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AmaBhungane Centre for Investigative Journalism NPC et al v Minister of Justice and Correctional Services et al (North Gauteng High Court, Pretoria. Case Number 25978/2017) 16 September 2019)

In what can fairly be described as a ground-breaking and far-reaching judgment, both for state security on the one hand, and freedom of the media on the other, one Judge sitting as the Pretoria High Court has declared as unconstitutional a raft of provisions of the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) and afforded Parliament two years within which to remedy the constitutional invalidity.

Until the constitutional invalidity, as declared by the Judge, in those myriad provisions of RICA has been remedied by Parliament, the Judge has, at the instance effectively of the media, directed how various provisions of RICA will read, including adding a new provision, section 16A, which is intended specifically for the protection of journalists and practising legal practitioners.

In terms of the South African Constitution, the declaration of constitutional invalidity as declared by the Judge will take effect only if the Constitutional Court confirms it. But in terms of the order of the Judge, it appears that the provisions read into RICA by the Judge take immediate effect, including the new provision that relates to journalists and practising lawyers. The provision which relates to the definition of “designated judge” takes effect six months after the date of the order by the Judge.

To be clear, Amabhungane did not seek an order that notice of surveillance by the state be given before the surveillance. The order that was sought was that notice be given after surveillance. See paras 86 & 87 of AmaBhungane Heads of Argument below.

Together with the Full Judgment, all sets of pleadings and written Heads of Argument by all parties are provided. Annexures to affidavits have not been provided.

Read the Full Judgment Judgment in AmaBhungane et al v Min of Justice et al – 16 September 2019:

Related documents: Written Arguments

AmaBhungane Heads of Argument

Amicus Heads of Argument

State Security – Court Address

State Security Heads of Argument

Justice, Defence & Police Heads of Argument

Pleadings

Notice of Motion

Founding Affidavit – Sam Sole

Answering Affidavit – SAPS Crime Intelligence

Answering Affidavit – Dep Min of Justice

Answering Affidavit – Chief of Staff SANDF

Answering Affidavit – DG State Security Agency

Replying Affidavit – Sam Sole

DA v Public Protector; CASAC v Public Protector [Case 11311/2018 & 13394/2018]

In a fit of pique (as demonstrated at the hearing of argument), the Pretoria high court, per Tolmay J, (1) declared that the Public Protector failed in her statutory and constitutional duties when investigating complaints in relation to the Vrede Dairy Farm Project in the South African province of Free State, (2) set aside the Public Protector’s Report as being unlawful, unconstitutional and invalid, and (3) held back for later determination its decision on whether or not the Public Protector should pay the costs of both the Democratic Alliance (an opposition political party in South Africa) and CASAC (a not-for-profit organisation) from her own pocket.

That was on 20 May 2019. Argument of four sets of Counsel had been heard on 23 and 24 October 2018.

The application had been launched, on separate occasions and (at least on the face of it) independently of each other, by the Democratic Alliance on the one hand, and CASAC on the other. Pleadings for the Public Protector had been prepared by one legal team in both applications. But a second team was briefed for purposes of argument so that one team would deal with the political party’s application and the other team with the not-for-profit organisation’s application.

On 15 August 2019, the Pretoria high court handed down judgment in the same case directing that the Public Protector pay a portion of both the costs of the Democratic Alliance and CASAC from her own pocket.

At the time of publication of this post, application for leave to appeal against the merits judgment had already been filed, while leave to appeal against the costs judgment was being prepared.

Read the Full Judgment on the merits here and the Full Judgment on costs here:

Related documents: Written Arguments

Public Protector Heads of Argument 3 Sep 2018

Public Protector Court Address – High Court

Public Protector Heads in CASAC Application

DA Heads of Argument

CASAC Heads of Argument in CASAC Application

Pleadings

DA Notice of Motion

DA Founding Affidavit

Public Protector Answering Affidavit in DA Application

DA Replying Affidavit

Vrede-Farm-Dairy-Notice-of-Motion & FA – CASAC

CASAC-v-PP-Supplementary-Founding-Affidavit-FINAL

Public Protector Answering Affidavit – CASAC

CASAC Replying Affidavit

Peter Moyo v Old Mutual et al (Gauteng Local Division. Case 2019/22791)

Mr Peter Moyo, Chief Executive of Old Mutual Limited, was first suspended (on 23 May 2019) and then dismissed (on 17 June 2019) by the board of directors of Old Mutual Limited. The reason advanced by the chairman, Mr Trevor Manuel, was that the board had lost confidence in Mr Moyo owing to conflict of interest on Mr Moyo’s part.

Mr Moyo in turn alleged that the reason for his dismissal was that he had raised issues of a triple conflict of interest on Mr Manuel’s part involving a multi-billion Rand commercial project in which he was director of all 3 companies involved, chairing 2 of the 3, and payment by Old Mutual of Mr Manuel’s legal fees in his personal litigation.

So, Mr Moyo approached the Johannesburg High Court in two parts, Part A and Part B. The first part sought relief in the following terms:

  • an order that the application is urgent
  • an order “temporarily reinstating” Mr Moyo as Chief Executive until Part B has been decided
  • an order stopping the Old Mutual board from taking any steps to appoint a replacement for Mr Moyo until Part B has been decided
  • costs in the event of opposition

Mr Moyo had also sought an order declaring that his suspension and dismissal were prima facie unconstitutional and unlawful. But, according to the judgment, he did not persist in these orders under Part A and so the court did not decide that issue.

In Part B, and within 60 days of this judgment, Mr Moyo was to seek relief in the following terms:

  • permanent reinstatement as Chief Executive of Old Mutual
  • in the alternative, contractual damages for breach of employment contract
  • in the further alternative, delictual damages for impairment of his dignity and breach of the Protected Disclosures Act
  • an order declaring the Old Mutual trustees to be delinquent directors
  • costs in the event of opposition

The high court granted all of Mr Moyo’s prayers in Part A, except those in which he did not persist.

The Court also specifically (in paragraph 64 of the judgment) rejected Old Mutual’s contention that the reinstatement sought had final effect.

Old Mutual and its board of directors have indicated that they will take the decision of appeal.

Read Full Judgment Moyo v Old Mutual et al High Court Judgment in Interim Relief

Related documents

Moyo Heads of Argument in High Court – Interim Relief

Old Mutual Heads of Argument in High Court – Interim Relief

Old Mutual Supplementary Heads

Moyo Application and Annexures 

Old Mutual Answering Affidavit

Old Mutual Annexures and confirmatory affidavits

President of the RSA v Office of the Public Protector and Others (91139/2016) [2017] ZAGPPHC 747; 2018 (2) SA 100 (GP) ; [2018] 1 All SA 800 (GP); 2018 (5) BCLR 609 (GP) (13 December 2017)

This is the case by which the State Capture Commission of Inquiry was established. The President sought to review the Public Protector’s remedial action by which she recommended that the Chief Justice appoint a Judge to act as Chairperson of the Commission on State Capture as the President was, according to her, conflicted. she said her office lacked sufficient resources to embark upon an investigation on State Capture.

The President argued, among other things, that the Public Protector had overreached herself in purporting to usurp the President’s constitutional function of appointing Commissions of Inquiry. The High Court disagreed and made an order that the President appoints a Commission of Inquiry but that the Chief Justice appoints the Judge who would chair it.

Full Judgment here

Notice of Motion & Founding Affidavit

Answering Affidavit

Replying Affidavit

Heads of Argument

Minister of Finance v Oakbay Investments (Pty) Ltd and Others; Oakbay Investments (Pty) Ltd and Others v Director of the Financial Intelligence Centre (80978/2016) [2017] ZAGPPHC 576; [2017] 4 All SA 150 (GP); 2018 (3) SA 515 (GP) (18 August 2017)

This case deals with a question that, surprisingly, comes up too often in the High Court, namely, in what circumstances is a declaratory order competent relief. The frequency with which this question comes up is surprising because the courts have answered this question many times. The general principle is that courts are there to resolve legal disputes between parties. They are not there to decide hypothetical questions or to provide legal opinion to applicants on issues they are grappling with. This is what the Minister of Finance sought from the High Court in this case. He sought an order declaring that he (as Minister of Finance) has no power in law to interfere with banks in their relationships with their clients. This arose because a party whose bank accounts had been closed by numerous commercial banks had approached the Minister to intervene.

The Full Bench dismissed the Minister’s application for a declaratory order, observing that the Court does not provide legal advice to the parties and that Courts consider it inappropriate for any party to come to Court for the confirmation of a legal question which is common cause between the parties.

Read Full Judgement here

President of RSA v Public Protector et al 2018 (2) SA 100 (GP) – President Pleadings

This is the case by which the State Capture Commission of Inquiry was established. The President sought to review the Public Protector’s remedial action by which she recommended that the Chief Justice appoint a Judge to act as Chairperson of the Commission on State Capture as the President was, according to her, conflicted. she said her office lacked sufficient resources to embark upon an investigation on State Capture.

Pleadings: NOM and FA here

Pleadings: AA here

Pleadings: RA here

Other documents relating to this case:

Full Judgment here

Notice of Motion & Founding Affidavit

Answering Affidavit

Replying Affidavit

President of RSA v Public Protector et al 2018 (2) SA 100 (GP) – President Heads of Argument

This is the case by which the State Capture Commission of Inquiry was established. The President sought to review the Public Protector’s remedial action by which she recommended that the Chief Justice appoint a Judge to act as Chairperson of the Commission on State Capture as the President was, according to her, conflicted. she said her office lacked sufficient resources to embark upon an investigation on State Capture.

Heads of Argument here

Other documents relating to this case:

Full Judgment here

Notice of Motion & Founding Affidavit

Answering Affidavit

Replying Affidavit

Pleadings: NOM and FA here

Pleadings: AA here

Pleadings: RA here

President of RSA v Public Protector et al 2018 (2) SA 100 (GP) – Public Protector Heads of Argument

This is the case by which the State Capture Commission of Inquiry was established. The President sought to review the Public Protector’s remedial action by which she recommended that the Chief Justice appoint a Judge to act as Chairperson of the Commission on State Capture as the President was, according to her, conflicted. she said her office lacked sufficient resources to embark upon an investigation on State Capture.

Heads of Argument here

Other documents relating to this case:

Full Judgment here

Notice of Motion & Founding Affidavit

Answering Affidavit

Replying Affidavit

Absa Bank Limited and Others v Public Protector and Others (48123/2017; 52883/2017; 46255/2017) [2018] ZAGPPHC 2; [2018] 2 All SA 1 (GP) (16 February 2018)

For the first time in the history of that Office since 1994, costs were sought by a party against the Public Protector personally. The basis advanced for this approach was, among other things, that the Public Protector had persisted in opposing all three applications launched by three applicants for the review of her remedial action by which she had directed, inter alia, that monies be recovered from Absa Bank which had been unlawfully paid by the South African central bank. The Full Bench also criticised what it termed “the unacceptable way in which she conducted her investigation” into what is colloquially known as the central bank’s “life boat” to a bank that has subsequently been acquired by Absa Bank.

The Full Bench made an order that the Public Protector personally (from her own pocket) pay 15% of the costs of the SA central bank on a punitive scale.

Read Full Judgement here

By |2019-02-08T09:15:19+00:00Jan 21st, 2019|Cases of Interest, High Court, Judgements, South Africa|0 Comments