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David v Goliath as Students Challenge Government Over Covid-19 Regulations: A Summary

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

By |2020-05-23T20:46:04+02:00May 23rd, 2020|Blog, General, News|Comments Off on David v Goliath as Students Challenge Government Over Covid-19 Regulations: A Summary

South Africa’s Main Opposition Party (DA) Challenge to the Disaster Management Act, 2002: A Summary

On Friday 15 May 2020, the Democratic Alliance – the main opposition party in South Africa’s political landscape – filed papers in the Constitutional Court (the highest court in South Africa) challenging the constitutional validity of s 27 of the Disaster Management Act, 2002 (the DMA).

This constitutional challenge comes a day after the same party had launched a separate application in the High Court (the first in the ascending order of higher courts hierarchy in South Africa). In that application, it challenges the constitutional validity, rationality and reasonableness of:

  • certain curfew regulations made by the Minister of Cooperative Governance and Traditional Affairs (COGTA),
  • certain transport restriction directions issued by the Minister of Transport, and
  • certain e-commerce directions issued by the Minister of Trade, Industry and Competition

ostensibly to “flatten the curve” of covid-19 infections in South Africa.

This is a summary of the Constitutional Court challenge. I express no view on its merits.

Section 27(1) of the DMA confers on the Minister the power to declare a national state of disaster, s 27(2) the power to issue regulations, s 27(3) the purpose for which such regulations may be issued, s 27(4) the power to prescribe penalties for any contravention of regulations, and s 27(5) the right to terminate or extend the declaration of the national state of disaster.

The Relief Sought

In a nutshell, the Democratic Alliance (the DA) wants the Constitutional Court to declare that s 27 of the DMA is unconstitutional and invalid to the extent that it does not permit of Parliamentary oversight to the Executive (that is, the President and his cabinet) in its promulgation of regulations and issuing of directions and notices as measures aimed at addressing covid-19.

In order to remedy the unconstitutionality and invalidity, the DA wants the Constitutional Court to read into s 27 a new provision that confers an oversight role on the National Assembly in relation to the Executive’s regulation-making powers. Specifically, it wants a new provision under s 27 of the DMA to say:

  • A copy of any declaration of a national state of disaster in terms of s 27(1) of the DMA, including its extension, must be tabled in Parliament, by the Minister who makes such declaration or effects its extension, as soon as possible after publication of that declaration for consideration, recommendation and approval of Parliament.
  • Any regulation made or direction issued under s 27(2) of the DMA must be tabled in Parliament, by the relevant Minister, as soon as possible after the publication thereof for consideration, recommendation and approval of Parliament.
  • If Parliament should disapprove of the declaration, extension of a declaration, regulation or direction, such declaration, extension, regulation or direction will cease to be of force and effect from the date that the National Assembly resolves to disapprove of such declaration, extension, regulation or direction, and to the extent to which it is so disapproved.

To that end, the DA asks the Constitutional Court to direct the COGTA Minister to table in the National Assembly the following documents within 3 days of the court’s order for consideration, recommendation and approval:

  • the declaration of the national state of disaster in GN 313 GG 43096 of 15 March 2020
  • the regulations issued in terms of section 27(2) of the Act published in GNR 480 GG 43258 of 29 April 2020
  • all directions and regulations issued under the 29 April 2020 Regulations

In prayer 5 of its notice of motion, the DA asks the Constitutional Court to declare that:

“none of the declarations, regulations and directions made in terms of section 27 of the Act prior to the date of this order are invalidated only by virtue of the [declaration of invalidity of s 27, the reading in of the new provision, and the tabling in Parliament of the 15 March 2020 declaration, the 29 April 2020 Regulations and all the regulations and directions issued under the 29 April 2020 Regulations].”

This prayer may cause some consternation but it need not. Clarity emerges in paragraphs 11 and 12 of the DA’s Founding Affidavit which say:

“This relief would not invalidate any aspect of the Executive’s response to COVIC-19. Everything the President, the Minister and the members of the national ‘Command Council’ have done to date would remain valid unless Parliament determines otherwise. Nor would the relief preclude the Executive from acting with great speed in response to COVID-19 – its power to do so would be fully preserved.

But the relief sought would ensure that the elected representatives of South Africa have an opportunity to engage with, question and ultimately decide whether to disapprove of the measures taken by the Minister. In other words, it would place the debates about these measures where they belong – before the elected representatives of South Africa and in the public eye. I submit that this is what the Constitution requires.”

In short, it appears that what the DA wants the Constitutional Court to do is to leave it to Members of Parliament, as elected public representatives of the people of South Africa, to decide whether or not the covid-19 measures are proportional and in the public interest, instead of the Executive deciding that issue alone without Parliamentary oversight, or the Constitutional Court itself deciding the issue at this stage.

Direct Access to the Constitutional Court

Before we get to the DA’s argument in support of the relief it seeks, a brief word about going directly to the Constitutional Court without first approaching the High Court, then the Supreme Court of Appeal and only thereafter the Constitutional Court.

In the South African court system there are four layers in the hierarchy of higher courts outside of the specialist courts.

  • the first layer comprises the high court presided over by one judge
  • the second layer consists of the Full Bench of the high court comprising, ordinarily, a panel of 3 high court judges
  • the third layer is the Supreme Court of Appeal comprising, ordinarily, a panel of 5 judges of appeal
  • the fourth and final layer is the Constitutional Court which comprises 11 justices but 8 constitute a quorum.

It is only in exceptional circumstances that the Constitutional Court entertains an application directly to it. The factors – which do not constitute an exhaustive list – that the Constitutional Court has in numerous decisions considered in deciding whether or not to grant direct access include:

  • prospects of success
  • the nature of the constitutional issues raised
  • the need for an urgent decision from the Constitutional Court
  • whether the Constitutional Court requires the views of lower courts
  • whether it is desirable for the Constitutional Court to sit as a court of first and final instance
  • whether similar issues are pending before the Constitutional Court
  • whether prejudice to the public good or good governance may occur
  • whether the issue to be decided has a “grave bearing on the soundness of our constitutional democracy”
  • the importance of the constitutional issue raised and the desirability of obtaining an urgent ruling of the Constitutional Court on it
  • whether any dispute of fact may arise in the case
  • the possibility of obtaining effective relief in another court
  • the time and costs that may be saved by approaching the Constitutional Court directly

In order to meet that standard, the DA says:

  • it has good prospects of success
  • the application concerns the limits to Parliament’s powers to delegate legislative authority under the Constitution
  • no disputes of fact are likely to arise
  • there is a fine line between bold action being taken in order to deal with a crisis, on the one hand, and the unconstitutional concentration of power in the Executive on the other, and that the Constitutional Court, as the upper guardian of the Constitution, must intervene urgently to show where that line is
  • South Africans are entitled to have a say in how they are governed in this crisis and that entitlement is now not months down the line
  • Because the constitutional validity of a legislative provision is in question, the high court is not the final arbiter on such issues
  • If the DA were to go to the high court first, an obviously urgent question of constitutional invalidity will be resolved months later
  • the application does not involve the development of common law

Grounds for the Relief Sought (at a Glance)

The DA says s 27 of the DMA is unconstitutional because:

  • The section confers broad powers on a Minister designated by the President not only to issue regulations but also to authorise other Ministers to issue directions, all virtually without procedural constraints or Parliamentary oversight.
  • This absence of oversight manifests in, among other things, needlessly prescriptive directions, like what food and clothing items people may buy, what time they may exercise or walk their dogs, restrictions to e-commerce without any discernibly rational connection to the purpose of limiting covid-19 infections, all on pain of criminal prosecution and conviction.
  • The absence of Parliamentary oversight also manifests in the severe incursions into the fundamental rights of South Africans that would otherwise have had to be explained to Parliament, ameliorated or possibly avoided altogether.
  • The restrictions in s 27(3) are “not much of a restriction”. They are “broad and vague” and provide “no policy framework within which the Minister must operate”.
  • The section authorises an impermissible delegation of legislative power by Parliament with Parliament playing a spectator role.
  • The section creates a de facto state of emergency but without the safeguards, checks and oversight measures applicable in a state of emergency.
  • The section creates a body of laws and legal paradigm that is parallel to South Africa’s law of general application.
  • The section fails to enable Parliament to scrutinise and oversee executive action, as the Constitution requires in s 42(3) and s 55(2), and violates those 2 provisions of the Constitution. Section 42(3) of the Constitution says:

“The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.”

Section 55(2) says:

“The National Assembly must provide for mechanisms-
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of-
  (i) the exercise of national executive authority, including the implementation of legislation; and
 (ii) any organ of state.”

Importantly, in paragraph 99 the DA stresses that it is not asking the Constitutional Court to determine “polycentric questions of policy”. This is because the Constitutional Court has in the past ruled that the separation of powers doctrine precludes the courts from determining questions of government policy that fall within the realm of the Executive.

The DA also stresses that it is not asking the Constitutional Court to make an order preventing the Executive (President and his cabinet) from acting quickly under the DMA. All it asks for, it says, is an order which provides it (and by extension Parliament) with an after-the-fact mechanism to influence delegated law-making under the DMA.

Related Documents:

DA Concourt Notice of Motion on s 27 of the DMA

DA Concourt Founding Affidavit with Annexures on s 27 of the DMA

By |2020-05-17T00:42:37+02:00May 16th, 2020|Blog, General, News|1 Comment

Will the Courts be Our Last Beachhead Amid Covid-19 Excesses?

In his address to South Africans on the evening of Wednesday 13 May 2020, the President of South Africa made reference to shortcomings in his government’s interventions aimed, ostensibly, at “flattening the curve” of covid-19 infections. The President said:

“Some of the actions we have taken have been unclear, some have been contradictory and some have been poorly explained. Implementation has sometimes been slow and enforcement has sometimes been inconsistent and too harsh. This evening, I want to reaffirm my commitment and the commitment of the government I lead to take whatever action is necessary to safeguard the life, the dignity and the interests of the South African people.”

Because “eternal vigilance is the price of liberty” let us explore the President’s mea culpa and commitment a little more closely.

The President, I’m afraid, either misdiagnoses the problem with his interventions or mischaracterises it. Yes, a great number of the regulatory interventions lack clarity. Yes, his ministers contradict what he tells South Africans not only by what they say but also by what their directives and regulations say. Yes, the conduct of his police force and soldiers demonstrate that his vision has been poorly explained to them. But, the problem is far more serious: many of these interventions appear to be irrational and possibly even unconstitutional.

Misdiagnosis inevitably tends to result in prescribing the wrong intervention. If you diagnose a common flu as HIV you are likely to prescribe anti-retroviral drugs than short-term administration of paracetamol.  So, when the President misdiagnoses a problem, it is not reasonable to expect South Africans to trust the President’s interventions and “commitment … to take whatever action is necessary to safeguard the life, the dignity and the interests of the South African people”; lest such “necessary” action be tantamount to administering anti retrovirals to treat flu.

I shall take just one example to illustrate this point: one showing possible unconstitutionality of one of the regulations.

The 29 April 2020 Regulations are the latest substantial regulations to be issued by the Minister of Cooperative Governance and Traditional Affairs. Regulation 14(2) of those regulations is possibly unconstitutional both in its over-breadth and because it is capable of being invoked in order to suppress opinion on government’s covid-19 intervention that government does not like.

The regulation says:

“(2) Any person who publishes any statement, through any medium, including
social media, with the intention to deceive any other person about-
(a) COVID-19;
(b) COVID-19 infection status of any person; or
(c) any measure taken by the Government to address COVID-19,
commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding
six months, or both such fine and imprisonment.”

Some people hold and express the view that covid-19 is just a flu virus strain, like Influenza, and so does not justify the drastic measures that the South African government has taken, like limiting people’s outdoor physical exercise to between 06h00 and 09h00, prescribing people’s wardrobes and the food items that people may buy.

These people may be absolutely wrong not only in their characterisation of covid-19 but also in their assessment of what it takes to address it effectively. But that does not warrant even a threat of arrest by a police officer on the beat suspecting an “intention to deceive” to be lurking behind that opinion, a question that only a court can resolve some months if not years later, by which time a citizen will have been persecuted and subjected to the ignominy of being hauled before a criminal court, possibly in handcuffs, just for expressing an opinion and sharing an idea on government’s response to covid-19 that the government does not like.

The mere existence of the threat of prosecution in regulation 14(2) for expressing an opinion or sharing an idea has a chilling effect on the right to free expression which is enshrined in the Bill of Rights Chapter of the South African Constitution which confers on everyone

“the right to freedom of expression, which includes … freedom to receive or impart information or ideas”

We know this because the Constitutional Court has pronounced on it. In one of its earlier decisions in Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC) it said:

“Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. . . . Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed. . .”

That was 19 years ago.

Soon thereafter (citing the European Court of Human Rights in Handyside v The United Kingdom  (1976) 1 EHRR 737 to demonstrate that South Africa is not alone among democratic nations to hold freedom of expression dear) the Constitutional Court said the following in Islamic Unity Convention [2002] ZACC 3; 2002 (4) SA 294 (CC):

“[The right to freedom of expression is] applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

The same is true for the United States. In United States of America v Schwimmer 279 US 644 (1929) (73 L Ed 889) Holmes J said:

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

On the constitutionally permissible limitation to the right to free speech, the Constitutional Court said:

“Where the state extends the scope of regulation beyond expression envisaged in section 16(2) [of the Constitution], it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution.”

Section 16(2) of the South African Constitution excludes from constitutional protection only speech or expression or opinion which amounts to

  • propaganda for war;
  • incitement of imminent violence; or
  • advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

In Laugh It Off [2005] ZACC 7; 2006 (1) SA 144 (CC) the Constitutional Court summed it all up in one sentence:

“unless an expressive act is excluded by s 16(2) [of the Constitution] it is protected expression”

More recently, the second highest court in South Africa (the Supreme Court of Appeal) in Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA) has weighed in. Citing George Orwell, it says:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

So, unless an opinion on covid-19 or any measure taken by the South African government to address covid-19 amounts to (1) propaganda for war, (2) incitement of imminent violence, (3) advocacy of hatred based on race, ethnicity, gender or religion constituting incitement to cause harm, it is protected by the Constitution.

Regulation 14(2) does not suppress opinion which propagates war, incites imminent violence or advocates hatred on stated grounds. It suppresses, on the face of it, constitutionally protected expression.

But the right to express an opinion is not absolute. It may be lawfully limited for greater good. It sounds all utilitarian, but for regulation 14(2) to be found unconstitutional it must fail the justification analysis in s 36(1) of the South African Constitution. The inquiry is whether the limitation of the right is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account factors such as:

  • the nature of the rights being disrupted;
  • importance of the purpose for which the rights are being disrupted;
  • the nature and extent of such disruption;
  • the rational connection between the disruption and its purpose; and
  • whether there are less disruptive means to achieve the purpose of the disruption.

The Constitutional Court has said in numerous decisions that this list of considerations in the justification analysis is not exhaustive as, ultimately, the question is whether the limitation of rights is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Constitutional Court has also stressed that the justification analysis need not be dealt with on the basis of a check-list approach.

The Constitutional Court has said the following about the courts’ constitutional responsibility in the face of executive excesses:

“No-one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law against governmental erosion.”

and

“Without [moral] authority [the judiciary] cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.”

Here is my question: In light of the many pronouncements of the Constitutional Court and the Supreme Court of Appeal – some of which are cited above – on the constitutional importance of the right to freedom of expression in a constitutional democracy given our history in South Africa of the suppression of free speech under apartheid, will the courts exercise their moral authority to arrest what seems to be precipitous governmental erosion of the rule of law in the name of “flattening the curve” of covid-19 infections, or will the judiciary endorse a reading of regulation 14(2) that makes “thought police” of the state by suppressing opinion?

Will the courts be bold in their judicial activism or adopt an executive-minded approach by categorising governmental erosion of our rights as “polycentric” or “policy-laden” intervention over which they are powerless to pronounce? Time will tell.

By |2020-05-15T12:13:05+02:00May 15th, 2020|Blog, General, News|1 Comment

Accountability Knows No Rank: The President Must Account

Being constantly bombarded and overloaded with information, it should come as no surprise that human beings tend to find it difficult to keep up with the stories unfolding around them, critically analyse them, and connect the dots over time. To illustrate my point let me use an example that caught my attention a number of years ago.

On 30 May 2008, Judges of the Constitutional Court (the highest Court in South Africa) issued a media statement accusing a Judge President (the Head of one of 9 High Courts and 8 local divisions in South Africa) of violating the Constitution. The allegation was that the Judge President had attempted to influence the outcome of a case in which a judgment was then pending in the Constitutional Court, thereby undermining judicial independence and impartiality.

On that occasion, not only the entire organised profession of advocates (as then represented by the General Council of the Bar) but also a retired Judge of the Constitutional Court, a non-profit organisation and the entire mainstream media led the charge in the condemnation of the Judge President – based on an allegation that, more than 12 years later, is yet to be proved.

Fast forward some 12 years to 4 May 2020. The President of the Republic of South Africa condemns advocates – one of whom is a Senior Counsel of many years’ standing – for what he says is their “insistence on putting in jeopardy all measures taken to save South African lives”. He says, through the pen of the cabinet secretary writing on the letterhead of The Presidency, the advocates’ conduct “is not commensurate … with their positions as officers of the court”.

Those of us who are members of the organised advocates profession – which is generally conservative in its culture – know the seriousness of an accusation that a practising advocate’s conduct is not commensurate with his/her position as an officer of the court. Such allegation is never made lightly by members of the profession because we know that once that well of integrity has been poisoned (even if unfounded) the damage is hard to repair. That is why the President’s remark can only be seen as a naked threat.

This could have been avoided as I shall endeavour to show. It is also difficult to blame anyone who interprets it as a suppression of opinion that the President does not like. Section 16 of the Constitution [freedom of expression] is implicated. So, too, the human dignity provision in s 10 of the Constitution. The threat, whether intentional or not, also jars against the foundational constitutional values of “human dignity” [s 1(a)] and the “supremacy of the Constitution and the rule of law” [s 1(c) & s 2].

But equally troubling is the supine attitude adopted by the legal profession in the face of this unwarranted attack. Not one association of advocates, not one retired Judge, not one non-profit organisation, not one mainstream media house has condemned this naked threat by The Presidency of advocates for raising issues of constitutional import with the President for clarification and requesting information.

So, what had the advocates done to trigger such a dressing down and naked threat by the highest political office?

The Cause

On 27 April 2020 – Freedom Day in South Africa, as it happens, loosely the equivalent of Independence Day in the United States of America – a firm of attorneys acting for two advocates who are members of the Johannesburg Society of Advocates, sought clarification from the President on the provenance of a structure known as the National Command Council (the NCC). They sought the clarification and request for information from the President “in [his] capacity as the Honourable President of the Republic, and in [his] capacity as the chairperson of the National Coronavirus Command Council”.

The inquiry, said the two advocates, was necessitated by lack of information on the provenance of the NCC, its role, and the confusion that abounds following conflicting information put out by Ministers in the President’s cabinet about the NCC and its powers. For example, the advocates said, Ministers have described the NCC variously as:

  • the centre of information sharing
  • co-ordinating and implementing measures to contain the virus
  • leading the country’s response to the pandemic

The advocates reminded the President that

  • in his televised public address dated 24 March 2020 the President told South Africa that the NCC was the body that had made the determination to enforce a 21 day national lockdown;
  • on 3 April 2020 the Minister of Police told South Africa that the NCC had “revised” the regulations;
  • in his public address of 9 April 2020 the President told South Africa that the NCC was the body that determined that the national lockdown should be extended;
  • under the extended lockdown plan announced by the President on 23 April 2020, the NCC has the power to determine coronavirus alert levels, and it had already made a determination that the current alert level be positioned at level 4.

The advocates concluded these reminders to the President by saying:

“We assume that these statements are an accurate reflection of the position but remain open to correction.”

The advocates advanced legal argument on what they believe (in the absence of clear official information on the provenance of the NCC) to be the NCC’s overreach in performing “statutory regulation-making powers” and “executive powers”.  

Why did the advocates seek clarification and request for information in their letter? They addressed this in their letter as follows:

“[O]ur attempts to locate any official documentation establishing the NCC or providing for a lawful delegation of functions [to it] have yielded no results. It appears that such documentation does not exist, alternatively, if it does exist, it has not been made publicly available.”

The advocates then “respectfully request clarification” on two specific issues:

  • The legislative or other basis for the establishment of the NCC;
  • The extent of the powers being exercised by the NCC.

In conclusion they wrote:

“The decision to address this correspondence to you was not taken lightly, and it is now addressed to you in the spirit of cooperation and democratic vigilance. We emphasise that it is not our intention to undermine the Government’s response to the COVID-19 pandemic. We are mindful of the highly pressurised and time sensitive environment in which you are operating, and the extraordinary balancing acts that are being required of you at this time.

However, our understanding of the burden you shoulder does not detract from the requirement that all exercises of power must be lawful, nor does it in any way mitigate our concerns. The purpose of our letter is accordingly to procure sufficient certainty about the NCC to reassure ourselves that democratic checks and balances remain in place, and that the regulations which continue to severely circumscribe the rights of all South Africans subsist within the boundaries of our Constitution…

We are hopeful that the questions raised in this letter can be resolved in a cooperative manner.”

Then the advocates’ attorneys requested the President to provide answers to the two questions posed to him, namely, (1) the legislative or other basis for the establishment of the NCC, and (2) the extent of the powers being exercised by the NCC.

The attorneys told the President that if this was not done by 13h00 on 4 May 2020, or at such extended deadline as the President may require, the two advocates “may consider approaching their ethical bodies for directives concerning potential litigation”.

The Trouble

The President answered neither of the two questions “respectfully requested” of him for clarification in his capacity both as President of the Republic of South Africa and as chairperson of the NCC. Instead, speaking through the cabinet secretary, the President dressed down the advocates, lecturing them on “trite principles of our Constitutional democracy”, excoriating them for “insistence on putting in jeopardy all measures taken to save South African lives” and threatening them saying their inquiry “is not commensurate … with their positions as officers of the court”.

The President’s letter:

  • conflates the function of the NCC with that of bodies like cabinet’s Inter-Ministerial Committees (the IMC) and clusters of Ministers
  • deals with a separation of powers question (between the executive and the legislature) that was never raised;
  • talks of his power to assign the administration of legislation to members of cabinet, an issue never raised;
  • talks of the accountability of cabinet ministers to Parliament, a matter that is not in issue;
  • harks back to the position that the NCC is “a coordinating body”, like the IMC and a cluster of Ministers, a statement of fact that seems inconsistent with the President’s statements in his addresses (according to the two advocates) dated 24 March 2020, 9 April 2020 and 23 April 2020;
  • defends Minister Dlamini-Zuma against a claim of “interference” that is nowhere in the advocates’ letter. The advocates said, on the information available to them, the NCC seems to interfere with “statutory regulation-making powers” and “executive powers” and asked the President to clarify this; and
  • accuses the advocates of threatening litigation, an accusation that does not sit comfortably with the general tenor of the advocates’ request for information, clarification, spirit of cooperation, and their indication that they “may consider approaching their ethical bodies for directives concerning potential litigation”. In practice – of which neither the President nor the cabinet secretary may be aware – this last approach means the advocates would seek guidance from the Professional Committee of their Bar Council which may possibly advise against litigation.

The Concern

Having read both the letter of the two advocates requesting information and clarification from the President about the provenance of the NCC that the President chairs and the extent of its powers, on the one hand, and the President’s “sharp” response to their letter, on the other, one wonders whether lawyers who dare seek clarity from the President about matters of constitutional importance are safe to raise these questions not only in their personal capacities as citizens [s 3(2)] but also as legal practitioners [s 22] representing those who do.

The Constitutional Court has described the President in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11, 2016 (3) SA 580 (CC), 2016 (5) BCLR 618 (CC) at para 20 as

a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”

Given the regrettably cantankerous response from the office of such a “constitutional being” to a civil request for information to which the requester is entitled as a citizen and a voter, what hope is there for an independent legal profession and respect for the Rule of Law in South Africa going forward?

By |2020-05-08T14:47:00+02:00May 8th, 2020|Blog, General, News|3 Comments

20 Useful Points to Remember About the COVID-19 Regulations

On Sunday, 15 March 2020, the Minister of Co-Operative Governance and Traditional Affairs, Minister Nkosazana Dlamini-Zuma (the Minister), declared a national state of disaster in terms of s 27(1) of the Disaster Management Act, 2002 (the DMA) following the discovery of some 61 reportedly confirmed cases of COVID-19 (or Coronavirus) in the country.

That number has since climbed to more than 200. According to official department of health reports, the number stood at 240 by Saturday afternoon, 21 March 2020, less than a week after the President’s announcement of just 61 confirmed cases.

The Minister was presumably designated by the President in terms of s 3 of the DMA to declare a national state of disaster.

The President then addressed the country that evening on the issue. You may access the President’s full speech here.

Two days later, on 17 March 2020, the Minister  issued Regulations in terms of s 27(2) of the Disaster Management Act, 2002. You may access those Regulations, under Government Gazette No. 43107 dated 18 March 2020, here.

In times of national crisis – like viral outbreaks or other natural disasters – governments have the power to pass laws without having to go through the usual consultation processes. This is one such moment. The Disaster Management Act confers upon a Minister designated by the President – in this instance the Minister of Co-Operative Governance and Traditional Affairs – the power to issue regulations in terms of that Act. These regulations are not suggestions. They are binding laws with serious consequences to those who deliberately disobey them.

As this is an unfolding crisis, it is not unreasonable to expect that government may have to introduce more regulations as the need arises, again without consultation.

It is on occasions like these that the judgment of the voter becomes truly tested, because the powers that a Minister may exercise in moments of crisis or disaster could be used as easily for the good of the nation by a politician with good intentions, as abused for nefarious purposes by a politician with bad intentions.

Here is my list of 20 things to note about these Regulations:

  1. Gatherings of more than 100 persons are prohibited [Reg 3(1) read with definition of ‘gathering’ in reg 1, the “Definitions” clause]. If you should convene a gathering of more than 100 persons you may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(a)]. Events like weddings, anniversaries, funerals, unveilings, commemorations, political rallies, protest marches, church gatherings, rugby matches and other sporting activities spring immediately to mind. Of course, this is not an exhaustive list.
  2. Gatherings of more than 50 people at premises where liquor is sold and consumed is prohibited [Reg 3(3)]. If you should permit more than 50 persons to purchase and consume liquor at your premises you may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(b)].
  3. There will be strict enforcement of these regulations, including dispersal of such gatherings, arrest and detention of offenders [Reg 3(2)]. Anyone who should interfere with or hinder or obstruct an enforcement officer (probably SAPS) in the performance of his or her duties may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(c)].
  4. Schools and “partial care facilities” have been closed with effect from 18 March 2020 until 15 April 2020 subject to further closure at the discretion of the Minister [Reg 6]. Any person who fails to comply with the schools closure decree will be guilty of an offence and may on conviction be liable to a fine and/or imprisonment for up to 6 months [Reg 11(2) & Reg 11(3)].
  5. All visits by members of the public to prisons, remand detention facilities, holding cells, military detention facilities, Department of Social Development facilities (including child and youth care centres, shelters, one stop centres, and treatment centres), are suspended for 30 days from 18 March 2020 subject to extension for any further period at the discretion of the Minister, but not beyond the duration of the national state of disaster [Reg 7]. Spare a thought for social grant recipients who collect their grants at community halls.
  6. Taverns, restaurants, clubs and any other premises that sell liquor for consumption at the premises must be closed with immediate effect [Reg 8(1)]. This regulation seems rather heavy-handed and irreconcilable with regulation 8(4) which prescribes business hours for premises selling liquor for on-site consumption. Perhaps possible confusion in this respect will be resolved soon.
  7. In the alternative, businesses that sell liquor for consumption at the premises are required to accommodate no more than 50 persons at any time, provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19, are adhered to [Reg 8(1)].
  8. All premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19, including making provision for adequate space, adherence to all directions in respect of hygienic conditions, and limitation of exposure to persons with COVID-19 [Reg 8(2)].
  9. No special liquor licenses or events liquor licenses may be considered for approval during the duration of the national state of disaster [Reg 8(3)].
  10. All restaurants, taverns, clubs and other premises selling liquor for consumption at the premises must be closed between 6pm and 9am the next morning on weekdays (Mondays to Saturdays) and from 1pm on Sundays and public holidays [Reg 8(4)].
  11. All premises selling liquor for consumption outside the premises (take-aways) must be closed between 6pm and 9am the next morning on weekdays (Mondays to Saturdays) and from 1pm on Sundays and public holidays [Reg 8(5)].
  12. No person who has been (1) clinically confirmed as having COVID-19, (2) or suspected of having contracted COVID-19, (3) or who has been in contact with a person who is a carrier of COVID–19, may refuse consent to an enforcement officer for submission to a medical examination, including the taking of any bodily sample by a person authorised in law to do so, admission to a health establishment or a quarantine or isolation site, or submission to mandatory prophylaxis, treatment, isolation or quarantine or isolation in order to prevent transmission of the virus [Reg 4(1)]. One imagines that disputes may arise as regards what constitutes reasonable suspicion, thus keeping some lawyers relative busy in the courts.
  13. If a person does not comply with the instruction or order of the enforcement officer, that person must be placed in isolation or quarantine for a period of 48 hours pending a warrant being issued by a magistrate, on application by an enforcement officer for medical examination [Proviso to Reg 4(1)]. But if such instruction is founded on a “suspicion” by an enforcement officer that a person has contracted the virus or has come into contact with a carrier of the virus, and the person denies this emphatically, this dispute may conceivably end up in urgent court.
  14. A warrant for medical examination may be issued by a magistrate, if it appears from information on oath or affirmation by an enforcement officer (1) that a person is confirmed as having been infected with COVID-19; (2) or that the person is on reasonable grounds suspected of having contracted COVID-19; (3) or that the person has been in contact with, or on reasonable grounds is suspected to have been in contact with a person who is a carrier or infected with COVID–19 [Reg 4(2)]. This may provide another fertile ground for urgent court litigation. Phrases like “if it appears … on reasonable grounds” are notorious litigation magnets.
  15. The warrant for medical examination may impose such restrictions on the powers of the enforcement officer as the magistrate may consider fit [Reg 4(3)].
  16. A warrant for medical examination remains in force until (1) it is executed; (2) or it is cancelled by the person who issued it or, if such person is not available, by any person with similar authority; (3) or the expiry of 90 days from the date of its issue; (4) or the purpose for the issuing of the warrant has lapsed, whichever occurs first [Reg 4(4)].
  17. No person is entitled to compensation for any loss or damage arising out of any action or omission by an enforcement officer done in good faith [Reg 4(5)]. So, if an enforcement officer in good faith detains a person on suspicion that the person has contracted the virus or has come into contact with a carrier of the virus, and the person subsequently shows that he or she has neither contracted the virus nor come into contact with a carrier, the state cannot be held liable for damages for, say, wrongful detention or medical examination. However, if the person can show that the enforcement officer acted in bad faith or that there was no reasonable basis for the suspicion that the person was a carrier or had come into contact with a carrier, then it would seem that this regulation may not assist the state.
  18. Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and will on conviction be liable to a fine and/or to imprisonment for up to 6 months (Reg 11(4)].
  19. Spreading fake news about COVID-19 through any medium, including social media, with the intention to deceive constitutes a crime and on conviction may attract a fine and/or imprisonment for up to 6 months (Reg 11(5)]. Read that again. Pranks have no place in this crisis.
  20. Any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder, or murder should the other person die [Reg 11(6)]. There must be intention to expose. Negligent exposure would seem not to be enough. But do you want to take a chance?

Latest updates on Covid-19 can be accessed from the website of the Department of Health here.

They may also be accessed through the website of the Department of Co-Operative Governance and Traditional Affairs here.

Everyone is urged to make every contribution in order to arrest the further spread of this Covid-19 virus. We should all keep ourselves informed and proceed with every caution in the face of this relatively new and developing challenge.

By |2020-03-21T23:28:35+02:00March 21st, 2020|Blog, General, News|1 Comment

The Pen as Sword: The Unbridled Power of Journalists and its Effects on Society

It is often said that “the Pen is mightier than the Sword”. Quite so, in the South African media space, but not in the sense sought to be conveyed by the epigram.

It is with concern that I watch ordinary South Africans, in the absence of rational and informed voices in the public space, drinking copiously from the font that is the supposed wisdom of “opinion makers” on esoteric matters of law they know little (if anything) about, and are therefore caught up in a maelstrom of ignorance.

The Bar discourages its members from engaging in public debate on matters that are pending in the courts. This may inadvertently be a contributing factor to the dominance in public media of ill-informed, and dangerously misleading, commentary on legal matters. Perhaps, given the changing times and proliferation of fake news and ignorance, it is a prohibition that the Bar should seriously consider revisiting.

In an environment where uninformed legal commentary monopolises the public space, the rule of law is sure to take a back seat while the truth gets lost in the process.

We have seen many examples where court rulings were interpreted based on bias, prejudice, perception and preconceived narratives, instead of the actual basis of the ruling. For example, the persecution of President Zuma in the media on a charge of which he had been acquitted by a court of law; the praising of Minister Gordhan for “winning” a case he had in fact lost, it being suggested that he “achieved what he wanted”; the excoriation of the Chief Justice for dissenting and characterising the majority’s judgment as judicial overreach in a case in which the media seemed intent on the opposite outcome.

Too often we find that the media and, by extension, the general public, expect the court to rule in a particular manner because it fits what to them seems as common sense. One example of this phenomenon comes following a 9 March 2018 High Court order that the assets of the Gupta family be released from state capture (pun intended) because, said the court, there is no reasonable possibility that a confiscation order may be made.

The Gupta Asset Forfeiture Case

Many opinion makers reacted quite emotionally at the outcome of that case! They blamed everything from the (supposed) incompetence of the prosecuting authority to the (supposed) incompetence of the Judge. There was even a theory that the National Director of Public Prosecutions may have deliberately assigned people to the “prosecution” of the case and withheld resources from them so that they failed. That the state was led by Senior Counsel of considerable experience and ability was conveniently disregarded.

When one reacts from an emotional space because one’s preconceived narrative has been disturbed, it becomes difficult to take a step back and objectively assess whether the Judge may have been right in his assessment of the evidence before him, and may in the process have come to the only reasonable conclusion on that evidence.

When you only reason from the script that the Guptas are guilty of state capture (a “criminal offence” of media invention from the Public Protector’s report titled “State of Capture”), it could easily be believed that everything they own is “proceeds of crime”. However, nothing in life is that simple. So, when the Judge deviated from that script, either he or the “prosecuting” team was deemed incompetent.

This is a dangerous phenomenon which poses a serious threat to the Rule of Law.

Let me hasten to state that I express no view on whether the Judge was right or wrong in his finding. I am simply cautioning against being driven by assumptions, especially when fuelled by prejudice, and urge us all to get back to the Rule of Law. Law is not actuarial science. It brooks no assumptions but rebuttable presumptions.

The Gupta case was not a criminal prosecution. It was a civil case brought in terms of chapter 5 of the Prevention of Organised Crime Act (POCA). This is how it works:

  • First, the Asset Forfeiture Unit (AFU) – a unit within the National Prosecuting Authority – seeks a restraint order from the High Court to search the premises of the respondents (the Guptas) and seize all their “realisable property” if they are suspected of having committed a criminal offence. It matters not whether or not the assets themselves are “proceeds of crime”.
  • Second, the restraint order is obtained without giving notice to the respondents for fear they may hide or dispose of them.
  • Third, the order gives the respondents an opportunity to show cause, typically on 24 hours’ notice, why the restraint order should not be made final.
  • Fourth, if they fail to show cause, the order is made final. That means the respondents cannot do anything with those assets and, where feasible, they are removed and placed in the care of a curator appointed by the court at the instance of the AFU.
  • Fifth, at this stage, all the AFU has to show is that there are reasonable grounds for believing that a confiscation order may be made against the respondents in respect of those assets. If it does, the restraint order will be made final. If it fails, the order will be discharged. That means the assets will be released from state capture. A confiscation order is made only once a conviction has been secured on the criminal offence of which the respondents were suspected.
  • Sixth, whether or not the order is made final, the prosecuting authority will, if it still believes that there are reasonable prospects of a successful prosecution, take the matter to trial on the alleged criminal offence. Just to be clear: There is no such thing as a “state capture” criminal offence. It is a media invention.
  • Seventh, once the respondents (accused) are convicted, the AFU will then apply for, and obtain, a confiscation order. That means the assets will be lawfully owned by the state. If the respondents are acquitted, the respondents will be entitled to the release of their assets.

All that has happened in the case against the Guptas in the Bloemfontein High Court is that, after granting the restraint order and affording the Guptas an opportunity to show cause why the restraint order should not be made final, the Guptas took that opportunity and showed that there are no reasonable grounds for believing that a confiscation order may be made. In other words, they showed that there are no reasonable prospects of a successful prosecution and conviction.

That an expectation may have been created in the media that the Guptas’ guilt of “state capture” was a forgone conclusion when their properties were raided to much delirious applause is completely irrelevant.

This does not mean the end of the road for the prosecution of the alleged offences against the Guptas. It does not mean the Judge is incompetent or that the prosecution is incompetent. At best for those of us who believe in the system, it means that the Rule of Law still trumps the Rule of ill-informed opinion leaders in South Africa.

But more than a year has now passed since that 9 March 2018 judgment. The question that arises is whether the state has since pressed on with its criminal case and obtained a conviction. I certainly have not heard anything in that regard. Yet the narrative persists that the Guptas are “guilty” of “State Capture”.

At the risk of being accused of siding with the Guptas, or of being labelled a “Zuptoid”, I must stress that the reality is that until they have been found guilty in a court of law, it remains an allegation and cannot be posed as a foregone conclusion.

Wisdom lies, I believe, not in abrogating our judgment and reasoning capability to the baying mass that is a cohort of self-appointed legal analysts who have never seen the door of a law lecture room.  As journalists play a significant role, which comes with huge responsibility in shaping public opinion, they should be cautious not to run the risk of overreaching in matters of law they know little, if anything, about. There is much virtue in seeking at least a couple of opinions from those trained in the discipline before launching headlong into a definitive lay opinion piece about complex matters of law.

The Rogue Unit Judgment That Never Was

Here is a most recent example of such overreach. In the rogue unit (or investigative unit) skirmish between the Public Protector and the Minister of Public Enterprises a view that the SARS rogue unit is lawful (despite prima facie evidence to the contrary) has now been put forward by a journalist based on a recent judgment in Wingate-Pearse v SARS. This is being put forward as definitive authority for that proposition.

On a close reading of the Judgment, however, it is not.

(I pause here to point out that I refer to the unit as the rogue unit because that is the generally used term.)

There is a clear distinction between the concepts obiter dictum and ratio decidendi in a court judgment. In short, at its most basic definition an obiter dictum is an observation that a judge makes in a judgment but which is not necessary for purposes of the order ultimately made in that judgment. A ratio decidendi is the basis for the order made in the judgment.

An obiter dictum is not binding on lower courts or tribunals but may have persuasive value. A ratio decidendi is binding on lower courts and tribunals. It is also binding on courts of similar status unless the later court is satisfied, in a reasoned judgment, that the earlier judgment is clearly wrong.

Thus, when I read an article such as the one titled “Rogue Unit” ‘lawful’: High Court judgment bolsters Pravin Gordhan’s case against Public Protector, where it is pronounced that the Wingate-Pearse judgment confirms that the rogue unit is lawful, that it must be relied upon by the court now seized with the Minister’s application to interdict and set aside the Public Protector’s report in which she found that the rogue unit is unlawful, and so the Public Protector will lose that case, I cringe.

It is clear to me that the author has not sought legal opinion on a proper reading and interpretation of the judgment on which she relies for her pronouncement. Any lawyer worthy of their robes who has read the judgment will likely find that the judgment does not say what the article purports it says.

But, lawyers being lawyers, there may still be differences of opinion (whether genuine or by design is often difficult to tell) about which aspects of the Judgment constitute obiter dicta. Where there is a will to reach a particular preconceived conclusion in this fractious debate about the lawfulness of this rogue unit, people have shown creative ways of getting there, whatever the facts. Ultimately, it seems to me that only the highest court may finally settle the debate – the sooner the better for us all.

Nowhere, whether in the order or in the text of the judgment itself, does the Johannesburg high court in Wingate-Pearse in fact say the rogue unit was lawful. The journalist appears to have lifted one paragraph, from a 41-page judgment of 87 paragraphs, as authority for the proposition that Judge Meyer found that there was no factual basis for saying there existed a rogue unit within SARS. The paragraph appears under the rubric “Material Disputes of Fact”.

But in that paragraph all Judge Meyer does is relate the Nugent Commission’s “findings” on the issue and Judge Kroon’s evidence before that Commission. Judge Meyer characterises those observations as “findings”. It is not immediately clear how these can be “findings” when Justice Nugent did not investigate the matter. But nowhere does Judge Meyer say he agrees with those “findings”. And nowhere does he make an order to that effect. That renders Judge Meyer’s observations themselves obiter dicta.

In fact, it can arguably be said that the ratio decidendi on this aspect of the case is that the rogue unit was established long after SARS had investigated Mr Wingate-Pearse’s tax affairs, and that it was not at all involved in that investigation. This comes in the very next paragraph lifted by the journalist.

The case concerns an additional assessment for income tax on Mr Wingate-Pearse who was accused of having under-declared his income. Part of his multi-pronged defence was that he had been subjected to unlawful search and seizure operations and unlawful interceptions by an unlawful rogue unit. This is what prompted the Judge to quote from the Nugent Commission report which had been introduced by SARS. He did not say he shares those observations.

The ratio decidendi of the judgment is this:

  • Because Mr Wingate-Pearse did not dispute material factual allegations made by SARS in its affidavits, the Judge had no choice but to accept the SARS version of facts and dismiss Wingate-Pearse’s version and, with that, his application too (this is known as the Plascon-Evans rule);
  • Mr Wingate-Pearse argued that if his prayer 1 for a declaratory order that the rogue unit was unlawful was granted, that would mean that any information obtained by that unit could not be used against him (a so-called “poisoned tree defence”). The Judge said, rightly and with reference to a 1996 Constitutional Court decision, that this is a legally flawed point of departure because it is for the trial court (the Tax Court) to make a determination on whether or not to admit into evidence fruits of a poisoned tree, even if it were to find in his favour. That was the end of that prayer. It was disposed of in 3 paragraphs. The Judge did not rule on the lawfulness or otherwise of the rogue unit because he did not have to do so in light of this finding.
  • As regards the factual disputes about the SARS calculations of Mr Wingate-Pearse’s tax liability, the Judge said, again rightly, this is an issue for the Tax Court to determine as a specialist court.

Everything else is obiter dicta.

The Takeaway

So, it would seem that the article is (wittingly or unwittingly) misleading. This worries me, because too often South Africans rely very heavily on the media as the source of their information. Journalists carry the heavy burden of ensuring that they protect the interest of the public by highlighting the truth and in the process ensuring that they themselves do not deceive, whether by design or out of incompetence.

It is therefore incumbent on journalists to ensure that, when their subject matter relates to a point of law, they must do proper research, otherwise they could tread on dangerous ground and lead the public down the wrong path.

In this case people may now expect – on the assumption that the journalist was right – that the high court seized with the application of the Minister of Public Enterprises against the Public Protector on the latter’s findings and remedial action in relation to the rogue unit must, of necessity, make orders in favour of the Minister because (as the journalist has said) the high court has already found that the rogue unit was lawful.  If that does not happen, the public is then likely to feel that the judiciary is “captured”.

This has already happened in the recent past when another journalist publicly deprecated two Judges of the Supreme Court of Appeal who formed part of the majority (in a 5-panel Bench) for rendering a judgment (in relation to two senior public prosecutors) that departed from the script the journalist had already scripted. This prompted followers of the journalist on social media to join the fray lambasting the judges not so much for their reasoning as for their unpopular conclusion. They wanted to see blood. The judges did not give them blood. So, they concluded the judges are “captured”.

This is dangerous ground and a slippery slope to lawlessness where judges are trusted only if they deliver judgments as expected by opinion makers.

We dare not go there and, dare I say, Journalists stand between us and that otherwise certain reality.

By |2019-07-19T12:25:30+02:00July 19th, 2019|Blog, General, News|6 Comments

The Sub Judice Rule: A Glimpse into the Position in Today’s South Africa?

What did he know and when did he know it? That is the question that confronted then Deputy President, Cyril Ramaphosa, in Parliament in 2015. It is a question that US President Richard Nixon chose not to answer, rather than face impeachment.  He resigned instead.

The allegation was that President Nixon had stolen (or caused to be stolen) audio tapes of his telephone conversations with various insalubrious characters because those tapes implicated him in unlawful conduct. That was June 1973 in Washington.

A little shy of 42 years later, the same question was put to then Deputy President Ramaphosa inside the parliamentary chamber in Cape Town. It related to the unexplained presence of a signal jamming device in the parliamentary chamber that reportedly made it impossible for journalists to post parliamentary news on social media platforms and elsewhere in the performance of their constitutional role. He, too, performed a deft toyi-toyi around the question and invoked an Aunt Sally in the form and shape of the sub-judice rule.

The then Deputy President had not been asked to pronounce on the merits of the use of signal jamming devices in the parliamentary chamber. In other words, he had not been asked to pronounce on the lawfulness of such use. That question was at the time still being considered by the Western Cape High Court.

The High Court subsequently ruled on the merits question and the matter then served before the Supreme Court of Appeal.

Now that the Supreme Court of Appeal has ruled on the unlawfulness and unconstitutionality of the signal jamming, in September 2016 in Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others 2017 (1) SA 517 (SCA), he to whom the questions of fact were posed has still not answered them.

Fast forward to 2018 and, by then President of the country, he invoked the sub judice rule again in the parliamentary chamber when asked about the future of the then National Director of Public Prosecutions and the appointment of Mr Arthur Fraser at Correctional Services.

Declining to answer the question put to him in Parliament on 25 July 2019, the new Deputy President also invoked the rule when asked about the lawfulness of the investigation unit (also known as the rogue unit) that was established within the South African Revenue Service (the tax collection agency in South Africa) in 2007. That question is reportedly the subject of court proceedings. Opposition parties, citing the need for accountability, objected to the Deputy President’s refusal to answer the question.

But was Deputy President Mabuza correct in declining to answer the merit question about the lawfulness of the establishment of the rogue unit? Does his defence lie in the sub judice rule?

The rule has been invoked by a number of politicians, one could argue, when it appears to suit their purpose at the time. It is difficult to miss the clear pattern. They seem to invoke the rule when a question cuts too close to the bone, but when it is convenient – perhaps with a view to swaying public opinion in their favour – they have no qualms pronouncing on matters that are the subject of litigation. One example is the numerous tousled engagements between the Executive and the Public Protector.

Sub judice is the thin veil of choice by politicians when faced with awkward questions about things they have done or said which are the subject of a court case. It is a source of frustration to many journalists keen on an angle.

But what is the sub judice rule, really?

Of all legal defences known to Man, the sub judice rule is probably the most abused in South Africa. A relic of the trial-by-jury system, it was intended to serve as a shield for juries from possible improper influence of extra-judicial comments about the case on which they would soon deliberate and render a verdict. Thus, juries would be forbidden from talking to anyone outside their number about the case, lest they be improperly influenced.

Hence sub judice or “still under juridical consideration”.

But in South Africa there is no danger of a jury being improperly influenced by the loud factual musings of a Deputy President about a signal jamming device inside the parliamentary chamber, or of a President about the factual details as regards the future of a prosecutor or correctional service commissioner.

Here we have people called Judges to deliberate on these things. Our law affords them the presumption of impartiality, and the Constitution that safeguards their independence. In other words, Judges are presumed to be impartial and not susceptible to undue influence by media reports of what happened inside or outside the parliamentary chamber. It is, of course, a rebuttable presumption. But the point is it is generally accepted that Judges – trained in the discipline of weighing up relevant facts and applying relevant law to those facts based on sound legal principles – generally do not require the quarantine from the outside world to which lay people need be subjected during the hearing of a case.

In any event, what is said in the parliamentary chamber, stays in the parliamentary chamber. It is privileged and cannot be used to hoist a Deputy President by his own petard in subsequent court proceedings.

In short, the sub judice rule does not serve as protection from accountability or the obligation to answer awkward questions in South Africa. Here, section 195 of the Constitution places a constitutional obligation on public servants – which includes Members of Parliament, the President, Deputy President and all cabinet ministers – to be “accountable” and “transparent . . . by providing the public with timely, accessible and accurate information”.

Often the decision of the Supreme Court of Appeal in Midi Television (Pty) Ltd t/a E—TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) is cited for the proposition that the rule does not prohibit fair and accurate reporting of factual content of ongoing judicial proceedings by the media, as long as the report does not usurp the court’s role by prejudging the case or the legal issues involved. The SCA said:

“[12] . . . If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms – including the freedom of the press – are also compromised.

[13] The exercise of press freedom has the potential to cause prejudice to the administration of justice in various ways – it is prejudicial to prejudge issues that are under judicial consideration, it is prejudicial if trials are conducted through the media, it is prejudicial to bring improper pressure to bear on witnesses or judicial officers. . .”

But the Court was not there dealing with the sub judice rule. The case was about an interdict to stop the television broadcast of a documentary that the prosecuting authority felt might prejudice the administration of justice in a pending trial. The SCA articulated the standard as follows:

“In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.”

So, the sub judice rule does not seem to enter into the equation at all. In other words, prejudice caused to the administration of justice can be demonstrable and substantial whether publication or pronouncements are made in relation to an issue before court proceedings begin or while they are underway. It is not the timing of the pronouncement or publication that matters; it is rather the real risk that demonstrable and substantial prejudice may be caused to the administration of justice.

For example, articles have been published which, it may be argued, pronounce on the outcome of the “rogue unit” case in which a cabinet minister has challenged the Public Protector’s findings that the establishment of an investigation unit (also known as the rogue unit) within the South African Revenue Service (the tax collection agency) was unlawful. That case is currently before the courts. Yet, at least one journalist, invoking obiter dicta remarks (remarks that carry no binding legal significance) in a recent judgment of the Johannesburg High Court for the proposition that establishment of the SARS investigation unit in 2007 was not unlawful, has now plainly pronounced on the outcome of the pending case in which that very question is to be determined.

But that is not an instance of the breach of the sub judice rule. It is rather an example of demonstrable and substantial prejudice that such pronouncement may cause to the administration of justice. It matters less that the journalist entered the judicial fray while a court case is pending on that very issue. Of significance is that by her pronouncement she runs the real risk that demonstrable and substantial prejudice may be caused to the administration of justice. How? Because the public (87% of whom, the Chief Justice tells us, instinctively believe what they read in newspapers without question according to a study by the German and American intelligence agencies) will expect the outcome as prejudged by the journalist. If the outcome is different, there is a real risk that the public may start believing that the judiciary (or the legal system) is “captured”.

Therein lies the prejudice to the administration of justice, and that has nothing to do with the sub judice rule.

Another example – this time before legal proceedings have been launched – is the President’s pronouncement last Sunday evening (on 21 July 2019) that the Public Protector’s Report, that he tells us he will be challenging in court, is “fundamentally and irretrievably flawed”. The public has seen and heard that pronouncement. No doubt the judges who will hear the President’s challenge have too. What is the average citizen to expect of the judge hearing the case then?

Some among us will flippantly assert that there is nothing wrong with “a litigant expressing a view” on the prospects of success of his court challenge openly in public. But is it that simple? This is a President we are talking about, not an ordinary citizen. He appoints Judges. He has been portrayed generally in the media as “cleaning up” the state of corruption. Anyone who seeks to hold him to account is generally portrayed as standing in the way of the President’s efforts to clean up. Now he stands before the nation telling us, and the judge who will be assigned to hear his challenge, what the outcome of his application must be. And a Full Bench has recently elevated the President’s political campaign slogan, “New Dawn”, to the annals of South African jurisprudence.

In light of all these objective facts, can it genuinely be believed by an objective observer that the President’s pronouncement poses no real risk of demonstrable and substantial prejudice whatsoever to the administration of justice? Again, the sub judice rule has nothing to do with this inquiry. There was no court case that had been filed when the President made the pronouncement. But does that make any difference whatsoever to the real risk posed by the pronouncement to the administration of justice?

Judicial independence and the presumption of judicial impartiality ought to dispose of any apprehension that Judges may be swayed by the President’s announcement last Sunday – 21 July 2019 – in these terms. But then the Full Bench of the Pretoria High Court did not seem prepared to run that risk when it ordered that the former President was not to appoint the Judge who would chair the “State Capture” commission because, said the court, he was conflicted.

From this, a number of awkward questions arise. Was that not a reflection more on the independence and inherent impartiality of the Judge than on the character of he who ordinarily appoints commission chairs? Put differently, what else could the Full Bench have feared, in making the order that it did, than suspicion that the former President might appoint a malleable Judge? Is that fear itself not an indictment on judicial independence and inherent impartiality?

If the idea in Midi Television (which has been followed in numerous subsequent judgments, including the Constitutional Court) is to prevent the usurpation of the court’s role which happens when prejudging the case or the legal issues involved, did the President not do just that when he told South Africa that the Report he was about to challenge is “fundamentally and irretrievably flawed”? Is that not a breach of the Midi Television standard?

Is Deputy President Mabuza on firm ground when refusing to answer a question on the lawfulness of an investigation unit, a question that is currently before court? In my view, yes. But does the basis for his refusal lie in the sub judice rule? In my view, no. On a proper reading of the Midi Television judgment, it seems to me the Deputy President’s justification may lie in his caution not to run the real risk of demonstrably and substantially prejudicing the administration of justice by pronouncing on the merits of an issue that is yet to be determined by the courts, especially when that process has already commenced.

So, if politicians play fast and loose with a rule of ancient origin intended for lay people in a jury system, and journalists honour it in its breach, what legal certainty does the sub judice rule provide? Has the time not come for the courts to say, as the appeal court said about another anachronistic relic many years ago, “requiescat in pace!” (rest in peace) to the sub judice rule, thereby paving a clear path to true accountability?

By |2019-07-26T15:06:47+02:00June 14th, 2019|Blog, General|1 Comment

The 2019 South African Cabinet Affair: Is the Constitution at Risk?

On Wednesday 29 May 2019, the South African President Ramaphosa announced his cabinet. Among the people he announced as part of his cabinet were Mr Pravin Gordhan (Mr Gordhan) and Mr Fikile Mbalula (Mr Mbalula).

PENSIONGATE

A week previously, on Friday 24 May 2019, the Office of the Public Protector had released a report in which it found that Mr Gordhan had “failed to uphold” and to “act in accordance with the [South African] Constitution”. This conclusion resulted from a finding by the Office of the Public Protector that Mr Gordhan had – while Minister of Finance in 2010 – approved early retirement, with full benefits, for a 55 year old senior civil servant and, at the same time, approved that civil servant’s continued remunerated appointment in the same position without a break in service.

The Office of the Public Protector took the view that on the facts presented to it, “there was no retirement in fact and in law”, and so the civil servant “was not entitled to early retirement with full benefits”. It concluded in the report that Mr Gordhan was not authorised by applicable legislation to approve the early retirement and the re-appointment of the civil servant. It found that the arrangement was “contrived and not lawful”.

By way of remedial action in terms of the powers conferred on it by section 182(1)(c) of the South African Constitution, the Office of the Public Protector directed that the President

“take appropriate disciplinary action against [Mr Gordhan] for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on Members of the Cabinet in terms of section 92(3)(a) of the Constitution to act in accordance with the Constitution”

For convenience and ease of reference I shall refer to this matter as “Pensiongate”.

On Tuesday 28 May 2019 – the day before the President announced his cabinet – Mr Gordhan launched an application in the High Court challenging the jurisdiction (or power) of the Office of the Public Protector to investigate Pensiongate.

He also wants the High Court to declare that the Office of the Public Protector has acted not only in contravention of the Public Protector Act but also in contravention of the Constitution itself. In addition to seeking a costs order against anyone who may dare oppose his application, he also wants the High Court to order the Public Protector herself to pay costs of his application from her own pocket and on a punitive scale.

In short, Mr Gordhan wants the High Court to set aside the report of the Office of the Public Protector as being “unconstitutional, unlawful, irrational and invalid”.

DUBAIGATE

On 19 December 2018, the Office of the Public Protector released a report in which it found that Mr Mbalula had acted in contravention of the Executive Members Ethics Code and the South African Constitution.

This conclusion resulted from a finding that Mr Mbalula had – while Minister of Sports – taken a holiday to Dubai with his family which was funded by a company that at that time did business with a sporting federation (SASCOC) that fell under the auspices of Mr Mbalula’s department and so constituted a conflict of interest on his part.

No remedial action was taken against Mr Mbalula by the Office of the Public Protector. Nevertheless, he threatened to challenge the report in the High Court. It is not clear whether or not he did.

THE LAW

In numerous interviews, attorneys for Mr Gordhan have consistently expressed the view that the report of the Office of the Public Protector has no legal effect (in other words, it is suspended) because Mr Gordhan has launched review proceedings to have it set aside. This view has been repeated by various analysts and reported, with apparent approval, by almost all journalists on the story.

But this view does not seem to accord with what the courts have said. It is the only issue that is dealt with in this discussion.

The merits of the review application will not be discussed here.

But before we get to what the courts have said about the status of the report of the Office of the Public Protector, it is important to distinguish between two court processes, namely, an appeal and a review.

Difference Between Appeals and Reviews

This is a complex subject but I shall try to simplify it.

In an appeal, the appellant challenges the correctness in law of the decision of the lower court or tribunal. In other words, the appellant wants the higher court or tribunal to reverse the decision on the ground that the decision is wrong in law.

In terms of the Rules of the High Court, and now also in terms of the Superior Courts Act of 2013, once the appellant has given notice to the respondent that he intends challenging the decision on appeal, the decision appealed against is automatically suspended, unless the respondent brings an application for an order that the decision is not suspended, and that order is granted.

This makes perfect sense in law and logic because giving effect to a decision which is subsequently set aside as being wrong in law would bring the rule of law into disrepute.

Different considerations, however, apply where a decision is challenged by way of review. The question on review is not whether or not the decision is wrong in law or on a legal point. That is not the function of a review court. South African courts have said this.

This consideration may easily be confused – perhaps by non-lawyers – with some grounds of review under the Promotion of Administrative Justice Act, 2000 (PAJA), on the one hand, and grounds of review under the legality principle, on the other, which seem, on the face of it, to look into the correctness of a decision in law.

Under PAJA and legality review, it is the “action” or “conduct” or decision to do something (or not to do something) that is in issue. In an appeal, it is the decision (as in judgment or ruling) itself or the legal basis for the decision (as in judgment or ruling) itself that is in issue. In other words, a decision by a court or tribunal that an application for review of the report, even before it has been decided one way or another, suspends the report and its legal effect, is as a ruling either correct in law or it is not, and so is susceptible to appeal to a higher court or tribunal. But a decision of the decision-maker that is attacked on the basis that she has misdirected herself in law, or applied the wrong principle in arriving at her decision, or conducted herself unconstitutionally, goes to the conduct as informed by the misdirection or wrong principle and so is susceptible to review, not appeal.

In short, an appeal is concerned with whether the decision (as in ruling or judgment) is right or wrong in law. A review application is concerned with whether the decision is justified or not, or vitiated by some irregularity causing actual prejudice. In addition, South African courts have said that a review application cannot succeed unless the applicant can show that he has suffered actual prejudice. In an appeal, the decision being challenged will be reversed if it is found to be wrong in law, whether or not there is prejudice to the appellant.

Does a Review Application Suspend the Decision?

When a person is aggrieved by a decision on any of the recognised grounds of review – whether under PAJA or legality principle – and he wants to suspend the decision from taking effect until the review application has been finally decided one way or another, he usually brings an application in two parts but in the same papers.

“Part A” is usually an application for an interim interdict in which the applicant asks the court to suspend operation of the decision against him or, if implementation of the decision is already underway, to suspend further implementation until “Part B” (the review application) of the application has been decided.

“Part A”, seeking to interdict implementation of the decision, is usually sought on an urgent or semi-urgent basis. In that case the applicant will have to satisfy the court that because implementation of the decision is imminent, or has already commenced, he will not obtain substantial remedy in due course if the court does not stop the process of implementation now. He does that by way of interim interdict, not review. If the interim interdict is granted, then implementation of the decision will be suspended until the Part B review has been decided one way or another.

In order to secure the interim interdict, and so the suspension of the decision, the applicant will have to satisfy all four requirements for an interim interdict. But, even if he does, the court still has a discretion nevertheless to refuse the interdict if it considers it in the interests of justice to do so.

So, the “Part B” review application seeks to set aside the decision on the recognised grounds of review. That is all it does. It does not suspend implementation of the decision. It is the “Part A” interim interdict that does that. Thus, to those people who say it is ludicrous to implement a decision that may be set aside on review, this is your answer.

Two of the important requirements for an interim interdict are (1) that the balance of convenience favours the granting of the interdict than not granting it because of the (2) apprehension of irreparable harm that may be occasioned if the court should refuse to grant it now. These requirements are intended to address precisely the sort of concern that has been raised about the President implementing the remedial action taken by the Office of the Public Protector only for it to be set aside by the High Court by which time the person to whom the remedial action relates has been subjected to what by then is found to be unlawful or irrational or invalid or unconstitutional.

But Mr Gordhan has not asked the court for an interim interdict. That was his choice. He has simply asked the court to review the report and set it aside. So the protection of an interdict described immediately above is not available to him. There are a number of court judgments, including the Constitutional Court, that say a court cannot validly grant orders that the applicant has not asked for.

But what do the courts say about the legal effect of the report or remedial action of the Office of the Public Protector before it has been set aside by a court? This question can be answered with reference to three judgments. There are more but let us confine ourselves to these three.

In Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) the Supreme Court of Appeal said:

“But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully.  Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed?  In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided that its belief was correct?  In our view it was not.  Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question.  No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.”

So, even if the decision of the Office of the Public Protector is unlawful, it is binding and has legal effect until it has been set aside by a court in review proceedings. It cannot be ignored just because the person affected by it takes the view that it is unlawful or unconstitutional or irrational or invalid.

Just over a decade after the Oudekraal judgment, the Supreme Court of Appeal again reinforced the principle, this time in relation to a decision of the Office of the Public Protector.

So, in SABC v DA 2016 (2) SA 522 (SCA), the SCA said:

 “[I]t is well settled in our law that until a decision is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked (Oudekraal Estates (Pty) Ltd v City of Cape Town & others [2004] ZASCA 48; 2004 (6) SA 222 (SCA) para 26). It was submitted, however, that that principle applies only to the decision of an administrative functionary or body, which the Public Protector is not. It suffices for present purposes to state that if such a principle finds application to the decisions of an administrative functionary then, given the unique position that the Public Protector occupies in our constitutional order, it must apply with at least equal or perhaps even greater force to the decisions finally arrived at by that institution. After all, the rationale for the principle in the administrative law context (namely, that the proper functioning of a modern State would be considerably compromised if an administrative act could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question (Oudekraal para 26)), would at least apply as much to the institution of the Public Protector and to the conclusions contained in her published reports.”

That same year, in EFF v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC), the Constitutional Court, no less, said the following in relation to the status of the remedial action of the Office of the Public Protector and about the only means by which its sting can be avoided:

 “[O]ur constitutional order hinges also on the rule of law.  No decision grounded on the Constitution or law may be disregarded without recourse to a court of law.  To do otherwise would “amount to a licence to self-help”.  Whether the Public Protector’s decisions amount to administrative action or not, the disregard for remedial action by those adversely affected by it, amounts to taking the law into their own hands and is illegal.  No binding and constitutionally or statutorily sourced decision may be disregarded willy-nilly.  It has legal consequences and must be complied with or acted upon.  To achieve the opposite outcome lawfully, an order of court would have to be obtained.”

So, in order to avoid the legal consequences of the remedial action of the Office of the Public Protector “an order of court would have to be obtained”. The Constitutional Court did not say the launching of a review application avoids the legal consequences of the remedial action of the Office of the Public Protector. It said in order to achieve that result, an order of court would have to be obtained.

Mr Gordhan has not obtained an order of court. He has simply filed an application for review. He has not obtained an interdict. He has not yet obtained an order reviewing and setting aside the report of the Office of the Public Protector.

Neither has Mr Mbalula although no remedial action was taken in relation to him.

So, what now? The President has been directed by the Office of the Public Protector to

“take appropriate disciplinary action against [Mr Gordhan] for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on Members of the Cabinet in terms of section 92(3)(a) of the Constitution to act in accordance with the Constitution”

The President has not indicated what disciplinary action he has taken against Mr Gordhan (at least not at the time of writing this blog). The Office of the Public Protector is an important institution established in order to “strengthen constitutional democracy in the Republic”. Its decision may not be ignored willy-nilly, especially by the first citizen whom the Constitutional Court has described in these terms:

 “The President is the Head of State and Head of the national Executive.  His is indeed the highest calling to the highest office in the land.  He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country.  Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed.  The promotion of national unity and reconciliation falls squarely on his shoulders.  As does the maintenance of orderliness, peace, stability and devotion to the well-being of the Republic and all of its people.  Whoever and whatever poses a threat to our sovereignty, peace and prosperity he must fight.  To him is the executive authority of the entire Republic primarily entrusted.  He initiates and gives the final stamp of approval to all national legislation.  And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him.  Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis.  He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project.”

By not implementing the remedial action of the Office of the Public Protector, in the absence of an order of court by which the legal effect of the remedial action can lawfully be avoided, has the President not thereby contravened the very Constitution he has taken an oath to uphold?

Assuming the President simply “reprimands” Mr Gordhan as a form of giving effect to the remedial action, is that substantive compliance with the remedial action? Is that an effective remedy for what the Office of the Public Protector (a Constitutional institution charged with “strengthen[ing] constitutional  democracy in the Republic”) has found to be contravention of the Constitution itself? What message would that send about the President’s commitment to the Constitution and its values?

Often the argument advanced for ignoring the remedial action of the Office of the Public Protector is that the head of that Office has been found in two High Court judgments to be “incompetent”. While that is a ground for removal of the Public Protector from Office by a majority of two-thirds of the members of the National Assembly, does a finding of a court (which does not have the power to remove the Public Protector from Office) justify the President ignoring the decisions of the Office?

Also, what seems lost in the personalisation of the Office of the Public Protector is that this is an institution established in terms of the Apex Law of the country (the Constitution) by national legislation. It is not its incumbent head anymore than “the Presidency” is the President.

We have a popular President (if mainstream media reports and opinion pieces are an accurate indication) and an even more popular Minister in Mr Gordhan. Some may raise a concern, not without justification, whether the Rule of Law in South Africa today is driven by media popularity.

But there may be hope still that the courts are immune to being swept up in the strong pop culture currents. The Chief Justice has cautioned against judges sacrificing justice at the altar of public opinion. Whether or not any one of the many civic organisations in the country will, for the sake of constitutional certainty, dare ask the courts to decide whether the President’s conduct is an attack on the Constitution will be the measure of society’s own commitment to it.

By |2019-05-31T13:48:53+02:00May 30th, 2019|Blog, General, News|8 Comments

African Customary Law and its Place in South Africa’s Constitutional Framework: A Case Study

Following news that President Ramaphosa is considering the release from prison (or pardon) of King Buyelekhaya Dalindyebo – Aah Zwelibanzi!!! – a thought that I had at the time of the decision of the Supreme Court of Appeal in Dalindyebo v S (090/2015) [2015] ZASCA 144; [2015] 4 All SA 689 (SCA); 2016 (1) SACR 329 (SCA) (1 October 2015) and, subsequently, the Constitutional Court, re-emerged in my mind: Why is a King being charged under the Common Law for conduct that some, including the King, consider as falling under Customary Law?

The King was convicted of arson, kidnapping, assault with intent to do grievous bodily harm and defeating the course of justice. The conduct that formed the basis for these convictions is deplorable. About that there can, in my view, be no quibbling. But what role, if any, did Customary Law play in the courts’ assessment of the applicable law?

In a 43-page judgment, the Supreme Court of Appeal (the SCA) uses the phrase “customary law” on only 4 occasions. On all four occasions the SCA uses the phrase with a view to dismissing the King’s argument that the King’s conduct was done in accordance with customary law.

But not once is there a teleological treatment of the body of law that is Customary Law in the judgment. A passing reference is made to

“Professor Digby Sqhelo Koyana [testifying for the State] that customary law demanded that a King ensures the maintenance of law and order, protects the life and security of his people, act compassionately with due regard to the dignity of his subjects.”

The Constitutional Court dismissed the King’s application for leave to appeal against the judgment of the SCA. It does not appear to have heard oral argument on the substance of the body of law that constitutes Customary Law that had received no substantive treatment in the SCA.

Section 39(2) of the South African Constitution enjoins every court, tribunal or forum to promote the spirit, purport and objects of the Bill of Rights

“when interpreting any legislation, and when developing the common law or customary law”.

But what does that mean in practical terms? The common law is contained in actual texts dating back more than a thousand years. It has also received considerable teleological treatment in court judgments over hundreds of years. So, developing something one can touch and feel – and which has been the subject of debate among lawyers, judges, law students, law professors, legislators, and ordinary people – is not too difficult.

But what is the touch and feel of Customary Law? There have been frightfully few cases, since the South African Constitution came into effect on 4 February 1997, in which the subject of Customary Law has come up and received substantive judicial consideration in comparison to the common law. Why? The South African Constitution does not, on the face of it, create a hierarchy of laws between the common law and Customary Law. So, why is so there so little teleological treatment of Customary Law in our courts? Was section 39(2) of the South African Constitution, by its reference to the development of customary law alongside the common law, merely part of the CODESA settlement arrangement, intended merely to make Customary Lawyers and those who subscribe to it feel good about themselves and nothing more?

In the hope of finding some answers, given the back-handed treatment that Customary Law appears to have received from our courts over the years, I have decided to invite a teleological treatment of Customary Law from all South Africans, especially from those who care deeply about the development and mainstreaming of Customary Law. Young lawyers and students are especially encouraged to take up this invitation.

The assignment

  • The topic is: African Customary Law and its Place in South Africa’s Constitutional Framework: A Case Study.
  • The case of King Buyelekhaya Dalindyebo (aah Zwelibanzi!!!) and the VaVhenda Kingship case should serve as a central point of reference as regards how Customary Law is treated by our courts. You will have to read. (1) the High Court judgment and the SCA judgment in the King Dalindyebo (aah Zwelibanzi!!!) case, and the High Court judgment in the VaVhenda Kingship case.
  • Explore also what constitutional grounds, if any, arise in each case, and whether the Constitutional Court was correct in dismissing the King’s application for leave to appeal on your appreciation of the role that Customary Law should rightfully play in South Africa’s constitutional jurisprudence.
  • Obtain the papers filed in all 3 courts in the King’s case, and consider whether the grounds advanced on behalf of the King for the challenge were good or bad and why in each case. What would you have done differently? What case would you have put up in relation to the interface between Customary Law and Common Law in modern-day South Africa? Did the courts do justice to Customary Law, or did they ignore it?
  • Take note: what is required is not a mere critical analysis of the court judgments. That is only part of the task, and from a Customary Law perspective. The bigger task is to breathe life into Customary Law as you think it should have been applied by the courts in these two cases, and show whether in your view Customary Law has been accorded its rightful place in the South African constitutional landscape by reference to these two cases. If your thesis is that Customary Law has no role in South Africa’s constitutional landscape, develop your argument with reference to specific examples of Customary Law provisions that you consider to be inconsistent with specific provisions of the Constitution, bearing in mind the principle that where a law is capable of both a constitutional and an unconstitutional interpretation, the courts are enjoined to adopt the interpretation that saves the law from unconstitutionality.
  • I shall pick the paper that satisfies me most on (1) content, (2) style, (3) language, (4) quality of research output, (5) length (5000 is the absolute maximum. If you can make a compelling case in less, then by all means do so but not less than 3000 words. This is a research paper, not a blog). For your guidance on writing style see examples on this website. Click on the “Ngalwana Judgments” tab and the “Analysis and Reviews” tab.
  • Ensure that you use proper referencing and acknowledge your sources. Plagiarism will not be tolerated.
  • The ultimate object of the exercise is to elevate the status of Customary Law within our constitutional framework, and ultimately influence a constitutional process in giving practical effect to that object.

Terms and conditions

  • My decision on the winning paper is final.
  • Only the author of the wining paper will receive an award of R10,000 (Ten Thousand Rand).
  • If your paper has not been chosen, that does not mean your writing is poor. I can only pick one paper.
  • I reserve the right to pick more than one paper and merge them in “settling”. In that event, the award of R10,000 (Ten Thousand Rand) will be shared equally among authors of the selected papers.
  • No feedback will be given on papers not selected.
  • The winning paper will be “settled” by me and the terms of that will be discussed with the author. That means I reserve the right to edit your paper, either stylistically or substantively, or both.
  • The winning paper will be published on this website. It will bear the name of the author.
  • The deadline for submission of the final paper is 31 October 2019 at Midnight.
  • This invitation for expression of interest closes on Sunday 30 June 2019 at Midnight.
  • Expressions of Interest must include a proposed outline of the paper.
  • Only the first 20 expressions of interest will be considered
  • I reserve the right to adjust the deadlines
  • Expressions of interest must be submitted at this email address: anchored@anchoredinlaw.net and addressed to “The Editor”
  • The winning paper will be announced on this platform on 30 November 2019.
  • No correspondence will be entered into with individual authors of papers not selected.
By |2019-05-01T12:10:37+02:00May 1st, 2019|Blog, General, News|2 Comments

The Truth About Retirement Annuity Funds In South Africa: A Prologue

There appears to be a general misunderstanding as regards the legal obligation of a journalist when he or she learns of corrupt activity whether during the course and scope of performing his or her duties as a journalist or not.

This misunderstanding came into sharp focus this week following news of the release of a book by a journalist, Pieter-Louis Myburgh, in which he allegedly (I have not yet read the book) chronicles alleged corrupt activity by a senior politician of the ruling party.

Some people on social media suggested that the author should report his allegations to the police; others even went as far as to suggest that he has a legal obligation to report his allegations to the police. A well-known media personality then tweeted:

<:”I am just gobsmacked at number of people who truly believe journalists should ‘go to the police’. NOWHERE in the world do journalists do that. It is completely outside the ethics of journalism. Layers, doctors also restricted. Journalists expose rot, police must do the rest.”>/

Journalists in South Africa seem to believe that they can never be compelled to answer questions at a Commission of Inquiry (or a court) on the subject of their story, whatever the circumstances. This is incorrect. A journalist can be compelled to testify unless to do so would infringe upon his or her constitutional right or freedom unjustifiably. But whether compulsion would infringe upon any such right or freedom depends on the nature of each question, and can become clear only when the question is put (see Nel v Le Roux 1996 (3) SA 562 (CC) at para [7]).

There is in our law no general absolution of journalists from answering questions about their story in a Commission setting. Freedom of the press and other media does not provide license to a journalist to spread a false narrative about people, and then hide behind the sanctity of sources and press freedom.

The media in South Africa has some serious introspection to do in its coverage of Commissions of Inquiry. There are too many instances where it appears that some journalists have become emboldened to mount vitriolic attacks on judges personally for making judgments that the journalist does not like or with which the journalist disagrees.

Take the case of Jiba and Another v General Council of the Bar of SA and Another; Mrwebi v General Council of the Bar [2018] 3 All SA 622 (SCA) which found that the conduct of the two appellants did not deserve ultimate censure of being struck off the roll of advocates. A journalist, writing for Daily Maverick, so personally and trenchantly attacked two judges of the Supreme Court of Appeal in July 2018, effectively associating them with corruption at the highest level of government, that the General Council of the Bar of SA, the party on the losing end of that judgment, was moved to issue a media statement condemning the attack.

If judges can be so wantonly attacked by a journalist just because the journalist does not like the judgment, what hope does a Commissioner have in a Commission of Inquiry when issuing a report containing recommendations that are inconsistent with the narrative already carved out by journalists for an outcome favoured by them? Should the Commissioner wait until then, in the hope that the General Council of the Bar will condemn the attack, or should the Commissioner be given statutory powers to nip this undesirable and inappropriate practice in the bud?

What deterrent effect does an ex post facto condemnation of such personal attacks on judges have? I have not seen any.

Analysts

There is another burgeoning phenomenon in South Africa: that of “a political analyst”. The South African variety is difficult to place as the same person could one day be a radio talk-show host, a television show host the next, an analyst the next day, and a journalist when called for. Most striking is that the “political analyst” is often readily identifiable with one political narrative and leader, pushing that leader’s line at every opportunity, and exhibiting unmasked hostility towards another political narrative and leaders, excoriating them at every opportunity.

Such “a political analyst” poses a greater threat to a Commission of Inquiry because, as she is no “media” or “press” when wearing the “political analyst” hat, the media regulator can arguably have no power over her for misrepresenting facts given at a Commission. When posing as a hired gun, she can snipe with impunity at witnesses who present evidence that is unfavourable to her favoured politician or narrative.

What is the Commission to do in such circumstances: Issue a warning that such exploits “obstruct the Commission in the performance of its functions”, which the Commissions Act proscribes, or “prejudice the Inquiry”, which the “State Capture” Commission regulations prohibits, and so constitutes a criminal offence?

By |2019-07-17T13:04:22+02:00April 4th, 2019|Blog, General, News|16 Comments
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