Public Protector v Speaker of National Assembly & Others; Democracy in Action v Speaker of National Assembly & Others (Cases WCHC 2107/2020 & 1731/2020)

From Monday 7 June 2021 to Friday 11 June 2021 the Full Bench of the Western Cape High Court (that is, a Court comprising three judges) heard argument in two applications, one by the Public Protector and another by an organisation called Democracy In Action.

This website was conceived in order to inform the public on law-related matters in a way that leaves room for the reader to draw his or her own conclusions. When an opinion is expressed, that is made clear.

This is not an opinion. The idea is to inform the reader of the purpose of the applications and then arm the reader with all the written arguments placed before Court by all the various Counsel. What the reader does with these, or makes of them, is the reader’s choice.

The Public Protector has asked the Court to

  • declare unconstitutional the rules devised by the National Assembly for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
  • declare, in the alternative, that the rules do not apply retrospectively (in other words, that the rules do not apply to conduct that occurred before the date of their adoption, 3 December 2019)
  • review and set aside the rules
  • review and set aside the National Assembly’s adoption of the rules
  • review and set aside the Speaker’s decision to approve the motion for the removal from office of the Public Protector

Read the Public Protector’s Heads of Argument here –> HoA – Public Protector

Democracy In Action has asked the Court to

  • declare that the National Assembly has failed to pass legislation in order to give effect to a power conferred on it by the Constitution
  • declare that 5 Chapter 9-related pieces of legislation, including the Public Protector Act, are unconstitutional for failing to make provision for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
  • declare that the rules adopted by the National Assembly are unconstitutional
  • declare that adoption of the rules by the National Assembly without inviting the input of the affected parties is unlawful and unconstitutional
  • direct Parliament to amend the 5 Chapter 9-related pieces of legislation within 2 years so as to provide for appropriate circumstances in which the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9  may be removed for office

Read the Democracy In Action’s Written Argument here –> DEMOCRACY IN ACTION HEADS OF ARGUMENT – 28 May 2021 Clean

Read Democracy In Action’s Oral Argument subsequently submitted in writing here –> Court Address – 10 June 2021

Read Democracy In Action’s Reply to Respondents’ Arguments here –> IN REPLY – Democracy in Action

Both applications are opposed by the same parties. The written argument can be accessed here:

Speaker’s Heads in Public Protector application –> HoA – Speaker in PP Application

Speaker’s Supplementary Heads in Public Protector application –> Part B Mkhwebane v Speaker – Speaker Suppl Heads – Final

Speaker’s Oral Argument Note –> PP v Speaker_Part B_Oral argument

Speaker’s Heads in Democracy In Action application –> Heads of Argument – Speaker

Speaker’s Oral Argument Note in Democracy In Action application –> DIA v Speaker_Oral argument

DA Heads of Argument in Public Protector application –> HoA – DA

DA Heads of Argument in Democracy In Action application –> DA Heads of Argument

DA Oral Argument in Democracy In Action application –> DA Note for DIA argument FINAL

DA Oral Argument in Public Protector application –> DA Note for PP argument

ATM Heads of Argument in Public Protector application –> ATM- HoA – ATM

Min of Justice Heads in Democracy In Action application –> Heads of Argument – Min of Justice

Min of Justice Oral Argument in Democracy In Action application –> Oral Argument – Minister of Justice FINAL

President Heads of Argument in Democracy In Action application –> HOA – President of SA

CASAC & Corruption Watch Oral Argument in Democracy In Action –> ARGUMENT NOTE ON BEHALF OF THE AMICI 11 June 2021

Final Report of the Panel on the Prima Facie case for Removal of the Public Protector –> FINAL REPORT OF THE INDEPENDENT PANEL EST i.t.o. NA RULE 129U AND Sect. 194 OF CONSTITUTION

By |2021-06-14T17:58:58+02:00Jun 14th, 2021|Cases of Interest, South Africa|Comments Off on Public Protector v Speaker of National Assembly & Others; Democracy in Action v Speaker of National Assembly & Others (Cases WCHC 2107/2020 & 1731/2020)

Ramos v Independent Media et al: A Judgment post note

On Friday, 28 May 2021, the Johannesburg high court declared that certain statements made about Ms Maria Ramos in print publication and other media platforms of the Independent Media are defamatory. The court ordered Independent Media to apologise to Ms Maria Ramos and retract those statements within 24 hours of the judgment.

The Independent Media did.

Despite some reservations about the correctness in law of the judgment, pragmatism has trumped the urge to assert on appeal and develop defamation jurisprudence in South Africa. In this short note, I set out some of those reservations about the judgment.

Often a judgment does not tell the whole story. This is to be expected because a Judge will recount only those issues of law (and fact) that s/he considers relevant for purposes of the judgment, sometimes much to the chagrin of Counsel (both on the losing and winning side) who may have wished the court to deal frontally with a specific question of law that the court has decided not to address.

Perhaps a complete set of heads of argument by both sides will help the reader appreciate the full story behind the judgment. So, I provide a link to them below.

Read the Full Judgment here –> Final judgment Ramos v Independent Media 28 May 2021.

Full Set of Heads of Argument

Ramos heads of argument

Ramos note for argument 2021-03-25

Heads – Independent Media – Final

Court Address – Independent Media

Reservations About the Judgment

Here are some of my reservations about the judgment. As a lawyer interested in the clarity and consistency in the application of law, it is my fervent hope that a suitable case will come along, before long, in which some of these issues will be addressed frontally.

I share these for discussion by lawyers and non-lawyers alike, in the hope that we can all help understanding and development of this seemingly fraught area of South African law which, in my view, seems hardly settled. To that end, I urge readers to read the judgment and the heads of argument (links appear above) filed by both parties, and then consider the merits of the points raised below.

  1. First, while Justice Keightley is with respect correct in identifying the issue in this case as being “the lawful balance to be struck” between media freedom, on the one hand, and human dignity and reputation, on the other, was the Learned Judge correct in finding that the human dignity and reputation of Ms Ramos trumps media freedom on the undisputed facts in this case? This question arises particularly because Ms Ramos does not deny that, despite the impugned statements made in the opinion piece about her and in numerous other media publications unconnected to the respondents, she continues to enjoy the fruits of her reputation and agency in the corporate environment, both locally and internationally. In the circumstances, should Justice Keightley not have found that the reputation of Ms Ramos has not been harmed by the impugned statements on the undisputed facts of this case?
  2. Second, is Justice Keightley correct in finding that “the statement need not be false” in order to found defamation? Does this finding not render otiose one of the defences to a defamation claim, namely, that the statement must be both true and in the public interest? Indeed, the Learned Judge finds, rightly, in paragraph 72, that “[t]his defence requires the respondents to establish not only that the statements were true but also that their publication was in the public interest” and in paragraph 74 that “[t]he respondents must establish that the sting of the statements is true”. In the circumstances, should Justice Keightley not have found that for a statement to found defamation it must be false? After all, as the Learned Judge has found, “Defamation is the wrongful and intentional publication of a defamatory statement concerning the plaintiff”. Publication of a statement cannot in law be “wrongful” if the statement is true and its publication in the public interest. So, should the Learned Judge not have so found?
  3. Third, while Justice Keightley is with respect correct in positing that “[i]f the defamatory meaning is more probable than the other, the defamatory meaning will have been established as a matter of fact. If the non-defamatory meaning is more probable, then the plaintiff will have failed to satisfy the onus she bears”, is the Leaned Judge correct in finding that the defamatory meaning has been established as a matter of fact on the undisputed facts of this case? Having decided that “[t]he article itself does not give any background to what was meant by the “rand fixing” or “fixing of the rand” to which it referred [and that] [f]or that context we have to look outside the article”, should the Learned Judge not have found that the non-defamatory meaning was more probable than the defamatory meaning on the facts of this case and in the broader context to be found “outside the article”?
  4. Fourth, having decided that “we have to look outside the article” in order to find the context in which the phrases “rand fixing” and “fixing of the rand” are used in the article, is Justice Keightley correct in confining her gaze for context in the article, as expressed in the finding: “There is no express indication in the article that it is about corporate responsibility or accountability, as the respondents aver. Nor can this meaning be implied”? Is this finding not at odds with the context that, on the Learned Judge’s own finding, is to be found “outside the article” for purposes of arriving at the meaning that a reasonable reader of ordinary intelligence would ascribe to the article, especially having regard to other publications in other media about the same issue in relation to Ms Ramos? It is clear from those other publications (which a reasonable reader of ordinary intelligence will have seen and read) that Ms Ramos has been implicated not in her personal capacity but in her representative capacity as Chief Executive of Absa Bank. In these circumstances, should the Learned Judge not have found, consistent with her earlier finding, that the full context of the meaning is to be found “outside the article”, and consequentially avoided the exercise of a painstaking analysis of the article, phrase-by-phrase, word-by-word, in order to arrive at a conclusion that the article bears a defamatory meaning? The Learned Judge’s finding of a defamatory meaning is founded entirely and exclusively on her analysis of the article, shorn of the context provided by material “outside the article”. Is this not a clear misdirection and incorrect application of the law as articulated by the Learned Judge herself?
  5. Fifth, is Justice Keightley correct in finding that, on the respondents’ version of the meaning of the article in relation to her representative capacity, “[a]ttheveryleastthestatementsmeanthatwhileshewasatthehelmofAbsashefailedinherexecutivedutiesbycreatingaclimatewhererandfixingcouldtakeplace”? This finding is with respect entirely without factual or legal foundation. Does vicarious liability, or liability that attaches to a chief executive for the conduct of her corporation, require “creating a climate [for wrongdoing]”?
  6. Sixth, is Justice Keightley correct in dismissing the respondents’ defence of “truth and public interest” of publication of the statement that Ms Ramos should be charged but won’t be? The Learned Judge says the respondents must justify why Ms Ramos should be charged, and that pointing to “criminal charges” laid in 2016 by a political party does not prove the truth of the statement that she will not be charged or prosecuted while deserving to be. Does dismissing the defence on the ground that “the criminal charges laid against Ms Ramos have political origins” seem rational? Does that do anything to gainsay the truth of the statement that Ms Ramos faces “criminal charges” (as the Learned Judge puts it) for which she has not been prosecuted? Is the fact that these “criminal charges” were laid by a political party, for whatever reason, a relevant consideration? In the circumstances, should the Learned Judge not have found that the statement that Ms Ramos will not be charged or prosecuted despite deserving such prosecution rings true, and that its publication is in the public interest by virtue of her public persona and appointment to a position in Anglo-Gold Ashanti that Justice Keightley herself finds is “of public interest”?
  7. Seventh, is Justice Keightley correct in speculating that the reason for Ms Ramos not being charged or prosecuted following the criminal complaint laid against her in 2016 is that “the charges are politically motivated, without substantive criminal merit”? Does this speculation have any foundation in fact or law? The Supreme Court of Appeal has already ruled that motive is irrelevant in the making of a decision to prosecute. The Learned Judge does not know why the prosecuting authority has not prosecuted Ms Ramos following that 2016 criminal complaint. Is it not reasonable for the respondents to conclude from that failure by the prosecuting authority that Ms Ramos enjoys protection from prosecution? In the circumstances, should the Learned Judge not have found that the statement in the opinion piece, In any other country Ramos would have been charged with treason or corruption, but she won’t be. Rather, she’ll be appointed to chair more boards” is not without justification? On the undisputed facts, Ms Ramos has indeed been appointed to numerous boards following the breaking of the news that her bank was involved in rand fixing.
  8. Eighth, is the basis on which Justice Keightley dismissed the “fair comment” defence good in law? The Learned Judge dismissed the defence on the ground that there is no evidence that the facts relied upon and which have been in the public domain since 2016, 2017 and 2019 were widely published and that the reasonable reader of ordinary intelligence would remember them. Is this not a speculative basis for dismissing the defence? How would the Learned Judge know that the reasonable reader of ordinary intelligence does not remember what s/he has read in the media over these 5 years? By what standard and basis in fact can the Learned Judge reasonably reach the conclusion that news that has been in the public domain over 5 years has not been widely publicised? Should the Learned Judge not have found that these extraneous facts provide proper context for the “fair comment” defence, as she in fact does find in relation to ascertaining the meaning of the article when she says one must “look outside the article” for context?
  9. Ninth, is Justice Keightley correct in finding that “[t]he fact that Ms Ramos has not been prosecuted factually cannot be ascribed to her donation to the President’s campaign”? Where is the factual basis for this finding? In light of the undisputed fact that Ms Ramos has still not been prosecuted following a criminal complaint laid against her in 2016 (which the Learned Judge improperly dismisses as “politically motivated”), is it not reasonable for the respondents to take the view (and express it in the public interest) that Ms Ramos’ contribution to the President’s election campaign in 2017 may be one of the reasons she has not been prosecuted for what the Learned Judge terms “criminal charges”? In the circumstances, should the Learned Judge not have found that the respondents’ comment that the substantial donation by Ms Ramos to the President’s election campaign could be a factor in her being spared prosecution reasonably qualifies as fair comment?
  10. Tenth, is Justice Keightley correct in finding that the “reasonable publication” defence is not open to the respondents simply because they do not assert the truth of the statement that Ms Ramos personally fixed the rand? Does the finding not ignore Supreme Court of Appeal authority by which it is bound, namely, that a media defendant is entitled to publish a statement even if that statement is false and defamatory, “provided that upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time”?In the circumstances, should the Learned Judge not have found that the circumstances and time in which the article was published – the appointment of Ms Ramos as Chairman of Anglo-Gold Ashanti within a few years of a criminal complaint being laid against her, her substantial donation to the President’s election campaign, her other high profile appointments notwithstanding pending “criminal charges”, her alleged role in the rand fixing scandal that has been in the public domain for years, her public apology, reportedly, “for her role” in the rand fixing scandal, and her escaping prosecution on the 2016 “criminal charges” and possibly also on the rand fixing scandal – justify publication of the article in the manner it was published? Is the Learned Judge’s finding in dismissing the respondents’ “reasonable publication” defence not inconsistent with her own dictum in the following terms:

“Ms Ramos is a public figure, both politically, through her having held prominent positions in public sector, and financially, through her positions in the private sector. The article appeared at the time that Ms Ramos was appointed to chair the AGA board. An editorial piece on her appointment was timely…”

Can the fact that the article offered commentary beyond just her appointment on that occasion reasonably be said to detract from the reasonableness of the publication at that time and in those circumstances?

  1. Eleventh, is Justice Keightley correct in finding that Ms Ramos is entitled to a declaratory order in relation to reputational harm? It is clear from her own evidence and from the Learned Judge’s own findings that Ms Ramos has not suffered any reputational harm as a result of publication of the article as she has been, and continues to be, appointed to high positions in the corporate sector both locally and internationally. Should the Learned Judge not have so found?
  2. Twelfth, is Justice Keightley correct in finding that Ms Ramos is entitled to a final interdict in the circumstances of this case? Ms Ramos has failed to show either actual harm or harm reasonably apprehended. Her appointment despite her alleged reputational harm is testimony to this. Should the Learned Judge not have found that she is not entitled to a final interdict?   

In all these circumstances, is it not fair to assert that the Learned Judge erred in law and that there is a reasonable prospect that another court would come to a different conclusion, particularly on the constitutional question of the “lawful balance to be struck” in the factual circumstances of this case between media freedom on matters of public interest, on the one hand, and the reputation of a self-confessed public figure, on the other? The determination of that issue in this application is of vital constitutional importance and so the High Court cannot be the final arbiter of this. Reliance would be placed on the Constitutional Court’s authority that the Constitutional Court has final jurisdiction in the determination of questions of this sort, and that it has yet to pronounce definitively on this question.

Happy, and fruitful, discussion.

By |2021-06-01T09:00:21+02:00May 31st, 2021|Cases of Interest, South Africa|3 Comments

Secretary of State Capture Commission v Zuma CCT295/20: Written Submissions – By Vuyani Ngalwana

On 3 December 2020, the Secretary of the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission”) launched an urgent application in the Constitutional Court asking that court, among other things,

  • to declare that President Zuma is constitutionally obliged to appear before the State Capture Commission and account by giving evidence and answer allegations that he failed as President and head of the executive to fulfill his constitutional obligations;
  • to declare that Pres Zuma is obliged to comply with any summons served on him by the Commission;
  • directing Pres Zuma to appear before the Commission on 18 to 22 January 2021 and 15 to 19 February 2021 unless otherwise excused by the Chair, and to remain in attendance during that period;
  • directing that Pres Zuma must answer all questions put to him, subject to his invoking the right against self-incrimination but not the right to remain silent (which the Commission says is available only to accused persons).

This follows Pres Zuma leaving the Commission hearing on 19 November 2020, and not returning on 20 November 2020 when he was still under summons.

On 17 December 2020, Ngalwana filed a conditional application in the Constitutional Court to be admitted as friend of the court (amicus curiae) raising certain issues not raised by either party that he considers relevant and in the public interest for the Constitutional Court to determine together with the Commission’s application. The application is conditional upon the Constitutional Court granting identified relief in respect of Pres Zuma.  It seeks to complement, not oppose, the Commission’s application against Pres Zuma. It asks that the Constitutional Court take into account the “deeper public purpose” of the Commission by extending some of the relief sought in relation to Mr Zuma to other members of his cabinet and other senior civil servants and Eskom chief executive.

On 18 December 2020, CASAC also filed its application in the Constitutional Court to be admitted as friend of the court. It wants Mr Zuma to denied the benefit of the privilege against self-incrimination when answering questions put to him at the Commission.

On 22 December 2020, the Helen Suzman Foundation also filed its application to be admitted as friend of the court. Its focus is the centrality to the rule of law of the importance of everyone, including former head of state, obeying or complying with the summons and subpoenas issued by the Commission.

On 23 December 2020, the Chief Justice issued Directions conveying that all applicants for amicus status must file written submissions by 13h00 on 28 December 2020, but that they “will not present oral argument at the hearing on 29 December 2020” and that a decision as regards whether they will be admitted as friends of the court will be communicated in the judgment of the court.

On 28 December 2020, further Directions were issued laying the ground rules for the conduct of the hearing on 29 December 2020.

Read ALL the parties Written Submissions by clicking on the links immediately below:

Written Submissions

Heads of Argument in Secretary Commission v Zuma – 18 December 2020

Written Submissions in State Capture Commission v Zuma – Vuyani Ngalwana 28 December 2020

CASAC Heads of Argument – Secretary Commission v JG Zuma (Case No CCT 295-20)

HSF written submissions

Concourt Directions

Concourt Directions – 23 December 2020

Concourt Directions – 28 DEcember 2020

By |2020-12-28T14:34:11+02:00Dec 28th, 2020|Cases of Interest, South Africa|2 Comments

Is There A Case for President Ramaphosa and Others To Answer at the State Capture Commission: A Constitutional Court Intervention – By Vuyani Ngalwana

On or about 3 December 2020, the Secretary of the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission”) launched an urgent application in the Constitutional Court asking that court, among other things,

  • to declare that President Zuma is constitutionally obliged to appear before the State Capture Commission and account by giving evidence and answer allegations that he failed as President and head of the executive to fulfill his constitutional obligations;
  • to declare that Pres Zuma is obliged to comply with any summons served on him by the Commission;
  • directing Pres Zuma to appear before the Commission on 18 to 22 January 2021 and 15 to 19 February 2021 unless otherwise excused by the Chair, and to remain in attendance during that period;
  • directing that Pres Zuma must answer all questions put to him, subject to his invoking the right against self-incrimination but not the right to remain silent (which the Commission says is available only to accused persons).

This follows Pres Zuma leaving the Commission hearing on 19 November 2020, and not returning on 20 November 2020 when he was still under summons. It is not immediately clear whether he was in fact under obligation to return because the Chair announced on 19 November 2020 – after learning of Pres Zuma’s departure – that there would not be a sitting on 20 November 2020. Perhaps the Chair assumed that Pres Zuma would not return. Perhaps Pres Zuma conveyed that to the Chair. Neither the Commission nor Pres Zuma has explained precisely what the correct position is in this regard.

Ngalwana has filed a conditional application in the Constitutional Court to be admitted as friend of the court (amicus curiae) raising certain issues not raised by either party that he considers relevant and in the public interest for the Constitutional Court to determine together with the Commission’s application. The application is conditional upon the Constitutional Court granting identified relief in respect of Pres Zuma.  It seeks to complement, not oppose, the Commission’s application against Pres Zuma. It asks that the Constitutional Court directs the Commission to compel President Ramaphosa and other members of cabinet, senior civil servants and Eskom chief executive to answer questions on specific issues on the same grounds advanced by the Commission in relation to Pres Zuma in support of certain identified prayers.

If granted leave to intervene, written submissions by way of heads of argument will then be prepared.

As of the evening of Saturday 19 December 2020, no word had yet been received from the Constitutional Court, on the one hand, or either the Commission or Pres Zuma’s legal team, on the other, as regards their attitude towards the intervention application which was filed and served on 17 December 2020. The Commission filed its heads of argument on 18 December 2020, which it served on Ngalwana too, but says nothing about the intervention application in those heads of argument. Pres Zuma has elected not to participate in the Constitutional Court proceedings. Instead he has launched review proceedings in the High Court in relation to the Commission Chair’s ruling on Pres Zuma’s earlier application for his recusal.

Read the Full Conditional Application by clicking on the link immediately below:

Secretary of State Capture Commission v Zuma – Amicus Application 17 December 2020 (Intervention Application)

RELATED DOCUMENTS

Concourt Pleadings in State Capture Comm v Zuma (Commission’s Application)

Heads of Argument in Secretary Commission v Zuma – 18 December 2020

State Capture Terms of Reference – Original

By |2020-12-19T22:23:22+02:00Dec 19th, 2020|Cases of Interest, South Africa|1 Comment

This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Many people view the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission” or “the Commission”) with suspicion, at best, and as a witch-hunt specifically for President Zuma’s associates, at worst.

But is this justified?

A cursory reading of the Commission’s Terms of Reference and Rules reveals that such suspicion can either be blunted or blown out into the open or completely disproved.

ANYONE, whatever his or her status in life, who believes that any person should be called as a witness on specific issues, and be questioned on those issues by the Commission, can ask the Commission Chair to call that person as a witness. All you need do is send a written request to the Secretary of the Commission in which you

  • identify yourself
  • identify the person/s you want called
  • specify the issue/s on which you want the person/s questioned
  • explain why that evidence is likely to be valuable to the Commission in the performance of its work
  • link the issue/s on which you want the person/s questioned to at least one aspect of the Terms of Reference.

(The Terms of Reference – to which a link is provided below – have been amended since first being promulgated in January 2018, but not in a manner that materially affects the discussion here)

In this regard, Rule 9.1 of the Commission Rules says:

“If any person considers that a particular witness should be called to give oral evidence, a written request to this effect should be made to the Commission and shall include the reasons for the request and the likely value of the evidence of such witness. Such witness may be called at the discretion of the Chairperson.”

If the Commission Chair invites the person concerned, s/he must be questioned in terms of Rule 3.2 of the Commission Rules which says:

“A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.”

Since the primary purpose of a Commission of Inquiry is the pursuit of the truth, you are free to suggest a line of questioning to the Commission on the issues that trouble you. Ultimately, whether the person you have identified is invited to give evidence and be questioned at the Commission is for the Chair to decide. But the discretion of the Chair must be exercised judiciously, not on a whim.

If the Chair should refuse your request, you are entitled to reasons. If no reasons are given, or you find the reasons inadequate or irrational or unreasonable, you have a right to challenge the decision on review in the high court.

If the nature of the questioning should strike you as “sweetheart” questioning of the sort that is intended simply to go through the motions without any intention of extracting the truth, you have a right to challenge the process on review to the high court.

Now, the purpose of this brief opinion is this: it is unhelpful to stand on the sidelines hurling invective at the Commission when you can participate in making it a success. We live in what should be a participatory Democracy. PARTICIPATE.

Read an example of a Written Request by clicking on the link below:

Request to State Capture Commission – Website

RELATED DOCUMENTS

State Capture Commission DAY 133 TRANSCRIPT DD 2019-07-15 – Zuma Evidence

State Capture Commission Rules

State Capture Terms of Reference – Original

By |2020-08-16T20:21:58+02:00Aug 16th, 2020|Cases of Interest, South Africa|Comments Off on This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Formal Complaint to BCCSA Against eNCA on Publication of a False Story

On Monday 29 June 2020, at 13h50, eNCA (a 24 hour news channel) published a news report that the Supreme Court of Appeal (the SCA) – the second highest court in the South African hierarchy of courts – had, in dismissing the application of the Public Protector of South Africa for leave to appeal against a judgment of the North Gauteng High Court concerning the Vrede Dairy Farm project, found that

“the Public Protector should pay at least 85 percent of the costs in her personal capacity following the matter between her, the DA and the Casac.”

This statement was patently false. eNCA knew it to be false.

Distortion, exaggeration or misrepresentation of the news is a contravention of the Code of Conduct of the Broadcast Complaints Commission of South Africa (the BCCSA). eNCA subscribes to that Code of Conduct.

The Order of the SCA had been made on 21 June 2020 (more than a week before eNCA published its false statement). It was issued on 26 June 2020 (3 days before). Thus, when eNCA published its false news story, the Order of the SCA had been in the public domain for well over 48 hours.

There was nothing in the SCA Order, on any reading, that said the Public Protector must pay “at least 85 percent of the costs in her personal capacity”. The High Court had ordered that the Public Protector pays 15% of the combined costs of the Democratic Alliance (the main opposition party in Parliament) and CASAC (a not for profit organisation).

The SCA Order said:

“The application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason why an appeal should be heard.”

By the morning of Tuesday 30 June 2020, eNCA had furtively changed the false publication by removing the offending reference to “at least 85 percent of the costs” having to be paid by the Public Protector “in her personal capacity”.

As this “change” did not satisfy the BCCSA Code of Conduct, a complaint was lodged nonetheless.

The BCCSA Code of Conduct says:

“Where it subsequently appears that a broadcast report was incorrect in a material respect, it must be rectified forthwith, without reservation or delay. The rectification must be presented with such a degree of prominence and timing as in the circumstances may be adequate and fair so as to readily attract attention.”

A surreptitious change to the news story, effected seemingly overnight, without “attracting attention” to what has been corrected, is not in compliance with this provision of the Code of Conduct. It is for this reason that the complaint requests the BCCSA to direct eNCA to:

  • to issue an apology for the false report on all its platforms and prominently;
  • to make an undertaking it will never do so again both to the BCCSA and in such prominent apology;
  • to subject the person/s responsible for the false report to disciplinary hearing; and
  • to report back to the BCCSA within a reasonable period on the outcome of such disciplinary proceedings in a full report containing the bases for its findings and sanction, if any.

A bit of context for non-South Africans.

The Public Protector of South Africa is the equivalent of a Super-Ombud established in terms of the Constitution of South Africa to (1) investigate conduct in state affairs including public administration in any sphere of government, (2) report on that conduct, and (3) take appropriate remedial action which is binding until set aside by a court of law.

The current head of that office has been under attack these past two years both in the mainstream media and in the courts for her work, so much so, that a process for her removal from office has been initiated by the main opposition party in Parliament. She has been attacked mainly for her competence and alleged political partisanship. Despite complaining about the inadequacy of her office’s budget, it has now been further reduced, reportedly by about R58 million. And she has been ordered by the high court (now confirmed by a majority of the Constitutional Court) to pay from her own pocket 15% of the costs of an application brought by the South African central bank to have her remedial action against the central bank set aside. That is the context and significance of the eNCA false report.

It was conveyed to the BCCSA that this complaint would be published here, and so, too, the ruling of the BCCSA should it be provided.

Receipt of the complaint was acknowledged. We await the ruling.

Read the Full Complaint by clicking on this link: Complaint against eNCA to BCCSA – Website:

By |2020-07-08T14:51:20+02:00Jul 8th, 2020|Cases of Interest, South Africa|4 Comments

Esau & Others v COGTA Minister & Others: A Summary of the Judgment (26 June 2020)

On Monday 15 June 2020, the Western Cape High Court in Cape Town, South Africa, heard argument in a challenge by 5 university students, a civil servant, a media intern and a data analyst-cum-researcher against the provenance of the National Coronavirus Command Council (the NCCC) and the regulations and directions promulgated, ostensibly, in terms of the Disaster Management Act, 2002 (the DMA).

This took incredible courage on the part of a broad racial and gender mix of young people in 2020 South Africa, reminiscent of the courage of the 16 June 1976 youth who confronted the full might of the apartheid state and paid a heavy – and some the ultimate – price for principle, almost exactly 44 years ago to the day. This is what makes this case special for me. It is why I took it on without charge. It is why I am writing about it.

The courageous youth are:

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

Whatever the ultimate outcome of their courageous challenge, may their names be forever etched in South Africa’s legal history for posterity.

On Friday 26 June 2020, the court dismissed the challenge on all fronts in an 84-page judgment. It ordered that each party pays its own costs. The reason given for this costs order is that the applicants cast a wide net challenge, and the government made a few concessions in relation to the “confusion caused by statements on the role and powers of the NCCC” [para 259]. An unusual standard.

This is a summary of the Judgment not an analysis.

The summary of the Argument on behalf of each party is available here together with all the court papers. But, for your convenience, I recap the summary of the parties’ argument after giving a summary of the judgment.

Summary of Judgment

Short editorial comments are unavoidable in this summary. These are provided where necessary, and they do not constitute an analysis of the judgment.

I, together with 2 colleagues, represented the 8th applicant, Mr Dlamini, in the application. So, commentary is kept to the barest minimum and no analysis of the judgment is embarked upon.

With that foundation, let us now focus on the  summary of the judgment, with some editorial comments. The link to the Full Judgment is at the end.

 As regards trade or clothing directions, the court says the objective of preventing price-fixing and the concomitant unfair competition is authorised by regulation 4(6) and is not inconsistent with the DMA [paras 49 to 51].

[Except, the Trade Minister said in his sworn affidavit he issued his trade directions under regulation 4(10), not 4(6)]

As regards the nature of the NCCC, the court says nowhere in the papers does the COGTA Minister say the NCCC is Cabinet [para 68].

[Except, the applicants did not advance this argument. They said her counsel advanced this argument on her behalf in their written submissions [paras 28.2 & 28.3 of Cogta Heads]]

As regards establishment of the NCCC, the court says

  • this is a function of Cabinet organising itself into committees for which it does not require a law. Section 101 of the Constitution says the President must make decisions in writing if such decisions are made in terms of legislation or have legal consequences. But the President does not have to reduce to writing the establishment of the NCCC even though its decisions have legal consequences [paras 84, 85 & 88].
  • the applicants have not provided any evidence to contradict the averment that the NCCC is merely a Cabinet committee established to deal specifically with covid-19 [para 86].

[Except, this is something that is peculiarly within the knowledge of government.]

As regards the applicants’ formal request for the production of documents, records, transcripts and minutes of meetings on which the COGTA Minister relies for the establishment of the NCCC and for the decisions taken at those meetings in relation to covid-19,

  • the court says these are privileged and cites s 12 of PAIA (Promotion of Access to Information Act) [para 90].

[Except, Mr Dlamini did not seek these documents under PAIA; he did so in terms of the High Court Rules on the basis that if the court is to assess the truth or veracity of government’s claims, it must have access to the documents on which government relies for its probative value and not just on the word of the Minister.]

  • the court cites SARFU 2000 (1) SA 1 (CC) at para 243 for the proposition that Cabinet minutes are confidential [para 91].

[Except, the Constitutional Court also said, in the same paragraph cited by the court, “unless the interests of justice clearly demand”.]

  • the court says “[w]hen the Minister asserts that minutes of Cabinet meetings as well as those of its committees including the NCCC are confidential, there is nothing sinister or un-transparent about it … [as] confidentiality is the mechanism by which Cabinet protects the integrity of its discussions” [paras 93 & 94].

As regards the decisions of the NCCC, the court says they do not have legal consequences because they are subject to acceptance, rejection or modification by Cabinet or individual Ministers [para 96].

[Except the facts, taken as a whole, provide a different picture.]

As regards whether the NCCC usurped the powers of the National Disaster Management Centre, the court says

  • the Centre was not meant to take over Cabinet functions in the event of a national disaster [para 101].

[Except, the applicants did not make this argument]

  • there is no basis for the conclusion that the NCCC unlawfully usurped the powers of the Centre [para 112]

As regards grounds of review,

  • the court cites New Clicks 2006 (2) SA 311 (CC), para 126 for the proposition that the making of regulations under an empowering Act constitutes administrative action [para 121]
  • but the court does not say this. Instead it cites New Clicks for a different proposition regarding procedural fairness and reasonableness, and then concludes this section with references to the COGTA Minister having to balance the saving of lives with the preservation of dignity in the regulation-making process [paras 123 & 124]

As regards mootness – that the determination of the application will have no practical effect – the court says, except for the clothing directions that the trade Minister withdrew in June 2020, the determination of the lawfulness of other regulations is not moot [para 128].

[Except, the government’s legal team left the door open for those clothing directions to come back if the country were to revert to level 4 [para 6 of government heads]]

As regards the public participating process, the court says

  • the DMA does not require a public participation process before the issuing of regulations [para 161]
  • even if the regulations were issued without public participation, the Minister is dealing with a crisis and is in any event accountable to parliament [para 164]
  • the Minister also had to issue regulations urgently and that explains the truncated public participation process [para 166]
  • the requirement in s 59(4) of the DMA that the Minister makes the regulations available to the National Council of Provinces for adoption is also a form of public participation process [para 165]
  • it is not for a court to prescribe to the national executive just how truncated the public participation process should be in the regulation-making process [para 171]

As regards the object of the regulations, the court says

  • absent any evidence of the existence of less restrictive means of slowing the spread of covid-19, the court cannot interfere with the discretion of the Minister in achieving that objective [para 172]. [Except the applicants did provide such less restrictive means but the Minister dismissed them simply as “inadequate”]
  • section 126(2) of the DMA “notionally is broad enough to intrude upon existing legislation … in a disaster situation” [para 175]
  • the primary objective of the regulations is to save lives and health [paras 178 & 179]

As regards the lawfulness, constitutionality and validity of the impugned regulations, the court says

  • regulation 4(6) [which deals with the issuing of directions to protect consumers from predatory pricing of goods and services during national disaster and other competition issues] and regulation 4(10)(a) [which deals with the issuing of directions concerning the dissemination of information during the national disaster] are interrelated and cannot be separated as they are both aimed at dealing with the spread of covid-19 [para 196].

[Except, the Trade Minister said, expressly, in his sworn affidavit he did not issue his trade directions in terms of regulation 4(6) but rather in terms of regulation 4(10)(a)]

  • the clothing directions arose as a result of the national disaster. The dissemination of information in respect of the winter clothing is within the Trade Minister’s powers and so cannot be ultra vires (beyond the scope of) the DMA [para 197].

[Except this does not address the applicants’ argument that the Trade Minister relied not on regulation 4(6) but on regulation 4(10)(a) which says nothing about protecting consumers from unfair pricing and other competition issues.]

  • In any event the clothing directions were withdrawn on 11 June 2020 and so are of no force and effect [para 198].

[Except the government’s legal team told the court that new directions will be determined according to requirements in the event of level 4 being reinstated, raising the possibility that these same directions could return.]

  • Section 26(2)(b) of the DMA does not provide for the Minister to issue regulations that only augment existing legislation [para 200].

[Except the section does precisely that]

  • to augment means “to widen and give more value to” [para 201].

As regards new matter in replying affidavit, the court says the applicants cannot for the first time in replying papers require the government to discharge an onus that its regulations do not amend existing legislation [para 205].

[Except this is a legal proposition, not a factual one, and is perfectly permissible in reply or even heads of argument which the government could have dealt with in written and oral argument]

As regards rationality, the court says

  • there is a rational connection between the lockdown (confining people indoors) and containing the spread of covid-19 because that is the only known method [paras 219 & 220]
  • a deceased person cannot talk, cough, sneeze, or spread covid-19 whereas a living person can and so that is why movement is permitted for attending funerals and not for visiting living people [paras 242 to 244].

[Except this misses the point of the objection entirely. The applicants’ point was the irrationality of permitting up to 50 people to attend a funeral but criminalise one person for visiting a dying relative]

The management of the disaster involves issues of high policy. It is not for the court to prescribe to government how it should exercise its mandate in those circumstances [para 255].

[Except, the applicants never asked the court to do that. In fact, their respective written submissions make this quite clear in the opening paragraphs]

The applicants want regulation 19, which suspends the execution of eviction orders, to be declared unlawful. It follows that the applicants want eviction orders to be executed during lockdown despite the devastating consequences of that during a pandemic [para 257].

[Except, this is not the argument made by the applicants. The point was that regulations cannot amend existing legislation as regulation 19 seeks to do.]

To recap, the summary of the parties’ argument included this:

Summary of The Esau Team Argument

  • The application is not an attack on the choices the executive has made in order to deal with the covid-19 pandemic; it is an attack on how those choices have been made.
  • As regards the mootness point – that determination of the question on the provenance or lawfulness of the NCCC, the legality of its powers and exercise thereof, on the one hand, and determination of the rationality and constitutionality of the impugned regulations and trade directions, on the other, will have no practical effect – the Esau team said this is factually incorrect because the directions issued in terms of the alert levels 4 & 5 regulations have not been repealed by the 28 May 2020 alert level 3 regulations. For this proposition they pointed to regulation 2 of the 29 April 2020 regulations which lists repealed regulations and expressly state [in reg 2(3)] that the directions issued in terms of the repealed regulations remain in force until amended, varied or withdrawn by the minister concerned.

They said in any event, a court cannot avoid dealing frontally with questions of legality and constitutionality. For this proposition reference was made to 3 judgments: Jordaan [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC), para 8; Mohamed 2001 (3) SA 893 (CC), para 70; Pheko 2012 (2) SA 598 (CC), para 32.

Furthermore, the Esau team argued that a court has a discretion to deal even with issues that are moot: Pillay 2008 (1) SA 474 (CC), para 32.

They said the national state of disaster has been extended to 15 July 2020. The applications raise important constitutional questions of great practical importance not just for the applicants but for all South Africans too.

  • As regards constitutionality and validity of the covid-19 regulations, the Esau team argued that the COGTA Minister adopted a broad approach in tailoring the regulations. This runs against the general principle that laws that interfere with basic fundamental rights must be construed narrowly: Dadoo 1920 AD 530 at 552; Pheko 2012 (2) SA 598 (CC), para 37.

The argued that s 26(2)(b) of the DMA confers on the national executive the power to deal with the national disaster in terms of existing legislation “as augmented by” regulations and directions issued in terms of s 27(2) of the DMA. It does not give her the power to amend existing legislation. That is the function of Parliament. Yet the COGTA Minister has purported to amend existing legislation.

  • As regards rationality, they said there is both procedural and substantive irrationality.

On procedural irrationality, the Esau team argued that the invasive nature of these regulations into the fundamental rights of South Africans cried out for broad consultation of the people and not just the relevant portfolio Minister to whose portfolio a given restriction to a fundamental right relates. Promulgating regulations is a law-making process. Public participation is required by law even if not in the empowering legislation, because public participation ensures that the regulations are informed and responsive: Doctors For Life 2006 (6) SA 416 (CC), paras 205-208.

The COGTA Minister says she invited public comments on Saturday 25 April 2020. These had to be submitted by 12 noon on Monday 27 April 2020. By that day, she says she had received 70,000 written submissions. The regulations were drafted the following day on 28 April 2020 and issued on 29 April 2020. She does not say she considered the Public Participation Report provided to her. There is no humanly possible manner in which she and her team could have considered all those 70,000 submissions in less than 2 days, and properly applied their minds. So, for that reason the entire process of regulation-making was vitiated by procedural irrationality and the result of it must fall: DA v Pres, RSA 2013 (1) SA 248 (CC), para 39; Albutt 2010 (3) SA 293 (CC), para 69.

The COGTA Minister says the DMA does not require public consultation before issuing regulations. The Esau team says the Minister is wrong in this regard. In any event the SCA has ruled that even where the empowering Act does not require public participation, the fact that the functionary announces that public participation will take place, but later fails to ensure that it does, means that the functionary’s ultimate decision is for that reason procedurally irrational and unlawful: Scalabrini Centre 2013 (6) SA 421 (SCA), para 72.

On substantive irrationality, the Esau team mounts its attack based on reasonableness under PAJA [the Promotion of Administrative Justice Act, 2000] and the legality principle.

The Minister says the making of regulations is an executive act not an administrative act and so not susceptible to review under PAJA. The Esau team says the Minister is wrong again. When she issues regulations under s 27(2) of the DMA, she is exercising a public power in terms of national legislation, the DMA. She is not making policy. Therefore, the issuing of regulations is administrative action and susceptible to review under PAJA.

In any event, every public power must conform to the principle of legality.

Under these covid-19 regulations, going to work requires a permit; walking outside the home may only take place between 06h00 and 09h00; buying new clothes depends on whether it is a permitted clothing item; and buying a roast chicken or hot pie because you are unable to cook because of a disability or your age, is permitted only if it is delivered to your home, but not bought with your groceries. These are limitations to the right to human dignity. As the Constitutional Court said in Barkhuizen 2007 (5) SA 323 (CC), para 57

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

 Summary of the Dlamini Team Argument

  • Mr Dlamini is not challenging government policy or lockdown. His complaint is that he, as all South Africans, is expected to make huge sacrifices in relation to his fundamental rights (such as human dignity and movement) without being told exactly who is making the decisions that so adversely impact on these fundamental rights and on the basis of what law. For that he wants to hold government accountable. But he is constrained by absence of transparency and accountability on government’s part, which are two of the fundamental values and principles of public administration under the Constitution (s 195).

Fundamental rights is the place where Law and Politics collide. This being a Court of Law, the Law must prevail over Politics.

A long line of cases, beginning with Fedsure Life 1999 (4) SA 374 (CC), tells us that it is a fundamental principle of our constitutional order that those who exercise public power and perform public functions may do so only to the extent that such power or function is conferred on them by law.

Mr Dlamini’s case hinges on answers to 3 questions: (1) was the NCCC lawfully established? (2) does the NCCC have decision-making powers in law? (3) has the NCCC made any decisions, including policy decisions?

  • As regards the establishment question, the government has pointed to no law that confers on the President or Cabinet the power to establish the NCCC.

In para 15 of their written argument, Counsel for the government concede that there is no legislative or constitutional provision that empowers Cabinet or President to establish the NCCC or any committee.

Then they point to s 85 of the Constitution as a salutary provision affording a wide berth on the executive to coordinate its functions as it sees fit, including forming itself into committees. The Dlamini team said s 85 does nothing of the sort. At best, s 85 confers a power on the executive to coordinate functions of state departments and administrations. It confers no power on a committee to do such coordination. For the NCCC to perform executive functions you need a delegation of executive power in terms of s 238 of the Constitution. But the President has told Parliament that there has been no such delegation of power to the NCCC. That’s really the end of that.

Counsel for the government say it is normal for Cabinet to establish committees. Yes, says the Dlamini team, but where is the law that confers on it the power to do that? Section 26(1) of the DMA, to which the government team now points belatedly, says nothing different from what s 85 of the Constitution says. It confers a power on the national executive to coordinate national disasters. It does not give the executive the power to form an amorphous outfit to usurp the powers of an existing Centre during an emergency or disaster.

The Dlamini team pointed to a number of examples where it says the NCCC has usurped the powers of the Centre. One such example was s 20(1)(a)(i) of the DMA which confers on the Centre the power of “determining levels of risk” in a disaster; yet on 20 April 2020 the COGTA Minister told Cabinet that the NCCC “determines level of alert for each province and district” which “can be imposed by the [NCCC] as necessary, and the President told the nation on 23 April 2020 that the NCCC  “determined that the national coronavirus alert level will be lowered from level 5 to level 4 with effect from Friday the 1st of May”. The Dlamini team commended sections 15 to 23 of the DMA to the court for other examples.

  • As regards the decision-making powers question, the COGTA Minister has given no less than 6 conflicting versions, ranging from: the NCCC has no decision-making powers whatsoever, to: the NCCC takes “what could be termed critical decisions” to: the NCCC takes decisions only when it sits as Cabinet.

Then, says the Dlamini team, in their written submissions Counsel for the government add 4 more versions, including that the NCCC makes policy decisions, and that the NCCC’s functions, actions and decisions are, in fact, Cabinet functions, actions and decisions.

The Dlamini team argued that the NCCC has no decision-making powers in law in relation to a national disaster. Not in the DMA; not in the Constitution. And the government has pointed to no legislation that confers such decision-making powers on the NCCC.

  • As regards whether the NCCC has made any decisions, including policy decisions, the Dlamini team argued that the COGTA Minister and the President have given contradictory versions. But then their Counsel end the debate by making this submission in their written submissions:

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

In other words, says the Dlamni team, the NCCC decisions are Cabinet decisions and are therefore constitutionally compliant, according to Counsel for the government.

But since there is, on Counsel’s own argument, no constitutional or legislative provision conferring a power on the NCCC to make decisions relating to covid-19, these decisions are unlawful and must be set aside.

  • As regards the mootness point – that determination of the question on the provenance of the NCCC and the legality of its powers and exercise thereof will have no practical effect – Mr Dlamini says that this point is bad in its articulation, in fact and in law.

The COGTA Minister is herself uncertain of the point when she says the applicants’ complaints

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

This does not inspire confidence in the point.

In any event, the 28 May 2020 covid-19 regulations do not address Mr Dlamini’s complaint about the provenance or lawfulness of the NCCC and its continued making of binding decisions, including policy decisions, that it has no power in law to make. That is the factual flaw of the point.

The legal flaw in the point is that mootness is not necessarily a bar to a court considering a dispute if that is in the interests of justice to do. The Constitutional Court said so in Shuttleworth 2015 (5) SA 146 (CC); 2015 (8) BCLR 959; [2015] ZACC 17, para 27, and the High Court has just said so in NSPCA 2020 (1) SA 249 (GP), paras 36 to 42.

What is more, the government seems to blow hot and cold on whether or not alert level 4 restrictions may return. In paragraph 6 of Counsel’s written submissions they leave that door open; in paragraph 133 they say even if alert level 4 were to return, the trade directions “would not resurrect”. What is certain, though, is that there is no guarantee that alert level 4 may not return – with its restrictions. In these circumstances it cannot be said that the application is moot, or that it is not in the interests of justice to determine it.

  • As regards appropriate remedy, the Dlamini team says Counsel for the government make this submission in paragraph 31 of their written submissions after complaining that the relief sought is “overbroad” and must be dismissed:

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

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

Summary of the Government Team Argument

  • As regards attacks on the regulations under PAJA, the government team says the application is an attack on government policy. The courts cannot interfere with government policy under PAJA.

The promulgation of regulations in terms of s 27(2) of the DMA is more closely related to the formulation of policy rather than the implementation of legislation. This is so because s 26(1) of the DMA makes the response to disasters an executive function. So, the issuing of regulations aims to combat the disaster which concerns polycentric matters of high policy. It thus resides in the heartland of national executive function: ITAC v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC), para 101. For that reason, the issuing of regulations cannot be attacked under PAJA.

  • As regards the mootness point (that determination of the application will have no practical effect), Counsel for government argue that the issues in relation to the Clothing Directions are moot because alert level 4 has ceased and, together with it, the Clothing Directions.
  • As regards the provenance or lawfulness of the NCCC, the NCCC is a constitutionally permissible structure because s 85 of the Constitution confers a wide power on the President and Cabinet to coordinate executive functions as they see fit. Mr Dlamini’s search for some further statutory or constitutional provision empowering Cabinet to establish the NCCC is misguided. Cabinet’s power to regulate its own affairs is inherent in it being vested by s 85 of the Constitution with the executive authority of the Republic. The Constitution does not address the minutiae of how Cabinet must organise itself. This lack of specific provisions regulating and constraining the President in the organising of Cabinet internal affairs is intentional.

Cabinet’s deliberative and decision-making procedures are inherently political choices which will vary between governments, and when circumstances change: Murray and Stacey “The President and the National Executive” Constitutional Law of South Africa” OS 06-08, chapter 18 page 36.

The use of committees is generally recognised as a welcome and necessary feature for cabinets. The NCCC is a Cabinet structure comprising all Cabinet members. It is in fact a Cabinet committee. In fact, the NCCC is Cabinet by another name.

The interchangeable language used by the national executive between “the NCCC” and “Cabinet” is to be expected because sometimes Cabinet is acting when sitting formally as Cabinet, and sometimes it is acting through the NCCC.

This interchangeable language is constitutionally innocuous. The NCCC is a committee of Cabinet, comprising only ministers. The actions and functions of the NCCC are the actions and functions of Cabinet. Nothing prevents Cabinet from making decisions at the NCCC level, or elevating decisions of the NCCC to a formal Cabinet meeting, or for that matter making the decision at a meeting of the NCCC and then confirming that decision in a formal Cabinet meeting.

The drafters of the Constitution would have been aware that Cabinet would be likely to employ committees and, given the functioning of the modern state, would rely on committees extensively to function effectively and responsibly. If the Constitution was intended to limit the President and Cabinet’s powers to exercise their executive authority by prohibiting them from establishing and using committees, it would have stated as much expressly.

  • As regards whether the NCCC has decision-making powers in law, the NCCC has no decision-making powers reserved by statute for other Ministers and other organs of state.

The NCCC acts as a forum for discussion and debate on covid-19 issues.

It does on occasion make what could be termed “critical decisions” and there is nothing inappropriate with this provided such decisions are subsequently taken by Cabinet sitting as Cabinet.

The NCCC has the power to decide on lockdown alert levels, but this would require Cabinet approval.

The NCCC is a coordinating body given authority by Cabinet to do that. But, as a Cabinet committee, the NCCC is empowered, like Cabinet itself, to take binding decisions, including policy decisions, on behalf of government.

The NCCC is no more than a committee of Cabinet. On some occasions, it is taking decisions relating to covid-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant.

  • As regards whether the NCCC has in fact made decisions, including policy decisions, Cabinet took the decision to enter a strict lockdown phase, not the NCCC.

The NCCC decided to enforce a nation-wide lockdown for 21 days with effect from midnight on Thursday 26 March 2020.

The NCCC met again on 23 April 2020 and determined that the national coronavirus alert level would be lowered from level 5 to level 4 with effect from Friday the 1st of May.

The suggestion by the COGTA Minister and the President that the NCCC determined alert levels and enforced lockdown was simply imprecise language.

  • As regards constitutional validity of the covid-19 regulations, Counsel for government argued that some of the arguments raised in the Esau team’s written submissions relate to new attacks belatedly advanced and were not crisply pleaded in the founding papers. This has deprived government of the opportunity fully to address the arguments raised. In any event, should the Court hold that it may and should consider the issue, the applicants are reading into s 27 of the DMA substantial jurisdictional considerations that do not exist. Further, there is no inconsistency between the pieces of legislation identified by the applicants [the LPA, the Children’s Act, the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998, the Extension of Tenue Act] on the one hand, and the regulations, on the other, and the COGTA Minister was empowered to create offences as the DMA provides expressly in s 27(4) that regulations made under s 27(2) may include regulations prescribing penalties for any contravention of the regulations.

Government also argued that the regulations comply with the Constitution and that the regulations’ purpose of preventing the unmanageable spread of covid-19 is not only constitutionally permitted but constitutionally mandated. The limitations analysis under s 36 of the Constitution must be informed by the fact that any response to the pandemic may require choosing between a number of different and unpalatable options. To implement a rapid reduction of the transmission rate, a lockdown was required in addition to other behavioural tools provided for in the DMA. The right to life and the right to dignity, and the government’s concomitant responsibility to save lives justifies the limitation on other rights. For this proposition reliance was placed principally on Makwanyane 1995 (3) SA 391 (CC), para 144.

  • As regards the necessity of the covid-19 regulations, the lockdown was, and remains, necessary and the regulations were, and continue to be, necessary in order to give effect to the scientific advice that was received.
  • As regards procedural irrationality and the necessity for consultation, the regulations were published following a procedurally rational process, and the only consultation required when regulations are promulgated under s 27(2) is consultation with the “responsible Cabinet Minister”. Public consultation is not required by the DMA at all. This is in contrast to other exercises of powers in the Act. Reliance was placed on DA v Pres, RSA 2013 (1) SA 248 (CC); Albutt 2010 (3) SA 293 (CC); Kyalami Ridge [2001] ZACC 19 (29 May 2001).
  • As regards arbitrariness, Government argues that distinctions between activities are not irrational. To reduce the risk of transmission, the total number of opportunities for transmission must be reduced. This requires an unavoidable decision between allowing some activities that pose a risk of transmission but not others.
  • Regarding the appropriate relief in respect of the NCCC attack, Counsel for the government say the challenge has no merit and must be dismissed. In the alternative, they say: 

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

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

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

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

Read the Full Judgment here: Esau v Min of CoGTA final judgment (26 June 2020)

By |2020-07-01T18:58:44+02:00Jul 1st, 2020|Cases of Interest, High Court, Judgements, South Africa|Comments Off on Esau & Others v COGTA Minister & Others: A Summary of the Judgment (26 June 2020)

Formal Complaint to Office of the Public Protector on Eskom

On 5 June 2020 a formal complaint was lodged with the Office of the Public Protector of South Africa following media reports that Eskom had “in error” made an over-payment of, variously, R4 Billion or R5 Billion to an undisclosed contractor or contractors.

But the complaint goes further than that and invites the Office of the Public Protector to investigate, among other things:

  • The seven coal suppliers said to have been identified for charging Eskom “too much” and to what extent those contracts are being renegotiated
  • The basis for the Minister of Public Enterprises refusing to disclose to Parliament the prices that companies that supply Eskom charged Eskom for coal supplies, and to direct both the Minister of Energy and the Minister of Public Enterprises to disclose that information to Parliament
  • What the circumstances are surrounding the procurement of other forms of electricity sources in South Africa such as renewable energy, nuclear, etc with IPPs
  • Who the beneficial shareholders are (not just representative shareholders) in each of the IPPs doing business with government and/or Eskom
  • What the true nature and use of the funds recouped by Eskom through its annual Regulatory Clearing Account (“RCA”) application to Nersa is, and how it is accounted for in the Eskom financial statements, if at all
  • “Evergreen Contracts” or long-term contracts that Eskom has with contractors and what impact these have on Eskom’s finances, the price that ordinary domestic consumers of electricity pay to Eskom and National Treasury (or Nersa) that is often called upon to bail out Eskom or inject funds into Eskom
  • The identity of companies which have “evergreen contracts” or long-term coal supply contracts with Eskom
  • Whether the directors of Eskom involved in the making of decisions that are not in the best interests of Eskom and the domestic consumers of Eskom electricity may not be delinquent
  • Whether the internal auditors of Eskom (including members of the Eskom Risk and Audit Committee) and external auditors should not be held responsible for the financial problems at Eskom and/or referred to the South African Institute of Chartered Accountants (SAICA) and/or the Independent Regulatory Board for Auditors (IRBA) for investigation.

The complaint is brought in terms of s 6(5) of the Public Protector Act, 1994 which reads:

“(5) In addition to the powers referred to in subsection (4), the Public Protector shall on his or her own initiative or on receipt of a complaint be competent to investigate any alleged-

(a) maladministration in connection with the affairs of any institution in which the State is the majority or controlling shareholder or of any public entity as defined in section 1 of the Public Finance Management Act, 1999 (Act 1 of 1999);

(b) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a function connected with his or her employment by an institution or entity contemplated in paragraph (a);

(c) improper or unlawful enrichment or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in connection with the affairs of an institution or entity contemplated in paragraph (a); or

(d) act or omission by a person in the employ of an institution or entity contemplated in paragraph (a), which results in unlawful or improper prejudice to any other person.”

In terms of s 2 and s 3 of the Eskom Conversion Act, 13 of 2001, Eskom is a public company with its entire share capital held by the state. It is thus the “institution or entity” envisaged in s 6(5) of the Public Protector Act.  Thus, the Office of the Public Protector has jurisdiction to investigate these matters involving Eskom.

The Office of the Public Protector is a creature of the Constitution of the Republic of South Africa, 1996, established “to strengthen constitutional democracy” in South Africa.  It shares that heavy burden with only 5 other institutions. Other organs of state have a constitutional obligation to “assist and protect these institutions [so as] to ensure [their] independence, impartiality, dignity and effectiveness”.

No person or organ of state may interfere with the functioning of these institutions. It is a criminal offence to interfere with the functioning of the Public Protector. So protected is the importance and functioning of the Office of the Public Protector in South Africa that it is a criminal offence to insult the Public Protector or the Deputy Public Protector in connection with an investigation or to do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.

Any person convicted of interfering with the Pubic Protector or of insulting the Public Protector or the Deputy Public Protector in connection with an investigation could be fined up to R40,000 or subjected to a prison sentence of up to 12 months, or receive both such fine and imprisonment.

Read the Full Complaint by clicking at the links below, together with supporting documents:

RELATED DOCUMENTS

Complaint to Public Protector on Eskom – Website1

Eskom Integrated Report – FY 31 March 2019

Eskom Coal Cost Analysis

Summary on Eskom Coal Costs

CSIR ESKOM 2020 – Study on Electricity Crisis

By |2020-06-30T19:43:22+02:00Jun 30th, 2020|Cases of Interest, South Africa|Comments Off on Formal Complaint to Office of the Public Protector on Eskom

EFF v Gordhan; Public Protector v Gordhan (Cases CCT 232/19 & CCT 233/19) 29 May 2020

On 29 May 2020 the Constitutional Court of South Africa – the highest court in South Africa – handed down judgment in a much anticipated case between the country’s Public Protector and the Minister of Public Enterprises. The second largest political party had intervened.

The case raised at least two issues:

  • whether the Public Protector’s remedial action can be suspended by an application for an interdict pending the determination of a review application
  • whether the high court was right to order the head of the Public Protector Office, a Constitutional Institution, to pay any amount of the costs of an application from her own pocket when no reason is advanced for that order

The Constitutional Court answered the first question in the affirmative and the latter in the negative. Dealing with the second question, the Constitutional Court again re-iterated the applicable standard of “bad faith” and “gross negligence”. It then concluded on the personal costs issue as follows:

“The judgment of the High Court concerned an interim interdict against the Public Protector. The traditional tests of bad faith or gross negligence, albeit with a constitutional flavour, were not satisfied. Ordering personal costs where there is no factual basis to support this may have a deleterious effect on the Public Protector’s discharge of her vital constitutional mandate, whoever the incumbent might be.”

Read the Full Judgment here: Concourt Judgment in Public Protector v Gordhan & EFF v Gordhan – interdict of PP remdial action & personal costs order 29 May 2020

R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)

On 17, 18 and 19 September 2019, oral argument was presented at the UK Supreme Court (the highest court in the United Kingdom) on whether the UK Prime Minister’s advice to Her Majesty that Parliament should be prorogued (or suspended or discontinued without being dissolved) from a date between 9 and 12 September until 14 October 2019 was lawful.

Of the circumstances giving rise to this case, the UK Supreme Court said:

“It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a “one off”. But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.”

But what were those circumstances?

Since the question hinges on the lawfulness or otherwise of the prorogation of Parliament, that inquiry must of necessity begin by addressing the antecedent question: What is prorogation and how does it differ from Parliamentary recess and/or dissolution?

What is Prorogation?

Happily, a useful exposition in relation to that very question, as well as the distinction between prorogation on the one hand, and Parliamentary recess and/or dissolution, on the other, is contained in the UK Supreme Court’s unanimous judgment in these terms:

“2. Parliamentary sittings are normally divided into sessions, usually lasting for about a year, but sometimes less and sometimes, as with the current session, much longer. Prorogation of Parliament brings the current session to an end. The next session begins, usually a short time later, with the Queen’s Speech. While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.

3. Parliament does not decide when it should be prorogued. This is a prerogative power exercised by the Crown on the advice of the Privy Council. In practice, as noted in the House of Commons Library Briefing Paper (No 8589, 11th June 2019), “this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to”. In theory the monarch could attend Parliament and make the proclamation proroguing it in person, but the last monarch to do this was Queen Victoria in 1854. Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.

4. Prorogation must be distinguished from the dissolution of Parliament. The dissolution of Parliament brings the current Parliament to an end. Members of the House of Commons cease to be Members of Parliament. A general election is then held to elect a new House of Commons. The Government remains in office but there are conventional constraints on what it can do during that period. These days, dissolution is usually preceded by a short period of prorogation.

5. Dissolution used also to be a prerogative power of the Crown but is now governed by the Fixed-term Parliaments Act 2011. This provides for general elections to be held every five years and for an earlier election to be held in only two circumstances: either the House of Commons votes, by a majority of at least two-thirds of the number of seats (including vacant seats) in the House, to hold an early election; or the House of Commons votes that it has no confidence in Her Majesty’s Government and no-one is able to form a Government in which the House does have confidence within 14 days. Parliament is dissolved 25 days before polling day and cannot otherwise be dissolved. The Act expressly provides that it does not affect Her Majesty’s power to prorogue Parliament (section 6(1)).

6. Prorogation must also be distinguished from the House adjourning or going into recess. This is decided, not by the Crown acting on the advice of the Prime Minister, but by each House passing a motion to that effect. The Houses might go into recess at different times from one another. In the House of Commons, the motion is moved by the Prime Minister. In the House of Lords, it is moved by the Lord Speaker. During a recess, the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked and must be answered.”

The circumstances giving rise to the prorogation of Parliament in this instance are recorded in the Judgment. They are merely summarised here.

Circumstances for Prorogation

It appears that the Prime Minister advised Her Majesty to prorogue Parliament on 27 or 28 August 2019. What prompted the Prime Minister to follow that course is not clear. About the facts surrounding that advice, and the conversation between the Her Majesty and the Prime Minister, the Supreme Court has this to say:

“We know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister. We do not know what conversation passed between them when he gave her that advice. We do not know what conversation, if any, passed between the assembled Privy Counsellors before or after the meeting. We do not know what the Queen was told and cannot draw any conclusions about it.”

Yet, the Supreme Court found that the Prime Minister’s advice to the Monarch was unlawful. This conclusion appears to be founded on a handwritten note by the Prime Minister on a memorandum he had been sent by the Director of Legislative Affairs in the Prime Minister’s Office in which the Director recommended prorogation “to commence within the period 9th to 12th September [2019]”.

In his handwritten comments, the Prime Minister had characterised the September 2019 session of Parliament as a “rigmarole … introduced … to show the public that MPs were earning their crust.” He also wrote that he did not see “anything especially shocking about this prorogation”.

The conjecture is that the Prime Minister sought to stymie Parliament in performing its legislative function and holding him to account in the lead-up to 31 October 2019 – the Brexit date – given that he is on record as having promised to take the UK out of the EU with or without a deal come 31 October 2019. But that intention is just that – rumour or suspicion.

The Supreme Court seems to have given it much weight in its judgment as it appears to have factored it into its formulation of the standard by which it says the lawfulness of the Prime Minister’s advice to the Monarch is to be measured. It does so by looking at the effect of the prorogation rather than at the Prime Minister’s supposed intention or motive for it. That done, the unlawfulness finding was unavoidable because the effect of prorogation is that Parliament cannot function.

To quote the from the judgment”

“While Parliament is prorogued, neither House can meet, debate and pass legislation. Neither House can debate Government policy. Nor may members of either House ask written or oral questions of Ministers. They may not meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament. In certain circumstances, individual Bills may be “carried over” into the next session and pick up where they left off. The Government remains in office and can exercise its powers to make delegated legislation and bring it into force. It may also exercise all the other powers which the law permits. It cannot procure the passing of Acts of Parliament or obtain Parliamentary approval for further spending.”

So, if the lawfulness of prorogation is to be measured by the effect that it has on the business of Parliament, the Prime Minister simply had no escape hatch short of the separation of powers argument which the Supreme Court gave short shrift.

Prime Minister’s Argument and Court Finding

For the Prime Minister it was argued that the question of whether or not his advice to Her Majesty to prorogue Parliament was unlawful is not justiciable in the courts as that is a political question. Courts should respect separation of powers. The Prime Minister accounts to Westminster Parliament for his political conduct, of which this is one.

The UK Supreme Court gave short shrift to this argument in one short paragraph that cannot reasonably be faulted:

“[A]lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.”

As regards the Prime Ministerial accountability to Parliament argument, the UK Supreme Court said:

“[T]he Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. That is so for two reasons. The first is that the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Indeed, if Parliament were to be prorogued with immediate effect, there would be no possibility of the Prime Minister’s being held accountable by Parliament until after a new session of Parliament had commenced, by which time the Government’s purpose in having Parliament prorogued might have been accomplished. In such circumstances, the most that Parliament could do would amount to closing the stable door after the horse had bolted. The second reason is that the courts have a duty to give effect to the law, irrespective of the minister’s political accountability to Parliament. The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.”

Having found that the lawfulness or otherwise of the Prime Minister’s advice to Her Majesty to prorogue Parliament is justiciable, the UK Supreme Court then articulated the standard by which such lawfulness was to be tested. It said:

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The Supreme Court then found that, apart from merely characterising the continued sitting of what is already a lengthy session of Parliament as a “rigmarole”, the Prime Minister had advanced no reason – let alone a good one – for the prorogation of Parliament. On that ground, said the Supreme Court, on this standard the prorogation or advice to the Monarchy to prorogue Parliament was unlawful.

Quite how the Supreme Court could have come to this conclusion, having admitted to not knowing what had passed in conversation between the Prime Minister and Her Majesty, and to not knowing the content of what the Prime Minister told the Monarch, is not altogether clear.

But that is a subject for a detailed analysis, which this is not.

Read the Full Judgment UK Supreme Court Judgment – September 2019

Related documents: Written Arguments

Written Argument for the UK Prime Minister

Written Argument for Appellant in Miller Appeal

Written Argument for Appellant in Cherry Appeal

Written Argument for Lord Advocate in Miller Appeal

Written Argument for Ray MCcord – Intervenor

Written Argument for Counsel General for Wales

Written Argument for Sir John Major

Written Argument for Baroness Chakrabarti

By |2019-09-26T19:44:24+02:00Sep 26th, 2019|Cases of Interest, International|Comments Off on R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019)
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