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THE SOUTH AFRICAN IMMIGRATION QUESTION: HOW DID WE GET HERE? – By Dele Olojede, Founder and Host of Africa In The World ideas festival and Pulitzer Prize Winner

This past Tuesday, June 30, thousands of black South Africans marched in the streets of its towns and cities, demanding that fellow black Africans, whom they have deemed ‘illegal’, must immediately vacate their country. Happily, the worst fears of widespread anti-immigrant violence appeared to have been avoided. President Cyril Ramaphosa, roused at last from the craven inertia of his government, had appeared to broker a late night deal with some of the nativist leaders who have hitherto been violent in word and deed.

The day’s deadline for all of these ‘illegal’ Africans to go back where they come from was the culmination of years of periodic convulsions, in which many immigrant strivers, most horrifically the Somalis, have been killed, their entrepreneurial inclinations a ready magnet for township resentment.

African migrants in South Africa have become the scapegoat for the country’s myriad ailments, some structural from apartheid origins, but mostly a result of the catastrophic failings of the ruling African National Congress, which has been in charge of the country since 1994.

In the first 15 years since that historic advent of democracy, South Africa was a country clearly on its way to the promised land. It was led by capable and even inspiring leaders. Its economic management in those years was perhaps the most progressive and effective in the country’s history. Over a period of 10 years, it moved fully a quarter of its population into the middle class— a rate faster than even the Chinese managed. Despite notable failings, particularly in public education, most indications were pointing ever upwards. The economy saw periods of sustained growth. Even its sports teams, long denied legitimacy internationally, were riding the wave of an optimistic and united country. Bafana Bafana, the national football team, became African champions. Even more remarkably, South Africa integrated its beloved national rugby team, the Springboks, and has since gone on a successful campaign of world domination.

And then the ANC, the party of Pixley ka Isaka Seme, of Luthuli and Kathrada and Slovo and Tambo, decided to commit suicide in 2009 and handed the country over to Jacob Zuma, leading to an era of ‘state capture,’ institutionalized corruption, and the hollowing out of public institutions. Its municipalities have failed one by one. Potable water, electricity, and mass transit collapsed. The ANC has become more focused on renaming cities than running them. Unemployment rocketed to a third of the work force, including fully half of all young adults. A prolonged economic stagnation has sapped citizens’ confidence. The moral and intellectual collapse of the ANC has thrown the country into a sink hole, from which it is now trying to emerge.

These are not conditions suitable for a well-mannered and happy land. For the bottom half of South Africa that is really struggling and senses that the bright promise of democracy has recently turned out to be a cruel joke, it is not that hard to lash out at the ready scapegoats— the immigrants living amongst them. These Africans, some 90 percent of them from the neighboring countries of Zimbabwe, Malawi, Mozambique, Zambia, eSwatini and Lesotho, are surely to blame. They must have taken jobs, and freeloaded on public facilities, and must be subject to the tender mercies of the mob. With the approach of local elections, and with the once-dominant ANC now bleeding to death politically, many politicians have jumped on the anti immigrant bandwagon. For practical purposes, these “foreigners” are indistinguishable from citizens, since South Africa has more Sothos than Lesotho, more Tswanas than Botswana, and more Swazi than eSwathini.

Many Africans, from Harare and Nairobi and Lusaka and Accra and Lagos, are looking on in utter horror. The spectacle of African governments having to hastily arrange the evacuation of their citizens from South Africa, in order to protect them from harm, strikes many as a kind of betrayal. So tattered is South Africa’s reputation right now in the rest of the continent that many of us cringed in embarrassment as people in African capitals cheered for Mexico and against South Africa on the opening day of the current FIFA World Cup, which Bafana lost. That must be the first time in memory.

How did we get here?

I first set foot in South Africa on April 20, 1992, having flown from New York to the then Jan Smuts (now O.R. Tambo International) Airport in Johannesburg. My mission was to open an Africa bureau for my then employer, New York Newsday. Nelson Mandela had been out of prison for two years. Formal negotiations to end apartheid with as little convulsion as possible were under way. Apartheid as a means of organizing society was not yet formally dead, but it was most definitely in its death throes. My assignment, over the next four years, was to chronicle the birth of a new country in full democratic flowering— a country so stocked, as I came to find, with the world’s most extraordinary people at all levels of society, and across the canyons that then divided it.

On April 27, 1994 I stood but a few feet from Mandela to watch him cast his first vote ever, the same as millions of other black South Africans who were participating in that once-sacred civic ritual of choosing one’s own leaders. Later that morning I was back in Soweto, outside Johannesburg, and was witness to those improbably peaceful and inspiring miles-long lines of first time voters. There I met 75-year-old Sylvia Radebe, who said to me she was voting that day for her nephew. I asked if he was a candidate and she said no— that he was among the thousands of young people who fled to the rest of the African continent after the bloody Soweto Uprising of 1976, where they were given refuge and an education and communal support until they could return to their own country. Mrs. Radebe’s nephew was known to have fled to Tanzania, but was never heard from again and was presumed dead. It was in honor of his memory, she said, that she was voting that day.

That very day, when South Africans gave birth to a new country, was the greatest day of my life, rivaled only by the births of my two daughters on either side of that year of freedom. If, as I am, you are a Nigerian born at a certain time, say around the dawn of independence in 1960, you’d understand that we grew up believing that our greatest mountain to scale was the freedom from colonial rule of the entire African continent. By the time Rhodesia became Zimbabwe on April 18, 1980, we all knew the final domino to fall would be South Africa. This was not an isolated elite feeling. Even Nigeria’s then military government was militantly progressive on the question of ending apartheid. Citizens funded the liberation movements by voluntarily donating a portion of their paychecks. Mine, interning in 1980 at the department of information in Lagos, was 5 percent. We felt like the proud vanguard of African freedom. Thabo Mbeki was for three years the urbane pipe-smoking country rep for the African National Congress in Lagos in the late 1970s. He was a regular at Fela Kuti’s Afrika Shrine. ‘Zombie’ was the soundtrack of the Afrobeat Rebellion.

Years later, after Mbeki was elected Mandela’s deputy and later succeeded him as president in 1999, it was a given that South Africa and Nigeria in particular were going to forge an enduring alliance to drive Africa forward. The two countries formed a bi-national commission, comprising their entire cabinets, which met annually to plot African integration and set standards. This level of collaboration reached its apogee when Olusegun Obasanjo and Mbeki were president. It has been left to wither on the vine since the Zuma years.

Nowadays I spend much of my time in the rather pleasant surrounds of the Cape Winelands, where I also host an annual ideas festival. Stellenbosch for now exists in a kind of splendid isolation, where intellectuals and billionaire entrepreneurs, surrounded by regal mountains, dazzling vineyards and a twinkling sea, are accustomed to a kind of dance of the floreadores. We could not be farther from the urgent troubles of the world.

But even here, for the past several months I have fielded calls from panicked relatives and friends concerned for my safety and wellbeing. Many imagine the rampaging hordes have already descended on my verdant valley, armed with pangas and assegais and quite evidently without intending to entertain us with traditional Zulu dances and warrior chants. I have assured them, repeatedly but obviously unsuccessfully, that I am safe. Just this morning I received a call from a Nigerian friend, who in oligarch terms would have been right at home here in Stellenbosch.

“What are you still doing in that place”, he asked in evident astonishment. “All of us are looking at them with sadness and shock, because they have just told the rest of us that we are not brothers.”

For those of us who believe that an increasingly integrated Africa is our path to survival in a dysfunctional and hostile world, we have a lot of repair work to do.

Disclaimer: An abridged version of this article was first published in the Financial Times

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

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

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

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

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

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

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

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

The purpose of Race-Based Remedial Measures

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

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

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

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

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

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

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

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

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

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

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

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

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

The SA Constitution and the Legislation that gives effect to it

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

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

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

(3)      . . .”

Section 217 says:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Court pronouncements on Race-based Remedial Measures

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If Members of Parliament should themselves fail to hold the President to account for his failure to fulfil his constitutional obligation of Race-based Remedial Measures, citizens can approach the courts to force them to do just that. We have a perfect example of precisely the exercise of that right by citizens through a political party in South Africa’s Constitutional Court’s so-called Secret Ballot case [UDM v The Speaker and Others (CCT 89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) (22 June 2017)].

SA Government Policy

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

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

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

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

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

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

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

Conclusion

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

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

___________________________

 

By |2025-03-07T08:41:00+02:00March 5th, 2025|Blog, General, International|2 Comments
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President of the RSA v Jacob Gedleyihlekisa Zuma, DPP: KZN, NPA, Registrar: Jhb High Court (Cases ZAGPJHC 27676/2022)

The purpose of this short note is to summarise for the benefit of the general public, what the case was about in the Johannesburg High Court between President Cyril Ramaphosa and former President Jacob Zuma on Thursday 12 January 2023.

Because I represent an organisation that seeks to be admitted as friend of the court (amicus curiae), and I addressed the court briefly on that score, I shall not venture a comment on the merits of the argument of any party.

The object of this note is simply to state what the case is about without venturing into the merits or prospects of either party’s success, and then provide all the pleadings and written argument that is before court. I shall provide the judgment of the court, too, when it comes out. [PS Find the Judgment here –> President of the Republic of South Africa v Jacob Gedleyihlekisa Zuma 20230116

xxx

On Thursday 12 January 2023 extraordinary scenes played out in Court GC at the Johannesburg High Court. It was a day when a sitting President of South Africa faced off with his predecessor through lawyers in court.

President Ramaphosa, the sitting President of the ruling African National Congress (ANC) of Nelson Mandela [and also President of South Africa by dint of that position] had launched urgent court proceedings in which he seeks to be “excused from appearing before this Court on 19 January 2023 or on any other date pursuant to the certificate and/or the summons.”

The summons referred to had been issued by the sitting President’s predecessor, President Zuma, in December 2022. It summoned the President to appear in person at 09h30 on 19 January 2023 in Court GD of the Johannesburg High Court in connection with charges of (1) being an accessory after the fact to criminal offences allegedly committed by a senior prosecutor and a journalist, and (2) in the alternative, obstructing or attempting to obstruct the ends of justice.

The certificate referred to (known as a certificate nolle prosequi or “not to prosecute”) had been issued by a Director of Public Prosecutions (DPP) in November 2022. In it, the DPP certifies that she has seen all the statements and affidavits on which the charges in question are based, and that she declines to prosecute “any person in connection with this matter” at the instance of the State.

In South Africa, private citizens may embark on a private prosecution of another person if the national prosecuting authority (more accurately a DPP) issues a certificate nolle prosequi certifying

  • that s/he has seen all statements and affidavits in the docket
  • pertaining to a particular case
  • and declines to prosecute any person in relation to that case

The private citizen must have a material interest in the prosecution and may pursue it either personally or through lawyers.

Ordinarily, the certificate not to prosecute specifies the particular persons by name whom the DPP has decided not to prosecute at the instance of the State. That certificate then serves as a licence for the victim or materially interested person to institute a private prosecution against the persons named in the certificate. On this occasion, the DPP did not mention in the certificate the specific persons whom she has decided not to prosecute at the instance of the State in relation to the case in question. She stated that she has decided not to prosecute “any person in connection with the matter”.

Whether the President is “any person in connection with this matter” by reason of his name appearing in the docket as a witness and one to whom a complaint was lodged by the former President in connection with the matter is perhaps an issue that the High Court may decide.

The certificate lapses after 3 months if no private prosecution is instituted.

In his application, and on 12 January 2023, the President also asked the court to stop his predecessor from pursuing a private prosecution against him, or to take any further steps giving effect to the certificate and the summons.

He also sought costs of his application to be paid by his predecessor, alternatively by his predecessor’s legal representatives, and any other respondent that opposes the application, on an attorney and own-client scale, such costs to include the costs of two counsel.

Attorney and client costs are on a higher scale than “party and party” scale of costs. They are usually reserved for litigants who are regarded by the court as litigating vexatiously or in bad faith or recklessly or generally in abuse of the processes of the court.

However, at the start of argument, the President’s lawyers withdrew the costs claim against lawyers and sought costs only against the former President and on the lower party and party scale.

The former President argued that the President’s application is not urgent and that the court has no jurisdiction to entertain it.

In short, the Full Court of 3 Judges of the High Court was asked to consider and decide the following issues:

  • Is the President’s interdict application urgent?
  • Does the court, sitting as Motion Court, have jurisdiction or power to decide issues that, according to former President Zuma, ought to be decided by the Criminal Court?
  • Should the court, sitting as Motion Court, excuse the President from appearing in the Criminal Court on 19 January 2023 to answer the criminal charges preferred against him?
  • Should the court, sitting as Motion Court, stop former President Zuma from pursuing a private prosecution against the President?
  • Should the court, sitting as Motion Court, stop former President Zuma from taking any further steps giving effect to the certificate and the summons?

This is what is referred to as “Part A” of the application. The orders sought in Part A are usually intended to endure until the outcome of the application in “Part B”.

In the same notice of application, and in what is termed “Part B”, the President intimated that in due course he will seek orders in the following terms:

  • an order declaring that the summons is unlawful, unconstitutional, invalid and of no force or effect, and is set aside.
  • an order declaring that the certificate nolle prosequi is unlawful, unconstitutional, invalid and of no force and effect, and is set
    aside.
  • an order declaring that the private prosecution is unlawful, unconstitutional, invalid and of no force or effect, and is set aside.
  • an order that the costs of this application are to be paid by the former President, alternatively his legal representatives, and any other respondent that opposes the application, on an attorney and own-client scale, such costs to include the costs of two counsel.

This last order as to costs, as already pointed out, was withdrawn at the commencement of argument. It now appears that costs will be sought on the lower party and party scale against the former President and not against his lawyers.

The main bases for the orders sought in “Part B” seem to be two-fold: the first is that the former President has failed to comply with the requirements of the statute that regulates the institution of private prosecution: the Criminal Procedure Act. The second is that the private prosecution has been instituted for an ulterior purpose.

Driven by legal and constitutional issues that arise in the application, BlackHouse Kollective Foundation filed an application to be admitted as a friend of the court (amicus curiae) in order to address four issues of law. These are:

  • The requirement of a certificate nolle prosequi may serve as an impediment or unjustified limitation to the section 34 right of access to courts. A comparative study with private prosecution regimes in Canada, New Zealand and the United Kingdom seem to demonstrate that a certificate issued by the prosecuting authority is not necessary for successful private prosecution.
  • The national prosecuting authority ought to conduct itself without fear, favour or prejudice, and politics and politicians ought to play no role in the functioning of the prosecuting authority as currently seems to be permitted by the NPA Act.
  • The President’s seeking of costs on a punitive scale (attorney and client scale) against the legal representatives of his prosecutor is tantamount to what the Constitutional Court has recently termed a SLAPP suit (short for Strategic Litigation Against Public Participation). It may reasonably be seen, by reasonable observers, as intended to send a strong message against any legal practitioner who may dare consider representing anyone who should cross the President. This is a clear threat to our Constitutional Democracy, especially when engaged in by the President of the country.
  • As regards the equality principle, it is worth noting that in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) the Constitutional Court sentenced the former President to a term of imprisonment for his failure to present himself at the Commission of Inquiry as directed by the Concourt, notwithstanding a pending court challenge by him to the lawfulness of the Inquiry. The Constitutional Court had directed that he appear at the Inquiry despite the review challenge that was then pending in the high court. By this application the President is challenging the lawfulness of his prosecution. That is why he seeks to interdict it. The same considerations should apply to him. A different decision by this Court will leave more than just an impression that different rules apply to the sitting President, thereby breaching the equality principle enshrined in section 9(1) of the Constitution.

The court took the view that “the scholarship which [the amicus] has marshalled” may on the face of it be valuable to the main debate in “Part B” and not in the interdict application in “Part A”. The court then invited the amicus to approach the Deputy Judge President for purposes of facilitating a “consent order” (an order by agreement of all the parties) for participation of the amicus in the main debate, perhaps even as an interested party.

As I pointed out at the beginning, I represent the amicus in those proceedings. I shall thus not venture into the merits of the various arguments by any party or by the amicus.

I shall say this, however: the President withdrew his prayer for punitive costs against the former President’s lawyers after the amicus had filed its application and heads of argument raising concern about that very issue and submitting that it may be seen as constituting harassment and abuse of court process. The argument is set out in the written submissions and court address that was handed up in court by the amicus.

The Full Court indicated that it will hand down judgment in Part A of the President’s application on Monday 16 January 2023 at 09h30.

Here are the Pleadings:

Read the President’s Notice of Motion here –>Notice of Motion

Read the President’s Founding Affidavit & Annexures here –>FA & annexures

Read President Zuma’s Answering Affidavit here –> Pres Zuma Answering Affidavit & annexures

Read the DPP’s Answering Affidavit here –> DPP Answering Affidavit

Read the President’s Replying Affidavit here –> Pres Ramaphosa Replying Affidavit

Read the Amicus BHK Application here –> Amicus BHK Application

Read Pres Ramaphosa’s Answering Affidavit to Amicus BHK Application here –> Pres Ramaphosa Answering Affidavit to Amicus Application

Here are the written arguments:

Pres Ramaphosa Argument –> Pres Ramaphosa Heads

Pres Zuma Argument –> Pres Zuma Argument Final

Amicus BHK Argument –> BHK Heads of Argument

Amicus BHK Note for Argument –> Oral Argument

The NPA and DPP did not file any written argument of which I am aware.

Oral argument can be accessed here –> Ramaphosa vs Zuma court case – YouTube

By |2025-01-15T10:12:34+02:00January 14th, 2023|Cases of Interest, South Africa|2 Comments
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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 |2025-01-15T10:14:20+02:00June 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)
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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 |2025-01-15T10:14:20+02:00May 31st, 2021|Cases of Interest, South Africa|3 Comments
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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 |2025-01-15T10:14:40+02:00December 28th, 2020|Cases of Interest, South Africa|2 Comments
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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 |2025-01-15T10:14:41+02:00December 19th, 2020|Cases of Interest, South Africa|1 Comment
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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 |2025-01-15T10:15:13+02:00August 16th, 2020|Cases of Interest, South Africa|Comments Off on This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too
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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 |2025-01-15T10:15:13+02:00July 8th, 2020|Cases of Interest, South Africa|4 Comments
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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 |2025-01-15T10:15:13+02:00July 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)
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