to protect and preserve the human dignity of Mengo.

Please exercise your duty of care for her as a vulnerable traumatised woman who is being retraumatised. Our country deserves no less to be able to proudly declare that we live by the values of our Constitution.”

These observations or criticisms demonstrate what appears to be a lack of understanding of proceedings before the JCT, the role of the panel on the JCT, and the role of Counsel representing the Judge against whom a complaint has been lodged. Therefore, lest an incorrect impression is created, things need to be placed in a proper perspective – at least to the extent that I appreciate these matters.

***

As I understand it, the complaint before the JCT is one of sexual harassment and indecent behaviour as a form of gross misconduct by a Judge. The moral turpitude of the Judge in his relations with a woman staffer in a division of the high court of which he is judicial head is not a factor for the JCT to consider. In other words, the question that the JCT panel has to decide is a legal, not a moral one. The answer to that question will be informed by the facts as understood by the JCT panel from the evidence not only given by, but also extracted from, the complainant, the Judge and other witnesses that each may elect to call.

As I understand the complainant’s evidence thus far, she says the sexual attentions from the Judge towards her were neither invited nor welcome by her. Therefore, the question that the JCT panel must answer is whether the complainant did or did not invite or encourage or welcome the Judge’s sexual overtures. The factual evidence given by and extracted from the complainant, the Judge and other witnesses (if any), as understood by the JCT panel, will be the only key by which the truth can be unlocked.

If there exists admissible evidence that tends to demonstrate a measure of uncoerced acquiescence on the complainant’s part, Counsel for the Judge, who is accused of uninvited and unwelcome sexual overtures towards the complainant, would be failing in his professional duty if he did not bring that evidence to the attention of the JCT panel, including by extracting it from the complainant herself. It is that simple.

A finding of gross misconduct against a Judge has serious consequences for a Judge, including impeachment. Although it is generally assumed (including by the Department of Justice and Constitutional Development) that once impeached, a Judge loses judicial benefits – ie, salary, gratuity, allowances and other benefits provided for in sections 5 and 6 of the Judges’ Remuneration and Conditions of Employment Act, 47 of 2001 to which he would otherwise be entitled on retirement – and there is no provision in any applicable prescript that expressly or impliedly justifies such an assumption, it is nevertheless an assumption that has real practical effects.

So, given these serious consequences of impeachable conduct for an implicated Judge, if there exists evidence – which can be extracted from the complainant herself – which in the view of the JCT panel tends to show that the Judge’s sexual overtures towards the complainant were welcome and/or encouraged by her, and therefore that the Judge cannot be said to have engaged in gross misconduct, there is in my view no logical or lawful basis (moral even) for not following that line of evidence through the complainant.

What’s more, on the scales of evidence, evidence that is damaging to the case of a witness usually carries more weight when that evidence is given by that witness than when it is given by an opposing witness. So, evidence given by or extracted from the complainant that tends to show that the complainant did not only fail to express her disapproval of the Judge’s sexual overtures but also actively welcomed or encouraged them, would ordinarily carry more weight in the assessment of all evidence than if that same evidence were given by the Judge or his witnesses. Ultimately, it is for the JCT to decide whether such evidence exists, whether it is admissible, and what weight to accord it on a conspectus of all evidence that it has heard and seen.

As regards the manner in which Sikhakhane SC has thus far conducted his questioning of the complainant – barring one incident for which he apologised to the complainant – the JCT panel and Chair do not seem to have witnessed any conduct that could reasonably be said to constitute abuse of, or to “retraumatise”, the complainant. Judge Ngoepe is experienced enough in these matters to have raised such objection of his own accord and need not wait for an objection from the evidence leader or the complainant’s legal representatives.

In short, Dr Ramphele’s characterisation of Adv Sikhakhane SC’s line of questioning the complainant as “appalling” and as being “testimony to the unreconstructed patriarchal attitudes that assume women are playthings that just need to be coerced into acknowledging their enjoyment of being the centre of attention of men” is in my view grossly unfair.

I hope Dr Ramphele does not take it as condescending when I say her criticism seems to flow from what appears to be an inadequate grasp of what question the JCT panel is called upon to decide, and what the role of Counsel for the Judge is in that process.

***

I have known Adv Sikhakhane SC for many years. We have been on opposite sides of a brief; we have worked together on the same side of a brief; and we have served together in leadership structures at the Pan African Bar Association of South Africa (PABASA). From what I have come to know of him in all these capacities, the man simply does not fit Dr Ramphele’s characterisation of “unreconstructed patriarchal attitudes”.

As the inaugural President of PABASA, Sikhakhane SC has been instrumental in placing Black African women front and centre in the Preamble and Objects of PABASA’s Constitution. For example, it was on his insistence that we have it in PABASA’s Constitution that:

  • Membership and leadership of the Bar must as far as reasonably practicable reflect the demographics of South Africa, having regard to historical prejudices against black and female advocates.
  • At least 60% of all leadership structures within PABASA must comprise women.

It is also testimony to Sikhakhane SC’s anti-patriarchal attitude and influence that, in the 5 years of PABASA’s operational existence, 2 of the 3 National Chairs that we have had are women. The majority of Chairs in the PABASA constituent branches or chapters around the country are, as far as I’m aware, women. This is not women for women’s sake but also on merit.

It was also on Sikhakhane SC’s nudge that PABASA adopted a policy that at least 60% of our annual pupillage intake at the Pius Langa School of Advocacy must be women. This is intended to swell the number of women advocates and reverse the domination in numbers at the Bar by men.

It is a blessing to us all at PABASA that Sikhakhane SC is for the next 2 years back at the helm as Chair – not because he was keen to get back on the saddle but because many of us did not step forward for election.

***

As regards Dr Ramphele’s “appeal” to the Chair of the JCT panel “to not be a passive bystander in the face of the violation of [the complainant]… [and] to protect and preserve the human dignity of [the complainant]”, Dr Ramphele needs reminding that section 10 of the Constitution guarantees the human dignity of “everyone”, not just the complainant in a gross misconduct complaint against a Judge involving alleged sexual harassment. The section reads: “Everyone has inherent dignity and the right to have their dignity respected and protected”. Therefore, the Judge facing a gross misconduct complaint for allegedly engaging in lewd conduct towards a younger woman is also deserving of his human dignity being respected and protected.

Justice Ngoepe has been a Judge for many years, has sat through hundreds of trials in that capacity and has, even after retirement, presided in many tribunal sittings. His experience in running inquiries of this kind is not open to any doubt. For that reason, perhaps Dr Ramphele should be slow to presume to lecture him on how to conduct a hearing. The gender-based pressure that her “appeal” brings to bear on the presiding Judge is inappropriate, even though Judge Ngoepe is experienced enough to know how to deal with it.

While it is understandable – given the notoriety that South Africa seems to have on matters involving gender-based violence – that sentiment would often favour the complainant in cases such as this, this is precisely the factor that calls for caution in a presiding Judge’s handling of the inquiry. Judge Ngoepe and his panel are called upon to adjudicate on a complaint of gross misconduct, not to be partisan towards one of the parties before them.

Perhaps Dr Ramphele is not aware that showing any sign of partisanship, or protectionism towards the complainant when there is no cause for it, could result in a finding of the JCT being successfully reviewed and set aside in the high court. Then, the very “appeal” that Dr Ramphele makes to the JCT Chair will – if heeded – have had an effect quite opposite to that for which she seems to yearn.

I think we would all do well to allow the JCT to conduct this inquiry to finality without putting inappropriate pressure on it to do things in a manner that appeals to our own sensibilities. Expecting the JCT to adopt an assessment of the complaint on the basis of: “If you believe the complainant, you will convict; if you believe the Judge against whom she has complained, you will believe anything” – as Dr Ramphele seems to wish for – is not quite consistent with what one would expect of a proper operation and application of the rule of law in a constitutional democracy – regardless of power dynamics.

We should not pre-judge the complaint by characterising the process and those appointed to make it work as failing to live up to our own partisan standards. Given space and time to do their work without involving them in a tug-of-war, all involved in the process should do their bit, and the panel should come to a just decision – whichever way it goes.

The human dignity of two South Africans is at stake here. Both deserve respect and protection, without Counsel having to catch stray bullets from an unlicensed firearm – as it were.

The End

***

By |2025-01-23T18:10:33+02:00January 23rd, 2025|Blog, General, News|8 Comments

The Jeremy Gauntlett I Know – A Tribute

I have read in the media these past 24 hours about allegations of a distant past involving Jeremy Gauntlett SC KC. I choose to say nothing on the subject but to pay tribute to the Jeremy Gauntlett I know. Of course, you may know a different Gauntlett. Mine is not to erase, or detract from, yours.

There are people on this Earth who cannot be described only by words. Jeremy Gauntlett is one of them.

Nevertheless, with an English vocabulary that is far less adequate than Jeremy’s own vast repertoire, I feel the need to pay a personal tribute to a man who – perhaps unknown to him – has over many years inspired me to strive for excellence in my craft not only as a practitioner at the Bar but also in my intermittent role as an acting judge in the High Court and Labour Court.

I cannot, with a straight face, claim to have achieved that excellence – yet – probably because of what I later came to realise was a premature exit from the proximity and his professional influence that the many briefs through which I laboured as his “raw junior” afforded me.

If memory fails me not, I first encountered Jeremy in the Spring of 1997. (One does not “meet” Jeremy; one “encounters” him. It is no exaggeration to say the man is a phenomenon.) With my vast experience of some 6 months at the Cape Bar, I was imposed on him as his junior by Dumisa Ntsebeza SC in a Truth and Reconciliation Commission (TRC) brief against the National Party of FW de Klerk. Ntsebeza SC was head of the TRC amnesty investigations committee at the time.

It soon came to my attention that Jeremy had allegedly excoriated the instructing attorney for briefing him with “a raw junior”. If indeed he had characterised me as such, he’d be right of course. But in 1997, a strapping lad in his late 20s – and with a Boxer’s temperament to boot – that is not how I saw matters. I was outraged by this label and resolved to confront him.

As I marched to his chambers across Keerom Street, loins firmly girded, it occurred to me to first share my “experience” with a friend, Theko Mabona, a fellow articled clerk at a large firm (by Cape Town standards at the time) some 4 years previously. Theko put things in perspective: “But you ARE raw to him, Ngalwana. The only way to demonstrate that you are not, is by the quality of the work you give him.”

And so it was, that by that auspicious intervention I spared myself the indignity that Jeremy’s legendary quick tongue would no doubt have bestowed on my relatively young self. I must have done as instructed by Theko because I subsequently found myself labouring through more junior briefs for Jeremy, including trips to the Supreme Court of Appeal.

In a word, the Jeremy Gauntlett I know is a man of sharp intellect, a voracious reader of material that matters, surgical advocacy skills, a quick tongue, quick wit, a vast English vocabulary and deft turn of phrase that would disarm even the most intransigent adversary, more self-assuredness than arrogance, mild-mannered and humility-free. And for this last virtue, I don’t fault him. To a man with an intelligence quotient that flirts with the stratosphere, humility is in my view a wasted trait.

He may not be aware of this, but Jeremy is responsible for the advocates’ organisation now named Advocates For Transformation (AFT) bearing that name. The original idea, when we formed the organisation in April 1998, was to name it Democratic Advocates For Transformation (DAFT). In fact, we had done, until Norman Arendse SC, Anwar Albertus SC, Ismail Jamie SC and I went triumphantly to introduce ourselves to Jeremy who I think was chairman of the Cape Bar or played some other senior role in the Cape Bar structures at the time. The man laughed the “D” out of “DAFT”, and so thenceforth we became AFT.

***

That Jeremy, on no less than four occasions, did not get the nod – twice for the Constitutional Court berth and twice for the High Court bench – is in my view more a reflection on the diversity intolerance of the selection panel of that time than on his unsuitability. The suggestion that “humility” and “temperament” are indispensable traits for judicial appointment in South Africa is laughable. I have read judgments over the years by senior judges which would make Jeremy’s “temperament” the stuff of altar boys by comparison. At worst, he wouldn’t be a unicorn on the “temperament” stakes. There are counsel who talk of having endured much abuse at the hands of permanent judges in court for reasons that have less to do with the merits of their case but more to do with the judges’ own inarticulate premise.

The lack of discernment to appoint a man of such sharp intellect and potentially invaluable contribution to South Africa’s constitutional and commercial jurisprudence was a major loss to the country. Jeremy’s appointment – as with the appointment of Judges David Unterhalter and Malcolm Wallis – could very well have encouraged commercial litigants to trust the courts more, and reduce privatisation of commercial litigation in arbitrations, a practice that stunts the development of South Africa’s commercial jurisprudence.

It is an enduring shame that factional Politics – having nothing to do with the desire to effect change for the better in our courts – should block an obvious talent from ascending to the bench and, with that, deprive our commercial and constitutional jurisprudence of the development that it so sorely needs.

***

On transformation of the Bar, the Jeremy Gauntlett I know has made a contribution, but not nearly enough. Again, if memory fails me not, it was during his term as Chairman of the Cape Bar Council that, for the first time in the history of the Cape Bar, there was equal Black representation on the Cape Bar Council (although AFT’s representation was not accepted on a race basis but rather on an “interest group” basis.) This included Jeremy sharing his chairmanship with Anwar Albertus SC who had been nominated by AFT and confirmed by the AGM, not without gusty winds from the right against that proposition. Nominated by AFT, I served on that Council as the Cape Bar’s first ever Black Treasurer.

He twice served on a 2-person committee (with Ishmael Semenya SC) of the General Council of the Bar of South Africa (GCB) charged with exploring challenges that face Black and women advocates at the Bar, and to report back to the GCB with a view to having these addressed. I later became critical of the second time this committee was set up, as the first had not yielded any tangible fruit that I could see. But, at least the thought suggests to me that the man is not entirely numb or apathetic to the plight of others less fortunate than he.

When I was elected Chairman of the GCB in 2016, Jeremy was one of the first colleagues to offer his help when needed, knowing full well what my transformation agenda was at the time.

However, his role in the early years of what culminated in the impeachment of Western Cape High Court Judge President Hlophe is, for me, his purgatory. But, with the benefit of hindsight, the Judge President’s goose was already cooked even if Jeremy had not entered the fray. Those who were determined to have the Judge President removed as a Judge were – as we were later to witness – to stop at nothing to achieve their goal. Ultimately, they did.

He could no doubt also have done more to “blood” Black and women juniors in consequential briefs as he did me. But since I left the Cape Bar for Johannesburg more than 23 years ago and have not kept pace with transformation efforts in that Cape colony since, I have no direct knowledge of how he has since fared on this score.

***

This is the Jeremy Gauntlett I know. A man from whom I learnt a strong work ethic, self-confidence, self-assuredness (although in my case it could well be termed “arrogance”) and who watered in me the seeds of my determination to succeed at the Bar.

Along with Norman Arendse SC, Belinda van der Vyver (my pupil mentor), Jan Heunis SC, Henri Viljoen SC and Willie Burger SC, I probably would not have made the relative success of my practice as I have done without his positive role in my early years of development at the Bar.

Jeremy, you have much to live for and contribute to the profession and beyond still. I personally owe you a word of gratitude and hope you receive it from whence it comes: the bottom of my heart.

The End

***

By |2025-01-19T16:14:01+02:00January 19th, 2025|Blog, General, News|1 Comment

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

On Friday, 29 July 2022, the Judicial Conduct Committee (JCC) of the Judicial Service Commission (JSC) found that former Justice of the Constitutional Court, Johann Kriegler, had breached the Code of Judicial Conduct (the Code) when he, on 1 March 2021, made a public statement in the media that Judge President John Hlophe of the Western Cape High Court in Cape Town was “unfit to be a judge”.

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

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

For a full perspective of the complaint, ruling, appeal and appeal ruling, here are the links to

Justice Johann Kriegler Complaint – Signed 20 April 2021

Justice Kriegler response – 17 June 2021

Reply to Justice Johann Kriegler Response – June 2021

Decision Adv Ngalwana SC against Justice Kriegler – 29 July 2022

Judge Kriegler’s notice of appeal 30082022-signed

Annex A to Justice Kriegler notice of appeal

Response to Justice Johann Kriegler Appeal – November 2022

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

By |2025-01-15T10:12:34+02:00February 4th, 2024|Blog, General, News|Comments Off on Judicial Conduct Committee Dismisses Justice Kriegler’s Appeal – 02 FEBRUARY 2024

When Race Politics Drives Journalism: A Response to a Takedown

French social psychologist, Gustave Le Bon (1841 – 1931) and American “public relations” theorist, Edward Bernays (1891 – 1995), are generally regarded as propaganda scholars. Their works have been consulted by numerous governments and corporations around the world on how to influence group psychology by manipulating the content of the information that the public consumes. This is a phenomenon colloquially known as propaganda.

In his seminal work, La Psychologie des Foules (1895) – the English translation of which was first published in 1896 under the title, The Crowd: A Study of the Popular Mind – Le Bon wrote about the power to the human psyche of the repetition of an idea or statement. (see The Crowd: A Study of the Popular Mind (Boomer Books, Waking Lion Press, 2006 ed), ch 7: “The Leaders of Crowds and Their Means of Persuasion”, pp 98-99).

Here is some of what he wrote on the power of repetition:

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

It is in this context that I consider the attack by Marianne Thamm, a white woman who writes for the Daily Maverick, on a select group of Black advocates in an article titled The major foes of South Africa’s constitutional democracy star in Busisiwe Mkhwebane’s Fight of a Lifetime.

The piece comes on the back of “evidence” apparently presented by evidence leaders at the parliamentary inquiry into the fitness of the Public Protector to hold office. It is the presentation of that “evidence” for all to see that set in motion a train of events, including publication of this piece, with potentially ruinous consequences for the Black advocates concerned.

This does not appear to be by accident. It is difficult not to conclude that it may be the beginning of the constant repetition of a narrative aimed at “cancelling” the targeted Black advocates. All four Black Senior Counsel are currently leading in various ongoing litigation against government and the white business establishment on behalf of clients who have a right to legal representation in our democracy:

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

It would be naïve to exclude this context when considering the Daily Maverick attack on these targeted Black advocates. The only reasonable conclusion would be that the tainting of these targeted Black advocates by constant repetition in the media (by innuendo since there is no evidence of criminality or unprofessional conduct) that we are “beneficiaries” of monies “funnelled” through the office of the Public Protector. That way, it is hoped that our voices will be muted and our professional standing as Officers of the Court is forever compromised. The ripple effect of that is obvious, and that is probably why the names of less senior advocates on brief with us in various matters have also been unfairly published. Either they are also accused of malfeasance or, more likely, the message seems to be a warning to them not to associate with us.

***

Neither the journalist nor the evidence leaders cared to hear the side of the targeted Black advocates on the “facts” before putting out material that suggestive of professional misconduct in the public domain. Neither notice nor hearing was afforded. As it turns out – at least in my case – the alleged “facts” are wrong. The leading evidence leader has admitted as much to me that “the figure was incorrect”, and that she will “correct it”.

But that’s hardly the point. Why was it necessary for the evidence leaders to parade our names (leaving out many others, including white Counsel) in their pursuit of proving the Public Protector unfit to hold office? Why was it necessary for them to do this even without giving us notice? Why couldn’t they verify with us the accuracy of the “facts” on which they rely before going public with such potentially damaging information?

And these are not even allegations or accusation. In my profession, there is a practice known as “self-reporting” if there is an accusation or allegation of unethical conduct, but which has not been formally reported to the Bar Council, or if Counsel suspects there may be something possibly amiss in his or her own conduct that may require the attention of the professional committee. The expectation is that Counsel knows (or should reasonably know) when a matter of his or her own conduct requires the attention of the Bar Council. One need not first be reported.

So, with that in mind, I asked the evidence leader directly:

“Are you accusing me of anything? If so, of what exactly? I ask so that I can decide how to approach what you did this past week.”

Her answer was an emphatic: “No I am not accusing u of anything”.

Then she apologised and said she will do it openly during the parliamentary committee sitting. I look forward to learning of the precise content of the apology.

As part of proving their case that Adv Mkhwebane is not fit to hold office, the evidence leaders (both advocates) had it in their heads that it would be a good idea to expose for public consumption the fees that a select number of Black Counsel had earned from rendering legal services to the Public Protector on instruction from various attorneys (8 in my case) to the glaringly obvious lack of attention on white counsel, white law firms and other black counsel who, it seems in their view, do not fit the narrative they seem intent on putting forth. Did they do this deliberately? The lack of focus on white counsel and white firms makes the attention on targeted Black Counsel a racially slanted exercise.

Anyway, I digress. My purpose here is not to engage with the unpardonably louche conduct of the evidence leaders. I have started a process of dealing with that elsewhere. My focus is the Daily Maverick takedown of specifically targeted Black advocates for doing what advocates in the referral profession do: render legal services to a client through an instructing attorney on fees agreed in advance with the instructing attorney.

That the targeted Black advocates should earn a fee, over a period [4 years and 5 months in my case], from rendering legal services to an institution that is funded by government (ultimately taxpayers) seems to stretch the bounds of credulity for this white journalist. Her interest seems to have been triggered by the amounts the targeted Black advocates are alleged to have earned: “millions of rand”, she pronounces with apparent disgust. One could only imagine what her reaction would be if she were to hear the amounts the white advocates earned.

Labelling these targeted Black advocates variously as “those who are opposed to accountable government”, “a cluster of well-known professionals” and “an A-list of high-powered beneficiaries”, she spares hardly an adjective or verb that is suggestive of criminality. For example, according to her, these targeted Black advocates did not earn their fees from rendering legal services. Instead, they “benefitted handsomely” from the litigation “funnelled through” the Public Protector’s office.

By innuendo, these carefully chosen words are intended to suggest malfeasance or corruption or worse. But on what evidence? Did she even bother to ask the targeted Black advocates she so callously defames? Of course not. That would spoil her broth.

Notice the careful choice of the verb “funnelled”. It seems intended to create the impression that these are monies diverted from elsewhere. Why? Well, because these Black advocates “lost all these cases” – a lie of course, but why would she let facts get in the way of a good yarn?

Quite apart from the fact-free merits of the publication, let us consider the journalistic value of the article.

***

The Daily Maverick article is a wide-ranging piece of work, although labelling it as “work” is rather charitable. The piece lurches imperceptibly from partisan political commentary to didactic UNreasoning to what inevitably comes across as a white superiority sermon. As a journalistic piece it is incoherent, a language understood only by fellow travellers. As a propaganda tool it is blunt and unlikely to persuade a discerning reader.

It is difficult to understand how this piece made it past the sub-editor’s desk, let alone being published. Surely the editor could discern the significant reputational risk to the media house? Perhaps not? Perhaps this is the sort of unbridled attack on Blackness that we should come to expect from the publication?

The measure of a good script is usually a coherent plot. That normally comprises a clear thesis, focused and unwavering reasoning aimed at proving the thesis, and a conclusion that brings everything to a logical end.

Writers are often encouraged to flesh out the plot with colourful characters and vivid settings that will enhance the story and grab the reader’s attention. The journalist does this with aplomb. Characters like Adolf Hitler feature prominently alongside Black advocates. The imagery is disturbing. But that is the point: to shock and awe and, ultimately, cancel the targeted Black advocates by resorting to thoroughly disreputable imagery.

In a work of fiction, this is well and good. But playing Russian roulette with people’s professional careers that could trigger all forms of potentially ruinous consequences is just mean-spirited. Already, there are people who believe – simply on the basis of innuendo – that these targeted Black advocates “looted” the public purse.

But even in a work of fiction – which this article largely is – staying focused on the thesis is key. Nothing is worse than a good plot idea that grows ever more chaotic as the story develops. But Daily Maverick‘s Marrianne Thamm – who has apparently written books – appears to have suspended this rudimentary literary exploit as she lurches directionless from one chaotic sub-plot to the next in quick succession.

For example, what has Ngalwana’s representation of Dr Iqbal SURVÉ to do with Adv Mkhwebane’s fitness for office? Ah! Rogue by association. That’s it. If Ngalwana represented Mkhwebane and now represents Dr Iqbal SURVÉ, then abracadabra, Ngalwana must be a rogue. “Dots have joined …”, she claims triumphantly. Such is the didactic UNreasoning of the piece.

Stumbling from, at once, excoriating and praising politicians (Malema, Sisulu, Zuma – even Pallo Jordan is dusted off from politico-academic oblivion in order to make a desperate point about the Freedom Charter somehow, conveniently, birthing the Constitution) to judges (Hlophe and Sachs) to lawyers (Mpofu, Sikhakhane, Ngalwana, Xulu, Masuku, Seanego – ignorantly making no distinction between attorneys’ and advocates’ roles, if she even understands the distinction) the piece meanders haplessly into a lump of shapeless bile – which in itself inadvertently paints the writer as a foe of democracy.

So, what next? Does one sue for defamation? Perhaps. But the damage is done. No amount of court-awarded damages will undo it. The writer and her lawyers know this. To her and her bosses R500,000 is a small price to pay for the damage they wanted so desperately to inflict on those they consider out of step with their view of the world they still want maintained for posterity. An apology? A retraction? From a media house? What good will that do in a scandal-enthused public?

What about defamation against evidence leaders? Does parliamentary privilege shield them in this case? Is that why they felt no compunction in doing what they did? I find it difficult to believe that a member of the Bar (as I know it) would deliberately seek to malign colleagues in this fashion. At least that is the member of the Bar in me. I suppose time and further developments will prove what the correct position is. But can the same be said of a journalist?

One thing is clear, though. The hard work of freeing South Africa from the shackles of totalitarianism of all sorts continues.

By |2025-01-15T10:12:34+02:00November 9th, 2022|Blog, General, News|1 Comment

Judicial Conduct Committee Ruling on Justice Kriegler is Something to Lament and Reflect on, not Celebrate

On Friday, 29 July 2022, the Judicial Conduct Committee (JCC) of the Judicial Service Commission (JSC) found that former Justice of the Constitutional Court, Johann Kriegler, had breached the Code of Judicial Conduct (the Code) when he, on 1 March 2021, made a public statement in the media that Judge President John Hlophe of the Western Cape High Court in Cape Town was “unfit to be a judge”.

The specific provision of the Code in question is article 11(f). That provision requires judges, including retired judges, to “refrain from public criticism of another judge” and act with courtesy and collegiality (which the Code says are “indispensable attributes of a judge”) towards other judges.

It is not a breach of the provision if the judge who does the public criticism does so in circumstances where the criticism relates to judicial proceedings in which the judge being criticised is serving as a judge, or to “scholarly presentation made for the purpose of advancing the study of law” (eg, a lecture or symposium or workshop). Ngalwana’s complaint, however, was that Justice Kriegler’s criticism of Judge President Hlophe was none of these but “mean-spirited and seems to have been intended to sting”.

By the hand of a Judge of the Supreme Court of Appeal (in his capacity as Chairman of the JCC), the JCC ordered Justice Kriegler

“within fourteen days (14) days of receipt of this ruling to retract [the] statement … in the form of an email to [Adv Vuyani Ngalwana SC].”

But why Ngalwana SC? This was, so the JCC reasoned, because Ngalwana – not Judge President Hlophe – is the Complainant.

On the face of it, this reasoning seemed odd to Ngalwana since the purpose of the complaint was to vindicate the integrity of the Judiciary. He said his purpose was

“to vindicate the integrity, dignity and independence of the Judiciary and the judicial system which are, in my respectful submission, compromised by the sustained wounding public ad hominem attacks of Justice Kriegler on Justice President Hlophe. The kind of sustained attack mounted by Justice Kriegler on Justice President Hlophe is not an attack only on Justice President Hlophe; it is an attack on the Judiciary and the judicial system of South Africa. Not only that, Justice Kriegler’s attack on Justice President Hlophe has given heart to some Judges of the Western Cape High Court, of which he is the leader, to defy his leadership, including refusing to sit with another judge. This kind of attitude has consequently heralded an open season on judges even by journalists, as demonstrated by the extraordinary attack by a journalist of a publication named Daily Maverick on two Justices of the SCA following the judgment in Jiba and Another v General Council of the Bar of SA and Another; Mrwebi v General Council of the Bar [2018] 3 All SA 622 (SCA) …

Asked by Ngalwana to clarify whether the order that Justice Kriegler send his retraction to him (Ngalwana) and not Judge President Hlophe had not been made in error, the JCC confirmed that

“the order is correct that Justice Kriegler should send the retraction to you, as the complainant before the Judicial Conduct Committee is Adv Ngalwana and not Judge President Hlophe”

And so it was, that Ngalwana – who expressly sought to vindicate the integrity of the Judiciary and not his own – became burdened with a retraction by a retired Constitutional Court Judge of a statement that was not targeted at him; and this by reason of the coincidence of his being the one who lodged the complaint. So, there the matter rests.

***

I have been asked by numerous members of the media to comment on the ruling of the JCC for “sound bite” purposes. In response I have offered to provide the full Complaint, Justice Kriegler’s Response, and my Reply to Justice Kriegler’s Response. I did so because “sound bites” have an uncanny way of taking the meat out of the bones of a case, and leave a skeleton that is all things to all readers. As I believe that the story of this complaint deserves far better treatment than being left to interpretation of “sound bites”, I decided to publish the entire Complaint, Response, Reply and Ruling at the same time on one platform – here.

The only “sound bite” I shall provide is this:

This Ruling of the JCC is not a moment I celebrate. I am truly sad that a ruling of this sort has had to be made about a judge I still respect for his contribution to South Africa’s constitutional jurisprudence. Indeed, one of my favoured quotes (out of many others) from Justice Kriegler’s judgments as a Constitutional Court judge comes from Key v Attorney-General, Cape Provincial Division, and Another (CCT 21/94) [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR 788 (15 May 1996) where he wrote:

“In any democratic criminal justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale.  To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international human rights bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by state agencies in the prevention, investigation or prosecution of crime.  But none of that means sympathy for crime and its perpetrators.  Nor does it mean a predilection for technical niceties and ingenious legal stratagems.  What the Constitution demands is that the accused be given a fair trial.  Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision.  At times fairness might require that evidence unconstitutionally obtained be excluded.  But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.”

In that case an accused asked the Constitutional Court to exclude from evidence in an upcoming trial certain evidence that he said was obtained by unlawful search and seizure operations. The Constitutional Court (per Justice Kriegler) said that is a decision for the trial court to make, not the Constitutional Court before the trial had been concluded.

Anyway, back to my reason for lodging this complaint.

It is my fervent hope, for the sake of the integrity of the South African legal profession, and the Judiciary in particular, that a similar complaint about a judge does not have to be lodged ever again.

Throughout my involvement in the tiff between Justices of the Constitutional Court and Judge President Hlophe between 2008 and 2011, I have always been driven by principle, not some over-zealous desire to defend a human being under any circumstances. In South Africa, there is a deep-seated culture of treating black professionals as somehow lesser creatures than their white counterparts and of deserving less reverence as professionals than their white counterparts. Part of what perpetuates this culture is our own contribution to it as black professionals. I would have none of it.

An observation by Life and Leadership coach, Dr Claudelle von Eck, at the July 2022 official launch of Strategic African Women in Leadership (SAWIL) stings to me as a black South African. She said,

“Systems tend to resist change, and if we’re not addressing the foundations of the inequalities and the root of the problem, then we’re just speaking to the symptoms and not the cause. And if we’re going to step into a new space but just become carbon copies of the system, to emulate the system, then we can’t expect it to change.”

It was as if Dr von Eck was speaking directly to me. Although the observation (made in July 2022) came long after I had lodged the complaint against Justice Kriegler in April 2021, I feel as if I was driven by a burning desire not to become a “carbon copy of the system” that encourages by condoning the unceasing abuse of black professionals through inertia or supine disinclination to speak out and do more in the face of what has become open season on black professionals in South Africa.

I accept that as Counsel, that should never be the motive for accepting a brief. In fact that is the worst possible reason for Counsel to accept a brief because then the line between your duty as Counsel and your personal feelings can easily become blurred. It is, in part, that realisation that informed my decision to pull out of the legal team that represented the Judge President at the beginning stages of his litigation against the Justices of the Constitutional Court.

Having said that, however, I am reminded of Justice Madlanga’s observation that

“As a judge’s make-up, outloook 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.”

I believe that this is true of us all. If we are truly honest with ourselves, we are all creatures of the societies or communities from which we spring. I am from a society that fights for what it believes to be right, whatever the circumstances. Therefore, even though I know that accepting a brief for principle is not a good idea (as principle tends to be the enemy of effective advocacy) I cannot rule out the possibility of doing so again. In the South African socio-political climate that is defined by race perspectives, some of the sound counsel of the advocates’ profession are just too difficult to internalise.

For a full perspective of the complaint against Justice Kriegler, here are the links to

Justice Johann Kriegler Complaint – Signed 20 April 2021

Justice Kriegler response – 17 June 2021

Reply to Justice Johann Kriegler Response – June 2021

Decision Adv Ngalwana SC against Justice Kriegler – 29 July 2022

By |2025-01-15T10:12:34+02:00August 2nd, 2022|Blog, General, News|Comments Off on Judicial Conduct Committee Ruling on Justice Kriegler is Something to Lament and Reflect on, not Celebrate

The State of South Africa’s Constitutional Democracy: A Practising Lawyer’s Perspective

In this opinion piece I share my perspective about the state of South Africa’s constitutional democracy as an advocate who practises in all the higher courts of South Africa. Indeed, I thank the avalanche of turgid reaction to Minister Lindiwe Sisulu’s take on the same issue this past week.

While I shan’t engage with the content or even merits of what strikes me as Minister Sisulu’s political manifesto, and the cacophony of squeals and meandering political rhetoric that followed it, I think an opportunity has arisen for practising lawyers to express their views, individually and from personal experience, on the state of South Africa’s fabled constitutional democracy. In a constitutional democracy, lawyers should be free to express their views on this issue free from fear of victimisation by those who control the purse strings of legal work in government and elsewhere. After all, those of us who practise in the courts experience the impact of the Constitution directly at the level that matters most: the judicial adjudication of contesting rights.

I accept that Minister Sisulu has been part of the executive that has failed to deliver her party’s promise of “A Better Life for All”. However, my focus is not the messenger and her track record; it is an aspect of her message.

I accept also that there are some heart-warming good stories to tell about the successful invocation of some provisions of the Constitution in the highest court. But these should not be allowed to drown out the shrill cry of probably hundreds of thousands, if not millions, of South Africans who still, despite the Constitution, suffer the indignities of race and gender unfair discrimination. They are my focus in this opinion, as hardly anyone ever genuinely speak for them without exerting some mileage – whether political or economic – for themselves.

My thesis is this: The Constitution is a document with lofty ideals and aspirational virtues. It is not a panacea to all societal ills. For example, equal protection and benefit of the law (s 9) is a virtue to which we all aspire, not one we all possess. One need only look at how selective the application of the law has been, and continues to be. Some people are persecuted by organs of state and publicly pilloried on mere allegations of wrongdoing. Examples include Mr Matshela Koko (former Acting Chief Executive at Eskom) who is being relentlessly pursued under the guise of “state capture” but in truth seemingly for doing his job at Eskom which, to the chagrin of people in positions of power and their benefactors, meant lost opportunities for pilfering at the state power utility. Admissible evidence of criminality against him I am yet to see. Whether it will come is anyone’s guess.

Others seem protected even after a forensic investigation points to possible defalcation. Examples in this category include former Minister of Health.

The President himself has been implicated at the State Capture Commission in facilitating “state capture”. Yet, not so long ago, the President officially received (and is scheduled to continue receiving) the State Capture Commission Report in tranches as President. He will decide what recommendations made in the Report to accept and which to ignore or reject. But what of the allegations that the President may have facilitated the very conduct that the State Capture Commission was established by the former President to investigate?

Let’s remind ourselves:

The evidence was that Mr Ramaphosa was chairman of the board of directors of Optimum Coal Holdings (OCH) from 26 March 2012 until 22 May 2014. He held a 9.64% shareholding (via the Lexshell company) in OCH and through its subsidiaries, including Optimum Coal Mines (OCM). OCH had provided a parent company guarantee to Eskom to step in if OCM was not able to perform its obligations in terms of the OCM Coal Supply Agreement (CSA). Mr Ephron, OCH and OCM CEO at the time, told the State Capture Commission that Mr Ramaphosa divested his entire interest in OCH on 22 May 2014. At that stage, the Eskom penalties claims against OCM for the supply of sub-optimal coal in breach of terms of the CSA amounted to over R1.4 billion. Mr Ramaphosa had an association with Glencore and its public representatives for a number of years. In his statement to the Commission, he referred to it as a long-standing relationship that started in 2005.

Between March 2012 and May 2014 OCM failed to pay to Eskom the coal penalty claims of over R1,4 billion. The President (still Mr Ramaphosa then) resigned as a director and Chairman of OCH in May 2014 to take up Deputy-Presidency of the country under President Zuma on 25 May 2014.

Between June 2014 and May 2015 the coal penalty claims that were not paid to Eskom by Glencore’s Optimum Mine increased by R740,000 000 to R2.17 billion from R1 431 429 719.

In July 2015 Eskom served Combined Summons on OCM and OCH, claiming payment of the R2,17 billion coal penalties. OCM and OCH elected to go into business rescue rather than deal with the summons in court. They also avoided going through the arbitration proceedings as provided for in the CSA. They demanded that Eskom scrap the R2.17 billion. Eskom refused. The Business Rescue Practitioners elected to sell the business to Tegeta. Glencore claimed that Eskom pressured them to sell by refusing to scrap the R2.17 billion penalties that were rightfully due to Eskom.

In January 2018, Mr Ramaphosa (who had been Chairman of OCH just over 3 years previously and held a substantial shareholding in the company) was now head of government business and Deputy President of the country and of the ruling party. In that capacity, so the evidence goes, he sent an instruction to the Department of Public Enterprises to appoint a new Eskom board and for the new board that was yet to meet to dismiss Mr Koko and other executives. The Labour Court set aside that decision. Mr Koko remained dismissed nonetheless.

That, in my view, is the state of our constitutional democracy.

There is more. The President told the State Capture Commission, under oath, that the ruling party’s deployment committee did not discuss recommending candidates for judicial appointment. It has now reportedly emerged from minutes of the ruling party’s deployment committee that it did. That, by definition, would ordinarily constitute perjury and a serious violation of the law and the Constitution by a sitting President. But, will the President be hauled before Parliament to account to us on pain of a vote of no confidence or, possibly, impeachment? Will the State Capture Commission Report make any recommendation about what appears to be Presidential mendacity under oath? In light of this revelation, will the Acting Chief Justice (and, indeed, the Judiciary and the organised legal profession) still find it appropriate that a President seemingly compromised in this way should still receive the Commission’s Report and be the one who decides which recommendations to accept or reject?

The answers to these questions will further reflect the state of South Africa’s constitutional democracy. It is not the Constitution that is to be judged. Rather, it is to the institutions that have been put in place to give effect to its lofty ideals that we should look: Parliament. The Judiciary. The Executive (Cabinet). Will they fail South Africans once again?

People wax lyrical about a Constitution that guarantees the right to human dignity (s 10), yet we see black graduates at traffic intersections begging for work, any form of work, to make ends meet, alongside decent ordinary South Africans begging for food with toddlers in tow. Whose dignity is contemplated in s 10 if not that of the most vulnerable among us? We extol the virtues of a Constitution that guarantees the right not to be detained without trial [s 12(1)(b)], yet countless numbers of black people who cannot afford bail or effective legal representation for “poverty crimes” like theft of food, or items intended for sale in order to buy food, languish in South Africa’s gaols. Is the right not to be detained without trial guaranteed only for those who can afford a lawyer, or for those lucky enough to be assisted by Legal Aid SA?

We have a Constitution that guarantees freedom of association (s 18), yet “cancel culture” forces people out of business and employment merely for being perceived as being associated with persons of whom the establishment does not approve. Is this freedom reserved only for pre-approved association?

That is the state of South Africa’s constitutional democracy.

We have a right, in theory, to freedom of thought, conscience, belief and opinion [s 15(1)], yet the legal profession seems unperturbed by a provision in the covid-19 regulations that criminalises the expression of a view on covid-19 that contradicts the government’s official position, subject only to the cynical caveat that the view expressed must be intended to mislead. But “intention” can only be determined by the criminal court after criminal prosecution has already been instituted; and so the caveat is open to abuse.

That is the state of South Africa’s constitutional democracy.

The President is talking of plans to force (euphemistically termed “mandate”) people to take injections of what some experts regard as experimental, in order to, apparently, “save lives”, yet there is no evidence that vaccination prevents transmission of the covid-19 virus, or that it prevents death from covid-19 complications, or that vaccination prevents hospitalisation from severe covid-19 effects. We are now told that vaccination “reduces” chances of infection, or hospitalisation or death. If one dares ask basic commonsense questions about the rational connection between compulsory vaccination and so-called “vaccine passports”, on the one hand, and the information that is available as regards the provenance and purpose for which these things are intended, one tends to be “cancelled” and labelled “anti-vaxxer” or “flat-earther” or “anti-science” or “covidiot” and more.

This is the state of South Africa’s constitutional democracy.

The former Chief Justice spoke out, outside the courtroom, on matters of corruption involving the state and private sector. He also expressed religious and other views on matters of state involving Israel. For that he was pilloried and, for the latter, ultimately censured by the Judicial Conduct Committee for “becom[ing] involved in political controversy or activity, in breach of Article 12 (1) (b) of the Code [of Judicial Conduct]”. The former Chief Justice appealed against the censure. Contrastingly, the Acting Chief Justice speaks out, outside the courtroom, in response to a politician’s tirade about matters of state involving the role played by a demographic of the judiciary as she sees it. He is commended, including by a retired Justice of the Constitutional Court. There is no complaint to the JSC of which I am aware that the Acting Chief Justice has “become involved in political controversy or activity in breach of Article 12 (1) (b) of the Code”. How can there be, when a retired Justice of the Constitutional Court and an association of advocates have already lent credibility to what some consider a political intervention by the Acting Chief Justice?

That is the state of South Africa’s constitutional democracy.

There is another serious consideration. Before his public excoriation of a politician for doing what politicians generally do (namely, shoot from the hip for political mileage), did the Acting Chief Justice stop to consider his position (and that of the Judiciary he leads) if Minister Sisulu’s political outburst against a demographic of the Judiciary were to give rise to litigation which engages the politician’s right to freedom of thought, belief, conscience and opinion (s 15) and her right to freedom of expression (s 16), which ultimately ends up in the higher courts, including the Constitutional Court? How impartial can ordinary South Africans expect the courts to be in their determination of a case when the leader of the Judiciary, publicly supported by a retired Constitutional Court Justice and an association of advocates, has already publicly pronounced his aversion on behalf of the Judiciary?

That is the state of South Africa’s constitutional democracy.

Not so long ago, another politician (the Minister of Transport) referred to the State Capture Commission on which the Acting Chief Justice presides as “the place where people go to urinate”. Yet another politician (leader of the third largest party in Parliament) launched an extraordinary broadside at the entire judiciary when he said: “There is gross incompetence at the highest level of the judiciary, starting with the incompetent Acting Chief Justice, Zondo … We are not going to be afraid to talk about incompetent judges of the Constitutional Court who take four months to resolve an urgent matter”.  He made this statement seemingly oblivious of how the Constitutional Court goes about its business of judgment consideration and writing. (Clearly he had not watched an episode of this publication under “Judicial Voices” where Justices of the Constitutional Court explain the process). I am not aware of scarcely the sort of outrage we are now witnessing against Minister Sisulu’s tirade from the Acting Chief Justice in defence of the Judiciary.

That, in my view, is reflective of the state of South Africa’s constitutional democracy.

Some large white firms win tenders from state-owned enterprises with the assistance of small black firms and then, on the award of the contract, either terminate the partnership or (playing one black firm against another in their pursuit of bread crumbs falling from the master’s table) replace the original black firm with another small black firm to which it pays lesser revenues than those agreed with the original black firm. On the rare occasion when the termination is challenged in court, all manner of technical points are often raised with the specific purpose of draining the financial resources of the small black firm and, with that, its resolve to fight. In cases of this kind – economic transformation cases – our courts have tended in my experience rather to go with form over substance, technical niceties over justice. Having ruled that former Chief Executive of Vodacom lied when he claimed to have invented a technological application that had in fact been invented by a young black man, why did the Constitutional Court not make a finding in favour of the young black man and award him his claim instead of sending the matter for determination of the amount of damages to be paid back to the Chief Executive of the very company with which the young black man is in dispute? Although this had been the contractual bargain made by the parties themselves, the manner in which Vodacom litigated this case, as lamented by the Constitutional Court itself in its judgment, called for a measure of judicial activism in the interests of justice and in pursuit of a goal higher than a common law sanctity of contract: equity and constitutional redress. An opportunity was lost to develop the common law in a case that cried out for it.

The court’s concluding remarks in Makate v Vodacom are worth reproducing to demonstrate the opportunity lost:

“The stance taken by Vodacom in this litigation is unfortunate. It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea on which its “Please Call Me” service was constructed.  The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank.  Yet it did not compensate the applicant even with a penny for his idea.  No smile was brought to his face for his innovation.  This is besides the fact that Vodacom may have been entitled to raise the legal defences it advanced.  As a party, it was entitled to have its day in court and have those defences adjudicated.  This is guaranteed by section 34 of the Constitution.  However, it is ironic that in pursuit of its constitutional right, Vodacom invoked legislation from the height of the apartheid era, to prevent the applicant from exercising the same right.

In not compensating the applicant and persisting in advancing the legal defences even after the trial Court had emphatically found that an agreement was concluded, Vodacom associated itself with the dishonourable conduct of its former CEO, Mr Knott-Craig and his colleague, Mr Geissler. This leaves a sour taste in the mouth.  It is not the kind of conduct to be expected from an ethical corporate entity.”

An opportunity was, indeed, lost to develop the common law for the sake of justice, equity and the pursuit of equal protection and benefit of the law as enshrined in the Constitution that we so lavishly celebrate. What is the point of all these lofty constitutional values if our courts are not prepared to stretch their imagination in pursuit of them in cases that cry out for such intervention against a litigant of the kind the Constitutional Court describes in this passage?

That is the state of South Africa’s constitutional democracy.

We have a provision in the Constitution that demands that organs of state implement a procurement policy that favours the advancement and protection of persons disadvantaged by unfair discrimination and the procurement of goods and services from categories of persons disadvantaged by unfair discrimination. Yet the legislation that Parliament enacted in order to give effect to that constitutional provision forces black and women owned firms to compete on equal footing with established white firms on price, knowing full well the impossibility of that competition. In the result, the preferential procurement constitutional provision is an empty promise.

That is the state of South Africa’s constitutional democracy.

In order to give effect to broad-based black economic empowerment as provided for in s 217(2) of the Constitution, Parliament enacted the Broad-Based Black Economic Empowerment Act. But in reality, black people buy shares in existing white companies through new companies with huge loans obtained from banks and other finance institutions to be repaid over time from the appreciation of the share price. The shares are used as guarantees for the repayment of the loan and if the share price should fail to appreciate sufficiently to cover the amount of the loan within the period of the loan, the shares are forfeited to the bank or finance institution that provided the loan. And our courts have ruled that the white company, even though the shares are no longer in black people’s hands, remains “empowered”.

That is the state of South Africa’s constitutional democracy.

In a case where a woman raped by 3 on-duty policemen sought damages against the Minister of Safety and Security, both the High Court and the Supreme Court of Appeal dismissed her claim saying the Minister was not vicariously liable for the conduct of the 3 policemen. The woman had accepted a lift from the 3 policemen after she had found herself stranded in the early hours of the morning. Instead of chaperoning her to safety, the 3 policemen took turns to rape her, and the High Court and Supreme Court of Appeal denied her damages against their boss. Had it not been for Justice Maya’s lone voice on that SCA bench, the case would likely not have attracted the attention of the Constitutional Court and reversed. Had the woman no funds, or her legal team discouraged by the loss in 2 courts, our judiciary would have failed her. How many similar incidents of unresourced women go unreported almost everyday?

That is the state of South Africa’s constitutional democracy.

The controversy surrounding Minister Sisulu’s political assessment of South Africa’s constitutional democracy provides an opportunity for us all in the country – especially lawyers – to take stock of our constitutional democracy, assess how far we have come with it, subject it to stringent review of its shortcomings through public dialogue, come to grips with the failures of implementation of its lofty ideals, and chart a new path if our review should reveal that the fortunes of a more prosperous, egalitarian South African society lie elsewhere.

That begins with discouraging “thought policing” and censorship of socio-political views that do not find favour with some powerful forces in society. No one should have monopoly of thought or conscience or thought leadership in a constitutional democracy. Everyone should be free to express an opinion about the state of South Africa’s constitutional democracy, however unpalatable or even outrageous it may appear to some of us, subject only to the strictures provided for in the Constitution itself: incitement of violence, propaganda for war and advocacy of hatred. Absent any of these, there should be no censorship of free speech whether by a politician, a Judge, a vagrant, a civil servant, a practising lawyer, or any ordinary citizen concerned about the direction his or her country is taking.

That is what the state of South Africa’s constitutional democracy should be.

By |2025-01-15T10:12:34+02:00January 16th, 2022|Blog, General, News|3 Comments

MOGOENG MOGOENG CJ and the end of an Era: A Brief Perspective

To my knowledge, neither until, nor since, the nomination of then Justice Mogoeng as Chief Justice of South Africa has a candidate for judicial appointment in post-1994 South Africa been subjected to such virulent attack in the media by laymen, political parties and lawyers alike. One remembers a Daily Maverick headline that screamed “Why Why Mogoeng Mogoeng?”

The Western Cape Judge President and two Justices of the Supreme Court of Appeal who have endured virulent attacks from the same source for penning a judgment with which the journalists did not agree, were already judges when attacked.

As if the candidate were a beached whale, every man and his dog felt entitled to take a bite. It was all in bad taste.

But for me, most disturbing of all were the testy exchanges between the candidate and the Deputy Chief Justice who chaired the proceedings of the  Judicial Service Commission that is charged with recommending persons for judicial appointment to the President. That weekend in early September 2011, at the Cape Town International Convention Centre and the Westin Grand Hotel, probably ranks among the most unfortunate and regrettable episodes in post-1994 South Africa’s judicial history.

From that example, an opposition political party, the Democratic Alliance, took heart and threatened to challenge the appointment in court. This it did after a stillborn (and constitutionally delinquent) political ploy of advancing an alternative name for consideration for the position of Chief Justice. At the time, I dared the then leader of that political party to challenge the appointment. She did not bite.

Here is how I did it, in September 2011:

Why DA Legal Challenge Will Fail

If anyone had any doubt that the Constitutional Court is fast becoming a political battleground through which contestants compete for dominant space in which to assert their philosophical leanings, the Democratic Alliance (DA) has made this perfectly clear.

The DA has taken the view that if it can’t beat the ANC at the polls, it will seek to impose its philosophy through the Constitutional Court by ensuring no candidate whose philosophy seems anathema to its own takes the reigns there. The ANC calls it “counter-revolutionary”. I call it seditious.

It seeks to do this by challenging the President’s appointment of the chief justice. Since its application papers have not yet been made public, one can only speculate about what relief the DA will seek and what the bases therefor will be. My guess is that it will seek a review application to set aside the decision of the JSC and the President.

The basis for the review application is likely to be, among other things, that Justice Mogoeng is not the best candidate for the position [as members of the party have said in public] and that the JSC acted capriciously in refusing to entertain the DA’s eleventh hour proposal of another candidate for consideration and interview.

If that is what the DA has in mind, it is likely to fail in my view. Let me tell you why.

Section 174(3) of the Constitution is the provision under which the President exercises the power to appoint the Chief Justice. The President, and only he, has that power. The only limitation is that he must consult the JSC and leaders of political parties represented in Parliament before making the appointment.

In consulting, the President is not required by the Constitution to obtain the “approval” or “acquiescence” of the JSC and political party leaders in the choice of his preferred candidate for Chief Justice. Meaningful consultation does not mean that at all. All it means is that the President must be open to persuasion; but the final decision is his and his alone. The DA seems to have lost sight of this and that is likely to be the first soft under-belly of its challenge.

I was initially sceptical about Justice Mogoeng’s nomination. I decided to fly down to Cape Town and satisfy myself that I was right in my scepticism. My mind was made up that he was not a suitable candidate for the job. But after listening to his address, and to his responses to sometimes virulent attack, I changed my mind. I am now convinced that Justice Mogoeng is suitable for the job.

That leads me to the second weakness in the DA’s case. It says Justice Mogoeng is not the best candidate for the job because he is not “exceptional”. That is not the standard set by the Constitution. Section 174(1) describes succinctly the qualification criteria for a judge: “a fit and proper person”. As a Constitutional Court judge, Justice Mogoeng is clearly “fit and proper”. There are no special criteria for a Chief Justice.

Thirdly, the DA baulks at the nomination of a single candidate for the position of Chief Justice. It prefers that the President selects his candidate from a list of “exceptional” persons. There is absolutely no basis for this in the Constitution. It is in the appointment of other judges of the Constitutional Court that the Constitution makes provision for selection from a list of candidates. Not so in relation to the appointment of the Chief Justice.

Fourthly, the DA attacks Justice Mogoeng for not having appeared as counsel in the Appeal Court in reported judgments, not having many reported judgments in his name as a judge, and not having produced commercial and civil law judgments.

Quite apart from ignoring historically skewed briefing patterns in South Africa, where black practitioners have largely been seen as good enough for legal aid work and would not see a commercial brief in the course of their practice, this attack also displays ignorance of the dynamics involved in the decision as regards what judgments get reported.

Speaking from experience, I have acted in the High Court and sat with senior judges who told me I should mark 3 of my judgments reportable. I did. They have still not been reported. The DA seems unaware of the fluidity of the criteria for reportable judgments.

Fifthly, the DA attacks Justice Mogoeng’s religious beliefs and says this will be an impediment to “an unwavering adherence to the Constitution”. The Constitutional Court has in at least two judgments recognised the “presumption of impartiality” and integrity in a judge. International instruments on judicial ethics do too. The DA seems to presume the opposite, that Justice Mogoeng will place his religious beliefs above his oath of office. This is wrong.

Sixthly, the DA attacks Justice Mogoeng as being gender insensitive. In support it refers to dicta in a handful of cases, ignoring scores of others where Justice Mogoeng expresses his distaste for sexual assault and rape on women. It also ignores the fact that deciding on an appropriate sentence is not an exact science, as demonstrated by at least two other post-Constitution judges of the Supreme Court of Appeal who reduced a life sentence in a rape case the facts of which are too ghastly to repeat here.

Seventhly, the DA attacks Justice Mogoeng as lacking the intellectual rigour to be Chief Justice. There is no such requirement in the Constitution. It is in any event factually incorrect. Clearly the DA did not listen to Justice Mogoeng’s answers. Perhaps it is offended, as persons of a liberal hue tend to be, that a black professional dared to articulate himself confident in his considerable abilities, confident in who he is and with the sureness of purpose as regards what real access to justice for ordinary South Africans requires. “Arrogant” is usually the chant of choice – and was.

Finally, the DA has a short memory. When former Chief Justice Chaskalson was appointed President of the Constitutional Court in 1994, he had never sat as a judge, had not a single reported judgment in his name as a judge, and practised largely human rights and public interest law at the Legal Resources Centre. Lack of commercial law practice was not an impediment to his elevation.

Back to the present:

Of the many qualities that Chief Justice Mogoeng has demonstrated over the years as Chief Justice, the one that stands out for me is his unwavering and fierce independence as a Judge and a Leader. These days it appears, for many, as if “judicial independence” is simply an attribute firmly lodged in the Constitution, only to be invoked from time to time in the odd judgment but not a lived experience. I particularly appreciate Chief Justice Mogoeng’s appreciation of the fact (for it is fact) that a Judge is also a citizen who enjoys all the rights in the Constitution, including the right to freedom of expression and opinion.

This idea that Judges should speak only through their judgments is, to my mind, so 1984 – yes, as in Orwellian. It is not even a true position in reality because judges are known to express views outside the courtroom. Judges speak through the ballot box too. Some vote for the ruling party, others for the main opposition. That is a political statement, right there. To pretend that judges express themselves only through their judgments is to be disingenuous. Recently, a former Constitutional Court Justice was quoted as likening people who question the provenance of covid19 vaccines to “AIDS denialists”. Another former Constitutional Court Justice is not shy to express his strong (and unflattering) views publicly about the suitability of a serving Judge of the High Court. A former Deputy Chief Justice, while serving still, famously expressed the view that in a judge’s decision-making it is not what the ruling party wants that matters but rather what is good for the people. Anyone who read that remark as being indicative of the Deputy Chief Justice’s antipathy towards the ruling party, and so incapable of judging a case involving the ruling party fairly, would need to have his or her head read.

Chief Justice Mogoeng expressed his personal views publicly. He did not hide his personal and philosophical outlook behind the judicial facade. I admire him for that. As a practitioner, I would much rather face a Judge whose world outlook (or inarticulate premise) is no secret, than one who pretends to be neutral on every issue that comes before him or her for determination – a human and judicial impossibility. It is when a Judge, known to be opposed to abortion, rules in favour of it in the particular circumstances of the case, that gives true meaning to judicial independence, fidelity to the law and judicial impartiality. A judge who feigns neutrality on every issue he or she has to decide, while bringing his or her deeply held convictions to bear on his or her judgments, with little or no fidelity to the law and the Constitution, is a danger to a Constitutional democracy.

Happily, I am unable to say that about Chief Justice Mogoeng. May his successor take a leaf from his book.

In fact, the Constitutional Court itself made the following poignant observation in the early years of its existence [in SACCAWU v I & J Ltd 2000 (3) SA 705 (CC)], effectively lending a lie to this oft-repeated mantra that judges speak through their judgments:

“‘[A]bsolute neutrality’ is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality – a distinction the Sarfu decision itself vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion – without unfitting adherence to either party or to the Judge’s own predilections, preconceptions and personal views – that is the keystone of a civilised system of adjudication. Impartiality requires, in short, ‘a mind open to persuasion by the evidence and the submissions of counsel’; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding.”

A Judge should not hide behind a judicial facade while making decisions that are informed by hidden considerations that have little or nothing to do with fidelity to the law and the Constitution. A Judge should live openly, express his or her views openly and publicly on any subject. The judicial robe is not a muzzle. Judges should do the hard work of judging, which entails – inevitably – open-mindedness readiness to persuasion without unfitting adherence to his or her own publicly known predilections, preconceptions and personal views.

That, in my view, is the true art of Judging. On that score, I commend Chief Justice Mogoeng.

In closing, it is my fervent hope that we shall not again be subjected to the vituperative exchanges  between leaders of the judiciary that we witnessed on those two days in September 2011.

As for politicians, well, no bar is too low.

By |2025-01-15T10:14:20+02:00October 11th, 2021|Blog, General, News|Comments Off on MOGOENG MOGOENG CJ and the end of an Era: A Brief Perspective

DA v Mkhwebane (1370/2019) [2021] ZASCA 18 (11 March 2021): A Perspective on the Judgment of the Supreme Court of Appeal

The judgment of South Africa’s Supreme Court of Appeal (“the SCA”), the second highest court in the land, in DA & Others v Mkhwebane & Another has generated much heat, some commentators accusing that court of requiring South Africa’s beleaguered Public Protector to prove the negative, namely, that an accusation made by the main opposition party, the Democratic Alliance (“the DA”) during a media statement in 2016 that she was on the payroll of the country’s State Security Agency was untrue.

The accusation is unfair to the court. It is also uninformed. But in light of a series of court judgments that seem, at face value, to favour a cohort of identifiable litigants above others, it is not difficult to understand why some people may feel the way they do about this judgment. Examples of such judgments is a topic for another day.

For now, I wish to explain why in my view the criticism of the court is uninformed and unfair.

It is not always safe to embark on an analysis of a judgment without having read the pleadings and heads of argument filed on behalf of all parties. This is because some judges (in my experience of more than 24 years of practising in South Africa’s higher courts) are prone to leave out of the judgment (or ignore) arguments, submissions and factual allegations either out of convenience or because they subjectively consider them to be irrelevant or unpersuasive, and so not worthy even of being mentioned in a judgment. The result tends to be an understanding by the reader of the case that is tailored by the judge’s impression of the case, and not the case as pleaded by the parties.

So, in this assessment of the SCA’s judgment, I make allowance for the fact that I have not read the pleadings and the heads of argument filed by the parties, and put my trust entirely in the court’s fair exposition of the case as pleaded. At face value, the SCA appears to have done a fairly good job at laying out the issues that it was called upon to decide, and the main submissions of the parties on those issues.

What was the case about?

The first thing that one must, of necessity, understand before criticising a judgment is: What was the case about? What were the issues that the court had to decide? Without that understanding, the commentator is already on a fool’s errand.

The SCA tells us in paragraph 23 of the judgment that this case was about whether rule 35(12) of the High Court rules has properly been called in aid by the DA. The case was not about whether the DA had evidence of the conduct of which it accused the Public Protector. It was not about whether the Public Protector was a spy or on the payroll of the State Security Agency. It was simply about whether the procedural step taken by the DA in its endeavour to resist the Public Protector’s defamation claim in the main proceedings in the Western Cape High Court (which are still pending) was validly taken by the DA. The SCA answered that question in the affirmative.

What the reader needs to understand are the reasons the SCA provided for that conclusion. That conclusion is informed (as are all judgments in opposed motion proceedings) by the facts on which both parties are agreed (or facts alleged by the Public Protector which the DA cannot deny) in the pleadings (not heads of argument or submissions by counsel from the Bar) and by the application of the law by the court to those facts in relation only to how rule 35(12) of the High Court rules works. So, what are the undisputed facts?

The undisputed facts in brief

On 6 September 2016, a member of the DA (Breytenbach) acting in her representative capacity, gave a media briefing in which she announced why the DA would not support the nomination of Adv Mkhwebane for the position of Public Protector. In her statement she said many things that Adv Mkhwebane characterised as defamatory and intended and understood by members of the public to convey:

  • that she was a spy of the State Security Agency at the time of her nomination and would remain such subsequent to her appointment at the office of the Public Protector
  • that she was on the payroll of the State Security Agency while she was employed as an immigration officer in China
  • that she was to be treated with suspicion as she continued to be on a payroll of the State Security Agency, and not independent as she was intricately connected to the former State President who was allegedly abusing the State Security Agency
  • that her appointment would lead to the “state capture” of the office of the public protector by the former State President
  • that she was not honest and had no integrity in that while she was deployed by the Department of Home Affairs to China, she was also on the payroll of the State Security Agency
  • that she had no integrity and honesty as it is expected from an Advocate and a person applying for the Public Protector’s post, as she did not fully disclose material information about her past employment by the State Security Agency while in China to the Committee, the National Assembly and the State President
  • that she acted dishonestly by failing to disclose to her employer that she received remuneration from other state departments while in gainful employment of the Department of Home Affairs
  • that the information that she was a “spy” came from reliable sources and therefore was unquestionable.

Adv Mkhwebane was adamant that she had been deployed by the Department of Home Affairs to the Beijing Foreign Office during the period 7 September 2009 to 31 May 2014 in connection with Home Affairs related matters, and was during that period not employed by nor connected to the State Security Agency.

She pointed out, in her founding affidavit in the defamation proceedings against the DA, that she was appointed by the State Security Agency as an Analyst: Domestic Branch, at P3 level only on 11 May 2016. She attached a copy of her Appointment Letter as annexure “PPSA 5”. This annexure bore the letterhead of the State Security Agency, was addressed to Adv Mkhwebane, appeared to be from the office of the General Manager: Human Resources at the State Security Agency, detailed the salary package offered to her and requested her to confirm her acceptance of the offer as per attached appendix A.

Following the making of the defamatory statements which were published and widely circulated in the media, Adv Mkhwebane’s legal representatives wrote to the DA, demanding a retraction. The DA refused to accede to the demand, asserting not only that the statements complained of were true, but also that they constituted fair comment and their publication in the public interest.

In her affidavit in the defamation application, Adv Mkhwebane referred to a media interview of 2 February 2017, during which Ms Breytenbach allegedly stated that she was not bothered in the least by the threat of legal action because the statements complained of would not have been made if the DA did not have proof to substantiate them.

The DA’s refusal to accede to the demand for the retraction triggered the launching of the defamation application Adv Mkhwebane in October 2017 in the Western Cape High Court. She sought a retraction and an apology and did not seek any claim for monetary compensation, stating that her main objective was to vindicate her right to integrity and her right to her reputation as well as to ensure confidence in the office of the Public Protector.

On 10 November 2017 the DA filed a notice of intention to oppose the defamation application.

On 1 December 2017, before filing its answering affidavit, the DA filed a notice in terms of rule 35(12), seeking the production by Adv Mkhwebane of seven documents to which it considered it was, in terms of the rule, entitled.

Adv Mkhwebane (the Public Protector) produced five of the seven documents. but refused to produce

  • her application for the post of Analyst: Domestic Branch DB01 in the State Security Agency, and
  • the confirmation of her acceptance of the offer as per appendix A

The DA application to compel production of documents

When Adv Mkhwebane baulked at producing these two documents, the DA launched an application to compel their production  in terms of another rule of the High Court: rule 30A.

Rule 30A reads as follows:

“(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that the claim or defence be struck out.

(2) Failing compliance within 10 days, application may on notice be made to the court and the court may make such order thereon as to it seems to meet.”

The basis for this application was that the contentions by Adv Mkhwebane, in her affidavit, concerned the time during which she was employed by the Department of Home Affairs in China and the date on which she was appointed to her post as analyst in the State Security Agency and her attachment of annexure ‘PPSA5’ as her letter of appointment. The annexure, in turn, alludes, in its opening line, to her application for the position and requires an acceptance form to be completed and returned. It was her application that the DA sought as well as an assumed completed acceptance form (appendix A), presaged in the annexure. It was envisaged that these documents would reveal precisely when Adv Mkhwebane had been in the employ of the State Security Agency – from May 2016 as she asserts, or during the period 7 September 2009 to 31 May 2014 as the DA suspects.

Rule 35(12) reads as follows:

“Any party to any proceeding may at any time before the hearing thereof deliver a notice … to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or a transcription thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding provided that any other party may use such document or tape recording.” (my emphasis)

In simple terms, the rule affords the DA the right to demand that Adv Mkhwebane produce a document to which she refers in her defamation application against the DA. The DA submitted that the documents were indeed referred to in Adv Mkhwebane’s application, as annexure ‘PPSA5’ and ‘appendix A’, within the contemplation of rule 35(12). Rule 30A is a procedural step aimed at compelling her to produce the documents, failing which her defamation claim could be struck out. That means, her defamation case could be thrown out of court until she produces the documents sought. This is perfectly permissible in terms of rule 30A read together with rule 35(12) of the High Court rules. It is not reserved for certain litigants. But there are limitations which are discussed below.

The DA accepted that relevance was the touchstone for success in a rule 30A application to compel the production of documents sought in terms of rule 35(12). It contended that the documents sought were directly relevant to the question of whether Adv Mkhwebane was a spy at the material times claimed in its statements about which Adv Mkhwebane had complained.

In my view, this is hardly the enquiry. The enquiry is, rather, as case authorities have shown, is whether the document is relevant in the sense that it may assist the DA in mounting its defence to the defamation claim. That defence could be anything from fair comment to truth and publication of the offending statement being in the public interest for someone applying for the Public Protector position, a creature of the Constitution. The DA need not prove that Adv Mkhwebane was indeed a spy, and that it needs the document in order to prove that allegation. That line of enquiry is irrelevant in the assessment of whether or not the document in question must be produced under rule 35(12). Of relevance is whether the document, judging by the context in which reference is made to it in Adv Mkhwebane’s papers (including annexures), could shore up the DA’s defence in the defamation claim when the DA finally decides what its defence will be.

In this regard it is important to understand that the production of a document under rule 35(12) is usually sought before the other party has even pleaded. The idea is to cover all bases and not limit one’s defence to what may already be publicly known. This is not say the DA is entitled to a fishing expedition. The context in which reference is made in Adv Mkhwebane’s papers to the document determines the scope for which production of the document may be required. That scope must be clearly pleaded as it is upon a consideration of such pleading in a rule 30A application that the court would be able to assess the relevance of the document to the DA’s defence in the main application.

From a careful reading of the judgment – without the aid of the pleadings – it seems to me that the true basis for the DA’s application to compel the production of the documents in question is the timing of Adv Mkhwebane’s employment at the State Security Agency as that seems, on her own version, to be a contentious issue.

The Public Protector’s defence

In resisting production of the documents sought, Adv Mkhwebane adopted the position that her application for the post of Analyst at the State Security Agency was not referred to at all in her affidavit in the defamation application. She  was also adamant that she had not referred to a completed letter of acceptance. She insisted that the DA was on a fishing expedition which is not a permissible purpose for which one may invoke rule 35(12).

Although it was communicated on behalf of Adv Mkhwebane in the High Court, both in heads of argument and in correspondence, that the documents sought in the rule 30A application to compel were not in her possession but were in the hands of the State Security Agency, she did not (according to the SCA) say so on affidavit either in the High Court or in the SCA. If this is an accurate exposition of the facts, then this was a costly mistake for Adv Mkhwebane because a plea that the documents sought are not in the possession of the party called upon to produce it is ordinarily a good defence to a rule 30A application to compel.

But, not having read the pleadings in this case, it is difficult to make a definitive factual finding in this regard. I find it difficult to believe that such a rudimentary and costly mistake could have been committed in a case with stakes so high given the hostility that the DA has shown towards Adv Mkhwebane from the very beginning of the process for the appointment of a new Public Protector in 2016 until now.

The High Court finding

In adjudicating the rule 30A application to compel, the High Court took the view that neither of the documents sought were referred to or relied on by Adv Mkhwebane as contemplated in rule 35(12). The court did, however, go on to state the following:

“They were both referred to in and are ancillary to annexure ‘PPSA5’.”

After an examination of case law, the High Court concluded as follows:

“[44]     [Ms Mkhwebane] did not refer to the requested documents in her founding affidavit, which documents are, in my view, irrelevant to the proceedings at this stage. Even if the documents were relevant, the sanction for the [DA] is encompassed in the relevant rule, and that is, [Ms Mkhwebane] would not be able to use the documents, without leave of the court, in terms of rule 35(12).

[45]      In light of the authorities considered above, I am of the view that the reference made to documents in an annexure to [Ms Mkhwebane’s] founding affidavit, did not constitute “reference” as envisaged for purposes of Rule 35(12). I am also not persuaded of the relevance of the requested documents, especially in the context of [Ms Mkhwebane’s] claim that she does not rely on the documents referred to in an annexure to her founding affidavit, which she claimed to be irrelevant to her claim, and the [DA’s] claim that such allegations would not have been made, “if [it] did not have evidence”, and that the publication of the statement “was true and in the public interest”.

[46]      To the extent that the [DA] alleged that [Ms Mkhwebane] was and is a spy, is [sic] not at all borne out by the letter of appointment. Nor can [her] acceptance of the letter of appointment cast any light on the allegations allegedly made by the [DA]. Both these ancillary documents are, in the context of this specific matter, and in my view, entirely irrelevant.”

The DA’s appeal was directed against these conclusions and the resultant orders that it retracts and apologise.

In my view, the High Court’s reasoning in paragraph [44] seems to miss the point that the sting of the failure to produce the documents sought lies not so much in rule 35(12) as in rule 30A. After all, the High Court was called upon to decide an application to compel production of the documents. That application was brought in terms of rule 30A, not rule 35(12) which in any event makes no provision for the bringing of an application. The sting is that failure to produce the document may result in the defamation claim being struck out. So, it is not to rule 35(12) that one looks for remedy but to rule 30A.

The reasoning in paragraph [45] seems a misdirection in law. The enquiry in these matters is usually not whether or not the claimant relies on the document in question for her claim, or whether or not the respondent had indicated that it had all the evidence it needed to back up its wounding statements about the claimant. So, the fact that Adv Mkhwebane says “she does not rely on the documents”, or that the DA said in an interview that it would not have made the wounding statements about Adv Mkhwebane “if [it] did not have evidence” to back them up, is irrelevant. The proper enquiry is whether the documents are relevant to the DA’s defence against the defamation claim.

The reasoning in paragraph [46] seems misconceived. The issue, it seems to me, is not whether or not the contents of the letter of appointment prove Adv Mkhwebane was a spy during the relevant period. It is rather whether she was in the employ of the State Security Agency during that period. In any event, unless the learned judge had seen the letter, he could not authoritatively say that the letter does not show that Adv Mkhwebane was a spy.

The SCA reasoning

The SCA meticulously trawled the archives in order to explain the legal position as regards the appropriate application of rule 35(12). In fact, it did more than was necessary in my view. That is why the criticism of the judgment as seeking to have Adv Mkhwebane prove the DA’s claim for it is, in my view, unfair and uninformed. People should read the judgment for themselves here –> DA & Others v Mkhwebane & Another.

As the SCA says, citing authority, the purpose of discovery, of which rule 35(12) forms part, is to ensure that before trial both parties are made aware of all the documentary evidence that is available. Discovery ranks with cross-examination as one of the mightiest engines for the exposure of the truth. The legal position is this:

“[A] Defendant or respondent does not have to wait until the pleadings have been closed or his opposing affidavits have been delivered before exercising his rights under Rule 35 (12): he may do so at any time before the hearing of the matter. It follows that he may do so before disclosing what his defence is, or even before he knows what his defence, if any, is going to be. He is entitled to have the documents produced “for the specific purpose of considering his position”.”

The SCA sums up the general principles broadly as follows, on occasion citing reported judgments with approval:

  • While rule 35(12) appears to indicate that where there is a mere reference to a document or tape recording in an opponent’s pleadings or affidavits a defendant or respondent is entitled to call for its production and may compel compliance, that is not how our courts approach an application to compel the production of documents sought in terms of rule 35(12). In other words, the mere mentioning of a document does not entitle the other party to its production
  • If a wife seeking an interdict to prevent a husband from assaulting her were to allege that he assaulted her shortly after she had read the evening newspaper, there being no relevance alleged of the paper, one could hardly imagine that her husband, the respondent, would be entitled to production of that newspaper
  • The first step in the adjudication process is to consider whether ‘reference’ is made to a document or tape recording
  • The terms of the rule do not require a detailed or descriptive reference to such documents, nor is any distinction made between documents upon which the action or other proceedings is actually founded, on the one hand, and documents which possess merely evidentiary value, on the other
  • Direct or indirect reference to a document will suffice, subject to relevance
  • What will not pass muster is where there is no direct, indirect or descriptive reference but where it is sought through a process of extended reasoning or inference to deduce that the document may or does exist
  • Supposition is not enough
  • It would be absurd to suggest that the rule should be so construed that reference to a document would compel its production despite the fact that the document has no relevance to any of the issues in the case
  • Where there is reference by a party to a document in a pleading or affidavit there is prima facie an obligation on that party to produce it for inspection if called upon to do so, subject to certain limitations, namely, if the document is not in that party’s possession and he or she cannot produce it, or where the document is privileged or where it is irrelevant
  • Reliance on a document by the party from whom the document or tape recording is sought is a primary indicator of relevance. Given the purpose of rule 35(12) it cannot, however, be the sole indicator. The document in question might not be relied on by the party from which it is sought but might be material in relation to the issues that might arise or to a defence that is available to the party seeking production
  • A person defending a defamation claim on the grounds of truth and public benefit or fair comment is entitled, after the launching of proceedings, to gather further evidence to support those defences and to use the rules of court for that purpose, including the rules relating to the discovery and production of documents
  • As regards the compellability of documents that are not specifically mentioned in affidavits, but which are referred to in annexures to the affidavits, an annexure to a pleading or an affidavit is as much part of the pleading or affidavit as the body itself. Many references to documents in annexures to pleadings are probably irrelevant to the proceedings and would for that reason not have to be produced; but it does not follow that the rule does not apply to documents to which reference is made in annexures.

The SCA then distinguished the recent judgment of Justice Cachalia in Contango Trading SA and Others v Central Energy Fund SOC Ltd and Others [2019] ZASCA 191; 2020 (3) SA 58 (SCA) as obiter (that is, an observation made in a judgment in passing and which does not form part of the basis for the judgment and orders made). In Contango, Justice Cachalia stated that a reference for purposes of rule 35(12) has to be a reference in pleadings and affidavits and not in annexures. But the basis for that judgment was that the applicants had sought the production of “a general category of documents”and not a specific document. Justice Cachalia refused the application, pointing out that “[a]n order of that kind would perforce include within its scope irrelevant documents and confidential communications that the respondents are properly entitled to withhold. In other words, it would have to include every bit of paper generated during the process. That is not what the subrule envisages.”

Quite right, with respect. But that is not what seems to have happened in this case between the DA and Adv Mkhwebane.

The SCA then summed up the legal position as follows:

“To sum up: It appears to me to be clear that documents in respect of which there is a direct or indirect reference in an affidavit or its annexures that are relevant, and which are not privileged, and are in the possession of that party, must be produced. Relevance is assessed in relation to rule 35(12), not on the basis of issues that have crystallised, as they would have, had pleadings closed or all the affidavits been filed, but rather on the basis of aspects or issues that might arise in relation to what has thus far been stated in the pleadings or affidavits and possible grounds of opposition or defences that might be raised and, on the basis that they will better enable the party seeking production to assess his or her position and that they might assist in asserting such a defence or defences. In the present case we are dealing with defamatory statements and defences such as truth and public interest or fair comment that might be raised. The question to be addressed is whether the documents sought might have evidentiary value and might assist the [DA] in [its] defence to the relief claimed in the main case. Supposition or speculation about the existence of documents or tape recordings to compel production will not suffice. … The wording of rule 35(12) is clear in relation to its application. Where there has been reference to a document within the meaning of that expression in an affidavit, and it is relevant, it must be produced.”

The SCA then turned to the facts of this case and it is important to read this part of the judgment in full as it neatly sums up the court’s reasoning with particular reference to the facts:

“In the present case it is clear that the timeline in relation to the period of employment of [Adv] Mkhwebane by the SSA, or her connection to it, is material to each party’s case. Precisely when she took up her employment or whether she had any connection to the SSA while employed by the Department of Home Affairs, especially when she was deployed by the latter to China, is essential in relation to the issues that suggest themselves at this stage. That much is clear from the statements complained of and her own affidavit in the main case, in terms of which she complained about the statements by the [DA] and what they were intended to convey. The importance of the timeline in relation to her employment by or connection to the SSA is given impetus by what she sets out in [her founding affidavit]. Annexure ‘PPSA5’ was clearly intended by her to show that her letter of appointment supports her denial of the statements made by the [DA] and to prove that her appointment by and her connection with the SSA only commenced well after her return from China. It was material to her claim for a retraction.

‘PPSA5’, in the context of … [Adv] Mkhwebane’s affidavit, appears to have been intended to convey that an application for a position as Analyst at the SSA was made some time after her return from Beijing to South Africa to continue as Director: Refugee Affairs at the Department of Home Affairs. It can safely be said that [Adv] Mkhwebane relied on the letter of appointment and its material terms in relation to when her employment and connection to the SSA commenced. That application for the post is referred to at the commencement of ‘PPSA5’. There could hardly have been an appointment to the SSA without such an application. … To my mind there is, within the meaning of that expression in rule 35(12), a clear ‘reference’ to [Adv] Mkhwebane’s application for appointment as an Analyst in annexure ‘PPSA5’, which it will be recalled contained her occupational band, and the terms of her remuneration.

[Adv] Mkhwebane’s application for appointment is relevant in that it is bound to contain details of her employment history, including those relative to the time when she was deployed to China. As stated above, the timeline is critical. In my view that document should be produced by [Adv] Mkhwebane. The court below erred in concluding that there was no reference to the application for appointment to the post of Analyst and that it was irrelevant. It misapplied the cases referred to. It does not behove [Adv Mkhwebane] to say that [she] need not have referred to her application for the post of Analyst. She did refer to it and relied on it in the principal case. It was lost on her and her legal representatives that she appears by that statement to have admitted a reference to the document sought.

At this stage there is no affidavit before us informing us that she is not in possession of the document. Such an affidavit if it had been lodged may have been dispositive, in favour of [Adv Mkhwebane]. The court below rightly had no regard to the statements in the heads of argument or from the bar on this aspect.”

I am unable to fault this reasoning.

Conclusion

In my view, the reasoning of the SCA in this case is sound. That is not to discount the fact that another court, differently constituted, might not reach a different conclusion by reasoning that is just as sound. Our challenge as ordinary citizens invested, to varying degrees, in the outcome of certain cases, is to assess each judgment based on the reasoning and not on the outcome.

There is nothing wrong with criticising the reasoning in a judgment. Legal scholars and students have been doing it for many years. Law journals are full of critical analyses of court judgments. This is good for the development of sound jurisprudence. What is not good, and damaging to the rule of law fabric, is wholesale attack on the judiciary (or individual judges) based only on the result of a court case on the strength of little more than an artificial media report cobbled up in double-quick time to meet a publication deadline and sell newspapers or airtime to advertisers.

Let us all guard against making the judiciary (and individual judges) the bane of our frustration with the justice system.

By |2025-01-15T10:14:21+02:00March 21st, 2021|Blog, General, News|Comments Off on DA v Mkhwebane (1370/2019) [2021] ZASCA 18 (11 March 2021): A Perspective on the Judgment of the Supreme Court of Appeal

Will the Organised Law Profession Finally Speak Up for the Constitution?

What is going on in South Africa?

While there might be much political noise in the system, it is the strength and integrity of our institutions that will see us through turbulent times. Professionals, particularly in their organised form, have a major role to play in ensuring that our institutions remain strong pillars of society. It is therefore concerning that organised professions are eerily silent when things like the IRBA fiasco or the corruption of State-Owned Entities cast a dark cloud over our future. Here I want to highlight some of the issues in relation to which the organised law profession should have been, and should still be, more vocal.

At least five incidents that happened over the last 13 years have cumulatively led me to a point where I could no longer ignore a pattern that forced me to reflect on this question, and wonder why the organised law profession remains so supine in the face of what, in my view, goes against the constitutional values that we all – at least ostensibly – cherish. It is my hope that by this contribution, I shall prick the conscience of all lawyers to engage more publicly on matters that affect the law and its application. After all, this is their space.

The First Incident: Justices of the Constitutional Court against a Judge President

The first incident started in May 2008, when Justices of the Constitutional Court released a media statement accusing a Judge President of seeking improperly to influence two of their number (and by extension, they said, the entire Constitutional Court) on the outcome of a case on which they were then deliberating.

The accusation was, in my view, quite extraordinary. If you understand (among other things) how the court system works, the process of judgment writing in an appeal court comprising multiple judges, the concept of judicial independence indelibly carved into s 165(2) of the South African Constitution, the presumption of impartiality in a judge, and the concept that judges are presumed to know the law, that accusation would strike you as – well – extraordinary in its extravagance. We all await the decision of the Judicial Conduct Tribunal. So, I shan’t comment on its merits.

The accusation did strike me as extravagant, so much so that I was moved by principle to take up the Judge President’s case in 2008 when the Constitutional Court Justices eventually lodged a complaint with the Judicial Service Commission. The JSC dismissed the complaint in June 2009, but Justice Johann Kriegler and his Freedom Under Law successfully reviewed that decision in the Supreme Court of Appeal, after losing in the High Court.

The case ended up before the Constitutional Court itself in record time within 6 months of the SCA decision and was postponed for two months for reasons of quorum. I took what I thought was a basic rule of natural justice: that Justices who were complainants against the Judge President cannot decide the case. Well, they did. So, I decided I would play no further part in what I considered a clear case of conflict of interest and therefore plainly wrong. Three of the complainant Justices (who are, ironically, even cited as parties in the judgment of the Constitutional Court) formed part of that bench. The Constitutional Court unanimously dismissed the Judge President’s leave to appeal.

In a fair society that is governed by the rule of law, what played out in the Constitutional Court would have been unthinkable. Complainant Justices made a decision that ensured that their complaint (which had been dismissed by the JSC) was re-opened and, they hoped, decided in their favour.

The organised profession said nothing critical of this glaring injustice. Instead, the Cape society of advocates and the General Council of the Bar of which it is a constituent member, encouraged it. At that time, in 2008, I expressed my disappointment publicly in a piece I titled “The Bruising of Our Constitution” and four years later in a lecture I titled “When Expedience Trumps The Rule of Law – Lecture version“. I urge you to read both.

The Second Incident: Efforts to Remove the Public Protector

The second incident is the political process currently underway for the removal of a Constitutional Creation, the Public Protector. I have acted for the Public Protector on brief. I have also acted against the Public Protector on brief. I do not believe she is incompetent or dishonest. Like all lawyers, including judges, she occasionally misdirects herself on the law and on the facts. That does not render her dishonest or incompetent. It renders her human.

The unusually strong language of the courts in their criticism of the Public Protector appears to have buoyed politicians aggrieved by the Public Protector’s findings against them or their own to mount a spirited campaign to remove her from office, mainstream media and NGOs generally being trusted allies in that campaign. The voice of the organised law profession is on mute.

We now learn from media reports that a panel appointed by Parliament has found that there is a prima facie case of incompetence against the Public Protector. With that, Parliament will now vote on whether or not she should be removed. But what exactly is the case for the removal of the Public Protector? The starting point is a valid comparison with the judiciary.

Section 181(2) of the Constitution requires chapter nine institutions to be, like Judges, independent, and subject only to the Constitution and the law. They are also expected to be impartial and exercise their powers and perform their functions without fear, favour or prejudice.

Section 1A(3) of the Public Protector Act says:

“The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who-

  • is a Judge of a High Court; or
  • is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or
  • is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or
  • has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or
  • has, for a cumulative period of at least 10 years, been a member of Parliament; or
  • has acquired any combination of experience mentioned in paragraphs (b) to (e), for a cumulative period of at least 10 years.”

When the politicians voted to have her appointed in 2016, they were satisfied – after questioning and cross-examining her in proceedings that were carried live on electronic media – that she met these requirements. So, when did they change their minds?

Before I venture a theoretical answer (and I put it no higher than that) to this question, it is important to appreciate the common existential features between Judges, on the one hand, and the Public Protector, on the other. That being so, they should be held up to the same standard.

I highlight some of those similarities in the table immediately below.

The Public Protector has been accused of being incompetent and biased because a handful of her remedial actions have been overturned in court. It appears that to those who lay this charge, the hundreds of other remedial actions that have not been challenged or set aside are irrelevant. But let us explore this charge for her removal.

Given the striking similarities in the required standard between judges and the Public Protector, as I have summarised in the table above, it is necessary to ask: Is a Judge whose judgments are set aside on appeal, or who makes a ruling based on wrong legal principles, incompetent or biased?  If the answer to that question is no, why should it be yes in respect of the Public Protector?

The Constitutional Court answered that question in S v Basson 2007 (3) SA 582 (CC) (“Basson II”).

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

  • that the trial Judge admitted evidence taken on commission in the USA without permitting the accused to respond to that evidence
  • that the trial Judge permitted 2 State Counsel to cross-examine the accused
  • that the trial Judge “misunderstood much the evidence presented” and made erroneous factual findings that were prejudicial to the State and exculpatory of the accused
  • that the trial Judge accepted implausible evidence from Dr Basson which was contradictory and not borne out by the record
  • that the trial Judge dismissed the State’s objection to a line of cross-examination that sought to establish whether the witness had discussed his guilt with his attorney. The ground for the objection was that the information sought was subject to attorney-client privilege. The trial Judge dismissed the objection on the ground that privilege attaches to the attorney and not the client – a novel idea in our law.

The Constitutional Court accepted that these were “misdirections” by the trial Judge. But did it find that this was evidence of bias or incompetence or failure to apply the law impartially and without fear, favour or prejudice? No. It said:

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

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

Making decisions founded on an incorrect appreciation of the law or legal principles does not establish bias or bad faith. This is what the Constitutional Court tells us in Basson II.

Failing to observe the audi principle does not by itself justify an inference of bias. This is what the SCA tells us in Competition Commission v The GCB 2002 (6) SA 606 (SCA), para [16].

Committing procedural irregularities in an investigation is not to act in bad faith. In any event, there are remedies in law for that, including a review application.

So, why would these errors found a case for the impeachment of a Public Protector (who is as much a Constitutional creation as a Judge) when it does not when a Judge commits the same errors? Why should a factual misdirection by this Public Protector be characterised as “dishonesty” when it is not so characterised when a Judge does the same?

This Public Protector’s predecessor also occasionally misdirected herself in law and fact. Not once, to my recollection, did Parliament talk of impeaching her – and rightly so. I have done a brief comparative analysis of the two Public Protectors in a blog titled A Tale of Two Public Protectors: Separating Fact from Fiction“.

Back to the question I posed earlier. Having voted overwhelmingly in favour of the appointment of this Public Protector after being convinced that she had met the requirements in section 1A(3) of the Public Protector Act, when did the politicians in Parliament change their tune and wish her impeached?

Was it when she, within a year of her appointment, issued a report – that had already been substantially prepared under her predecessor – directing that ABSA Bank pay back R1.125 Billion to the Reserve Bank that the Reserve Bank had unlawfully gifted to ABSA Bank and the banks it had taken over? But she is not alone in that finding. Two judges of the High Court, in separate investigations, made the same finding that the Reserve Bank subvention to ABSA bank and the banks it had acquired was illegal. In fact, they said it was fraudulent, characterising it as “a simulated transaction”. So, it can’t be that, surely?

Was it when she started investigating the President and the Speaker of Parliament herself, and making findings against them both? The Speaker is currently facing criminal charges as a result of the Public Protector’s findings against her. The President is fighting vigorously in the courts to keep hidden from the public the identity of donors to his 2017 presidential campaign. The Public Protector put him in that position by her findings in a report. But the President and Parliament have a constitutional obligation to protect the Public Protector. So, the fact that she made findings against the President and the Speaker can surely not be the reason?

Was it when she poked the hornet’s nest in the form of the goings-on at the South African Revenue Service, to the chagrin of a minister who seems beyond any form of accountability? Surely, that cannot be the reason?

In section 181(3) the South African Constitution imposes an obligation on all organs of state (and that includes Parliament) to

“assist and protect [the Public Protector] to ensure [her] independence, impartiality, dignity and effectiveness”

In section 165(4), the Constitution imposes the same obligation on organs of state in relation to Judges. So, why are the politicians in Parliament impeaching the Public Protector instead of assisting and protecting her to ensure her independence, impartiality, dignity and effectiveness, when the Judicial Service Commission has yet to impeach a Judge for committing the same errors? That, in my view, is one of the questions that members of Parliament will have to answer when they deliberate on their impeachment process.

Will the organised law profession speak up?

The Third Incident: Public Personal Attack on the Judiciary

The third incident is that of a retired Justice of the Constitutional Court – Justice Johann Kriegler – publicly calling for a Judge President to be suspended. Why? Well, because he disagrees with a judgment that the Judge President has made. And then the JSC found it necessary to respond, publicly:

“The JSC cannot just, when there may be some unhappiness about a judgment, proceed to suspend a judge – that’s not how it works.”

 Justice Kriegler knows this. He knows that appealable judgments can be set aside on appeal. If there is some irregularity, the judgment can be set aside on review. So, why has he chosen to mount a public personal attack on the Judge President, at a time when politicians are being criticised – rightly – for doing exactly the same thing?

The Pan-African Bar Association of South Africa (PABASA) has issued a measured statement cautioning leaders and all citizens about the dangers of precisely this conduct.

Will other members of the organised law profession speak up?

The Fourth Incident: The State Capture Commission

The fourth incident is the thoroughly undignified spat between the State Capture Commission and a former President. A former President defies not only a summons from the Commission but also an order of the Constitutional Court. In an unprecedented move, the Commission rushes to the Constitutional Court to force a witness to testify, instead of invoking the powers conferred on it by law. The Constitutional Court obliges the Commission on the thinnest ground and after pointing out that the Commission is the victim of its own insouciance towards the former President.

Now the Commission wants the former President jailed for 2 years, something that is beyond the powers of the Commission to ask (ultra vires) in terms of the empowering legislation.

A number of questions arise.

  • If the former President believes the Commission’s summons to be unlawful, why does he not challenge it in court instead of defying it?
  • Why does the Commission insist on the former President giving evidence while there is a pending application in the High Court reviewing the refusal of the chair to recuse himself?
  • And why did the Constitutional Court choose not to pronounce on that dynamic when it ordered the former President to honour lawful summons? Surely it must have anticipated that this issue would arise?

The former President has been roundly condemned for his conduct, and rightly so. But why is the conduct of the commission and the Constitutional Court acceptable?

Will the organised law profession speak up on all these?

The Fifth Incident: CR17 donations

The fifth incident is the keeping from the voting public of the detail of the donors and beneficiaries of a presidential campaign. The matter is still in the courts and so I shan’t pronounce on its merits here. My curiosity is the generally supine attitude of the organised law profession. One would have expected the profession, playing the role of custos morum of the profession, to be sounding a word of caution when a President goes to court to suppress the publication of details of his presidential campaign funding.

Granted, though extraordinarily short-sighted, some may argue that lawyers cannot get involved because their services may invariably be engaged for one or other side in this litigation. But instructions go to individual firms and advocates, not to the organised law profession as representative bodies of the profession. For example, why does the Legal Practice Council see no need to sound a word of caution on the lack of transparency on this issue which clearly goes to the heart of a constitutional principle?

The organised law profession has ammunition provided by the Constitutional Court in My Vote Counts in these terms:

“Secrecy enables corruption and conduces more to a disposition by politicians that is favourable towards those who funded them privately once elected into public office…” 

And

“If the door is left open to potentially or actually compromised political parties or independent candidates to be voted into and hold public office, then the government birthed by such flawed political players could hardly be described as truly based on the “will” of the people. That government or legislative body would not find it easy to implement the good governance and efficiency-enhancing practices prescribed by section 195 of the Constitution.”

And

“The foundational values of our constitutional democracy like openness, responsiveness, accountability and the realisation of the constitutional vision of building a united nation and improving the quality of life of all, could thus be at the mercy of unknown and even unscrupulous funders. For, there is indeed no free lunch. This is not to say that all funders are, without more, intent on furthering selfish or sectional interests at the expense of national interests. But some big political campaign funders even in old democracies have been exposed as being inclined “to use money for improper purposes”. They reportedly tend to determine or influence in a meaningful way, the policy-direction to be pursued by those in whose political life or fortunes they “invested” their resources. And when elected public office-bearers are illegitimately dictated to, that is likely to poison the broader political landscape and governance, thus weakening or throttling our shared values and constitutional vision. Lack of transparency on private funding provides fertile and well-watered ground for corruption or the deception of voters.”

And

“Transparency in the area of the private funding of political parties and independent candidates helps in the detection or discouragement of improper influence and the fight against corruption.”

So why does the organised law profession not use this ammunition to, at the very least, sound a word of caution, thereby acting (to the extent that it does) as a conscience to the media to blow wide open the whole secrecy in the public interest?

Will the organised law profession speak up?

By |2025-01-15T10:14:21+02:00March 4th, 2021|Blog, General, News|Comments Off on Will the Organised Law Profession Finally Speak Up for the Constitution?
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