THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 2

This is Part 2 of a paper on the fabled “lifeboat” or “bailout” afforded by the SA Reserve Bank to the Bankorp Group and Absa Bank between 1985 and 1995.

As pointed out in Part 1 of the paper, this bailout has been the subject of three investigations:

  • the Special Investigating Unit (“the SIU”), led by Judge Willem Heath, following a proclamation by President Thabo Mbeki, which concluded that the SA Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.
  • the Davis Panel of Experts, led by Judge Dennis Davis, appointed by Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – which reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.
  • the Public Protector who found likewise and went further to direct that the money be recovered from Absa Bank and other beneficiaries.

In this Part 2, we discuss the findings and recommendations of the three investigations and propose the way forward with reference to Constitutional Court authority.

Read the full Analysis here The Unfinished Story – SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 2

By |2021-04-30T19:32:25+02:00Apr 30th, 2021|Analyses and Reviews|2 Comments

THE JUDGE PRESIDENT vs JUSTICES OF THE CONSTITUTIONAL COURT – What Are the Missing Facts?

Facts Matter.

The South African public’s understanding of the long-running spat between the Cape Judge President, on the one hand, and Justices of the Constitutional Court acting as an institutional block, on the other, seems informed by much factual ellipsis.

In this short paper, I try to present some of the facts that, in my assessment, seem to have disappeared from public discourse on this case, resulting in some members of the public and analysts making some of the most extraordinary statements about the case. In the process I make some of my own observations about those facts which, if considered, may in my assessment possibly have resulted in a different outcome from the one recently reached by the Judicial Conduct Tribunal of the South African Judicial Service Commission on 9 April 2021.

In writing this paper, I am moved by a concern about the dominant fact-free narrative that seems to be treated as authoritative in public commentary on this case. My purpose, therefore, as the Code of Conduct for Legal Practitioners allows, is to help guide public understanding of the issues that have arisen or may yet arise in the course of the further conduct of this process, if any should follow.

As you read this paper, be aware that I was part of the Judge President’s legal team in 2008 until April 2009.

Read the Analysis here The Judge President vs Justices of the Constitutional Court – What are the Missing Facts PDF

By |2021-04-13T01:21:02+02:00Apr 13th, 2021|Analyses and Reviews|2 Comments

In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 5th segment

In this segment, we explore Transformation & related matters in the Legal Profession, particularly the dearth of black and women Counsel in the Constitutional Court appearing as Counsel and arguing cases. What is the reason for this?

Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa discusses this and other matters with us, including

  • in what instances the Constitutional Court would reconsider its own earlier judgment
  • in what way, if any, Judges are influenced by media reports.
By |2020-09-25T11:18:47+02:00Sep 25th, 2020|Legal Voices|Comments Off on In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 5th segment

In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 4th segment

In this segment, we explore the Process of Judging, and the “subconscious bias” that each Judge inevitably brings to bear on his/her judging process.

Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa helps us make sense of the “subconscious bias” with which Judges approach their judging.

Does Judicial Diversity mean there is space in the South African Judiciary for bigoted, racist, sexist, homophobic judges for the sake of judicial diversity?

By |2020-09-08T21:21:46+02:00Sep 8th, 2020|Legal Voices|Comments Off on In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 4th segment

In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 3rd segment

What is the “politics” that inform the dismissal of Applications for Leave to Appeal in the Constitutional Court without a hearing and without a reasoned judgment?

How many of the cases that go to the Constitutional Court are in fact heard in open court and why?

To whom do Judges account and how?

In this third segment, Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa talks to us on these and other burning issues.

By |2020-09-02T14:16:28+02:00Sep 2nd, 2020|Legal Voices|Comments Off on In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 3rd segment

In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 2nd segment

What does the Judgment writing process in the Constitutional Court of South Africa entail?

What is Justice? Does Law necessarily coincide with Justice?

In this second segment, Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa talks to us on these and other burning issues.

By |2020-08-27T11:29:28+02:00Aug 27th, 2020|Legal Voices|Comments Off on In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 2nd segment

In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 1st segment

Meet one of the youngest Judicial Officers, both as a magistrate and as a Judge.

In this first segment, Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa walks us through his journey to the Constitutional Court Bench, including some brushes with political activism.

This is the Justice who has written some of the seminal judgments of the Constitutional Court, including:

By |2020-08-21T12:39:36+02:00Aug 21st, 2020|Legal Voices|Comments Off on In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 1st segment

Interview with Judge President of the Gauteng High Court Dunstan Mlambo: BONUS Segment

In this bonus segment in a series, Vuyani Ngalwana SC is in conversation with the Judge President of the Gauteng High Court of South Africa, Dunstan Mlambo.

We explore more of the Man behind the Judicial Robes and gain some insights on his views on the following issues:

  • Transformation and Women Lawyers
  • Corruption “in the Judicial space”
  • The Inadequate Resourcing of the Courts
By |2020-08-18T14:14:52+02:00Aug 18th, 2020|Legal Voices|Comments Off on Interview with Judge President of the Gauteng High Court Dunstan Mlambo: BONUS Segment

Interview with Judge President of the Gauteng High Court Dunstan Mlambo: 5th Segment

In this fifth segment in a series, Vuyani Ngalwana SC is in conversation with the Judge President of the Gauteng High Court of South Africa, Dunstan Mlambo.

We explore more of the Man behind the Judicial Robes and gain some insights on his views on the following issues:

  • Is the perceived “Notoriety” of the Pretoria High Court Justified?
  • What does the preventing of the President in the “State Capture” case from exercising his constitutional power to appoint the Judge to Chair a Commission of Inquiry say about the presumption of Impartiality in a Judge?
  • What’s your view on South Africa’s briefing patterns?
  • Do Judges lose their political rights and free speech rights just for being Judges?
By |2020-08-13T17:00:21+02:00Aug 13th, 2020|Legal Voices|5 Comments

Interview with Judge President of the Gauteng High Court Dunstan Mlambo: 4th Segment

In this fourth segment in a series, Vuyani Ngalwana SC is in conversation with the Judge President of the Gauteng High Court of South Africa, Dunstan Mlambo.

We explore more of the Man behind the Judicial Robes and gain some insights on his views on the following issues:

  • What is the Role of the Courts: Law or Justice?
  • Is it Justice to dismiss an Application for Leave to Appeal without giving a reasoned Judgment?
  • Media and Matters of Law: Quo Vadis?
By |2020-08-11T13:33:47+02:00Aug 11th, 2020|Legal Voices|Comments Off on Interview with Judge President of the Gauteng High Court Dunstan Mlambo: 4th Segment