Constitutional Hill

April, 2010:

Kleptocratic greed masquarading as high principle?

Apr 30th, 2010
by Pierre De Vos.
154 comments

Black Management Forum President Jimmy Manyi yesterday argued that the Constitution needed to be changed because some of its clauses hampered transformation. I would have liked to think that Manyi was starting a principled debate about the ways in which we could build a more prosperous and fair society, one in which we also cared for the 50% of the population that are economically and socially marginalised, who will never get a government tender and who are in desperate need of basic education, food, shelter and basic health care.

Sadly, Manyi’s remarks did not address the needs of the poor, but instead focused on those provisions of the Constitution that stand in the way of the new class of greedy kleptocrats who wish to loot the state to enrich themselves - to the detriment of the poor (and in fact to the detriment of all of us who do not know the right people to secure inflated government tenders). In a distinctly Malemaesque way, Manyi talked the radical talk in order to mask the deeply conservative and and anti-democratic nature of his views.

Manyi complained about the property clause because, according to him, it required that “fair value” had to be paid in appropriating land. This was a problem because “fair value” had become “market value” resulting in government having to pay enormous amounts of money when appropriating land. According to SAPA he then went on to say the following:

Another problem was the transformation clause. “It appears the Constitution does not support the transformation agenda in this country,” he said. He referred to court cases where previously disadvantaged individuals lost their court bids when trying to obtain positions for tenders.

A third problem was freedom of expression as enshrined in the Constitution. Manyi asked whether the South African media had taken this right too far. “Why is it that the media can have a field day railroading the office of the president without (sic) impunity?” Two further issues he felt needed reviewing were Section 27 of the Constitution which pronounced on procurement and, lastly, culture.

There are several ways to respond to these remarks. One could point out that, if correctly reported, the remarks show a remarkable lack of knowledge about the Constitution and the laws of the country. One would have thought that a high profile person like Manyi would have done a bit of reading – at least of the text of the Constitution – before delivering a speech. The property clause does not speak of “fair value” as Manyi claims. Instead section 25 talks about compensation that are:

just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including: the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation.

As section 25 makes clear, the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources. The section also emphasises that property is not limited to land but also includes mineral and other rights in property. The “willing buyer, willing seller” policy, which focuses almost exclusively on the market value of properties to be expropriated, is not one required by the Constitution. It is a policy adopted by the government in which Mr Manyi serves as Director General and can be changed without amending the Constitution.

The only reason to amend the property clause would be to allow for the expropriation of land without paying any compensation. In other words, one would only need an amendment to the Constitution if one wanted to allow the stealing of property (perhaps to hand such property to Mr Manyi and his friends?).

I am one of those weird people who think two wrongs don’t make a right. Just because land was stolen by white settlers during colonial times does not mean it would be fair or wise to steal the land again. This does not mean that land redistribution is not imperative. It does mean that such redistribution should be done fairly and wisely and not in a corrupt and greedy manner to favour a few cronies of the governing party. The Constitution prevents exactly this latter kind of land redistribution and hence it is not well liked by those who might benefit immediately from a more robust and unfair approach to the issue. 

Second, there is no “transformation clause” in the Constitution. Karl Klare – a US academic – published an article describing the South African Constitution as a “post-liberal” document and argued that it contained a transformative vision. The Constitutional Court has adopted this notion and the Bill of Rights as a whole is now viewed by that Court as facilitating transformation. If Manyi had even a basic knowledge of the Constitutional Court jurisprudence on fishing quotas (in the Bato Star case) and affirmative action (in the Van Heerden case), he would have known that he was embarrassing himself and showing a shocking ignorance when he said that the Constitution does not support transformation.

Third, section 27 does not “pronounce” (how I hate that word) on procurement, but on the right of access to health care services and sufficient food and water. Section 217 however requires that when an organ of state contracts for goods and services it must do so in a “fair, equitable, transparent, competitive and cost-effective manner.

However it continues by stating that this does not prevent the organs of state from implementing a procurement policy providing for categories of preference in the allocation of contracts; and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination. In other words, procurement policies must be fair and cost effective, but can take into account previous disadvantage when awarding tenders.

Manyi gives the game away when he complains that some black South Africans have occasionally lost their court bids when trying to secure tenders. This would have happened because the process was not fair, equitable, transparent, competitive or cost-effective and tenders were awarded fraudulently. In other words, Manyi is complaining because the Constitution limits the ability of tenderpreneurs to milk the state dry through fraudulent means.

Where such tenderpreneurs are awarded highly inflated contracts (the kind of contracts that forces the state to pay R27 for a bread and R50 000 for a desktop computer) because they are black and knows Julius Malema or has made a donation to President Jacob Zuma’s legal fees, courts might well find against the previously disadvantaged tenderpreneur because the awarding of the tender would not comply with section 217 of the Constitution.

It is important to understand that such rulings are not anti-transformation but PRO-transformation. They are based on the view that the state has a duty to use its money wisely in order to assist the poor and marginalised who depend on the state for services and for assistance to help improve their lives. Manyi does not like this: stuff the poor if one can get rich quick! He is speaking in support of the group of kleptocrats who want to secure highly inflated tenders that would harm the poor and marginalised because they would enrich a few lucky souls with the right connections. In this sense, Manyi is deeply conservative and even reactionary, as his views are based on greed, not on any high moral principles associated with real transformation. 

This seems to me to expose the battle at the heart of the ANC. It is a battle between those who want to do the right thing and want to ensure that the government acts wisely and fairly to help create a society in which all of us can live in dignity and respect and those who do not care one bit about the poor and want to get rich quick by cheating the rest of us and by looting the state so that they can afford Breitling watches and Johnny Walker Black.

The latter group – the opportunists, the crooks and the charlatans – do not like democracy and the openness and transparency that goes with it. No wonder Manyi is upset about the fact that we live in a democracy in which we can “railroad the office of the President” with impunity. When one is busy stealing from the people one would want to ensure political backing from the President for this, so one would need to ensure that the President and his office is protected from any criticism at all times. Democracy and transparency is not good for kleptocrats.

Who will win this battle within the ANC? Put differently, will the greed of the few trump the anger, frustration and need of the many? Or will the greedy be able to silence the masses by making radical noises while they implement their reactionary anti-poor schemes? Who knows.

Where are all the women judges?

Apr 29th, 2010
by Pierre De Vos.
30 comments

I am not sure whether this is an apocryphal story, but I was told that in the late nineteen nineties a women judge was appointed to one of the High Courts in South Africa. She was the first women judge appointed in that High Court. On her first day at the office, she discovered that the court building did not contain toilets for female judges. She had to slip into the men’s toilet – to great consternation of her male colleagues.

When the building was built decades earlier during the apartheid era no one had thought that a woman would ever become a judge in South Africa. Women had to stay at home and raise children and organise tea parties while their husbands did the “real work” (as if raising children is not a hell of a job – although grossly underpaid).

In 1994 South Africa only had one female judge – Leonora van den Heever – and although things look different sixteen years later, we still have a very long way to go to make the bench more representative in terms of gender. While some members of the Judicial Services Commission (JSC) sometimes ask the white male candidates whom they do not like (because they are either too conservative or too progressive) why they applied at all, given the need for racial transformation, I have yet to hear a member of the JSC asking male candidates why they had bothered to apply given the need for the gender transformation of the bench.

Franny Rabkin, in an excellent article in Business Day, points out that as of November last year of 216 permanent judges, only 49 were women. This means that less of 25% of our judges are female while more than half the judges are black (broadly speaking at least). As Rabkin points out:

A frequently heard argument is that the pool of women lawyers is just not large enough. However, a key obstacle to the appointment of more women as judges is the widespread failure to appoint women as acting judges — a key foot in the door for later permanent appointment, says Jennifer Williams of the Women’s Legal Centre, a legal advocacy body. “It is a huge obstacle ,” Williams says .

It is of course true that the JSC has indicated that having acted on the bench was one of the main criteria used by it to decide whether a candidate was suitably qualified for appointment to the bench. This raises two questions. First, should the emerging practice of the JSC to appoint only those candidates who have previously acted on the bench be dropped? Second, why is it that so few women are actually given acting appointments?

On the first question I am agnostic. An argument could be made that acting appointments are necessary because such appointments help to expose candidates to the rigours of the job and can also give an indication whether they are up to the job. On the other hand, given the fact that all but one of the Judge President’s are male and given further that some of those Judge Presidents hold deeply patriarchal views, the Judge Presidents may very well become gatekeepers who limit the opportunities for women to be elevated to the bench.

(And even where Judge President’s are female there is no guarantee that they would promote the appointment of female acting judges because in a world dominated by men, I am told, some women in powerful positions feel threatened by other successful women because they believe that there is usually only space for a few women to shine. Keeping other women out thus becomes a matter of professional survival.)

On the second question, many lawyers will point out that there are far fewer female advocates and hence that the pool of candidates from whom judges are normally appointed contains only a small pool of women. This is correct. The bigger question, however, is why this should be the case. 

If one disregards the usual sexist arguments that fewer women are emotionally or intellectually capable of withstanding the rigours and competitive atmosphere at the Bar, one is left with two other explanation. First, the patriarchal and sexist attitudes of some male advocates create a hostile environment for women lawyers who do not want to work with colleagues who make crude jokes and who patronise and objectify women.

In that world, the most successful women lawyers are often perceived to be the one’s who can “fit in” and are accepted because their male colleagues deem them to be “honorary men” (much like black professionals thrive in a racist environment by becoming “honorary whites”). I call this the Margaret Thatcher phenomenon: some women can become successful because they can demonstrate to the men around them that they are just like them and that they have the necessary balls, figuratively speaking.

Second, because advocates can only thrive if they are briefed by attorneys, the briefing patterns also play a role in depriving women of the interesting and complex work necessary for building a thriving practice. Many women advocates who go to the Bar are expected to focus on divorces and family matters and are not expected to get involved in commercial litigation. The old boys network also influences who is briefed and if one does not play golf or did not go to the right school, one may find oneself doing mundane work – if one is lucky enough to get work at all.

Of course, for black women this phenomenon is even more pronounced.  The female advocates who stick around and make a living are also deemed with suspicion by some of the more sexist attorneys and advocates who assume that they could not possibly be as good as their male counterparts. To really make a name as a women advocate, one has to be far better than the average male colleague.

Although I am not claiming that all male lawyers are sexist pigs (although some are), and although I do not wish to generalise, the lack of suitably qualified female candidates for appointment to the bench clearly shows that the legal profession still has a long way to go to rid itself of patriarchal notions of male superiority and excellence. At least black lawyers have the Black Lawyers Association (BLA) to look after their interests, but women lawyers do not have a formal institution with the same clout as the BLA that might promote the rights and interests of female lawyers.

In the light of the above it is actually surprising that almost a quarter of judges are indeed female. 

The question to be asked of the profession is what it is planning to do to address the problem of gender representation. But one may also ask female lawyers themselves why they have not orgnanised themselves into a Women’s Lawyers Association to push gender transformation in the legal profession? Is it perhaps that they are scared that they will be ostracised by their male colleagues if they do? 

The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench. But as with race, a sufficient number of suitably qualified women candidates will only be found if the legal profession itself takes drastic action to open up the profession to more women lawyers.

On the princess, her advisors and contempt for democracy

Apr 26th, 2010
by Pierre De Vos.
21 comments

After Tony Yengeni was thrown in jail, Minister Lindiwe Sisulu arguably became the best dressed member of Parliament. However, behind her back she is often referred to as “The Princess” because she comes from political blue blood and acts the part. “We are not amused,” seems to be her motto.

Last week the Minister revealed her monarchic tendencies for all to see when she got rather upset with Parliament’s standing committee on public accounts (Scopa) because it – gasp! – demanded that she should appear before it and berated her when she failed to turn up on no less than three occasions. “We” were not amused and had much to say about the matter.

She felt Scopa’s criticism had injured her dignity (I suppose this is because she believes a Princess has more dignity than a shackdweller, say, and may thus not be criticised) and as a result has lodged a formal complaint with Deputy Presiden Kgalema Motlanthe. She also met ANC chief whip Mathole Motshekga and other party whips last Wednesday where a “political decision” was taken that she should boycott Scopa. As The Star reports, The Princess then had the following to say:

“For now I am in a situation I don’t see my purpose in Scopa. Scopa has a relationship with the department, they can summon the department but they cannot summon ministers. They interact with ministers, it is our responsibility to co-operate. Once you have heard all this noise ‘summon the minister’ why would you want to go there and cloud the issue? The issue that we all should be concerned about is making sure that the public money that is given to any department is properly accounted for. That is what I want Scopa to do, they have complete access to my department,” she told journalists

She contested Scopa’s right to summon her to appear before it, saying the only committee that had such power was the joint standing committee on intelligence, which she chaired in the 1990s, and Speaker of the National Assembly Max Sisulu. If Scopa or any committee wanted to summon any minister they could do so through the Speaker, said the minister.

The Minister is of course wrong. Maybe she has received bad advice from a certain gentleman who has been disbarred from practicing law in the United States or maybe she just does not understand how accountability and oversight works and what political responsibility and accountability means. Let’s look at the law to see why the Minister is wrong.

Section 56 of the Constitution seems pretty clear on the issue (but one is not sure whether the Minister and her advisors consult the Constitution much). It states that “[t]he National Assembly or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; or compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of” the Constitution.

Minister Sisulu’s comments that she could not be summoned by Scopa and – worse – that a “political decision” was taken that she would not attend Scopa meetings are ominous. It either suggests that the Minister believes she is not a “person” at all (because she is too exalted a creature to fall under the definition of “person”) or that she is above the law. As long as the ANC takes a “political decision” to ignore the law, the law and the constitution can be flouted.

But what about her somewhat contradictory claim that Scopa could only summons her to Parliament via her brother, The Speaker of Parliament? She is also wrong on this score. Section 14(2) of the Powers and Privileges of Parliament Act, states that a summons in terms of the Constitution to appear before a House or committee to give evidence or to produce documents must be issued by the Secretary of Parliament on the instructions of either the Speaker or the Chairperson of the relevant committee.

The Chairperson of a Committee can therefore instruct any Minister to appear before his or her Committee without any involvement of the Speaker. If that Minister disobeys the instruction, the Chairperson can have a summons issued to force the Minister to do so and she is legally obliged to appear. If she fails to appear she can be fined and even sent to prison for contempt.

But what about rules 325 of the Rules of the National Assembly, I hear you ask (I bet you knew about that rule all the time and have been lying awake at night pondering its meaning). The rule states that: ”No committee shall summons a witness without first having satisfied the Speaker that the evidence of such witness will be material to the enquiry.”

There are two ways of understanding this rule. First, the rule could refer to witnesses who will be paid witness fees and will come and give evidence of a factual nature and not to members of the Executive who are constitutionally required to account to Parliament.

Section 92 of the Constitution states quite broadly that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. It also states that Members of the Cabinet must act in accordance with the Constitution; and must provide Parliament with full and regular reports concerning matters under their control. When they do this the Ministers are not witnesses, they are members of the Executive fulfilling a constitutional function.

When the Minister is summoned before Scopa she is not summoned as a witness but as the Minister to account POLITICALLY for what has happened in her department regarding the (mis)spending of money. A witness is summoned to give evidence. A Minister is summoned to account politically to Parliament in terms of the requirements of the Constitution.

Second, if the Minister is considered to be a witness for the purposes of rule 325, then there is an obvious clash between section 14(2) of the legislation mentioned above and the rules of Parliament as the legislation clearly states that either the Speaker or the head of a Committee can instruct that someone is summoned to appear before it. Where such a clash exists it should be interpreted in a manner that would avoid a clash. (I would contend the interpretation of “witness” provided above represents such an interpretation.) If it cannot be so interpreted, then the legislation takes precedence over the rules of Parliament.

So much for the technical arguments. But a broader issue is at stake. In our system of separation of powers, members of the Executive (including the Minister, whether she is a “person” or a “princess”) are politically accountable to Parliament. That is why any committee of Parliament can summons a Minister to appear before it and can demand that a Minister explains what steps are being taken to rectify any problem.

While functionaries like Director Generals might do most of the work and act as accounting officers, they are not POLITICALLY accountable to Parliament. Only the Ministers are. For that reason Ministers have a duty to respect Parliament and to account to Parliament if requested to do so and not to run to the Deputy President and ask that “political decisions” be taken so that Ministers need not do their jobs.

The buck stops with the Ministers. They have a constitutional duty to respect Parliament and to account to it. They cannot take “political decisions” not to do their jobs and not to respect the Constitution and the law. If they do that, they are in breach of the Constitution and in contempt, not only of the law, but also of every single voter who have voted for the parties of their choice to represent them in Parliament and to insure that members of the Executive do their jobs and spend our money wisely.

In writing this post (and in the spirit of ubuntu) I have tried not to show the same contempt for the Minister as she has shown for our system of constitutional democracy and checks and balances. Readers will have to judge whether I have been successful in this regard.

On judicial appointments

Apr 22nd, 2010
by Pierre De Vos.
65 comments

The Judicial Services Commission (JSC) has now announced the names of the most recent successful candidates for appointment to various High Courts and the Labour Court. There has been some criticism of these appointments, most notably because of the non-appointment of Adv Jeremy Gauntlett and – to a lesser extent – Adv Glen Goosen and the promotion of Judge Willem van der Merwe to Deputy Judge President of the Gauteng High Court.

I do not agree with all the criticism leveled at the JSC, although I suspect some good candidates might not have been appointed. Nevertheless, at this point it might be helpful to take stock and to evaluate the performance of the JSC.

The first striking feature of the appointments is that several white men were appointed to the various High Courts. This underscores the fact that it is a myth that “white men need not apply” for positions on the bench. All three judges appointed to the Labour Court are white men and two of the five appointments to the Gauteng High Court are also white men. Judge Willem van der Merwe was promoted to Deputy Judge President despite the fact that he is a white man.

Although members of the JSC asked pertinent questions about the need for the racial and gender transformation of the bench (questions that are perfectly relevant), the majority of members clearly do not believe that race and gender are the only criteria to be used when deciding on appointments. This view is correct and perfectly in line with the Constitution.

Second, I might be wrong, but I see a trend emerging regarding the appointment of white lawyers to the bench. The majority of members on the JSC seem reluctant to give the nod to progressive white lawyers. Although Judge Dennis Davis was said to have had by far the best interview before the JSC when it had to consider appointments to the Constitutional Court, he was not appointed. Davis was an energetic and tireless progressive (as opposed to liberal) campaigner against apartheid and has handed down many progressive judgments as a member of the Cape High Court.

Similarly Adv Glen Goosen, who was an anti-apartheid activist and worked for the Truth and Reconciliation Commission and has a well-earned reputation as a progressive lawyer, was overlooked by the JSC in the most recent round of appointments. Previously the JSC had also declined to appoint Adv Jeff Budlender, one of the most brilliant progressive lawyers in South Africa. Budlender had been involved in several social and economic rights cases and was active in progressive anti-apartheid politics during the struggle against apartheid.

If I am correct, it would suggest that the JSC is more comfortable with the appointment of pro-establishment white lawyers who might not have been active in anti-apartheid struggles than with the appointment of more critical lawyers. Could this be because progressive white lawyers are perceived to be too critical and too prepared to intervene on behalf of the vulnerable, the poor and the voiceless? Are candidates being appointed who are perceived to be traditionally conservative about gender issues and issues of social justice because they would be less likely to hand down progressive judgments that would embarrass the government?

Third, it is unfair to criticize the appointment of Judge Willem van der Merwe as Deputy Judge President of the Gauteng High Court on the basis that he acquitted President Jacob Zuma on the charge of rape. It is unfair to Judge van der Merwe, who clearly based his decision on the facts presented to the court and on the law. The argument that he was “rewarded” for acquitting Zuma does no one any favors and is wrong.

Hopefully no one is implying that Van der Merwe acquitted Zuma to further his own career. Most observers agree that Judge Van der Merwe came to the correct decision when he acquitted Zuma and he should surely not be penalized merely because in applying the law without fear favor or prejudice he happened to have acquitted the President on the charge of rape.

Having said that, the appointment of Judge van der Merwe could be criticized on different grounds. Feminists and gender activists criticized Van der Merwe for allowing the defense in the Zuma case to question the complainant on her sexual history. The judgment deals with these arguments and makes a plausible case for the decision. Nevertheless, given the fact that the transformation of the judiciary also requires the JSC to appoint non-racist, non-sexist and non-homophobic judges, it would have been better if the members of the JSC had quizzed Van der Merwe vigorously about his commitment to gender equality.

I have no idea whether Van der Merwe is a closet feminist or whether he harbors stereotypical views of women and express no opinion about it. However it surely is the role of the JSC to try and find out. In the same way that it is allowed to ask questions of candidates about their commitment to racial equality, the JSC is allowed to quiz judges on their social attitudes towards women.

Lastly, in discussing the appointment of judges it is important to take a nuanced view and not to jump to conclusions. At the same time this does not mean the JSC should get a free pass and that we should not criticize it when it overlooks a particular individual who has the legal skills, the temperament and the social justice credentials to advance broader transformation goals.

The ANC, Julius Malema and the NDC

Apr 21st, 2010
by Pierre De Vos.
104 comments

It’s all rather confusing. Maybe the ANC – more pertinently Secretary General Gwede Mantashe – has charged Julius Malema with various counts of misconduct. Then again, maybe Malema has only been informed that the ANC will press charges against him at some future date. Or perhaps he has been charged but President Jacob Zuma has now been pressurised to have the charges against him dropped. Who knows what’s going on? I suspect not many in the ANC know what is going on either, so the rest of us will also remain in the dark.

All this talk of discipline made me wonder just how the ANC deals with this sort of thing. Like any political party, it is required to deal with the disciplining of members in terms of its Constitution. Section 25 of the ANC Constitution (and an appendix to that Constitution) sets out in detail exactly how this should be done. A study of the relevant sections of the ANC Constitution, reveals a few interesting facts.

First, disciplinary action can be initiated against Malema by any of the national officers of the ANC (that would include President Jacob Zuma, Gwede Mantashe or any of the other “top six” ANC leaders), or by the National Working Committee (NWC) or by the National Executive Committee (NEC) if any of these individuals or bodies “refer any violation or misconduct directly to the National Disciplinary Committee (NDC)”. Once a authorised individual or body has referred the matter to the NDC, the NDC has to conduct a disciplinary hearing after the person or organ who had referred the matter to it had finalised the drafting of a charge sheet.

The ANC Constitution is not very clear on this, but it seems that once a matter has been referred to the NDC, neither Zuma or anyone else can stop the process. It would be in the hands of the NDC who will have to make a finding and hand down penalties (if appropriate) – although the NEC may review any decision of the NDC.

If I am correct, this means that if news reports are to be believed that the matter has already been referred to the NDC, Malema will have no choice but to appear before the NDC. News reports that the ANC Youth league made representations to President Zuma and other members of the “top six” leadership to have the charges dropped, then also makes no sense. Such representations should be made to the NDC.

Second, section 25.5 of the ANC Constitution contains a long list of activities that may be invoked by the NDC to discipline any ANC member (including Julius Malema, of course). These include:

  • Behaviour which brings the organisation into disrepute or which manifests a flagrant violation of the moral integrity expected of members and public representatives or conduct unbecoming that of a member or public representative;
  • Sowing racism, sexism, tribal chauvinism, religious and political intolerance, regionalism or any form of discrimination;
  • Abuse of elected or employed office in the organisation or in the State to obtain any direct or indirect undue advantage or enrichment;
  • Behaving in such a way as to provoke serious divisions or a break-down of unity in the organisation;
  • Undermining the respect for or impeding the functioning of the structures of the organisation;
  • Prejudicing the integrity or repute of the organisation, its personnel or its operational capacity by: Impeding the activities of the organisation; Creating division within its ranks or membership; Doing any other act, which undermines its effectiveness as an organisation; or Acting on behalf of or in collaboration with: Counter-revolutionary forces; or
  • Fighting or behaving in a grossly disorderly or unruly way.

Malema could be found guilty of any number of these provisions. Let’s face it, if the NDC wants to teach Julius Malema a lesson or even wants to expel him from the party, they will not have much difficulty in finding reasons to do so. However, many of these provisions are rather vague, so it leaves much leeway for the NDC to decide on whether to find Malema guilty or not.

If they have the political will, the NDC will therefore find Julius guilty and meet out strict punishment. If, however, the NDC does not have the political will to deal with Julius (say because they are scared of him or because they get the impression that President Jacob Zuma, the NWC or the NEC would not back up any finding they might make), they can easily wriggle out of responsibility and can exonerate Malema.

Although the ANC Constitution thus lists many grounds on which any disciplinary action against a member may be based, and although this gives the disciplinary process somewhat of a legal character, it would be naive not to see that political considerations may well play a role in decisions by the NDC on whether a member has breached any of the above rules and if so, what punishment should be meted out. (Other rules, such as the rule – not mentioned above – that a member who has been convicted for a serious non political criminal offence may face disciplinary charges, are more “objective”, of course.)

To use one example: on what basis does one decide whether Julius has sown “racism, sexism, tribal chauvinism, religious and political intolerance, regionalism or any form of discrimination”? Your average housewife in Sandton (and, it has to be said, quite a few ANC officials irritated with Malema) may think it is obvious that Julius should be found guilty on this charge, but many others might argue that Julius was merely singing old struggle songs and that he was speaking the truth when he praised Robert Mugabe and said nasty things about Eugene Terreblanche.

Third, the NWC and the NDC may summarily suspend the ANC membership of any member facing disciplinary charges and such suspension shall remain in force until the disciplinary proceedings have been finalised. This means that if either the NDC or the NWC really believed that what Julius had done was as serious as President Zuma intimated last week, they have every right to suspend him temporarily from the ANC. The fact that this has not happened says more, perhaps, than anything else about how careful these bodies are and how worried they are to upset Malema and his backers (Tokyo Sexwale, perhaps?).

Lastly, if the NDC finds Julius guilty of breaching any of the provisions set out above (assuming that he ever faces the charges before the NDC) the Committee can reprimand him, suspend him for a period of expel him from the organisation. A reprimand would obviously be seen as a slap on the wrists and as a slap in the face of President Zuma who last week claimed that the actions of Malema was alien to the culture of the ANC. If the NDC actually finds Malema guilty of anything and then merely reprimands him, it would say much about the lack of control that Zuma has over the organisation that he leads.

In conclusion, it seems to me the manner in which the ANC handles the disciplinary charges against Malema will help us better to understand who stands where in the Byzantine power struggles inside the ANC. Just because the process appears to be quasi-judicial does not mean that it will not have a strong political component (and political ramifications). Is it too melodramatic to claim that the future trajectory of Jacob Zuma’s presidency will be revealed as the disciplinary process against Julius Malema unfolds?

Hlophe: Here we go again

Apr 20th, 2010
by Pierre De Vos.
32 comments

The Cape High Court yesterday declared “unconstitutional and invalid” the bizarre decision of the Judicial Services Commission (JSC) not to investigate the complaint and the counter complaint by the judges of the Constitutional Court and Judge President John Hlophe.

The Court agreed with the view – first raised on this Blog – that the JSC was not properly constituted when it made its highly controversial decision not to decide whether it was Hlophe or the judges of the Constitutional Court who were lying through their teeth about an alleged attempt improperly to influence the judges of the latter court in the Zuma case.

The Court found that section 179(1)(k) of the Constitution, which states that “when considering matters relating to a specific High Court” the Premier of the Province concerned and the Judge President of that Court had to form part of the JSC is not unclear or ambiguous. There is nothing vague, inconsequential or irrational about the requirement – clearly stipulated in this section of the Constitution - that the Premier must form part of the JSC when it decides on the disciplining of judges of that court.

The High Court thus found that:

Of prime importance is the need to hold an investigation into the allegation against the judge in question, an investigation properly conducted before a constitutional body created to carry it out. Such a question is, in my view, unquestionably a matter which relates to a specific High Court of which the judge is a member because the consequences of its outcome to that Court.

The Court also found that the JSC was improperly constituted because one of the representatives of the advocates profession did not take part in the original decision. Finally it found that the JSC did not take a proper decision because the original decision was not supported by a majority of the members of the properly constituted JSC.

The Court did not order the JSC to have a full hearing. It did not order the JSC to actually make a decision about the complaint and counter complaint – something a majority of the JSC members present at the original decision bizarrely decided not to do. Yet the inevitable consequence of the decision is that the JSC – now properly constituted – will have to decide afresh whether to hold a full hearing or not.

The judgment poses some difficult questions.

First, one may well ask why all those lawyers and judges on the JSC have for all these years failed to consider the fact that the plain meaning of the constitutional text required the Premier and the Judge President to be present when any matter relating to the relevant High Court is decided. For all these years the Premier and the Judge President have been treated like the ten members of Parliament and have only sat on the JSC when that body considered appointments to the bench.

This is surprising, to say the least. While section 178(5) of the Constitution clearly states that members of Parliament should only be involved in the appointment of judges and not in any other work of the JSC, the Constitution does not contain a similar provision regarding the Premier and the Judge President. As the High Court found (correctly in my view), the text of the Constitution is pretty clear and requires the Premier and the Judge President to be involved in all matters relating to the specific High Court. Yet the JSC seemed to have disregarded this provision for all these years – almost as if the text of the Constitution did not matter one bit.

The JSC may of course decide to ask for leave to appeal the High Court decision. If I was their legal advisor I would counsel against such a move as the JSC has a limited chance of success on appeal. This is because one would really have to do some serious legal gymnastics to interpret the provision differently from the manner in which it was interpreted by the High Court and the chances are rather slim that the SCA would be prepared to do that.

Second, the High Court decision was not based on the correctness of the original JSC decision. Theoretically the JSC could therefore reconvene – now properly constituted – and make exactly the same decision to close its eyes to the lies and deceptions of one or more of the members of the South African judiciary. We know somebody lied. We know the JSC was too scared to find out who lied – Hlophe or the two main complainants. (I, for one, suspect why the JSC wanted to avoid making a decision at all cost.) Will the JSC now save face and actually do the right thing and investigate the complaint and counter complaint properly as it is legally required to do?

Third, it is unclear who will have to form part of the reconstituted JSC. Section 178(1)(k) states that both the Premier and the Judge President “or an alternate designated by each of them” must be present when the decision is revisited. We know Hlophe cannot be present as he is the subject of the complaint. Can he designate an alternate or not? Surely Hlophe would not be able to designate one of his friends to take his place as it will be presumed that this person is there to represent his interests. Maybe the Deputy Judge President – as the second most senior judge in the province – should take Hlophe’s place?

But Hlophe has argued that Helen Zille could not possibly take up a seat on the JSC either as she has made certain statements about Hlophe which demonstrate a bias against Hlophe. If this is correct, can she designate anyone to sit on the JSC on her behalf? Surely she could not ask her husband or son to sit on the JSC on her behalf but perhaps the second most senior member of her cabinet could be asked to sit on the JSC, provided that he has not made any statements which illustrate a bias against Hlophe.

And what about Andiswa Ndoni, current former chairperson of the Black Lawyers Association and one of the six members who voted to stop any inquiry? Ndoni has said that Hlophe was a victim of of a racist conspiracy. Should she not have recused herself from the JSC at the meeting where the original decision was taken – like Adv Dumisa Ntsebeza so correctly did – because of her perceived bias in the matter?

Lastly, one may wonder whether this decision may influence the case of Freedom Under Law who is also challenging the decision of the JSC, but on more substantive grounds. If the JSC decides not to appeal the matter, would it still be necessary for FUL to go ahead with its court action? I suspect it would, as the FUL action is focused on the irrationality and illegality of the decision itself. A court order to the effect that the JSC has no legal power to abdicate its responsibility, that it is obliged to have a full hearing and to make a decision on who of Hlophe or the judges of the Constitutional Court are the pathological liars, would help the JSC to make the correct decision. All one wants is for a decision to be made, based on the facts.

The judge or judges who have been speaking the truth would surely welcome the opportunity to clear their names before a full inquiry. The judge or judges who have been lying will, of course, resist any attempt to come to the bottom of this matter. It would thus be interesting to see in the coming days how the various parties respond to the High Court judgment.

What makes a good judge?

Apr 19th, 2010
by Pierre De Vos.
70 comments

It is less than ideal – but perhaps not surprising, given the way lawyers like to gossip - that news of the non-appointment of Adv Jeremy Gauntlett to the Cape High Court bench leaked out before an official announcement was made about the matter. Gauntlett is often described as one of South Africans most brilliant legal minds and many observers thought that the JSC would nominate him for a position on the bench.

It is unclear to what extent perceptions about Gaunlett’s alleged patronising attitude towards judges and fellow lawyers played a role in the decision. It is not for me to speculate about such things.

However, the affair made me wonder again on what basis a reportedly brilliant lawyer should be denied appointment to the bench. Is it ever justified to deny a brilliant and experienced lawyer an appointment to the bench and if so, on what grounds may the JSC do so?

Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a fit and proper person” may be appointed as a judge. However, section 174(2) states that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial appointments are made.

As I understand these two sections, any lawyer who is appropriately qualified and has the necessary integrity and honesty may be appointed to the bench. Constitutionally, there is no need to appoint the most brilliant lawyer if other qualified candidates are available and the appointment of those candidates would help to address the racial and gender imbalances on the bench.

Ideally, this would mean that the most suitable white male candidates (more about this later) would be appointed along with the most suitably qualified black men and women. This would lead to an end to the kind of affirmative action for white men which used to characterise the appointment of some judges during the apartheid era.

If the JSC does its job, it would ensure that the most brilliant white male candidates who would also make outstanding judges in our new constitutional order were appointed along with the most brilliant candidates from other race and gender groups.

But what would make someone an outstanding judge and hence a suitable candidate for appointment to the bench?

It is my contention that a person’s brilliant legal mind is not enough to warrant appointment to the bench – no matter what the race or gender of the person might be.

First, the person needs to have the appropriate judicial temperament to deal fairly and calmly with the parties that appear before him or her. An overtly emotional or aggressive lawyer, a lawyer that is so arrogant that he or she makes up his or her mind before hearing the arguments from both sides, will not make a good judge.

Second, a good judge will try and apply the relevant legal rules in such a manner that justice is served in the case – at least as far as the legal materials allows for it. A good judge will have a sense of fairness and justice and this, in turn, will require the judge to have some awareness of his or her own world view and the way in which his or her life experience and other emotional and ideological commitments might colour his or her view of a particular case.

More is required than a mere formalistic adherence to “objectivity” (which is desirable but will always remain somewhat illusive). An understanding of how a specific ruling will affect the litigants and some awareness of the consequences of the ruling for society as a whole will do much to ensure that a judge acts as fairly and as justly as the law allows.

Third, it is my contention that a good judge in South Africa should have a keen understanding of the separation of powers doctrine and the limits of judicial power. Such a judge should consider very carefully before making a decision that intrudes on the exercise of power by the other two branches of government. Judges who are tempted to use the judicial power to get back at the government of the day, for whom they never voted, may do more harm than good in the long run as their decisions may appear overtly political and may detract from the legitimacy of the courts.

Fourthly, a good judge will be courageous and fiercely independent and will not shy away from making unpopular decisions if such decisions are really required to uphold the Rule of Law and the fundamental values enshrined in the Constitution. Such a judge will be aware of the limits of her power, but will use that power to ensure that the rights enshrined in the Bill of Rights are interpreted and applied in such a manner that the vulnerable, the poor, the dispossessed and the politically weak are protected from abuse of power.

Lastly, in my opinion a good judge will have a specific vision of the new constitutional order that centres on social justice. Such a judge will be aware of the vast discrepancies between rich and poor and the harsh effects that formal rules can have on the lives of the poor and economically marginalised and will try and interpret the constitution and the ordinary rules of common law and the provisions of statutes in such a way that it would help facilitate the achievement of social justice.

Such a judge will be aware that traditional legal rules often favour the educated, the propertied classes and the powerful and – while adhering to precedent and while respecting the need to make legally plausible and legitimate decisions – will try to develop or interpret the tradition legal rules differently (with the help of the Bill of Rights) in order to make the law more just and fair in the long run.

From the above it must be clear that I would not support the appointment of a judge who harbours sexist, patriarchal or homophobic views or has a misplaced belief that everyone in South Africa really has the freedom to make all the important life choices that may affect their lives. I would prefer it if lawyers who are fixated on the notion of freedom of contract and the sanctity of property rights – no matter how negatively the application of such principles will affect the powerless and the poor – are not appointed to the bench at all.

In short, if I was on the JSC I would look at race and gender requirements along with requirements of competence. But I would not stop there. Just as important (or perhaps even more important) than all of the above would be a concern to appoint progressive, courageous and fiercely independent judges who care about social justice issues and care about the ways in which legal rules help to entrench or perpetuate social injustice.

When we talk about the transformation of the judiciary I have in mind the kind of transformation that goes much further than merely replacing white, sexist, homophobic capitalist judges with black, sexist, homophobic, capitalist judges. Sadly the JSC does not follow this view. Many judges have been appointed who hold shocking views on women and gay men and lesbians and feel that the law should not concern itself with social justice issues. Such judges are white and black, male and female. This is the real, but often unspoken, scandal underlying the appointment of judges in post apartheid South Africa.

Is Terreblanche’s church allowed to discriminate?

Apr 15th, 2010
by Pierre De Vos.
41 comments

My friend was incensed: “Why,” he wanted to know, “is the Afrikaanse Protestantse Kerk (APK) allowed to discriminate against black people?” Last Friday, at the funeral of Eugene Terreblanche, much was made of the fact that some black journalists and observers were allowed into the APK. This is because the APK is a whites only church and usually does not allow black people inside the church – at least not during the sermon.

“The Constitution and the Equality Act surely prohibits such discrimination,” my friend continued. “Why is Afriforum not making a noise about this? Why does it not lodge a complaint with the Equality Court against the Church to challenge its policy of racial discrimination? Afriforum claims to be so worried about discrimination so it should do something about this!”

Maybe, I explained, it was because such an action – by Afriforum or anyone else – would have no chance of success. The Equality Court will reject the complaint because the right to freedom of religion will trump the right to equality. In equality matters one must weigh up the purpose of the discrimination against the effect that the discrimination would have on the human dignity of those who are being discriminated against.

Here the purpose of the discrimination is to protect the freedom of religion of the weirdo’s who belong to the APK. They believe that God had separated blacks and whites and should pray separately and the purpose of the discrimination is to give effect to that belief. (I am not sure whether they also believe there is one heaven for whites and one for blacks. How would that work in any case?)

On the other hand, it could be argued that the effect of the discrimination would not be particularly egregious as there are many churches where black and white can pray together and black people would probably not feel very welcome in a church that believes that God was really a big fan of apartheid. Banning blacks from the APK therefore does not present such a fundamental affront to the human dignity of black South Africans that it should trump the freedom of religion of the APK.

“But that does not make sense at all,” retorted my friend. “The Constitutional Court found that Rastafarians were not allowed to smoke dagga, despite the fact that this is a central tenet of their religion. To ban them from smoking dagga discriminates against them in the most fundamental way. Besides, the smoking of dagga is probably far less harmful than the effects of racial discrimination. We live in South Africa, after all, and one can buy dagga on every street corner in the city centre of Cape Town.”

I explained that he was confused. In the case of the APK discrimination the question is whether the APK can discriminate against black people. In the Rastafarian case the question was really whether the state can discriminate against Rastafarians. The Court in effect found that it could (although it decided the case on the basis of freedom of religion, not on the basis of equality) because the purpose of the discrimination was so important that it trumped the freedom of religion of Rastafarians. The ban on dagga keeps us all safe from the evils of drug abuse and thus trumps the right to freedom of religion. At least that is what a majority of the judges of the Constitutional Court believed.

My friend was not impressed. “The Equality Act bans discrimination on the basis of race in the same way that the law bans the use of dagga. Are you saying it is ok for the state to discriminate against a religion when the adherents of that religion are mostly black, but its not ok for the state to discriminate against a religion to enforce racial equality when the religion is exclusively for whites?”

Good question, I had to agree. But the use of dagga is a criminal offense and while racial discrimination is prohibited by the Equality Act, it is not a criminal offense to discriminate against anyone. Maybe that’s the difference between the two religions – the practices of the one religion is a criminal offense while the practices of the other is only illegal and enforced not in the criminal court but by the Equality Court. Or maybe both the state and our Courts just think that the use of dagga is far more dangerous and harmful for our society than the racial discrimination by a private institution who happens to be a church.

“Are you kidding?” my friend wanted to know, his voice rising a notch as it always does when he gets excited. “More people are addicted to alcohol than to dagga and far more people crash cars and kill people in accidents when they are drunk than when they are high, so dagga cannot be that dangerous. Given our apartheid past and given what I saw on TV of the Terreblanche funeral, racism and discrimination is far more of a problem in our society than the use of dagga.”

Well, I explained, maybe this also has something to do with the separation of powers doctrine. If the state explicitly banned religious groups from discriminating against anyone then maybe the courts will agree that such a ban was constitutional. But then I realized I was talking rubbish. The state will never force the catholic church to open up the priesthood to women. Neither would it ever pass a law that would force churches, mosques or synagogues to abandoned their homophobia and to marry same-sex couples.

“So,” said my friend gleefully, “what you are saying is that the state is too scared of the established religions and of people in the APK to ban their religious practices, but because the Rasta’s are such a small and powerless group the state has no problem with banning one of the central practices of their religion!”

Don’t ask me, I told my friend. Ask the Constitutional Court and the members of Parliament why they do not ban the APK from discriminating against black people or why they do not make an exception to allow Rastafarians to use dagga.

My friend laughed. “I wonder what the APK position is on men sleeping with young black men? They are probably not too keen on that.”

Luckily, I am not planning to visit my local APK anytime soon to find out, I told my friend.

Blue light bullies: often illegal

Apr 14th, 2010
by Pierre De Vos.
31 comments

Some people will defend the indefensible until they are literally blue in the face. Sadly our politicians seem to be particularly afflicted by the pathological inability to face facts and to admit that there is a problem – even when the problem is there for all to see. Instead they will argue that black is white and white is black and do so with all the conviction of Dick Cheney gloomily warning us that the supposed Weapons of Mass Destruction (WMD) in Iraq poses a grave threat to world peace.

No wonder then that KZN Transport MEC, Willies Mchunu, defended blue light bullies in the Provincial Legislature yesterday.

According to a report in The Witness he said allegations of a persistent abuse of power through the use of blue lights by ‘blue light bullies’ is false and misleading. He said provisions of the Road Traffic Act authorise police officials to exceed general speed limits and to disregard road traffic signs while acting in the execution of their duties.

The Act’s definitions, he said, are sufficiently broad to encompass police officers, provincial traffic officers and metro police officers. ‘… the point that needs to be made is that nowhere in the authorising legislation does it suggest that in order to disregard speed restrictions or road traffic signs, an emergency situation be in place as a precondition to exercising the authority by police officers.’

There are of course two problems with this kind of “reasoning”.

First, even if the Act allows traffic cops and members of the police to disregard the law at will, this would not make it acceptable. In a constitutional democracy based on the Rule of Law, we are all supposed to obey the law which should apply equally to all of us. Just because one happens to be an MEC or a Minister does not mean one is suddenly more important than the rest of us and thus entitled to break the law at will. If the law allows for this, the law is clearly wrong.

Arguing otherwise is like arguing that because it was legal in terms of the American Constitution to invade Iraq, it was fine for George W. Bush to order the invasion which led to the murder of hundreds of thousands of innocent Iraqi’s and the destruction of the homes of millions more. What is legal is not always right.

Second, while Mchunu is correct that the National Road Traffic Act of 1996 does not require the existence of an emergency situation before traffic cops and police officers can disregard the laws of the road, this does not mean that blue light bullies are legally entitled to drive at high speed and to ignore road signs (thus endangering the lives of other motorists) merely because some pathetic little politician with a Napoleon complex thinks he is better than the rest of us and is thus above the law.

The National Road Traffic Act of 1996 allows traffic cops and police officers to exceed the speed limit and to disobey road traffic signs while they are carrying out their duties. But the Act places important limits on traffic cops and police officers in this regard.

First, the Act states that a traffic cop or police officer who has to disobey the rules of the road to carry out their duties “shall drive the vehicle concerned with due regard to the safety of other traffic”. Where there is absolutely no emergency, blue light bullies therefore have no legal right to drive in such a way that it would endanger other road users. Where they do, they are exceeding their legal powers and should be arrested. If blue light bullies fail to have sufficient regard for the safety of other road users they are criminals and the politicians who condone this behaviour are complicit in the commissioning of a crime.

Second, traffic cops and police officers can only drive faster than the speed limit and disobey traffic signs if they are busy carrying out their duties. The provisions that authorise this kind of behaviour clearly subvert the principle of the Rule of Law, a founding value in the Constitution, because it attacks the notion that all of us are equal before the law. The provisions are therefore either unconstitutional or they will have to be given a restrictive meaning in order to bring them into conformity with the Constitution.

I would therefore argue that the impugned sections can only be valid if they are read to mean that traffic cops and police officers are allowed to disobey the speed limit and traffic signs if this is absolutely necessary for them to carry out their official tasks.

But neither the National Road Traffic Act, the South African Police Services Act or, as far as I am aware, any Act of Parliament confers a duty on traffic cops or police officers to drive around politicians from one meeting to the other. When traffic cops or police officers therefore drive politicians around in blue light convoys they would not usually be fulfilling a legal duty. The legal duty is not linked to the driving of the car as such - it is linked to the protection of the life of the VIP. The officer is therefore only allowed to break the rules of the road to protect the life and limb of the VIP – not merely to make sure he or she gets to a meeting on time.

While the law does confer on such officers the legal duty to protect VIP’s, they must stick to the rules of the road unless it is absolutely necessary to protect the life of a VIP (because the VIP is in grave danger of being assassinated, say). Driving an MEC from one meeting to another while that MEC’s life is not in danger, the police officer must stick to the rules of the road as there would be absolutely no need for the officer to break the law to protect the VIP. Merely driving around a VIP does not entitle anyone to break the rules of the road.

This means that most blue light convoys who charge down the highway at dangerous speeds are illegal. Those blue light bullies should all be arrested and thrown in jail as they have absolutely no legal authority to break the law, merely because they are driving around some self-important twit who happens to be a politician.

Sadly Mr Mchunu’s defense of blue light bullies suggests that he is a prime example of such a self-important twit. Although he will probably not be arrested for giving illegal instructions to his driver to break the law, he should. In the meantime we should all continue to mock and ridicule people like Mr Muchunu who is making up for a lack of self-respect by insisting that they are above the law.

What now for Jackie Selebi

Apr 13th, 2010
by Pierre De Vos.
19 comments

It came as no surprise that Judge Meyer Joffe decided yesterday to reject the application by former Police Commissioner, Jackie Selebi, to have the corruption charges against him dismissed. Selebi will now have to take the stand in his own defense because he has to convince the court that an array of  state witnesses lied when they claimed he received money and other benefits worth well over R1 million from Glen Agliotti. Selebi maintains that he only ever received a Swiss Army Knife from Agliotti.

Selebi is being prosecuted partly in terms of the old Corruption Act of 1992 and partly in terms of the new Prevention and Combating of Corrupt Activities Act of 2004. The new Act is an excellent piece of legislation that casts the net for corruption very wide indeed. Any public official who accepts any gratification – which would include money, donations, gifts or any other real or pretended aid – and then, because of receiving that gratification, acts illegally, dishonestly or in a biased manner will be guilty of the crime of corruption. A public official who had taken such a gratification and had then acted in a manner that amounted to an abuse of power or a breach of trust would also be guilty of the offence of corruption.

The Act makes clear that when the state has proven that a public official has taken any money or other benefit from a private citizen, that public official will be in deep trouble if it can be shown that the public official then performed or did not perform an official act or even where that official showed “any favour or disfavour” to any person in performing a function as a public official.

I suspect this is why Selebi’s lawyers have put up the Swiss Army Knife defence. They claim that Selebi has never received any money or other benefit (like clothes or donations for an Interpol dinner) for either himself or his family from Agliotti, bar a Swiss Army Knife which Agliotti allegedly gave him. (Agliotti said during his testimony that he would never have given Selebi such a cheap gift!)

This defence might have seemed plausible because there is no paper trial of money changing hands between Agliotti and Selebi (if money ever did change hands) and because Agliotti – as the state’s star witness – has a serious credibility problem. The problem for Selebi and the defense is that at least some of Agliotti’s testimony about the “gifts” and “donations” given to Selebi was corroborated by other witnesses who seemed far more credible than Agliotti. The blanket denial by Selebi of ever receiving any money or other benefits from Agliotti might therefore come back to haunt him as it might affect Selebi’s credibility as a witness.

But I suspect Selebi had no other choice but to deny ever receiving any money or benefits from Agliotti. This is because the 2004 corruption act  casts the net so wide and evidence – including phone records and testimony about how Agliotti used his connections with Selebi to arrange introduction between Selebi and various crooked businessmen - seem to show that Agliotti did indeed receive special treatment from Selebi (had thus “showed him a favour”). Once the state has thus shown beyond reasonable doubt that Selebi had received any “gratification” from Agliotti, Selebi would be in serious trouble.

That is why Selebi will now have to take the stand to deny ever receieving any money from Agliotti. This is, of course, a gamble as Selebi will be subjected to cross examination. Apart from some weirdo’s on the Judicial Services Commission (JSC), most lawyers agree that good cross-examination can be rather lethal to anyone who is not telling the truth. This is because it becomes very difficult to keep one’s story straight while being cross-examined when one is not telling the truth. (Just ask Menzi Simelane whose credibility was completely destroyed by Wim Trengove during cross examination at the Ginwala Inqiury.)

It might be that both Agliotti and the other state witnesses are lying and that Selebi really never received any “gratification” from Agliotti. In that case, Selebi should be fine as he will only have to tell his story and stick to it. If, however, he is lying about receiving any money or benefits from Agliotti his credibility might be severely compromised under cross-examination. Because he is denying receiving the money, it is also not possible for Selebi to argue that he did receive the money and that he did do some favours for Agliotti  but that he had no intention of being corrupt.

The blanket denial about receiving any money from Agliotti has thus boxed in the defence. Selebi will have to give the performance of a life time on the stand. Otherwise he might have to develop deadly hypertension and request medical parole to die a dignified and quiet death in order to avoid a 15 year prison sentence.

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