Radical Economic Transformation is anchored in the Constitution of the Republic of South Africa, 1996. Pieces of legislation have been passed in order to give effect to it. The President of South Africa pronounced it in his State of the Nation Address. Yet, the term “Radical Economic Transformation” has become something of a swear word in recent years in South Africa. This raises the question: Why?

This short paper explores this question and more.

Read the full Analysis here RET – A Constitutional Perspective – Website

On Thursday 3 December 2020, the South African National Assembly is scheduled to entertain a vote of no confidence motion in the President. The motion was submitted some months ago by the African Transformation Movement (“ATM”) – a minority party in the National Assembly. It requested that the vote be done by secret ballot. The Speaker of the National Assembly, the upper house, refused. ATM demurred and has reportedly given the Speaker until close of business on Monday 30 November 2020 to reconsider her decision or face legal challenge.

Whether that legal challenge will come is anyone’s guess. Should it come, though, the very foundation of South Africa’s relatively nascent constitutional democracy is likely to be tested. And that’s a good thing.

South Africa has been here before, except on that occasion the Speaker asserted that she had no power to direct that a vote of no confidence in the President be done by secret ballot. She was mistaken. The Constitutional Court set her right and told her she does have a discretion so to direct. It armed her with a myriad factors that must be taken into account in the exercise of that discretion. In the end, the Speaker, on that occasion, relented and directed a vote by secret ballot.

The Constitutional Court judgment was in June 2017. The President narrowly survived the secret ballot no confidence vote in August 2017. Another vote of no confidence was scheduled for late February 2018. The President avoided that secret ballot judgment of his peers. He resigned on Valentine’s Day 2018.

Over 3 years later since the last no confidence vote, another President is facing the same hurdle and the Speaker’s decision looks likely to be challenged – again. This time, though, the applicable principles are clear.

Given that money has increasingly taken centre-stage during this President’s term in office, and at least two Members from the opposition benches have been outed as having received money from the President’s 2017 campaign funds the records of which remain sealed by order of court, it seems unlikely that the Speaker has applied her mind fully to the dangers that her decision to refuse a secret ballot poses to a conscience-laden exercise of each Member’s vote in that no confidence vote.

The Constitutional Court’s observations in paragraphs 81 and 82 in 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) [“the Secret Ballot Case] – regarding “money or oiled hands determining the voting outcome”, and the voting process degenerating into a “fear or money-inspired sham” – are particularly chilling, especially with the ever-looming spectre of the firmly sealed records of donations to this President’s 2017 election campaign in which records the names of many Members of Parliament – both those of his own party and those of opposition parties – could be featuring prominently, and likely to vote gratitude to the President for the largesse s/he may have received than conscience.

The stakes are high and should expose real (not imagined or rhetorical) fissures – if they ever genuinely exist between chameleon-esque politicians. In terms of s 102(2) of the South African Constitution, if the vote of no confidence in the President succeeds by a simple majority of 201 of the 400 Members of the National Assembly, the President and his entire cabinet (including deputy ministers) must resign. For that to happen, at least 33 ruling party Members must vote in favour of the motion and ALL opposition parties must also vote in favour.

Read the full Analysis here Deja Vu For Constitutional Democracy in South Africa

On 25 January 2018, the President of the Republic of South Africa established the eponymously titled Zondo Commission to inquire into “state capture”, corruption and fraud in the public sector including organs of state.

Rules and Regulations were then gazetted to regulate the proceedings and processes of the Zondo Commission.

One of those Rules is Rule 9.1 which affords every person the right to request the Commission to invite any person to give evidence at the Commission on specific issues that fall within the Terms of Reference of the Commission. Another is Rule 3.2 which confers upon the legal team (or evidence leaders) of the Commission to question persons who appear at the Commission as witnesses.

Rule 9.1 is important as it fosters participatory democracy and active citizenship particularly on matters of national interest such as the fight against corruption that seems endemic in South Africa if media reports are any indication. It ensures that the Commission cannot train its sights only on people carefully selected by it (for whatever reason) for investigation to the exclusion of others who are implicated in alleged corrupt conduct.

Where any person believes that persons not called by the Commission to give evidence and be questioned on matters of alleged corruption, “state capture” or fraud, that person is free to ask the Commission to invite such persons to be questioned by the Commission.

This request is intended as an example of how to go about doing so. If there are people you believe should be called to appear at the Commission, you have a right to do so by this means. The Chair, however, has a discretion whether or not to acquiesce in your request. As with the exercise of any judicial discretion, he is duty bound to exercise it judiciously and not capriciously as that may found a ground for the review and setting aside of his decision not to invite the witness, or the setting aside of his entire report for ignoring relevant evidence in coming to his findings and recommendations.

Among the persons in relation to whom the Request has been made are the President, former Deputy-President, former executives at state owned enterprises and current and former senior public service employees.

The Request includes video material that should be helpful to the Commission Chair in the assessment of the Request.

Read the full Request here Request for Oral Evidence by entire Cabinet as Witnesses to State Capture Commission – 24 November 2020

Related Documents

State Capture Terms of Reference – Original

State Capture Commission Rules

On 28 July 2020, the President of the Republic of South Africa gazetted some amendments to the Regulations of the Zondo Commission.

These amendments include enabling the National Prosecuting Authority to access information that has been gathered by investigators of the Zondo Commission, during the course of their employment by the Zondo Commission, and using that information in criminal proceedings against persons implicated by that information in criminal conduct.

Adv Malindi SC explores the constitutional challenges that these amendments pose. For example, if a witness called to give evidence at the Zondo Commission at a time when s/he is facing criminal prosecution, what implications does that have on the right against self-incrimination, among other rights of an accused person, if the Zondo Commission compels the person facing such criminal prosecution nevertheless to give evidence before it?

Read the full paper here Zondo Commission and Criminal Prosecution

On 4 August 2020, the Western Cape High Court, in Cape Town, South Africa (the Cape High Court), granted leave to appeal to the Supreme Court of Appeal, the second highest court in the South African hierarchy of courts.

The Cape High Court comprised two Judges. Reading the judgment, one got a sense that there was no appetite to grant leave. Extraordinarily, in a 43-paragraph judgment, it only emerges in paragraph 41 that leave may be granted.

This is an analysis of the judgment by a recent BA(Law) graduate student from the University of Cape Town. He laments the judgment as an opportunity lost to dealing with procedural and substantive rationality from a constitutional perspective, and hopes that the SCA gets to grips with that question.

Read the full paper here Analysis of LTA Esau Judgment – Thabo Nongogo 19 August 2020 Website

Many people at the receiving end of media focus on the basis of information obtained from “sources” about them are often at a loss as regards how it can possibly be permissible for a journalist to publish information about them without ever having spoken to them to check the accuracy of the information.

Not so long ago, the South African Minister of Finance found himself in that position when a headline in a Sunday newspaper screamed:

“Tito Really Wants Out”

He tweeted that the newspaper had not spoken to him for the story. The story itself did not cite “official” sources. It consisted entirely of inferences from the Minister’s past tweets.

In another more recent story, an online publication published a story quoting the Chairman of the South African Medical Research Council as saying cases of malnutrition at Chris Hani Baragwanath Academic Hospital were seen “for the first time” in May 2020 amid the hard lockdown imposed ostensibly to combat covid-19 in South Africa. The publication had not fact checked the assertion because, said the editor

“What she says matters and is deserving of publicity.”

The malnutrition story was subsequently disputed by the Minister of Health in an official cri de coeur, resulting in the publication issuing an ex post facto  “clarification”, with the editor later tweeting that he did not have to do a fact check since the person in question was an authority.

There appears to be disagreement among media experts on this view. One media expert and fact-checker is quoted as saying in a tweet:

“I strongly disagree. Journalists aren’t scribes. And no expert gets it right all the time. At the very least, the journalist should have established if Prof Gray had direct knowledge of the claim she was making about child malnutrition at Bara … The kind of journalism that publishes unverified claims and correct them later is not the kind of journalism that will help the industry build trust…”

So, what exactly are the ethics of fact checking in South African journalism?

This paper explores that question and finds the answer at the highest possible echelons of South African journalism, the South African Press Appeal Panel.

Read Full Analysis and Review here:To Fact Check or Not – Journalism and Ethics in South Africa

In the wake of the Covid-19 pandemic that has, reportedly, decimated populations around the world, the South African government came up with far-reaching interventions ostensibly to “flatten the curve” of the infection rate of this pandemic in the country.

This paper explores the constitutionality and rationality of some of those interventions. The two principal questions it asks – and seeks to answer – are

• why has government elected to anchor its intervention to fight a virus in the Disaster Management Act which seems designed to deal with other types of disasters?
• what is the rational connection between some of these interventions, on the one hand, and purposes specifically set out in the empowering legislation, on the other?

Along the way, an attempt is made at addressing some of the arguments that have been advanced in defence of the measures that government has taken to “flatten the curve” of Covid-19 infections.

Read the full paper here Covid-19-Regulations-Rationality-and-Constitutionality FINAL1

Judging – in the judicial sense – is a fine art and an imprecise science. There is rarely one “correct” answer in the resolution of a legal dispute between or among litigants. That is why a decision even of a Full Bench of three judges of the High Court can be reversed on appeal by the Appeal Court, and a unanimous decision of five judges of the Appeal Court in turn reversed by 8 to 11 judges of the Constitutional Court, the highest court in the South African court hierarchy.

It is also why 8 to 11 judges of the Constitutional Court can be split on an issue. On two occasions thus far, the Constitutional Court has even delivered a 5-5 evenly split opinion.

So imprecise is the science of judging that even a unanimous decision of 11 judges of the Constitutional Court is not necessarily the “correct” answer to a given legal question that serves before them. Thus, Ulpian – a prominent Roman jurist considered one of the great legal authorities of his time in the First Century – was probably right when he wrote (in Dig.49.1.1)

“an appeal sometimes alters a well-delivered judgment for the worse, as it is not necessarily the case that the last person to pronounce judgment judges better”

In fact, a court is not there to provide answers to difficult questions of law; there is a bevy of practising advocates and attorneys for that. The role of the courts, through the judges who preside there, is to resolve legal disputes between or among litigants.

The judges who decide legal disputes in our courts are not machines (the much-vaunted Fifth Industrial Revolution has not progressed that far). They are fallible humans with mood swings, political and religious beliefs, and personal prejudices which follow them wherever they may tread.

So, if we accept that judicial judging is an imprecise science, and that judges are fallible and carry their  personal prejudices to the bench, can it confidently be said that judges who decide cases from the prism not of the law as it is but rather from the prism of their personal prejudices (the law as they wish it to be or “Palm Tree Justice”) do so fairly, without favour or prejudice, as their Oath of Office or solemn affirmation enjoins them to do?

Enter Justice of the Constitutional Court of South Africa, Mbuyiseli R Madlanga, and offers this thesis:

“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”

This is a sentiment also expressed by Rebecca K Lee, an Associate Professor of law at the Thomas Jefferson School of Law in the United States in a paper titled, “Judging Judges: Empathy as the Litmus Test for Impartiality”, referenced by Justice Madlanga in this contribution with approval. It is available at https://www.anchoredinlaw.net/wp-content/uploads/2019/11/Judging-Judges_-Empathy-as-the-Litmus-Test-for-Impartiality.pdf.

As a sociological proposition, Justice Madlanga’s thesis raises an interesting question about human ability to self-correct. But as a jurisprudential proposition (or theoretical study of law) it raises difficult questions about ethics and the integrity of the rule of law.

For example, if a judge’s “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” is rooted in racism or sexism or religious fundamentalism or homophobia, is there a place in our judiciary – for the sake of judicial diversity – for a judge who believes that black people are inherently incompetent, lazy and dishonest; or that white men are the salt of the earth and that life in Africa without them would be unbearable; or that same-sex relationships are a sin before God; or that women counsel belong at home raising children and not in court arguing cases against men?

Jurisprudentially, the thesis also raises a vexed question that has been in the minds and mouths of many political and legal activists since the advent of the Truth and Reconciliation Commission of South Africa (the TRC) and it is this: Since the TRC seems to have elected not to investigate the role that the judiciary (or some judges) played in the enforcement of apartheid “laws” (some of which are still in the statute books almost 30 years after the formal abolition of apartheid in South Africa) or in facilitating the achievement of apartheid goals, how are we to know – short of a judge’s confession – that a judge’s decision in a case was not informed by his or her political or religious views, or by racist or sexist or homophobic prejudices that “followed her or him” to the bench?

It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:

“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”

If judges are free to carry these prejudices to the bench for the sake of diversity, what mechanisms are there to ensure that they decide cases based on the law as it is – allowing only for differences of opinion in the forensic interpretation of the law which can, to an extent, be ironed out through the appeal and review processes – and not based on their prejudices and jaundiced perspectives about the world masquerading as law?

Is the presumption of judicial impartiality and the Oath of Office or solemn affirmation sufficient solace to a black South African litigant who feels prejudiced by a judge or magistrate who decides that apartheid was not a crime against humanity, despite a 1966 United Nations General Assembly Resolution to the contrary, a 1984 UN Security Council endorsement, and the 2002 definition of Apartheid in the Rome Statute of the International Criminal Court?

Is the Judicial Service Commission process of appointing and disciplining judges sufficiently robust to weed out candidates and serving judges who bring their toxic prejudices to the bench?

Can it be said with confidence that the integrity of the rule of law is in safe hands, and that the country’s equality jurisprudence is in fine fettle, when the outcome of a case depends entirely on the politics or personal prejudices of the judge the litigants draw?

Justice Madlanga is emphatically not advocating for a judge finding reasons in his or her “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” for a predetermined outcome. But where does that disclaimer leave judicial activism in appropriate cases? Is there a place for judicial activism in today’s South Africa? Can there be judicial activism without a predisposition to one outcome over another?

These are just some of the questions that this important contribution raises.

Read Full Analysis and Review here: Judging According to Personal Attributes – PDF

Related Documents:

SAJEI_Journal_-_Vol_1_-_Issue_1 Original article at page 48

Judging Judges_ Empathy as the Litmus Test for Impartiality

Former Justice of the Constitutional Court, the late Justice Tembile Skweyiya, once wrote in a seminal judgment of the South African Constitutional Court dealing with the tussle between law and politics, “Courts deal with bad law; voters must deal with bad politics”.

Do South African courts too readily involve themselves in political questions? Is it desirable for the courts to decide political questions? Is the mooted amendment of the property clause, section 25, in the South African Constitution a political question that should be resolved by politicians in Parliament, or is it a question that must be resolved by the courts? Is the Land Question in South Africa one for the courts or one for politicians to resolve?

These are some of the questions that Professor Mtende Mhango, Professor of Law at the National University of Lesotho, teases out in this short analysis.

A more detailed analysis of this question is explored in his recent book, Justiciability of Political Questions in South Africa: A Comparative Analysis (2019) Eleven International Publishers ISBN 978-94-6236-918-4 Available at: https://www.elevenpub.com/law/catalogus/recent  or www.amazon.com

Read Full Analysis and Review Is-Land-Reform-a-Political-or-Legal-Question – PDF1