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.

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?

It is no secret that when the Public Protector released her “State of Capture” Report in October 2016, the focus of her investigation was Mr Zuma. So, when she approached the Full Bench of the Pretoria High Court to order the appointment of a Judicial Commission of Inquiry, she intended the focus of the investigation to be Mr Zuma.

But, whether by clever design or inadvertently, Mr Zuma expanded the Commission’s Terms of Reference beyond the focus on him alone. Now the Commission’s Terms of Reference include the possible culpability of everyone from the President to ministers in his cabinet to officials in state-owned enterprises and organs of state to private individuals doing business with the state. They also cover a period wider than Mr Zuma’s presidency.

Wrongfooted, many of us are still stuck in the “State of Capture” Report and pay scant regard to the State Capture Commission’s Terms of Reference that have long expanded its scope. I suggest that this “tunnel vision” is responsible for the manner in which we view the work of the Commission and the Constitutional Court’s recent judgment thereon.

Tunnel vision

Tunnel vision is the tendency to view the world, and what happens in it, exclusively through a single or limited lens. It is a natural human instinct that is informed by what we read, see and hear often. If what I read everyday in newspapers and digital platforms, and see and hear everyday on television, is that Eeyore is a rogue and a criminal, eventually I shall believe that Eeyore is a rogue and a criminal.

If I should be asked to explain why I believe that Eeyore is a rogue and a criminal, the odds are better than average that my answer would be something like: “Well, because ‘everbody’ says so”. But who is “everybody”? “Well, there can’t be smoke without fire”. If I think like this, the possibility that the smoke may be nothing but thin dust particles or powder or mist or fog will not occur to me. Why? Because the lens through which I view the world and what happens in it is informed by my belief system, what I read, see and hear constantly. I believe that Eeyore is a rogue and a criminal because authority says so. Everyday I read and hear in public media that Eeyore is a rogue and a criminal. And so by that constant repetition, the image of Eeyore as a rogue and a criminal is affirmed in my mind. If so many people say Eeyore is a rogue and criminal, then Eeyore must be a rogue and a criminal.

There is another dimension. If Eeyore does turn out to be a rogue and a criminal, there is a possibility that Piglet, Winnie the Pooh and Tigger are also rogues and criminals. But because my lens is designed to focus only on Eeyore, and the information that I am fed everyday focusses exclusively on Eeyore’s alleged conduct, I have little (if any) means readily available to me by which my attention is drawn to the complicity of Piglet, Winnie the Pooh and Tigger in Eeyore’s criminal exploits. Even when I do stumble across information that links Piglet, Winnie the Pooh and Tigger in Eeyore’s criminal exploits, “everybody” either ignores it or dismisses it as “what-aboutism” or “gossip”. When that happens, I must accept that the allegations against Piglet, Winnie the Pooh and Tigger are mischievous.

Most people are happy to just go along with a generally held view in order to get along with people in their circle. Few people tend to take the trouble to interrogate the generally held view in order to satisfy themselves of its efficacy or truth. Fewer still – having satisfied themselves of the improbabilities of the generally held view – tend to seek to convince others that the generally held view is improbable and may even be incorrect.

If I stopped to interrogate the narrative that Eeyore is a rogue and a criminal in order to inform myself of the true facts, I may realise that it is not “everybody” or “so many people” who assert that Eeyore is a rogue and a criminal. It is a few people saying the same thing through numerous platforms, including me. I may also realise that I am, unwittingly, one of their many platforms through which they spread the narrative that Eeyore is a rogue and a criminal. But, because I am looking at the world through the lens that these few people have designed for me, and I am armed only with the information that they have selected for me, I have no other reference point by which to judge, independently, whether or not Eeyore is a rogue and a criminal.

Diversity of views

That is the irreparable danger of the media pushing the same hypothesis through numerous platforms without an honest and rigorous interrogation of that hypothesis. That is the pernicious danger that is created by the absence of a diversity of views (or lenses) in the media space. When we are fed the same uninterrogated hypothesis based on the same information about the same issues by almost all media houses in the country, there is little room for disagreement on those issues by people who consume the material that is published by the media.

By “diversity of views” I mean the diversity in editorial policy, political outlook, philosophical outlook and dominant culture. Occasionally inviting a different take in a supine media space on a particular topical issue does nothing to promote the diversity of views. What South Africa needs as a developing constitutional democracy is a vast media landscape comprising many independent media platforms that are free to focus on any issue of their choice without fear or favour to anyone. That is sorely lacking in the South African media landscape. Instead, the owners and publishers of those media platforms which buck the trend tend to be attacked in mainstream media publications. That this happens with hardly anyone – least the media watchdogs – batting an eyelid, is indicative of the threat of entrenchment of, what some have termed “the cabal”, materialising. It has the power to destroy a constitutional democracy which should, by design, be tolerant of diverse views in the media space.

The problem in so-called developed countries, like the United States and the United Kingdom, is somewhat of different kind. In those countries, there is less homogeneity on current socio-political affairs in mainstream media. For example, FoxNews has been unashamedly pro-Donald Trump while CNN has been unashamedly anti-Donald Trump.

The Constitutional Court judgment

I suggest that it is with a full appreciation of our natural tendency to “tunnel visioning” that we should view the judgment of the Constitutional Court in relation to the State Capture Commission and the work that it does in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma (CCT/295) [2021] ZACC 2 (28 January 2021).

That many of us are moved to celebrate a judgment that does not appear to be rooted in a deep enough consideration of all the cards on the table is a function of the tunnel vision that I described earlier. Tunnel vision seems to have driven many of us to see fire in one room of the house and dust particles in others even though there are sworn accounts that fire has been spotted in all the rooms of the house. This, I submit, is the mistake in the outlook that many South Africans generally have of the State Capture Commission and its work. It is also, I suggest, the mistaken approach by some of us that informs our celebration of the Constitutional Court judgment.

I propose only to highlight some of what I consider mistakes in the judgment of the Constitutional Court as I take the view that the judgment is a continuation of tunnel visioning.

The secretary of the State Capture Commission went to the Constitutional Court on an urgent basis to ask it to force Mr Jacob Zuma, a former head of state, to appear as a witness at the Commission and answer all questions put to him, provided that he is not obliged to answer questions, the answers to which may tend to incriminate him, and provided that he explains why the answer to each question may tend to incriminate him.

The Constitutional Court agreed. It ordered Mr Zuma to obey all summonses and directives lawfully issued by the Commission. It also ordered him to appear at the Commission and answer such questions as the answers to which may not incriminate him. It declared that Mr Zuma must explain why an answer to each question put to him may tend to incriminate him. It also ordered that Mr Zuma must pay the costs of the secretary’s application, despite Mr Zuma not having opposed the application. But how did it get there?

Direct Access

Direct access is a special dispensation by which an applicant is allowed to approach the Constitutional Court directly without first having to approach the high court and the Supreme Court of Appeal. It is allowed only if the judges of the Constitutional Court take the view that it is in the interests of justice that the case before them should be entertained without them having the benefit of the views of the lower courts on the issues that they are asked to decide.

In this case, the Constitutional Court criticized the Commission for its “maladroit” or clumsy approach in dealing with Mr Zuma. Essentially, it observed that the Commission created its own urgency where there should have been none. But, said the Constitutional Court, because the fault lies with the Commission and not the people of South Africa, the Commission must be allowed to approach the Constitutional Court directly as it would not be in the interests of justice for it first to approach the High Court.

This is an extraordinary piece of reasoning. The public was not before the Constitutional Court; the Commission was. The Commission did not approach the Constitutional Court in the public interest. It did so in its own name. On the Court’s own reasoning, the Commission’s lawyers committed numerous “blunders”. To say that these “blunders” and “the lack of diligence on the lawyers’ part cannot be attributed to the public”, is like saying the shortcomings of an applicant in an application brought in the public interest cannot be attributed to the public, and then grant the application despite the applicant’s blunders. Applying that same reasoning in the determination of Ngalwana’s amicus application, it is difficult to see why it was not granted. But that is not the law as I understand it. That is why the reasoning is troubling me.

The standard for direct access in the Constitutional Court is “interests of justice”. The question is: whose interests of justice? The Constitutional Court appears to have ranked the interests of the Commission above those of Mr Zuma. In fact, it appears to have focussed exclusively on the interests of “the public” and ignored those of Mr Zuma. Why? Well, because he did not bother to show up.

That, in my view, is a curious approach. Final relief at the Constitutional Court is usually granted where the applicant has persuaded a court that he is entitled to the relief sought. Many unopposed applications are refused because the applicant has not persuaded the court that he is entitled to the relief sought, not because the respondent has not bothered to show up. Unlike the High Court, the Constitutional Court does not grant default judgment. In other words, it does not grant relief simply because the respondent has not bothered to show up or file opposing papers. The applicant must still prove its case.

Danger of Tunnel Visioning

Following what appears to be a tunnel vision that is informed by what we are constantly reading about Mr Zuma, it seems to me that the Constitutional Court has ignored Mr Zuma’s interests and assumed his “rogue” status. Maybe he should be classified as a rogue if the allegations against him are proven true. It seems, like many of us, the Constitutional Court may have prejudged the presence of fire where it sees something resembling smoke, but which may turn out to be dust or powder or mist or fog as this has not yet been tested. For example, it says:

“It must be plainly stated that the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgling democracy. It is in the interests of all South Africans, the respondent included, that these allegations are put to rest once and for all. It is only the Commission which may determine if there is any credence in them or to clear the names of those implicated from culpability.”

The Court is correct. However, although the Court was approached to deal only with Mr Zuma, it was presented with a golden opportunity to broaden that lens in accordance with the Commission’s Terms of Reference. It cannot validly and reasonably say that the broader lens was not presented to it. Even if it considered Ngalwana’s amicus application to be flawed in its presentation of the wider lens (as it did), that does not present the Constitutional Court with an impediment to considering matters that are relevant in terms of the Commission’s Terms of Reference. South African courts, including the Constitutional Court itself, have said that courts are free of their own accord to raise relevant points of law and are not precluded from doing so simply by the litigants not raising those issues. Therefore, the dismissal of Ngalwana’s amicus application which broadens the lens did not mean that the Constitutional Court was precluded from using that wider lens of its own accord to facilitate the Commission’s work. This is particularly important in light of the Constitutional Court itself having characterized Judicial Commissions of Inquiry as serving a “deeper public purpose” in an earlier judgment.

Clearly, the Constitutional Court’s focus is exclusively on allegations against Mr Zuma. Why the allegations made against President Ramaphosa, Mr Gordhan, and others are not, if established, “a huge threat to our nascent and fledgling democracy”, the Constitutional Court does not say. Why? Well, because its lens is not looking there. It could afford to ignore allegations against these others because it dismissed the application that provided that wider lens: Ngalwana’s amicus application.

But is the exclusive focus on Mr Zuma justified? I suggest not. That is not to say he must not face his demons at the Commission. Far from it. But the Commission’s Terms of Reference are much wider than what the Public Protector intended in her “State of Capture” Report in October 2016.

We cannot ignore the expanded Terms of Reference. The problem with our tunnel vision in the way in which we look at the State Capture Commission and the judgment of the Constitutional Court is that we are still stuck in the Public Protector’s focus which has long been expanded by the Commission’s Terms of Reference. It seems to me that is the mistake that many of us, including the Commission and the Constitutional Court, are making. That is why allegations concerning people who are not perceived as falling within Mr Zuma’s camp or faction are not pursued as vigorously as allegations concerning those viewed through the Public Protector’s lens. This is wrong.

Accountability   

The case before the Constitutional Court was about accountability. The Constitutional Court says it was about the interpretation of the Commissions Act, 1947. But the Commissions Act was simply a tool by which to achieve accountability. It is not an end in itself. In any event, the Constitutional Court’s take on what the case was about is not supported by the papers and submissions made to it on behalf of the Commission. It is clear from the Commission’s own papers and heads of argument that it considered this case as being about accountability. The very opening sentence in the heads of argument filed on its behalf says:

 “This application is fundamentally about the enforcement of the constitutional principle and duty of accountability.”

The Commission even quotes a 2013/2014 judgment of the Constitutional Court which talks about the “deeper public purpose” of Judicial Commissions of Inquiry. The exclusive focus on Mr Zuma is not consistent with that purpose. Commissions of Inquiry are generally designed to help resolve societal problems at a policy level, and ensure that those problems do not recur. There are numerous players in that exercise. The Commission’s Terms of Reference, and the allegations that have emerged, point to problems that cover the field. These include, among others

• The failure of parliamentary oversight
• The failure and complicity of cabinet in possible wrongdoing
• The role of the media or some in the media in facilitating state capture
• The possible role of the judiciary or some in the judiciary

The list is not exhaustive. We have heard allegations of judges being bribed, journalists being on the payroll of the State Security Agency, a serving President having interfered with the operations of a state-owned enterprise and enriched himself. These are serious allegations. Where was parliament? What oversight role did it play? Why are implicated cabinet ministers and the President not called to be questioned at the Commission on these allegations while there is enough time to have them thoroughly investigated and interrogated?

These are some of the questions that do not sit comfortably with the lens that is the Commission’s Terms of Reference. We ignore them because we are still trapped in the lens of the Public Protector, and one that has long been replaced by the Terms of Reference. According to the Terms of Reference, everyone must account. The Constitution demands it in s 195. It is, in fact, a foundational principle of the South African Constitution, the Supreme Law. According to the Public Protector’s lens, only Mr Zuma and those associated with him as rogues must account. But the Public Protector’s lens is not law. The Terms of Reference are.

Calling for other implicated people to account is not “what-aboutism”. It is a function of remaining true to the Law. The South African Constitution says everyone is equal before the law, has equal protection and benefit of the law. If we allow the Commission to call only some implicated people to account, but ignore other implicated people, both we and the Commission will be running foul of the Constitution. If Eeyore is alleged to have stolen bread from the poor, he must be called to explain himself. If Piglet is alleged to have stolen bread from the poor, he, too, must be called to explain himself. This is a basic application of the principle of equality that is enshrined in the South African Constitution. It cannot be said that when Eeyore is called upon to explain himself, he is rightly called upon to account, but when Piglet is called upon to explain himself, that is “what-aboutism”.

Many people say President Ramaphosa has already said he will appear at the Commission. Indeed, the Commission Chair has also indicated that the President’s appearance is “likely to be in March”. But this misses the point entirely. On its own version in its Constitutional Court papers, and in public statements made by the Chair, the Commission intends wrapping up the hearing of oral evidence by the end of March 2021. That being so, even if the President does appear in March, there will be little time left for parties who might wish validly to apply to the Chair for an opportunity to test his evidence. It thus seems likely that the President will simply appear at the Commission to make a speech, thank the Commission for its hard and diligent work, look presidential, and then step off what will for him be more of a podium than a witness stand, possibly to rapturous applause.

Some people will say but Mr Gordhan has already appeared at the Commission and has even been cross-examined. Yes. But has he been questioned in the open on the issue of how a private citizen and businessman got to hear about Mr Gordhan’s imminent dismissal as Minister of Finance before the President had announced it? No. Has he been questioned in the open on what he meant by his statement to a Parliamentary Committee that not all corrupt conduct is necessarily criminal conduct? No. Both these issues form part of the Commission’s Terms of Reference. In its Constitutional Court papers, the secretary of the Commission says Mr Gordhan has filed a “sworn response”. What is that response? Why is it not publicly interrogated? Why is the Commission keeping it under wraps? These are important questions that need answering.

Amicus Curiae

An amicus curiae is a “friend” of the court. A party who wants to be admitted as a friend of the court must first notify the main litigants and then bring an application to court to be admitted as such. The fact that a litigant opposes the application to be admitted as a friend of the court does not mean that the court will refuse admission. The role of the friend is to assist the court on matters that none of the main litigants address in their papers. A friend is not allowed to take the side of the one litigant or the other. A friend is supposed to be impartial and is there only to assist the court in its deliberations on the issues before it. A friend is not allowed to repeat the argument already covered by the main litigants and which the main litigants can argue themselves. The rules of the Constitutional Court allow a friend to introduce new facts and documents which have not been pleaded by the main litigants, provided those facts and documents are relevant to the determination of the issues before court and are not in dispute by any of the parties. That, in a nutshell, is the landscape in which a friend of the court operates.

The Constitutional Court refused to admit Ngalwana as friend of the court but admitted CASAC and the HSF. The reasons for its decision are contained in paragraphs 75 to 79 of the judgment. Essentially, it says Ngalwana introduced new facts and asked for new relief. It also hints that because Ngalwana did not seek to enforce rights in the Bill of Rights, he cannot claim to be approaching the Court in the public interest.

The issue before the Constitutional Court in this case was, principally, accountability within the context of the Commission’s Terms of Reference. It is a fact that President Ramaphosa has been implicated by Mr Matshela Koko in interference in the affairs of a state-owned entity (Eskom). That issue falls within the Commission’s Terms of Reference. It is a fact that Mr Gordhan, Mr Mbalula and Mr Rupert have been implicated in a matter that falls within the Commission’s Terms of Reference, namely, the dissemination of confidential cabinet appointment to unauthorised persons before that decision had been officially made public.

These are relevant facts in the determination of the Commission’s application not only because they involve matters that form part of the Commission’s Terms of Reference but also because Mr Zuma stands accused precisely in relation to these matters. They have not been disputed at the Commission by any of the persons implicated. That is why it is important to give them an opportunity to address them in that forum. It is called accountability.

In any event, these are not new facts. They are new only insofar as they are not contained in the Commission’s papers filed in its application. But they are on record in the Commission’s transcripts that cannot reasonably be ignored when determining accountability in the context of what the Constitutional Court has termed, in its 2013/2014 judgment penned by Justice Moseneke, the “deeper public purpose” of a Judicial Commission of Inquiry.

It is clear from Even Ngalwana’s amicus application that he sought to invoke the right to equality in the public interest. He expressly said so. The Constitutional Court does not explain how that requirement is not met in Ngalwana’s amicus application. The absence of rigour in the assessment of this question is, in my view, disappointing.

The Constitutional Court granted amicus status to CASAC and the HSF. It did so in one paragraph:

“[79] Although the applications by CASAC and the Foundation raise in part argument that is not relevant to the issues we are called to decide, they do contain submissions which are relevant to some of the issues. And those submissions differ from those advanced by the Commission. At face value the relevant submissions look useful. Consequently, CASAC and the Foundation should be admitted as amici curiae.”

CASAC’s application centred around Mr Zuma’s entitlement to invoke the privilege against self-incrimination that s 3(4) of the Commissions Act confers on witnesses who appear before a Commission of Inquiry. The HSF focused on the centrality of the rule of law. While CASAC’s argument opposed the argument advanced on behalf of the Commission, the argument of the HSF was in broad strokes advancing, in my view, trite principles of constitutional law. While one could appreciate why the Constitutional Court would entertain the CASAC argument – if only to dismiss it – it is not clear to me why the HSF argument warranted the court’s attention, in preference over one that invokes equality and the constitutional principles of accountability, openness, responsiveness and transparency. The Constitutional Court does not explain in relation to what specific issues in the Commission’s application the HSF argument bears relevance.

With this judgment, regrettably, what was hitherto a clear picture as regards what qualifies one to be admitted as an amicus has just become fuzzy.

The Right to Privilege Against Self Incrimination

CASAC advanced an argument that sought to have Mr Zuma denied the right to invoke the privilege against self-incrimination despite s 3(4) of the Commissions Act, 1947 specifically conferring that right on every witness at a Commission of Inquiry. The Constitutional Court dismissed the argument. It is not clear how a different result on this argument could have been expected.

The Constitutional Court made it plain that the privilege is not there merely for the asking. The witness must justify, in relation to each question, why an answer to that specific question would result in him incriminating himself. This is not new. The Constitutional Court had already so ruled in Nel v Le Roux 1996 (3) SA 562 (CC) at paras [7]-[9]. But the challenge in Mr Zuma’s case, in my view, is likely to come if he declines to answer specific questions put to him at the Commission on the ground that President Ramaphosa’s amendments to the Commission’s Regulation 11 on 28 July 2020 – which are already in force – effectively violate the privilege against self-incrimination because those amendments allow the use of evidence given at the Commission at the witness’ subsequent criminal trial. That is at least one interpretation of the President’s amendments. That issue will have to be resolved by the courts – including the Constitutional Court – before it can confidently be said that Mr Zuma is obliged to answer all questions the answers to which the Commission believes are not incriminating to Mr Zuma.

The question then becomes whether the Commission can approach the Constitutional Court directly where there is a dispute between the Commission, on the one hand, and Mr Zuma and his legal team, on the other, regarding whether an answer to a specific question will tend to result in Mr Zuma incriminating himself.

Costs

Costs in litigation are usually awarded against the unsuccessful party based on the principle “the costs follow the cause”. That means the unsuccessful party pays the litigation costs of the successful party. There are exceptions to this principle. One of them is that when a party litigates unsuccessfully against government in any of its forms – be it a national department, provincial government, municipality or any organ of state – and raises issues of constitutional import, the court usually does not award costs against that party in favour of government. The reason for this is that courts do not want to dissuade private parties from challenging government on what they consider as being unconstitutional conduct.

But where the party litigates frivolously and vexatiously, or conducts litigation in an inappropriate manner against government, the court could in its discretion award costs against that party in favour of the successful government. Costs are also usually awarded against a party where the successful party had no choice but to approach the court for relief in order to stop the unconstitutional conduct of the unsuccessful party.

The Commission is an organ of state. It performs a public function, at the behest of the President, in terms of legislation. Mr Zuma did not approach the Constitutional Court. The secretary of the Commission, an organ of state, did. He did not litigate frivolously or vexatiously at the Constitutional Court against an organ of state: the Commission. But the Constitutional Court found that because Mr Zuma behaved in a manner that is “reprehensible” in his dealings with the Commission, he must pay its costs. In my view, again, this is indicative of the Constitutional Court having assumed Mr Zuma to be the rogue and punishing him for it. But what in Mr Zuma’s conduct is evidence of roguery? From what the Constitutional Court tells us, it seems not impressed with what it considers his dilatory conduct and generally unco-operative conduct towards the Commission.

During the hearing of the application on 29 December 2020, some of the Justices appeared, from my observation, visibly (and audibly) peeved at Mr Zuma sending them a letter saying he will not participate in these proceedings. It appears they considered anything short of a formal “notice to abide” as constituting disdain for the Court. [A “notice to abide” is a formal notice filed by a party informing the Court and the other parties that he does not oppose the relief sought and will comply with any order that the Court may make.] If judicial pique was a factor in the costs award against Mr Zuma, that in my view would be unfortunate and regrettable. A court should not grant orders out of spite.

But why did the Constitutional Court not consider that all Mr Zuma may have been doing was assert his rights on legal advice? Well, the answer is that it was not looking at him through that lens. Even if it did, it does not like his approach. But the Constitutional Court has itself said, in another case, that the fact that a court does not like the approach adopted by a litigant is not a valid basis for deprecating the litigant’s approach or decision (Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at para [51]). So, what is it about Mr Zuma’s approach that renders that principle inapplicable? Tunnel vision. The Constitutional Court seems to have decided that Mr Zuma is a rogue. So, it sees everything he does through that lens. That is why he must pay the Commission’s costs, even though he is not even a litigant in the Constitutional Court.

Also curious is the argument by the Commission that it had no choice but to approach the Constitutional Court in order to bring Mr Zuma to heel. The Constitutional Court was not impressed by this argument. It pointed to numerous instances where the Commission could have dealt with Mr Zuma effectively without having to approach the court. It characterized the approach of the Commission’s lawyers as “maladroit”. So, when did the Commission’s approach, in the Constitutional Court’s mind, metamorphose from being “maladroit” to warranting an adverse costs order against a person who did not oppose the relief sought against him by a “maladroit” Commission? Tunnel vision, I venture.

Is the Constitutional Court Right

In my view the Constitutional Court is correct in some respects but I find it mistaken in others.

Firstly, there can be no question that a former head of state must be held to account for his conduct while in office. So, I submit that the Court was right in directing that Mr Zuma appears at the Commission to answer such questions as he may, by law, be required to answer. For reasons already discussed above, this will be tricky, litigious and time consuming.

Secondly, the fly in the ointment however is this. Mr Zuma has a review application pending in the high court against the refusal of the Commission Chair to recuse himself. Putting aside the merits of the recusal application for the moment, and the merits of the review application, how does the Commission validly compel Mr Zuma to appear before it and answer questions while that review application has yet to be determined by the high court and, possibly, the full bench, the Supreme Court of Appeal and, ultimately, the Constitutional Court? The Constitutional Court has not pronounced on this quandary in its judgment. It has not said Mr Zuma is obliged to appear at the Commission and answer questions regardless of the pending review application.

Thirdly, the direct access threshold (interests of justice) is notoriously low in the Constitutional Court. In my assessment over the years and on a conspectus of Constitutional Court jurisprudence in this area, interests of justice can be anything that the Constitutional Court wants, depending on the prevailing appetite for getting to grips with the issues involved in any particular case.

Fourthly, many allegations have been made against Mr Zuma at the Commission. Many of these allegations are unsubstantiated; some are classic hearsay; others, at face value, defy credulity. But all these types of allegations are admissible in a Judicial Commission of Inquiry because a Commission is not bound by the strict laws of evidence that apply in courts of law. There is case law to this effect (Bell v Van Rensburg NO 1971 (3) SA 693 (C); S v Mulder 1980 (1) SA 113 (T) and S v Sparks NO and Others 1980 (3) SA 952 (T); Bongoza v Minister of Correctional Services and Others 2002 (6) SA 330 (Tk).

I have argued, on a different occasion, that this is a flaw in the fact-finding mechanism of Commissions of Inquiry that can be open to abuse, as is clearly the case in this Commission where people take the stand to make serious allegations, providing no proof of their allegations, and are not required by the Commission to provide such proof, the reasoning being that the implicated person will have an opportunity to present his or her side of the story (See https://www.anchoredinlaw.net/wp-content/uploads/2019/02/Commissions-of-Inquiry-1.pdf). Until then – if that opportunity ever comes – the general public that is entranced by some of these serious allegations reaches conclusions about persons implicated by such allegations and find people guilty in the court of public opinion. This is not true only of Mr Zuma. It is also true of Mr Ramaphosa, Mr Gordhan and others

Flawed as the process is, Mr Zuma must account for his conduct as President. But then so must everyone else implicated in such manner at the Commission. That is the balance that the Commission appears to have missed, and continue to miss, because it is looking at things through a limited lens.

 Conclusion

Unfortunately, it seems to me the Constitutional Court has ignored relevant material because of tunnel visioning. A better example of predilection for technical niceties in its dismissal of Ngalwana’s amicus application one would struggle to find. The Constitutional Court has itself cautioned against taking refuge from difficult constitutional questions in technical niceties. It would now seem that technical niceties are welcome in cases for which the Constitutional Court has an appetite, but not so where it has none.

Has this judgment taken the Commission out of the “maladroit” woods in its battle with Mr Zuma? I would not bet on that. Will it take off the blinkers and use a wider lens provided by the Terms of Reference? Well, given the little time that remains for oral evidence, this is doubtful. In that event, it seems fairly certain that the Commission’s report will be challenged on review if its recommendations are informed by its tunnel vision.

On Monday, 15 June 2020, the Western Cape High Court in Cape Town, South Africa, heard argument in a challenge to the South African government’s covid-19 regulations on rationality and constitutional grounds.

This is a summary of the arguments advanced by each of the three legal teams involved. As it is a summary, it obviously does not include every argument advanced on behalf of each party. But we have tried to include every argument that we consider important for each party. The reader may read the actual written submissions at the end of this blog for full written argument.

We make no pronouncement on the possible outcome of the case. That we leave to you, the reader who has a keen interest in these things, to do in your own time for your own benefit without prejudicing the court’s process and the administration of justice in this case.

As we were Counsel representing one of the applicants in the application, it could reasonably be expected that the temptation lurks for us to panel-beat the argument of all parties to fit our desired outcome. We have consciously and studiously resisted that temptation, and so we present the arguments as we have gleaned from the pleadings, the written submissions and oral argument of each team.

Welcome to the virtual courtroom.

The applicants are:

• Mr Duwayne Esau, a student at the University of Cape Town
• Mr Neo Nkwane, a civil servant
• Ms Thami Jackson, a media intern
• Ms Lindo Khuzwayo, a student at the University of Cape Town
• Mr Mikhail Manuel, a research assistant and PhD student at the University of Cape Town
• Mr Riaan Salie, a student at the University of South Africa
• Mr Scott Roberts, a student at the University of Cape Town
• Mr Mpiyakhe Dlamini, a data analyst and researcher

The respondents are:

• Minister of Cooperative Governance and Traditional Affairs (the COGTA Minister)
• President of South Africa
• Minister of Trade, Industry and Competition (the Trade Minister)
• Government of South Africa
• National Coronavirus Command Council (the NCCC)
• National Disaster Management Centre (the Centre)

The issues are:

• Whether the establishment and existence of the NCCC is consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution) and the Disaster Management Act, 2002 (the DMA), and therefore valid (Prayer 2.1 of Notice of Motion). [A “prayer” is the order requested in court papers from a court. A Notice of Motion is the document that contains the orders requested.]
• Whether the NCCC acts lawfully and in a manner that is consistent with the Constitution when it exercises the powers of the Centre (Prayer 2.2).
• Whether any decision taken by the NCCC in relation to the DMA is constitutional and valid (Prayer 3).
• Whether the covid-19 regulations issued by the COGTA Minister on 29 April 2020, in particular those restricting people’s movement (reg 16) and trade (reg 28) are constitutional and valid (Prayer 4).
• Whether the directions issued by the Trade Minister on 12 May 2020 relating to the sale of clothing, footwear and bedding during alert level 4 restrictions should be set aside as being unconstitutional and invalid (Prayer 7).

In the event of the court finding that the covid-19 regulations are unconstitutional, the applicants ask that the declaration of unconstitutionality be suspended for 30 days (Prayer 5) to enable the COGTA Minister to correct the constitutional defects identified within those 30 days (Prayer 6).

There is no such suspension sought in relation to the Trade Minister’s directions in Prayer 7.

The parties agree that the application is urgent (Prayer 1).

The Judges are:

• Judge Elizabeth Baartman
• Judge Rosheni Allie

The Legal Teams are:

• For Esau, Nkwane, Jackson, Khuzwayo, Manuel, Sallie and Roberts: Anton Katz SC; Kessler Perumalsamy; Ashley Pillay (pupil advocate). The Esau team argued in support of prayers 4, 5, 6 and 7 of the notice of motion and also aligned themselves with the argument in support of prayers 2 & 3.
• For Mpiyakhe Dlamini: Vuyani Ngalwana SC; Farzanah Karachi; Erin Richards. The Dlamini team argued in favour of prayers 2 & 3 only.
• For government: Marumo Moerane SC; Ngwako Maenetje SC; Nyoko Muvangua; David Watson. The government team opposed all arguments.

Summary of The Esau Team Argument

• The application is not an attack on the choices the executive has made in order to deal with the covid-19 pandemic; it is an attack on how those choices have been made.
• As regards the mootness point – that determination of the question on the provenance or lawfulness of the NCCC, the legality of its powers and exercise thereof, on the one hand, and determination of the rationality and constitutionality of the impugned regulations and trade directions, on the other, will have no practical effect – the Esau team says this is factually incorrect because the directions issued in terms of the alert levels 4 & 5 regulations have not been repealed by the 28 May 2020 alert level 3 regulations. For this proposition they point to regulation 2 of the 29 April 2020 regulations which lists regulations that are repealed and expressly state [in reg 2(3)] that the directions issued in terms of the repealed regulations remain in force until amended, varied or withdrawn by the minister concerned.
• In any event, a court cannot avoid dealing frontally with questions of legality and constitutionality. For this proposition reference is made to 3 judgments: Jordaan [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC), para 8; Mohamed 2001 (3) SA 893 (CC), para 70; Pheko 2012 (2) SA 598 (CC), para 32.
• Furthermore, a court has a discretion to deal even with issues that are moot: Pillay 2008 (1) SA 474 (CC), para 32.
• The national state of disaster has been extended to 15 July 2020. The applications raise important constitutional questions of great practical importance not just for the applicants but for all South Africans too.
• As regards constitutionality and validity of the covid-19 regulations, the COGTA Minister adopted a broad approach in tailoring the regulations. This runs against the general principle that laws that interfere with basic fundamental rights must be construed narrowly: Dadoo 1920 AD 530 at 552; Pheko 2012 (2) SA 598 (CC), para 37.
• Section 26(2)(b) of the DMA confers on the national executive the power to deal with the national disaster in terms of existing legislation “as augmented by” regulations and directions issued in terms of s 27(2) of the DMA. It does not give her the power to amend existing legislation. That is the function of Parliament. Yet the COGTA Minister has purported to amend existing legislation.
• By way of example, s 18(2) of the Children’s Act 38 of 2005 recognises that every parent has a right to care for his or her child and to maintain contact with his or her child. However, regulation 17(2) of these covid-19 regulations provides that a parent who has not been granted a permit by a Magistrate may not exercise these rights.
• Another example: the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998 governs evictions in South Africa, in giving effect to section 26(3) of the Constitution. However, regulation 19 of these covid-19 regulations has the effect of partially suspending the operation of this Act as well as the Extension of Security of Tenure Act, 62 of 1997.
• But even if the court were to find that the COGTA Minister “augmented” these pieces of legislation by “amending” them, she still fails the necessity test in s 27(3) of the DMA because many of these regulations are not necessary for, as s 27(3) requires, (1) assisting and protecting the public; (2) providing relief to the public; (3) protecting property; (4) preventing or combatting disruption; or (5) dealing with the destructive and other effects of the disaster.
• The expert affidavit of Professor Karim says nothing about the necessity of these impugned regulations in line with s 27(3) of the DMA. They thus remain unjustifiable and impermissible, infringe on the principle of legality, are unreasonable and unconstitutional and therefore invalid.
• The covid-19 regulations are thus beyond the scope (ultra vires) of the DMA and therefore are invalid.
• As regards rationality, there is both procedural and substantive irrationality.
• On procedural irrationality, the Esau team says the invasive nature of these regulations into the fundamental rights of South Africans cried out for broad consultation of the people and not just the relevant portfolio Minister to whose portfolio a given restriction to a fundamental right relates. Promulgating regulations is a law-making process. Public participation is required by law even if not in the empowering legislation, because public participation ensures that the regulations are informed and responsive: Doctors For Life 2006 (6) SA 416 (CC), paras 205-208.
• The COGTA Minister says she invited public comments on Saturday 25 April 2020. These had to be submitted by 12 noon on Monday 27 April 2020. By that day, she says she had received 70,000 written submissions. The regulations were drafted the following day on 28 April 2020 and issued on 29 April 2020. She does not say she considered the Public Participation Report provided to her. There is no humanly possible manner in which she and her team could have considered all those 70,000 submissions in less than 2 days, and properly applied their minds. So, for that reason the entire process of regulation-making was vitiated by procedural irrationality and the result of it must fall: DA v Pres, RSA 2013 (1) SA 248 (CC), para 39; Albutt 2010 (3) SA 293 (CC), para 69.
• The COGTA Minister says the DMA does not require public consultation before issuing regulations. The Esau team says the Minister is wrong in this regard. In any event the SCA has ruled that even where the empowering Act does not require public participation, the fact that the functionary announces that public participation will take place, but later fails to ensure that it does, means that the functionary’s ultimate decision is for that reason procedurally irrational and unlawful: Scalabrini Centre 2013 (6) SA 421 (SCA), para 72.
• On substantive irrationality, the Esau team mounts its attack based on reasonableness under PAJA [the Promotion of Administrative Justice Act, 2000] and the legality principle.
• The Minister says the making of regulations is an executive act not an administrative act and so not susceptible to review under PAJA. The Esau team says the Minister is wrong again. When she issues regulations under s 27(2) of the DMA, she is exercising a public power in terms of national legislation, the DMA. She is not making policy. Therefore, the issuing of regulations is administrative action and susceptible to review under PAJA.
• In any event, every public power must conform to the principle of legality.
• Under these covid-19 regulations, going to work requires a permit; walking outside the home may only take place between 06h00 and 09h00; buying new clothes depends on whether it is a permitted clothing item; and buying a roast chicken or hot pie because you are unable to cook because of a disability or your age, is permitted only if it is delivered to your home, but not bought with your groceries. These are limitations to the right to human dignity. As the Constitutional Court said in Barkhuizen 2007 (5) SA 323 (CC), para 57

“Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity.”

• The regulations are designed around the idea of state control rather than the idea of freedom. So invasive are the movement restrictions that Mr Scott Roberts was treated as a criminal suspect just for travelling from his parents’ house in Durban to Cape Town. These regulations have adversely affected every aspect of Mr Mpiyakhe Dlamini’s life: his emotionality, psychology and physicality. The fact that everything else outside the itemised movements and economic activities, even if unrelated to covid-19, is not permitted makes these regulations arbitrary. This form of regulation is diametrically opposed to personal autonomy, freedom and human dignity.
• The infringement of human dignity is pervasive because the impugned restrictions have rendered ordinary and harmless (even during the pandemic) conduct a criminal act. For example, (1) a grocer who sells raw chicken breasts does not commit a crime but a grocer who sells roast chicken commits a crime; (2) a retailer who sells summer shorts for adults commits a crime; (3) a person who surfs or hikes rather than walking or cycling as a recreational activity commits a crime; (4) a parent who takes his or her child for a lunchtime walk commits a crime; (5) an individual who leaves their house to visit a relative that is ailing but not yet dead commits a crime.
• The Constitutional Court has recognised, in Nandutu 2019 (5) SA 325 (CC), para 1, that

“the right to family life is not a coincidental consequence of human dignity, but rather a core ingredient of it.”

• In many instances these regulations seek to regulate professions despite the fact that specific legislation is enacted for that purpose. For example, the Legal Practice Act recognises the right of legal practitioners to practise law: s 24 & s 25 of the LPA. However, these covid-19 regulations do not entitle all legal practitioners to practise law; only those who perform “services related to the essential functioning of the Courts” may practise their profession. So, regulation 28 is unconstitutional because it suspends the operation of law enacted by Parliament in a manner that infringes upon the separation of powers. It also regulates the legal profession in a manner that is not permitted by the LPA by requiring a permit to perform services related to the essential function of the courts.
• All the parties to this litigation accept that combating the covid-19 pandemic is an important governmental objective. However, the government respondents have not demonstrated by way of any evidence that the impugned restrictions bear any rational relationship to controlling these risks.
• It is accepted by everyone in this litigation that the risk of spreading the virus lies not in people’s movements or retail activity; it lies in what people do while moving or shopping. What people do can be regulated by compulsory requirement that people wear face masks in public spaces, social distancing, hand sanitising and general covid-19 hygiene protocols.
• Thus, the risks about which the government respondents are concerned cannot be averted by regulation 16 (movement restrictions) and regulation 28 (trade restrictions). These restrictions are entirely disproportionate to the mischief sought to be addressed.
• South African courts have declared executive-created offences or penal provisions to be unlawful. That is the role of Parliament: Rex v Magano and Madumo 1924 TPD at 97; Rex v De Beer 1930 TPD 329 at 332.
• The Trade Minister says he issued his trade directions in terms of regulation 4(10)(a). But that regulation deals with the dissemination of information in order to deal with the disaster, not to limit what clothes and what food people may buy.
• The trade restrictions are also beyond the scope of the DMA as they are unnecessary as envisaged in s 27(3). A functionary cannot make regulations that are not aligned with the empowering legislation: Affordable Medicines 2006 (3) SA 247 (CC), para 119; Rustenburg Platinum Mines v CCMA 2007 (1) SA 576 (SCA), para 34.

Summary of the Dlamini Team Argument

• Mr Dlamini is not challenging government policy or lockdown. His complaint is that he, as all South Africans, is expected to make huge sacrifices in relation to his fundamental rights (such as human dignity and movement) without being told exactly who is making the decisions that so adversely impact on these fundamental rights and on the basis of what law. For that he wants to hold government accountable. But he is constrained by absence of transparency and accountability on government’s part, which are two of the fundamental values and principles of public administration under the Constitution (s 195).
• Fundamental rights is the place where Law and Politics collide. This being a Court of Law, the Law must prevail over Politics.
• A long line of case, beginning with Fedsure Life 1999 (4) SA 374 (CC), tells us that it is a fundamental principle of our constitutional order that those who exercise public power and perform public functions may do so only to the extent that such power or function is conferred on them by law.
• Mr Dlamini’s case hinges on answers to 3 questions: (1) was the NCCC lawfully established? (2) does the NCCC have decision-making powers in law? (3) has the NCCC made any decisions, including policy decisions?
• As regards the establishment question, the government has pointed to no law that confers on the President or Cabinet the power to establish the NCCC.
• In para 15 of their written argument, Counsel for the government concede that there is no legislative or constitutional provision that empowers Cabinet or President to establish the NCCC or any committee.
• Then they point to s 85 of the Constitution as a salutary provision affording a wide berth on the executive to coordinate its functions as it sees fit, including forming itself into committees. The Dlamini team says s 85 does nothing of the sort. At best, s 85 confers a power on the executive to coordinate functions of state departments and administrations. It confers no power on a committee to do such coordination. For the NCCC to perform executive functions you need a delegation of executive power in terms of s 238 of the Constitution. But the President has told Parliament that there has been no such delegation of power to the NCCC. That’s really the end of that.
• Counsel for the government say it is normal for Cabinet to establish committees. Yes, says the Dlamini team, but where is the law that confers on it the power to do that? Section 26(1) of the DMA, to which the government team now points belatedly, says nothing different from what s 85 of the Constitution says. It confers a power on the national executive to coordinate national disasters. It does not give the executive the power to form an amorphous outfit to usurp the powers of an existing Centre during an emergency or disaster.
• The Dlamini team pointed to a number of examples where it says the NCCC has usurped the powers of the Centre. One such example was s 20(1)(a)(i) of the DMA which confers on the Centre the power of “determining levels of risk” in a disaster; yet on 20 April 2020 the COGTA Minister told Cabinet that the NCCC “determines level of alert for each province and district” which “can be imposed by the [NCCC] as necessary, and the President told the nation on 23 April 2020 that the NCCC “determined that the national coronavirus alert level will be lowered from level 5 to level 4 with effect from Friday the 1^st of May”. The Dlamini team commended sections 15 to 23 of the DMA to the court for other examples.
• As regards the decision-making powers question, the COGTA Minister has given no less than 6 conflicting versions, ranging from: the NCCC has no decision-making powers whatsoever, to: the NCCC takes “what could be termed critical decisions” to: the NCCC takes decisions only when it sits as Cabinet.
• Then, says the Dlamini team, in their written submissions Counsel for the government add 4 more versions, including that the NCCC makes policy decisions, and that the NCCC’s functions, actions and decisions are, in fact, Cabinet functions, actions and decisions.
• The Dlamini team argued that the NCCC has no decision-making powers in law in relation to a national disaster. Not in the DMA; not in the Constitution. And the government has pointed to no legislation that confers such decision-making powers on the NCCC.
• As regards whether the NCCC has made any decisions, including policy decisions, the Dlamini team argued that the COGTA Minister and the President have given contradictory versions. But then their Counsel end the debate by making this submission in their written submissions:

“on some occasions, [the NCCC] is taking decisions relating to COVID-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant”.

• In other words, says the Dlamni team, the NCCC decisions are Cabinet decisions and are therefore constitutionally compliant, according to Counsel for the government.
• But since there is, on Counsel’s own argument, no constitutional or legislative provision conferring a power on the NCCC to make decisions relating to covid-19, these decisions are unlawful and must be set aside.
• As regards the mootness point – that determination of the question on the provenance of the NCCC and the legality of its powers and exercise thereof will have no practical effect – Mr Dlamini says that this point is bad in its articulation, in fact and in law.
• The COGTA Minister is herself uncertain of the point when she says the applicants’ complaints

“would appear to have been addressed in toto by the [28 May 2020] regulations”

This does not inspire confidence in the point.

• In any event, the 28 May 2020 covid-19 regulations do not address Mr Dlamini’s complaint about the provenance or lawfulness of the NCCC and its continued making of binding decisions, including policy decisions, that it has no power in law to make. That is the factual flaw of the point.
• The legal flaw in the point is that mootness is not necessarily a bar to a court considering a dispute if that is in the interests of justice to do. The Constitutional Court said so in Shuttleworth 2015 (5) SA 146 (CC); 2015 (8) BCLR 959; [2015] ZACC 17, para 27, and the High Court has just said so in NSPCA 2020 (1) SA 249 (GP), paras 36 to 42.
• What is more, the government seems to blow hot and cold on whether or not alert level 4 restrictions may return. In paragraph 6 of Counsel’s written submissions they leave that door open; in paragraph 133 they say even if alert level 4 were to return, the trade directions “would not resurrect”. What is certain, though, is that there is no guarantee that alert level 4 may not return – with its restrictions. In these circumstances it cannot be said that the application is moot, or that it is not in the interests of justice to determine it.
• As regards appropriate remedy, the Dlamini team says Counsel for the government make this submission in paragraph 31 of their written submissions after complaining that the relief sought is “overbroad” and must be dismissed:

“It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.”

• Mr Dlamini’s case has never been that the NCCC is “unlawfully occupied” or comprises people who should not be there. He says its establishment has no legislative or constitutional provenance, and its decisions have no legislative or constitutional underpinning. But, as regards the relief proposed by Counsel for the government that, upon finding that the NCCC is unlawful and acts without legal sanction, this court should refuse to recognise any further consequences arising from its invalidity, Mr Dlamini agrees.

Summary of the Government Team Argument

• As regards attacks on the regulations under PAJA, the government team says the application is an attack on government policy. The courts cannot interfere with government policy under PAJA.
• The promulgation of regulations in terms of s 27(2) of the DMA is more closely related to the formulation of policy rather than the implementation of legislation. This is so because s 26(1) of the DMA makes the response to disasters an executive function. So, the issuing of regulations aims to combat the disaster which concerns polycentric matters of high policy. It thus resides in the heartland of national executive function: ITAC v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC), para 101. For that reason, the issuing of regulations cannot be attacked under PAJA.
• As regards the mootness point (that determination of the application will have no practical effect), Counsel for government argue that the issues in relation to the Clothing Directions are moot because alert level 4 has ceased and, together with it, the Clothing Directions.
• As regards the provenance or lawfulness of the NCCC, the NCCC is a constitutionally permissible structure because s 85 of the Constitution confers a wide power on the President and Cabinet to coordinate executive functions as they see fit. Mr Dlamini’s search for some further statutory or constitutional provision empowering Cabinet to establish the NCCC is misguided. Cabinet’s power to regulate its own affairs is inherent in it being vested by s 85 of the Constitution with the executive authority of the Republic. The Constitution does not address the minutiae of how Cabinet must organise itself. This lack of specific provisions regulating and constraining the President in the organising of Cabinet internal affairs is intentional.
• Cabinet’s deliberative and decision-making procedures are inherently political choices which will vary between governments, and when circumstances change: Murray and Stacey “The President and the National Executive” Constitutional Law of South Africa” OS 06-08, chapter 18 page 36.
• The use of committees is generally recognised as a welcome and necessary feature for cabinets. The NCCC is a Cabinet structure comprising all Cabinet members. It is in fact a Cabinet committee. In fact, the NCCC is Cabinet by another name.
• The interchangeable language used by the national executive between “the NCCC” and “Cabinet” is to be expected because sometimes Cabinet is acting when sitting formally as Cabinet, and sometimes it is acting through the NCCC.
• This interchangeable language is constitutionally innocuous. The NCCC is a committee of Cabinet, comprising only ministers. The actions and functions of the NCCC are the actions and functions of Cabinet. Nothing prevents Cabinet from making decisions at the NCCC level, or elevating decisions of the NCCC to a formal Cabinet meeting, or for that matter making the decision at a meeting of the NCCC and then confirming that decision in a formal Cabinet meeting.
• The drafters of the Constitution would have been aware that Cabinet would be likely to employ committees and, given the functioning of the modern state, would rely on committees extensively to function effectively and responsibly. If the Constitution was intended to limit the President and Cabinet’s powers to exercise their executive authority by prohibiting them from establishing and using committees, it would have stated as much expressly.
• As regards whether the NCCC has decision-making powers in law, the NCCC has no decision-making powers reserved by statute for other Ministers and other organs of state.
• The NCCC acts as a forum for discussion and debate on covid-19 issues.
• It does on occasion make what could be termed “critical decisions” and there is nothing inappropriate with this provided such decisions are subsequently taken by Cabinet sitting as Cabinet.
• The NCCC has the power to decide on lockdown alert levels, but this would require Cabinet approval.
• The NCCC is a coordinating body given authority by Cabinet to do that. But, as a Cabinet committee, the NCCC is empowered, like Cabinet itself, to take binding decisions, including policy decisions, on behalf of government.
• The NCCC is no more than a committee of Cabinet. On some occasions, it is taking decisions relating to covid-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant.
• As regards whether the NCCC has in fact made decisions, including policy decisions, Cabinet took the decision to enter a strict lockdown phase, not the NCCC.
• The NCCC decided to enforce a nation-wide lockdown for 21 days with effect from midnight on Thursday 26 March 2020.
• The NCCC met again on 23 April 2020 and determined that the national coronavirus alert level would be lowered from level 5 to level 4 with effect from Friday the 1^st of May.
• The suggestion by the COGTA Minister and the President that the NCCC determined alert levels and enforced lockdown was simply imprecise language.
• As regards constitutional validity of the covid-19 regulations, Counsel for government argued that some of the arguments raised in the Esau team’s written submissions relate to new attacks belatedly advanced and were not crisply pleaded in the founding papers. This has deprived government of the opportunity fully to address the arguments raised. In any event, should the Court hold that it may and should consider the issue, the applicants are reading into s 27 of the DMA substantial jurisdictional considerations that do not exist. Further, there is no inconsistency between the pieces of legislation identified by the applicants [the LPA, the Children’s Act, the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998, the Extension of Tenue Act] on the one hand, and the regulations, on the other, and the COGTA Minister was empowered to create offences as the DMA provides expressly in s 27(4) that regulations made under s 27(2) may include regulations prescribing penalties for any contravention of the regulations.
• Government also argued that the regulations comply with the Constitution and that the regulations’ purpose of preventing the unmanageable spread of covid-19 is not only constitutionally permitted but constitutionally mandated. The limitations analysis under s 36 of the Constitution must be informed by the fact that any response to the pandemic may require choosing between a number of different and unpalatable options. To implement a rapid reduction of the transmission rate, a lockdown was required in addition to other behavioural tools provided for in the DMA. The right to life and the right to dignity, and the government’s concomitant responsibility to save lives justifies the limitation on other rights. For this proposition reliance was placed principally on Makwanyane 1995 (3) SA 391 (CC), para 144.
• As regards the necessity of the covid-19 regulations, the lockdown was, and remains, necessary and the regulations were, and continue to be, necessary in order to give effect to the scientific advice that was received.
• As regards procedural irrationality and the necessity for consultation, the regulations were published following a procedurally rational process, and the only consultation required when regulations are promulgated under s 27(2) is consultation with the “responsible Cabinet Minister”. Public consultation is not required by the DMA at all. This is in contrast to other exercises of powers in the Act. Reliance was placed on DA v Pres, RSA 2013 (1) SA 248 (CC); Albutt 2010 (3) SA 293 (CC); Kyalami Ridge [2001] ZACC 19 (29 May 2001).
• As regards arbitrariness, Government argues that distinctions between activities are not irrational. To reduce the risk of transmission, the total number of opportunities for transmission must be reduced. This requires an unavoidable decision between allowing some activities that pose a risk of transmission but not others.
• Regarding the appropriate relief in respect of the NCCC attack, Counsel for the government say the challenge has no merit and must be dismissed. In the alternative, they say:

“If the Court is against the [government], it is respectfully submitted that the relief in the notice of motion is overly broad. It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.

A similar approach should be adopted here. Decisions that have been taken by Cabinet sitting as the NCCC can then be set aside on a case-by-case basis and with regard to the merits of each decision.”

As regards appropriate relief in respect of the challenge to the regulations, the government asks the court to dismiss the challenge. In the alternative they say:

“If the Court is against the [government], and declares any of the impugned regulations invalid, it should suspend the declaration of invalidity to permit an opportunity for the Minister to rectify any deficiencies identified. It is respectfully submitted that a 30-day period is an appropriate period of time for which to suspend any declaration of invalidity.”

All the pleadings and written argument can be accessed below under “Related Documents”.

Related Documents:

You may access the full application here:

Dlamini supplementary submissions – 12 June 2020

Mpiyakhe Dlamini Principal Submissions – 10 June 2020

Cogta Heads of argument Final

1 – 7 Applicants Heads of Argument

Index

Answering Affidavit of Min Ebrahim Patel – pp 812 – 880

The High Court in South Africa has declared the South African government’s covid-19 regulations unconstitutional and invalid.

Here I summarise the court’s findings and reasons.

But first, my own view on government’s approach.

Opening Remarks

The much vaunted justification for the South African government locking down the entire country for an indeterminate period, severely affecting an already very weak economy and thus people’s livelihoods in the process, is the ultimate right that it has claimed for itself to “save lives”. In that spirit, nothing else matters.

Curiously, many South Africans, either driven by fear or apathy, seem willing to trade in their constitutional rights so that government can play its role of “saving lives” to the exclusion (destruction even) of everything else. It is their choice and their right to do so. But what of the many other South Africans who do not appreciate government playing “Saviour” with their lives and just want to get on with it without causing harm to others?

This zero-sum government approach – where the goal is “saving lives” and nothing else – is riddled with plain nonsensical, irrational decisions and actions, for which I am unable to find any justification – scientific or otherwise – in a constitutional democracy.

Retired Judge of the UK Supreme Court (the highest court in the UK), Lord Jonathan Sumption, points to 3 obvious examples that demonstrate the emptiness (blatant lie even) of the incantation that “life is priceless” [See https://www.aier.org/article/lord-sumption-the-lockdown-is-without-doubt-the-greatest-interference-with-personal-liberty-in-our-history/]

• The first is that the world went to war in 1939 because lives were worth losing for liberty.
• The second is that we allow cars on the roads because lives are worth losing for convenience.
• The third is that we travel by air although we know that pollution kills.

These examples seem to show that while life is precious, it is not altogether priceless. It has been “traded in” for liberty and convenience and we continue to do so.

Elsewhere, the state even kills people in the morbid belief that this is justice.

And, dare I say, that hundreds if not thousands of patriotic South Africans have given their lives in the liberation struggle so that the current generation of South Africans can enjoy the very fundamental rights that some South Africans are now surrendering to the government seemingly without applying their minds to the ultimate sacrifice made by the liberation heroes of yesteryear. The irony seems lost that this is largely a government that is the product of the ultimate sacrifices made in that very liberation struggle.

To say it is shameful would be a gross understatement.

Back to the judgment.

This judgment exposes the South African government as having adopted a

“paternalistic approach rather than a Constitutionally justifiable approach”

The court goes further and describes the government’s chilling approach in these stark terms:

“The [government’s] starting point was not ‘how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?’ but rather ‘we will seek to achieve our goal by whatever means, irrespective of the cost, and we will determine, albeit incrementally, which Constitutional rights you as the people of South Africa, may exercise’.”  

There lies the rub.

This is demonstrated in no small measure by submissions made to court on behalf of the Minister of Cooperative Governance and Traditional Affairs (COGTA), and by the Director-General in the COGTA department. These include an extraordinary submission by the Director-General that

“the South African population has to make a sacrifice between the crippling of the economy and the loss of lives”

and

“[the regulations] cannot, therefore, be set aside on the basis that they are causing economic hardship, as saving lives should take precedence over freedom of movement and to earn a living”

The high court rightly rejected this submission not only as a callous Hobson’s choice that South Africans are needlessly forced by government to make between “plague and famine”, but also as demonstrative of the absence of any regard for the rationality of the measures that government has chosen.

In this regard, the court had to remind government in the judgment that s 27(3) of the Disaster Management Act, 2002 (the DMA) says the aim of the regulations includes

“assisting the public, providing relief to the public … and … dealing with the destructive effects of the disaster”

There is no room whatsoever in that aim for the callous choice that government expects South Africans to make, choosing either plague or famine.

As if the callous Hobson’s choice decreed by government for the people of South Africa were not enough, the Director-General laid bare the COGTA department’s (or government’s) understanding of the constitutional standard. She said:

“The powers exercised under lockdown regulations are for public good. Therefore the [constitutional] standard is not breached”

and

“the means justify the ends”

So, according to the COGTA department and government, good intentions are, for that reason alone, constitutionally valid. The fact that constitutional rights happen to be trampled on along the way is not something to quibble about.

This is an extraordinary submission for a government to make in a constitutional democracy.

It is an indictment of the worst order on the government of South Africa that a court of law has now described the intervention of what should be a democratically elected government that has sworn an oath or affirmation to the Constitution as

“[t]he reversion to a blanket ban [that] harks back to a pre-Constitutional era and to restrictive State of emergency regulations”

If nothing else, this should make government seriously reflect on its chosen path.

But what did the court find to be unconstitutional?

The Relief Granted

The high court declared the following regulations unconstitutional and therefore invalid. These are both the regulations issued in relation to Alert Level 4 (the 29 April 2020 regulations) and those issued in relation to Alert Level 3 (the 28 May 2020 regulations) as made clear in paragraphs 9.2 of the judgment:

• Regulation 35: attendance at funerals
• Regulation 48(2): criminalising contravention of funeral regulations
• Table 2, item 7: exclusion of hairdressers, etc
• Regulation 33(1)(e): restricting exercise to between 06h00 & 18h00
• Regulation 39(2)(m): closure of parks & beaches [the court erroneously cites reg 39(2)(e) for parks]
• Regulation 39(2)(m): closure of beaches

It is important to note that the court does not declare all regulations to be unconstitutional and invalid. It specifically excludes some regulations which it describes as “rationally connected to the stated purpose”.

The court suspended the declaration of invalidity for a period of 14 business days (or such longer period as the court may on good cause shown allow) to enable the COGTA Minister to review, amend and republish the identified regulations.

The COGTA Minister was ordered to pay the applicants’ costs.

What reasons did the court give for declaring these regulations unconstitutional and invalid?

Grounds for unconstitutionality

The main thrust of the judgment seems to be rationality. The Learned Judge then arrives at constitutional invalidity through that route. In this regard, the court says

“Insofar as the ‘lockdown regulations’ do not satisfy the ‘rationality test’, their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”

Rationality, as the court says, entails – in one iteration – an inquiry into whether the measure is rationally related to the achievement of the purpose for which the measure is invoked. If it is, the measure is rational; if not, the measure is irrational.

But that is a rationality test, not a constitutionality test. This short-hand approach to constitutional analysis by the court is somewhat unusual. Usually the approach is to first ask whether the impugned conduct or law infringes or limits a right in the Bill of Rights. If it does not, that is the end of the inquiry and the conduct or law is not unconstitutional. But if it does limit a right in the Bill of Rights, then the next question is whether such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This latter analysis is usually engaged by reference to whether there exist other less invasive or restrictive measures to achieve the intended purpose.

On the usual approach, not all conduct or law that is irrational can automatically be declared unconstitutional or invalid. It all depends on numerous factors, including the facts, the nature of the right, the extent of the limitation, the purpose of the limitation and its importance, and whether that purpose can be achieved by less restrictive measures or measures that pose a lesser threat to entrenched constitutional rights.

It is for that reason that the court’s leap from a finding of irrationality to a finding of constitutional invalidity may be open to challenge. Whether or not the challenge (if launched) would be successful – considering that the question in constitutional appeals is often less about whether the lower court was right or wrong and more about what the just and equitable remedy is – remains to be seen.

On the whole, however, I think the regulations identified by the court (and others besides) are patently unconstitutional not least because there are less invasive measures that government could have adopted for the stated purpose of “flattening the curve” of covid-19 infections. Some of these are laid bare in the judgment itself. And this is not, in my view, an example of a court trenching on government policy-making terrain.

So, what reasons did the court give for finding regulations unconstitutional and invalid?

As regards regulation 35 on funerals, the court said:

• It is not only distressing but also irrational that a person, young or old, who is terminally ill (not from covid-19) is not permitted family visits in the final moments of life that would ease suffering, but is permitted family visits at his or her funeral by up to 50 family members armed with certified copies of a death certificate, even travelling across provincial borders, when s/he no longer needs their support.
• If one wants to prevent the spreading of the virus through close proximity, why ban night vigils totally instead of introducing time, distance and closed casket restrictions, or even a night vigil without the body of the deceased?
• If long-distance travel is permitted, albeit under strict limitations, a night vigil by a limited number of grieving family members under similar limitations can hardly pose a greater threat.
• Why criminalise grief? [reg 48(2)]
• There is no rational connection to the stated objectives for the limitation on the degree of familial relationship to a deceased in order permissibly to attend his or her funeral. For instance, what if the deceased is a clan leader, a leader of the community or a traditional head of a small village?

As regards regulation 33(1)(e) on restricting exercise to between 06h00 & 18h00, the court said:

• This is as perplexing as the funerals regulations
• If the laudable objective is to prevent people from exercising in large groups in close proximity to each other, why not say so in the regulations instead of prohibiting the organising of exercise by arbitrarily imposed time limits?

As regards regulation 39(2)(m) on the closure of beaches and public parks, the court said

• It can hardly be rational to allow scores of people to run on the promenade during prescribed times of the day, but to take the view that if one were to step one foot into the beach that would lead to rampant infection.
• A gogo who cares for 4 young children in a one-room informal dwelling during the whole lockdown period is still not permitted to take them to the park even if they all wear masks and avoid contact with other people altogether, but is expected to confine five people in a small indoor space.

As regards Table 2, item 7 on exclusion of hairdressers, etc, the court said:

• A single hairdresser mother and sole provider for her family must now watch her children starve while witnessing minicab taxis passing by with passengers sitting in closer proximity to each other than they would have in her salon.
• She is stripped of her right to dignity, equality, to earn a living and to provide the best for her children.

As regards other regulations that the court has not mentioned, the following is said:

“I am certain, from what I have seen in the papers filed in this matter and from a mere reading of the regulations, even including the Alert Level 3 regulations, that there are many more instances of sheer irrationality included therein. If one has regard to some of the public platforms to which I have been referred, the examples are too numerous to mention. One need only think of the irrationality in being allowed to buy a jersey but not undergarments or open-toed shoes and the criminalisation of many of the regulatory measures.”   

Closing Remarks

If the court is correct that government has chosen an approach that is more “paternalistic rather than constitutionally justifiable” in devising these regulations, and that government’s constitutional standard is as articulated by the Director-General as being, among other things, that “the means justify the ends”, then perhaps a more effective remedy may have been to declare the entire suite of regulations and directives unconstitutional and invalid, suspending the declaration of invalidity for a period to enable the correction of all the defects by adoption of a constitutionally-centred approach than a paternalistic approach.

Now there is a danger of a piece-meal tweaking of some regulations, while leaving others wreaking havoc just by accident of not having been specifically identified in a court order as requiring attention.

Perhaps this is a function of the pleadings in the case, as a court may not ordinarily grant relief that a party has not sought. Perhaps a challenge may yet come attacking all the problematic regulations and directives in one application or set of applications heard together, so that a court can decide the constitutional validity of each of these regulations and directives. We almost need something akin to the process that was followed in the certification of the Constitution, otherwise there will be a proliferation of disparate applications in different courts of varying expertise, appetite and philosophical leaning. That is a recipe for conflicting judgments at various times which is not good for the rule of law which requires certainty in order to function properly.

Because this is a judgment of the Urgent Court, there are typographical errors, erroneous references and some reasoning that is not taken to their logical conclusion. For example,

• the court refers to “regulation 39(2)(e)” in relation to closure of beaches and parks when it means regulation 39(2)(m)
• the court refers to “regulation 33(a)(e)” in relation to the restriction of exercise when it means regulation 33(1)(e)
• the court cites the Constitutional decision in “Allbert v Centre for the Study of Violence and Reconciliation” when it means “Albutt”
• the court does not identify the specific constitutional right that it says is being unjustifiably infringed by each regulation that it has declared to be invalid. Dignity (s 10), equality (s 9), the right to earn a living (s 22) and provide the best for her children (s 28) are mentioned in relation to the single hairdresser mother in respect of Table 2 item 7 of the regulations. Nowhere else, as far I could gather, is a connection made between the impugned regulation, on the one hand, and the constitutional right it is said to infringe unjustifiably, on the other. But, at least in my view, it is clear from the text of the judgment, in respect of each impugned regulation, which section of the Constitution is engaged even if not specifically mentioned. It is then up to the appeal court to decide whether that is enough – if the judgment is challenged.

But mistakes of this kind are not unusual in Urgent Court judgments. The case was argued on Thursday 28 May 2020 and judgment rendered the following Tuesday 2 June 2020. So it appears to have been written over the weekend. A Judge in Urgent Court (and this I know from experience, having acted in Urgent Court myself on numerous occasions) usually has many other cases to decide in the week that s/he is assigned to Urgent Court.

Whatever its fate, it is my sincere hope that this judgement of the Urgent Court will wake South Africans up and that more will start to think deeply about the trade-offs and the long-term effects of the decisions made by government. We are between a rock and a hard place, and often we have to decide which is the lesser of two evils. But, when we outsource all of our thinking to government, we make ourselves vulnerable to a future we may not like.

Related Documents:

HC JUDGMENT in De Beer v Minister of COTGA – 2 June 2020

On Wednesday 20 May 2020, five University of Cape Town students together with a data analyst, a media intern and a civil servant filed papers in the Western Cape High Court challenging numerous aspects of the South African government’s interventions in relation to the covid-19.

This is a summary of that application. I express no view on its merits.

The students want the Cape High Court to hear their application on Friday 29 May 2020. They have given the respondents until Monday 25 May 2020 to file their opposing papers.

The application is brought against

• The President of South Africa, both in his capacity as President and as Chair of the National Coronavirus Command Council (the Command Council)
• Minister of Cooperative Governance and Traditional Affairs (COGTA) both in her capacity as COGTA Minister and as Co-Chair of the Command Council
• Minister of Trade, Industry and Competition
• Government of South Africa
• Command Council
• National Disaster Management Centre

The Relief Sought

In a nutshell, the students want the Cape High Court to declare

• that the establishment and existence of the Command Council is unconstitutional and invalid
• that even if it were constitutional and valid, its actions are unlawful and unconstitutional
• that any decision taken by the Command Council in relation to any matter in terms of the Disaster Management Act, 2002 (the DMA) is unconstitutional and invalid
• that the Regulations issued by the COGTA Minister on 29 April 2020 are in their entirety unconstitutional and invalid
• that, if the court should find that not all these regulations are invalid and unconstitutional, then the curfew and movement regulations [regulations 16(1) to 16(4)] and the economic restrictions regulations [regulations 28(1), 28(3) & 28(4)] are unconstitutional and invalid
• that the directions issued by the Minister of Trade, Industry and Competition on 12 May 2020 in relation to the sale of clothing, footwear and bedding are unconstitutional and invalid and are set aside
• that the President is given 30 days from the date of the court order to correct the constitutional defects in the 29 April 2020 Regulations
• that the declaration of unconstitutionality is suspended for 30 days to enable the President to correct the defects identified within those 30 days

They want only those respondents who oppose the application to be ordered to pay the costs of the application.

Grounds for the Relief Sought (at a Glance)

The students say the establishment and existence of the Command Council is unconstitutional and unlawful because the Command Council purports to step into the shoes of, and usurps the powers already conferred by Parliament through the DMA on, the National Disaster Management Centre. In this respect they say

• According to an explanation given by the Director-General in The Presidency, the role of the Command Council is to “coordinate” government’s response to covid-19 and “facilitate consultation”.
• But these are precisely the functions that Parliament has determined should be discharged by the National Disaster Management Centre. One of the functions that Parliament confers on the Centre in s 30 of the DMA is that the Centre

“must act as a repository of, and conduit for, information concerning disasters, impending disasters and disaster management … may act as an advisory and consultative body on issues concerning disasters and disaster management [and] make recommendations to any relevant organ of state or statutory functionary on draft legislation affecting [the DMA], the national disaster management framework or any other disaster management issue”

• The Command Council has usurped the role of the Centre in respect of the covid-19 pandemic. This is unlawful because it is inconsistent with the DMA and subversive of Parliament’s legislative authority.

They say all the 29 April 2020 Regulations are unconstitutional and invalid because they were conceived, at least in part, by a body that has no power to do so. In this respect they say

• It is clear from numerous ministerial and presidential statements that the Command Council has made decisions, including the decision to move the country from Level Five to Level Four as from 1 May 2020.
• But the Command Council has no power to make such decisions, whether under s 27 of the DMA or elsewhere.
• Therefore the 29 April 2020 Regulations are vitiated by the Command Council’s unlawful hand in their making.

The students say the curfew, movement and economic restriction regulations are “substantively unconstitutional, unlawful and invalid”. In this respect they say

• The curfew and movement restrictions needlessly violate the right of South Africans to human dignity [s 10 of the Constitution]. They do so by not permitting people to enjoy aspects of the right to human dignity such as family life. For example, they allow parents to move children and selected relations to attend funerals, but they do not allow geographically separated family members to visit each other, even in times of difficulty. [A son may attend a parent’s funeral but may not visit his parent who is terminally ill]. One of the applicants tells of an ordeal of having to choose between his parents and his partner because of these restrictions. He chose a parent.
• The curfew and movement restrictions also violate the right to freedom of the person [s 12(1) of the Constitution] and the right to freedom of movement [s 21(1) of the Constitution].
• The economic restrictions regulations also infringe the right to human dignity insofar as they undermine an individual’s autonomy to make her own consumption decisions. Commanding consumers to purchase only cold prepared food from grocers but not hot food, and restricting them to the purchase of “winter clothing” when they have the freedom to choose whatever season of attire they wish, is a violation of the right to human dignity.
• The economic restrictions regulations also infringe the right to freedom of trade, occupation and profession [s 22 of the Constitution] as millions of citizens are now rendered unable to work by government’s restriction of work not falling within categories of “essential services and goods”.

The applicants say all these restrictions are unjustified. They say

• There is no evidence to show that one has a greater risk of contracting covid-19 outside one’s residence than inside. The risk of contagion arises from exposure to infected persons. But this risk is addressed by the compulsory requirement of wearing of masks and social distancing in public spaces and adhering to other recommended safety protocols.
• There is no evidence to show that one increases the risk of spreading covid-19 by buying cold food instead of hot food from a grocery store, or by buying Summer clothing (or Autumn or Spring) clothing instead of Winter clothing, or by buying educational books instead of recreational books (to the extent that there is a substantial distinction).
• There is no conceivable link between exercising at 05h59, 09h01 or 14h00, on the one hand, and the spread of covid-19 on the other. If exercise is permitted during 3 early morning hours [the regulations permit exercise only between 06h00 and 09h00], it should be permitted throughout the day.
• There is no conceivable link between the curfew and combating the virus. Covid-19 is not more transmissible at night than during the day.

The applicants say the application is self-evidently urgent because

• the constitutional infringements are extensive
• the infringements are ongoing
• the infringements are freshly perpetrated with each passing day during Level Four and look likely to continue even under Level Three
• the restrictions risk making the spread of the virus worse by congesting people in public spaces [between 0h600 and 09h00]

Still on urgency, they conclude

“it is clear that the respondents require judicial guidance on the constitutional rights that may not be infringed when responding to this covid-19 pandemic”

Related Documents:

You may access the full application here: Esau and Others v COGTA Minister and Others – Notice of Motion, FA and Annexures 20 May 2020