Jacob Zuma

Law, politics and party disciplinary processes

Jan 26th, 2012

Over the past few months President Jacob Zuma and other ANC leaders have complained about the courts interfering in the policy decisions of the executive, arguing that one can distinguish between legal decisions on the one hand (the realm of the judiciary) and policy choices and political decisions on the other hand (the realm of politicians).

This complaint probably stems from the fact that President Zuma, other Ministers, MEC’s, Mayors as well as the Judicial Service Commission (JSC) have all suffered embarrassing legal defeats before our courts over the past year. It is unclear why they have lost so often and so badly. One possibility is that they had received appalling legal advice from their advisors (or in the case of the President, from the Minister of Justice). Another is that they had failed to follow the sound legal advice provided to them.

This distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain. For example, clearly the President has a wide political discretion to appoint a man or woman of his choice as the National Director of Public Prosecutions (NDPP). But if he were to appoint a convicted fraudster to that position this would be unlawful as the National Prosecuting Authority Act (passed by the ANC dominated Parliament) requires him to appoint a “fit and proper ” person as NDPP.

In such a case the court would have a duty (if called upon to do so) to enforce the law and would have to declare the appointment invalid. If the court did not have the power to enforce the prescriptions of any law, the law could be ignored and then we would potentially live in an anarchic and lawless state. But in declaring the appointment unlawful, the court would interfere with the policy choice of the President – albeit a choice that was exercised in a manner that flouted the law. In a case like that the distinction between policy and legal considerations would dissolve and would become meaningless — unless one really believed that law was not binding on the executive at all and that a court should therefore not ever have the power to enforce the provisions of a law that was passed by the legislature. Such a system would be akin to an absolute monarchy or a dictatorship in which the legislature would perform a symbolic function as a pretend-democratic chamber whose decisions would be ignored at will by the President.

But two recent decisions by the ANC and the DA do actually demonstrate the problem of purely political decisions masquerading as quasi-legal decisions. Purely political decisions recently instigated by Zuma and Zille have been dressed up as disciplinary cases in order to provide a fig leaf of respectability and legitimacy to the witch-hunts against the recalcitrant party members who have challenged the authority of the respective party leaders.

The first case is well known: a selected number of the “top six” leaders of the ANC (which happened to include Jacob Zuma and Gwede Mantashe who were both known enemies of the accused) decided to have Julius Malema charged with contravening certain provisions of the ANC Constitution. Malema was then “tried” before an ANC disciplinary committee. The committee comprised of “disciplined members of the ANC” and can in no way be considered to be independent or impartial as it lacked even the most basic safeguards that would have secured its independence and impartiality. The conviction of Malema was a foregone conclusion but in order to give this outcome a semblance of legitimacy the disciplinary hearing was conducted as if it was a legal one.

The legitimacy of the process was, however, compromised (despite the pretence at legality) because the disciplinary committee members who previously had run-ins with Malema did not recuse themselves and the committee also “forgot” to hear evidence in mitigation after it found Malema and other members of the ANC Youth League guilty of the charges.

The DA has meanwhile launched disciplinary proceedings against DA MP Masizole Mnqasela, after he angered its leader Helen Zille. This he did because during a heated internal party election contest for Parliamentary leader of the DA he stated on prime-time radio that Lindiwe Mazibuko was not black enough to become the DA’s parliamentary leader. Mr Mnqasela had dismissed Ms Mazibuko’s candidacy as “window-dressing” in the lead-up to the DA parliamentary caucus election.

Zille was not amused by this and launched a scathing attack on Mnqasela by saying he had “made a fool of himself and the party”. Writing in her weekly newsletter, Zille equated Mnqasela’s controversial remarks to “Verwoerdian thinking”, referring to the architect of apartheid, Hendrik Verwoerd. “Even in the DA, Verwoerdian thinking sometimes rears its ugly head … I may have missed something, but not once during her campaign did Lindiwe or her supporters ever say she should be elected leader of the caucus because she is black,” Zille wrote.

The DA Constitution allows for a disciplinary committee to hear such a case. Such a committee is not independent but is elected by politicians who are also leaders of the party (on a regional basis) and its members will in all likelihood not wish to upset the party leadership – at least not if they had any thoughts of getting ahead in the party and maybe even becoming a shadow minister of bottle washing or of Zille praise singing. The committee is therefore neither independent nor does it have the necessary characteristics of a body that would act impartiality (or that one could reasonably be expected to act impartially). Zille (like Zuma) has made it clear what outcome is expected of this quasi-legal DA disciplinary process and I, for one, would be very surprised if Mnqasela is not found guilty of some or all of the charges against him.

Ironically, these two examples illustrate (to some degree, at least) the legitimising power that the law still exerts over our imaginations. It reminds us of the dominance in our culture of the liberal view that the law is (almost) always a neutral and objective mechanism for the fair resolution of disputes (even though the presiding officers might get it wrong in exceptional cases and might rely on their own personal ideological views when they resolve a dispute).

But it is even more ironic that by using quasi-legal processes in such a blatant and obvious way to try and legitimise decidedly political decisions, Zille and Zuma run the risk of unmasking the political nature of most legal processes and of helping to delegitimise the liberal version of the law, a version that assumes the law is a neutral and objective mechanism for the imposition of violence on citizens. Because those highly politicised disciplinary processes abuse a quasi-legal process to give some credibility to what are essentially political decisions to act against the members of two different political parties who had dared to cross the leader of the respective parties and threatened the authority of both Zille and Zuma, people might well become cynical about the law more generally.

They might begin to think that law is merely a form of politics perpetrated by members of an unelected clan of legally trained judicial officers. After all, lawyers already know that it can matter a great deal who the presiding officer in a case is. They also know that external political considerations may play a role in the decisions taken by a presiding officer. I recall that in the earlly 1990ties, the Supreme Court of Appeal (SCA) suddenly softened its stance on ANC aligned criminal defendants and reduced Winnie Mandela’s sentence so that the then wife of Nelson Mandela would not have to go to jail. That outcome would have been unthinkable in the mid 1980ties.

This is dangerous terrain for lawyers and judges because political demagogues and populists might easily exploit this ambivalence in the law’s relation to politics to try and delegitimise the courts and the legal process entirely. And this would open up a space for an entirely lawless and authoritarian regime to emerge in which the law on paper would mean nothing more or less than what the President said it meant.

Lawyers therefore face the challenge of producing plausible arguments about the interaction between law and politics, arguments that would acknowledge the fact that legal rules (and the way they are interpreted and applied) can hardly be said to be neutral, but that make strong claims about the ability of such legal rules (to some extent, at least) to constrain the judges that interpret and apply them so that those judges do not merely impose their own personal political preferences on the parties in a dispute before them.

Why a ten year old agreement cannot authorise deployment of soldiers in our cities

Jan 19th, 2012

by Pierre De Vos.

52 comments

The South African National Defence Force, the Presidency and the DA Provincial government in the Western Cape do not seem to be bothered by the increased militarisation of South Africa, nor by the dangers posed by unleashing heavily armed soldiers not trained for that purpose on ordinary citizens. They apparently see nothing wrong with undermining the oversight and accountability functions of Parliament either — as long as they can project an image to voters that they are tough on criminals. Neither do they apparently see anything wrong with the routine deployment of soldiers, armed with semi-automatic guns, in residential areas.

What will happen when those soldiers open fire on citizens and ultimately kill scores of citizens (much like soldiers used to kill scores of citizens in the last ten years of apartheid in townships across South Africa)? Who will be blamed for such a massacre? Will soldiers be charged with murder and sentenced to jail for killing innocent civilians? Because mark my words, if the routine deployment of heavily armed soldiers to combat crime and intimidate protestors or ordinary citizens going about their business is not stopped, a massacre will occur at some point. It always does in a state where the government of the day conflates the role of the police with that of the military and routinely uses the military to assist the police with ordinary safety and security work inside the country.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy and not a military dictatorship, the military should only assist the police service in exceptional circumstances and, as I pointed out earlier this week, only in accordance with strict procedures.

Last week soldiers were involved in a law enforcement exercise in Johannesburg and reportedly assaulted a businessman by slapping him and throwing him to the ground. With a boot on his chest the soldier then allegedly questioned his nationality. (See picture below, taken by Ihsaan Haffejee.) As a South African of Indian descent, they probably assumed he was an immigrant from Asia. Luckily they did not shoot or kill anyone with their heavy weapons while they were out there supposedly searching for counterfeit goods.

Curious onlookers to this operation in the bustling CBD of Johannesburg reportedly had stun grenades thrown at them when they gathered to see what was happening. Other onlookers got their faces full of pepper-spray. The Star newspaper reported that one man had his camera confiscated by soldiers after he took pictures of one of them beating a man with the butt of his assault rifle. Do we really want to live in a state where heavily armed soldiers get involved in the assault and intimidation of fellow citizens?

Responding to queries about the legality of the involvement of heavily armed soldiers (allegedly aimed at searching for counterfeit goods, but in reality aimed at intimidating ordinary citizens to prevent them from engaging in political protests), General Ndivhuwo Mabaya stated that the police and the SANDF have a cooperation agreement which covers all their joint operations, that this was approved in 2001 “or so”, and that this blanket agreement allows the deployment of soldiers to assist the Police whenever and wherever.

“The President is not a person,” he said, but “an office”, (albeit an office with several wives, a blue light brigade and a mean singing and dancing routine) “so the agreement and authorisation of cooperation of the two institution signed in 2001 or 2002 is still valid”. He conceded that the President needed to sign an order to deploy soldiers, but argued that the 2001 agreement covers all eventualities. Helen Zille must agree with this argument because her government has requested the deployment of soldiers in several hotspots around Cape Town (in places where poor black people live or which they frequent, of course — I have never seen heavily armed soldiers in Bishopscourt or Bantry Bay).

This is dead wrong — and dangerous to boot. Here is why.

It is a well-established principle of South African constitutional interpretation, that the provisions of the Constitution have to be read together, as the various provisions may relate to one another and often “talk” to each other and has meaning only in relation to other provisions in the Constitution. One cannot determine the purpose of a sub-clause of the Constitution if one does not read that sub-clause in conjunction with surrounding sub-clauses and other related clauses. And as any constitutional lawyer will tell you, constitutional interpretation relies heavily on a “purposive” interpretation of the provisions of the Constitution: one must ask what the purpose of a relevant provision of the Constitution is and then interpret it accordingly to give effect to this purpose.

That is why we must ask what the purpose of section 201 of the Constitution is. That is also why sub-sections 2 and 3 of section 201 of the Constitution must be read together. The purpose is clear: the drafters of the Constitution wanted to avoid a situation in which an unaccountable President (the person, not the office) sent soldiers to fight in foreign wars (without having to declare war on that country). Furthermore they wanted to Prevent an unaccountable President from sending soldiers into the suburbs of South Africa to intimidate protestors and to instil fear in the hearts of citizens in a desperate attempt to cling to power.

The apartheid government did both of these things and no one was ever held accountable for it. The drafters of our Constitution knew better and included section 102 to ensure Presidential accountability for the deployment of troops inside and outside South Africa. Thus, section 102 of the Constitution states:

2. Only the President, as head of the national executive, may authorise the employment of the defence force (a) in co-operation with the police service; (b)in defence of the Republic; or (c) in fulfilment of an international obligation.

3. When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

4. If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.

The President has a duty to authorise deployment of soldiers and when he does authorise such a grave step, to inform Parliament in detail about any deployment of the soldiers, the reasons for the deployment and how many soldiers are deployed in this manner. Reading these sub-sections in isolation, as if the President can provide a blanket authorisation for the deployment of South African soldiers which would cover every possible eventuality, on the condition that he or she provided details of each deployment to Parliament, would completely negate the purpose, meaning and effect of section 201.

Instead of ensuring that the President is accountable to Parliament for what may be life and death decisions, such a reading would require a President (either as a person or as an office) never to have to take responsibility for such a decision and never having to defend it to the democratically elected members of Parliament.

Why this reading is absurd and wrong can easily be illustrated with an example. Recall that section 201 covers situations like the deployment of soldiers as part of an international peace keeping effort or as part of a military campaign that does not involve a declaration of war by South Africa. In the reading of General Mabaya, the President (who, is not a person after all), may in general terms, authorise the deployment of South African troops abroad to fight in wars in which they might well be killed.

When, several years or even decades after such general authorisation, the USA then wishes to invade Iran and asks South Africa to contribute troops to a coalition of the willing or Uganda wishes to invade the DRC and asks South Africa to contribute troops to a coalition of the righteous, this prior “authorisation” (even if given in general terms ten years ago by another administration) would comply with the requirements of section 201(2).

This would render section 201(2) utterly meaningless and would negate its purpose and effect. Section 102(2) requires authorisation by the President because this will hold the President and his or her administration accountable for what would often be highly charged and politically contentious decisions, decisions that might lead to the loss of life of large numbers of South African soldiers. Because a decision of this kind may be politically highly contentious, a President will have to consider all relevant factors — including the possible opposition of voters to sending South African soldiers to die on foreign soil for a cause they do not believe in — before authorising such a drastic step.

Sending troops to Iran, for example, to assist the United States of America (who might be invading a foreign country in order to placate the far-right wing government of Israel or to secure oil supplies for the USA) would probably be opposed by the vast majority of South Africans and by a majority of ANC voters. But if General Mabaya is to be believed, in a case like this our Constitution would only require that a previous President had agreed (in general terms and more than 10 years ago) that South African troops could be deployed abroad, for section 201(2) to be complied with.

Moreover, this absurd interpretation would also negate the purpose and effect of section 201(3). Why would a President be required to answer to Parliament for a specific deployment after the deployment had already taken place, if that President was never required actually to authorise the specific deployment at all? And would this mean that a junior Defence Official would be able to decide to send troops to Iran because a President had authorised — in general terms — the deployment of South African troops abroad 10 years previously? This would clearly be absurd, yet General Mabaya wants to convince us dat perdedrolle eintlike vye is (that horse manure droppings are really figs).

Read holistically, section 201 requires the President to take political responsibility for each decision to deploy soldiers inside and outside South Africa and then to account to Parliament for this decision by reporting to it on the reasons for the decision as well as on the number of troops to be deployed. Parliament has (at least on paper) the power to stop such a decision as it can threaten to fire the President if he or she authorises the sending of troops to Iran or the sending of troops into townships where citizens have taken to the streets to protest against corruption and service delivery failures. If Section 102 allowed for a blanket authorisation for this kind of thing into the future, Parliament would have no such power and no role to play in holding the President to account, and the reporting obligations would become utterly meaningless.

Generals or military bureaucrats may then make individual decisions about the deployment of soldiers inside and outside South Africa and this will undermine the principle that soldiers are subject to civilian control and that the President, as Commander in Chief , is accountable to the only truly democratically elected national body, namely the National Assembly, for his or her actions.

No, General Mabaya, you are dead wrong. You are also exposing our soldiers to criminal sanction.

Every time heavily armed soldiers appear on our streets and assault and intimidate ordinary citizens, they are doing so unlawfully. Ordering a soldier to take part in such an operation against fellow citizens is thus, arguably, manifestly unlawful. This means that soldiers may well have a legal duty to disobey orders to take part in policing operations inside South Africa, as section 199(6) of the Constitution states that no member of any security service may obey a manifestly illegal order.

If they do not and they are involved in the killing of a civilian during such an unlawful operation which they had agreed to be part of, an individual soldier might well expose him or herself to prosecution for murder. If I was a member of one of the Defence Force Unions, I would be very worried about such a possibility indeed and I would seek clarity on it. Surely Defence Force Unions have a duty to protect their members from possible criminal prosecution? Why are they not taking this up with the leadership of the Defence Force and, if she would deem to talk to them, with the Minister of Defence?

Why are soldiers patrolling the streets of Cape Town?

Jan 16th, 2012

by Pierre De Vos.

72 comments

Are we at war with our own citizens? Why else are soldiers patrolling the streets of Cape Town? I was rather startled when I opened my newspaper this morning and spotted a picture of soldiers with automatic weapons and wearing what looked like full combat gear, parading outside the Khayelitsha District Hospital. For a moment I thought I was back in 1988 and “Boetie” had gone back into the township. The newspaper informs me that soldiers were called in to help control a crowd of protestors outside the hospital. The contingent of soldiers told the Cape Times that they had been diverted to the hospital after being on a routine patrol in the area with the SA Police Services.

But why were soldiers patrolling the streets of Cape Town with members of the Police Service (remember, the Constitution talks about a Police Service, not a Police Force)? Can this be legal? And why were they then diverted from their patrol to get involved in a protest by ordinary citizens? Surely we should be very careful before we use heavily armed soldiers to intervene in political and economic protests by citizens? We do not, as far as I can recall, live in a military dictatorship.

And that is why our Constitution is rather clear on this issue and why it contains provisions that safeguard ordinary citizens from the use of the military against protestors. To avoid the militarisation of our society and to prevent a recurrence of the situation which prevailed in South Africa in the last 15 years of apartheid, when the military played an ever increasing role in suppressing political dissent against the apartheid government, the Constitution sets out strict requirements for the employment of the Defence Force – inside and outside South Africa.

Section 200(2) of the Constitution confirms that the Defence Force should not normally be employed inside South Africa, stating that:

The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.

Section 201(2) of the Constitution provides for an exception to this rule, stating that the President, as head of the national executive, may authorise the employment of the defence force in co-operation with the Police Service or in defence of the Republic.

Section 201(3) then states that when the defence force is employed with the Police Service, the President must inform Parliament, promptly and in appropriate detail, of the reasons for the employment of the defence force; any place where the force is being employed; the number of people involved; and the period for which the force is expected to be employed. If Parliament does not sit during the first seven days after the defence force is employed as envisaged, the President must provide the information to the appropriate oversight committee.

In the context of section 200 and 201 it is clear that the Constitution does not allow the employment of the Defence Force inside South Africa in circumstances other than in co-operation with the Police Service. There are good reasons for this.

In a constitutional democracy it is of utmost importance that the role of the Police Service and the role of the Defence Force be kept separate. The Defence Force should normally not be employed inside the country – especially not to control crowds protesting against a lack of employment opportunities or against service delivery failures. It is normally the role of the Police Service to deal with crime and other internal challenges to law and order. A failure to uphold this distinction between the Police and the Military is dangerous as it will run the risk of further politicising the Defence Force and will create an incentive for politicians to deploy the Defence Force, with its arsenal of dangerous weapons, against ordinary citizens.

Did the President inform Parliament that he was employing the Defence Force to patrol townships in Cape Town? If he did, what reasons were given? If not, why is he in breach of the Constitution?

Strangely section 18 of the Defence Act, which I only read for the first time this morning, states, states that “in addition” to the employment of the Defence Force by the President as authorised by section 201(2), the President or the Minister may authorise the employment of the Defence Force for service inside the Republic or in international waters, in order to: (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socio-economic upliftment; and (d) effect national border control.

As I read section 200 and 201 of the Constitution, it does not allow the President to deploy the Defence Force inside South Africa against citizens unless it is done in co-operation with the Police Service. Section 18 of the Defence Act is therefore most probably unconstitutional in as much as it purports to give the President wider powers to employ the Defence Force in South Africa than those provided for in section 201(2) of the Constitution.

As I read it, the Constitution only empowers the President to employ the Defence Force “in co-operation” with the Police Service – never on its own. In as much as the Defence Act states otherwise and allows the employment of the Defence Force on its own, the provisions in section 18 are surely unconstitutional. As section 19 of the Defence Act deals with the employment of the Defence Force in co-operation with the Police Service (as authorised by the Constitution), it seems to me the whole of section 18 of that Act must be unconstitutional as it bestows powers on the President and the Minister of Defence not not bestowed on them by the Constitution.

Section 19(1) of the Defence Act, quite correctly, states that the Defence Force may be employed in co-operation with the South African Police Service in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic.

Section 19(2) requires the Minister of Defence to give notice of such employment by notice in the Government Gazette within 24 hours of the commencement of such employment and, upon such employment being discontinued, within 24 hours of such discontinuation give notice of the discontinuation by notice in the Gazette. This provision also contravenes section 201(3) of the Constitution, which requires the President (not the Minister) to inform Parliament of the employment as well as the reasons for and details about the employment.

Section 19(3) then sets out strict procedures and criteria that must be met for such a deployment.

Service in co-operation with the South African Police Service: (a) may only be performed in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security; (b) must be discontinued in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security or when the President deems it expedient for any other reason; and (c) must be performed in accordance with:

(i) a code of conduct and operational procedures approved by the Minister;

(ii) such guidelines regarding:

(aa) co-operation between the Defence Force and the South African Police Service; and

(bb) co-ordination of command over and control of members of the Defence Force and the South African Police Service, as the Chief of the Defence Force and the National Commissioner of the South African Police Service may determine.

When soldiers were diverted to the Kayelitsha District Hospital, it could only have been done if ordered by the President – as head of the executive. If the President had not ordered such an employment of soldiers, the employment would be unlawful. Moreover, in terms of section 19, such an employment would require the Minister of Defence to give notice of this employment in the Government Gazette within 24 hours. Section 201 also requires the President to inform Parliament of such an employment immediately. If the Minister of Defence had failed to give notice of this employment and if the President ahd not informed Parliament, they would be in breach of the Constitution and the Defence Act.

These possible breaches of the Constitution and the Defence Act might appear trivial, but flouting the Constitution and the law in this way is deeply damaging to our democracy and to the credibility of the government of the day. First, a government can only command respect from ordinary citizens if its members is generally seen to respect the Constitution and the law and if they do not flout respect for the Rule of Law. Second, a democratic government should not use the Defence Force (with its frightening ability to maim and kill unarmed citizens) against its own people except in the most extreme cases – to assist the Police in the aftermath of a catastrophic natural disaster or in the face of an armed insurrection that threatens the democratic order itself.

It might be that the President and the Minister of Defence have both acted properly and in accordance with the Constitution and the law. An insurrection threatening the constitutional democracy might be underway in Cape Town townships and we might be blissfully unaware of this. What we do not know is whether the President and the Minister have complied with the Constitution and the Defence Act (parts of which are clearly unconstitutional), because we have not heard anything about what steps they had taken to provide legal cover for this employment of the Defence Force and why this employment was needed at all. In the absence of reassurances, all right minded citizens would be excused for becoming anxious about our government’s commitment to the Rule of Law and about its commitment to a democratic state free from interference by a politicised military.

A failure to explain and justify this draconian and scary move to employ heavily armed soldiers against ordinary citizens, must alarm any citizen who loves his or her freedom.

Another legal oversight by the President?

Dec 29th, 2011

by Pierre De Vos.

52 comments

“Americans,” said Winston Churchill, many years ago “can always be counted on to do the right thing…after they have exhausted all other possibilities.” News that President Jacob Zuma seemed to have made another u-turn by accepting the decision of the Supreme Court of Appeal (SCA) which declared the appointment of the National Director for Public Prosecutions, Menzi Simelane, invalid, one day after lodging papers with the Constitutional Court opposing the decision, might well tempt one to apply this maxim to his Presidency.

After all, this year President Zuma first appointed and then fired Willem Heath as the head of the Special Investigative Union; first opposed the establishment of an arms deal inquiry before instituting one and eventually fired two cabinet Ministers and suspended the Police Commissioner – but only months after the Public Protector had found them guilty of maladministration.

Yet, it is not clear that the recent decision of President Zuma on Adv. Menzi Simelane complies with the provisions of the Constitution and the NPA Act. It is therefore far from clear whether President Zuma has done the right thing in this case. (Or put differently, he might have done the right thing but in an unlawful or unconstitutional manner.)

In a statement issued yesterday, the Presidency (somewhat confusingly) said that it had decided not to appeal the decision of the SCA.

However, the Minister of Justice and Constitutional Development, Mr Jeff Radebe will pursue the matter, seeking clarity on various issues in the course of the mandatory Constitutional Court certification process, with the full support of the President. In the meantime, the President has decided to place Advocate Simelane on special leave. Advocate Nomgcobo Jiba, Deputy Director of Public Prosecutions, will act as the National Director of Public Prosecutions until further notice.

It is not clear on what issues clarity is being sought from the Constitutional Court. One would assume, these would include clarity on what the President is required to do to comply with the provisions of the National Prosecuting Authority Act when he appoints a “fit and proper” person as head of the NPA.

Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. This means whether the President opposes the decision of the SCA or not, it will have no force and effect unless the Constitutional Court confirms it. Even if the Presidency does not “appeal” the decision of the SCA, it might therefore still be overturned by the Constitutional Court during the confirmation process and until that court decides on the issue, legally the National Director of Public Prosecutions (NDPP) remains in his post.

After the SCA handed down its decision, I contended that it would be in the best interest of the administration of justice for Adv. Menzi Simelane to step aside voluntary until such time as the Constitutional Court has dealt with this matter. Readers might therefore be forgiven for thinking that I would applaud the announcement that Adv. Simelane had been placed on special leave. And, of course, I cannot fault the Presidency for believing that it would be better for Adv. Simelane to go on leave until the SCA judgment had been dealt with by the Constitutional Court.

However, I am not sure that it is legally and constitutionally tenable for the NDPP to be placed on special leave by the President. In the absence of an announcement about an inquiry into Adv. Simelane’s fitness to hold office, the NPA Act makes no provision for the NDPP to be placed on special leave by the President – unless the NDPP himself requests this. There is a good reason for this: if the President could place a NDPP on special leave this would potentially fundamentally interfere with the independence of the NPA and would be illegal and unconstitutional.

The Constitutional Court confirmed in the First Certification judgment that the NDPP is independent. He or she can only be placed ons special leave, suspended or removed from office in terms of the NPA Act after following the correct procedures. The statement by the Presidency makes no mention of these procedures. I was critical of then President Thabo Mbeki when he first suspended Vusi Pikoli as NDPP after Pikoli had issued a warrant of arrest for Police Commissioner Jackie Selebi, arguing that the move reeked of interference with the independence of the NDPP.

The same principle applies here, despite the fact that the incumbent NDPP appears to be less enthusiastic about his independence. One must apply principles regardless of the personalities involved.

Section 12(5) of the NPA Act clearly states that the NDPP “shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8)”. Section 6 of that Act states that:

The President may provisionally suspend the National Director … from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

This clearly has not happened as Adv. Simelane has not been suspended and neither has an inquiry been launched about his fitness to hold office. The only way in which the NDPP can go on special leave is if he himself requests to do so. (That is why I suggested that it would be best for Adv. Simelane voluntarily stepped aside.) Section 8 of the NPA Act provides for this, stating that:

(8(a) The President may allow the National Director or a Deputy National Director at his or her request, to vacate his or her office (i) on account of continued ill-health; or (ii) for any other reason which the President deems sufficient.

(b) The request in terms of paragraph (a)(ii) shall be addressed to the President at least six calendar months prior to the date on which he or she wishes to vacate his or her office, unless the President grants a shorter period in a specific case.

The statement that the President has decided to place Adv. Simelane on special leave is therefore perplexing and pose serious questions about the legality of this move. No mention is made of a request received from Adv. Simelane to be vacate his office (or, for that matter, to be placed on special leave), neither is mention made of the reasons given by Adv. Simelane for this or the reasons why the President had decided to waive the requirement that such a request must be received six month before the leave takes hold. In the absence of such a request, a decision of President Zuma to place Simelane on special leave would therefore be unlawful as it would interfere with the independence of the NPA and would not comply with the NPA Act.

In any case, section 8 deals with the termination of the services of the NDPP and not with being placed on special leave.

After I had suggested that it would be better for Adv. Simelane to go on leave voluntarily, he responded to questions of Adriaan Basson, a journalist from City Press, by stating that he had no intention to step aside. The statement by the Presidency does not clarify this issue and is phrased in such a manner as suggesting that the decision was taken by President Zuma without receiving the requisite request from Simelane. In the absence of a clear statement that a request was received from Adv. Simelane to vacate his position (or, perhaps, but far more arguably) go on special leave, one must assume that the President has therefore again acted unlawfully.

What is required, at the very least, is for Adv. Simelane to clarify the situation. In the absence of a specific indication by him that he requested to vacate his office (or, at a stretch, to go on special leave), the decision by the President to place him on special leave must surely be null and void. This interpretation may seem overly legalistic, but there is a very good reason for interpreting the NPA Act in this way. One should not set a precedent in which the President of the country places the head of the NPA on special leave without receiving such a request from the NDPP. This is so because the precedent set would not only be unlawful but would also potentially interfere with the independence of the NPA.

Clarity from Adv. Simelane and/or the Presidency is therefore needed urgently to remove any uncertainty about the position of the NDPP.

How long will Heath last?

Dec 14th, 2011

by Pierre De Vos.

238 comments

After Adv. Willem Heath (then still a judge of the High Court) was first appointed as head of the Special Investigating Unit (SIU) by then President Thabo Mbeki Nelson Mandela, he soon became the darling of the chattering classes. He was outspoken and seemed to love the limelight, but he lacked the diplomatic and political skills that might have helped to endear him with his direct boss — the President of South Africa.

It is safe to assume that by the time the Constitutional Court found that it was constitutionally problematic for a sitting judge to head the SIU, President Mbeki was rather glad to see the back of him. The Constitutional Court had found that the appointment of Heath was unconstitutional because it infringed on the separation of powers doctrine, summarising its findings as follows:

The functions that the head of the SIU is required to perform are far removed from “the central mission of the judiciary.” They are determined by the President, who formulates and can amend the allegations to be investigated. If regard is had to all the circumstances including the intrusive quality of the investigations that are carried out by the SIU, the inextricable link between the SIU as investigator and the SIU as litigator on behalf of the state, and the indefinite nature of the appointment which precludes the head of the unit from performing his judicial functions, the first respondent’s position as head of the SIU is in my view incompatible with his judicial office and contrary to the separation of powers required by our Constitution.

Heath then re-invented himself as a private consultant and threw in his lot with several people under investigation by the now defunct Scorpions, including the late Brett Kebble and, of course, Jacob Zuma. I recall taking part in a TV debate with Heath about the Scorpions decision to charge Jacob Zuma (before charges were dropped by the NPA) and finding him to be underwhelming. I thought that he was either not very bright or that he was not entirely on top of the issues being debated. (Maybe my judgment was clouded by the issues, but I leave that for others to decide for themselves.)

As we all know, Heath has now made a comeback and was recently re-appointed as the head of the SIU by President Jacob Zuma. Since then he has made some rather startling claims, expressing several widely held (but unproven) suspicions about the alleged interference of former President Mbeki in the independence of the NPA as well as criticism of the High Court, Supreme Court of Appeal and Constitutional Court who had all confirmed that the state had proven beyond reasonable doubt that Schabir Shaik was a crook and that he had solicited a bribe from an arms company on behalf of Zuma and had also bribed Zuma directly.

It also transpired that he had been given permission to do private consulting work while heading the SIU. This inevitably raised questions about the wisdom and legality of his re-appointment.

The SIU is a strange beast. It is a creature of statute given wide ranging powers to investigate serious maladministration in connection with the affairs of any State institution; improper or unlawful conduct by employees of any State institution; unlawful appropriation or expenditure of public money or property; unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property; intentional or negligent loss of public money or damage to public property; and other forms of corruption. But this power is circumscribed in the sense that the SIU is only empowered to investigate a matter if the President formally requests it to do so.

Section 3 of the Special Investigating Units and Special Tribunals Act states that the President “must appoint a person who is a South African citizen and who, with due regard to his or her experience, conscientiousness and integrity, is a fit and proper person to be entrusted with the responsibilities of that office, as the head of a Special Investigating Unit established by the President”. The SIU is therefore at the same time quasi-independent, yet acts only at the behest of the President. As such the head of the SIU can be viewed as the President’s personal anti-corruption tsar.

If the head of the SIU is an employee in terms of the Public Service Act (something that is not clear to me) he would also be bound by section 30 of that Act which states that no employee is allowed to perform remunerative work outside his or her employment in the relevant department, except with the written permission of the executive authority of the department. When outside work could reasonably be expected to interfere with or impede the effective or efficient performance of the employee’s functions in the department or constitute a conflict of interest, permission should ordinarily not be given.

Whether this provision is legally applicable to Adv. Heath or not, at the very least it seems advisable that — given the nature of the work done by the SIU — Heath should reveal the nature of the outside work he is doing to prevent the perception of a conflict of interest. This is so for the same reason that Adv. Heath’s comments in City Press seem completely inappropriate.

When the SIU investigates allegations of corruption and goes after those allegedly involved in corruption, it is important that its head should be viewed as being beyond reproach and as having the requisite credibility and legitimacy to avoid allegations that the SIU is being used to settle political scores. One can well imagine that if Heath investigates corruption within the state, those fingered by any investigation will immediately claim that they are being unfairly targeted for political reasons and that Heath is assisting President Zuma to settle political scores with his opponents to improve Zuma’s chances of re-election as ANC President next year. This will negatively affect the credibility and effectiveness of the SIU and will provide those targeted for investigation with political cover to pay nt themselves as victims of a conspiracy – even when this is clearly not the case.

An interesting legal question is whether the SCA’s Simelane judgment could be used to challenge the lawfulness of his appointment. After all, the requirements of the head of the SIU needing to be “fit and proper” mirrors the requirement in the NPA Act for the National Director of Public Prosecutions having to be fit and proper.

In principle, it should therefore be possible to apply the principles developed in the Simelane case to the Heath case. In practice, the facts are slightly different as Heath’s latest rather outrageous statements were made after his appointment. But, if one follows the logic of the Simelane judgment one might well ask whether, given the fact that Heath himself has admitted to run a trust fund on behalf of Bret Keblle (from which he paid various people for undisclosed reasons), the President interrogated this issue sufficiently to ascertain whether Heath was indeed “fit and proper” as required by the SIU Act and whether zuma might not have acted irrationally in appointing Heath without asking enough questions about this unseemly arrangement.

According to news reports, Heath’s company, Heath Executive Consultants, was contracted by Johannesburg Consolidated Investments (JCI) as consultants and, according to company records, initially paid a monthly retainer of R230 000, later increased to R325 000. According to JCI’s forensic audit, Heath received payments of more than R18.5 million in the space of just over three years, more than half of which was apparently channelled to third parties.

Heath said he was not privy to the nature of contracts with third parties, and admitted it was possible, as suggested by forensic auditors, that some of these recipients were indeed former employees of DRD and Ain — two companies that were at the centre of a fierce dispute estimated to have cost Kebble more than R90-million.

Questions could therefore be asked about the legality of Heath’s appointment.

However, my guess would be that this case will never go to court (the DA perhaps feeling less worried about threats to the Rule of Law in the case of Heath?) and that his appointment will not be challenged before a court.

Nevertheless, I would not be surprised if the President decides on his own to retract the appointment of Heath, given the embarrassment already caused by him since his re-appointment. And even if the appointment is not reversed in the next few days, I would not be surprised if Heath does not last long in his new role. Being someone who seems rather clueless about politics and diplomacy (and a bit of a cowboy to boot), he is bound to disappoint and embarrass President Zuma – just as he did Mbeki. How long then before he becomes a liability for the SIU and, more importantly, for President Zuma and is fired?

PS: The original version of this article wrongly stated that Heath was appointed by Thabo Mbeki. This has now been corrected.

The perils of criticising a court judgment

Dec 12th, 2011

by Pierre De Vos.

192 comments

Is the Supreme Court of Appeal (SCA) judgment declaring the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) unlawful and unconstitutional bad in law and will it be overturned by the Constitutional Court? Prof Ziyad Motala, a law professor in the United States, thinks the decision is bad in law and has hinted that the Constitutional Court should overturn the SCA decision which is nothing more than “politics masquerading as law”.

Writing in the Sunday Times yesterday, he argued that the SCA’s “reliance” on the adverse findings against Simelane made by the Ginwala Enquiry was misplaced. Prof Motala contends that the SCA judgment suggested that the Ginwala Enquiry findings against Mr Simelane “represent objective truths and something the President was bound by”. This was wrong because the SCA, he argued, conspicuously ignored questions about the nature of the Ginwala Enquiry. If the Enquiry was not an independent and impartial tribunal under the Constitution (which it clearly was not), then the probative value of its findings would be limited.

Prof Motala — correctly in my view — zooms in on the most difficult aspect of the case, namely the fact that there was no clear finding by an independent and impartial tribunal before the SCA which had concluded that Mr Simelane is not a “fit and proper person with due regard to his or her experience, conscientiousness and integrity” as required by section 9 of the NPA Act.

The SCA considered the findings of the inquiry to be an objective truth and not something for the President to assess. The court pays lip service to the core values of the Constitution such as the rule of law and legality. The ultimate decision and the reasoning, which underpins the result, are extraordinarily brazen. It signifies an abject dereliction of the court’s judicial function and lack of respect for the core values of the Constitution. The inquiry was neither a court of law nor a competent independent tribunal in terms of what our Constitution or international human rights would require. Instead, it was an ad hoc inquiry led by a political appointee (the former speaker of the National Assembly) selected by a prior President during a period of Machiavellian subterfuge and political maneuverings within the ruling party. The court takes no cognizance of this reality.

The case presented the SCA with a difficult problem. Section 9 of the NPA Act sets out objective minimum criteria that the NDPP must comply with if his appointment is to be deemed to be legally valid. If the appointee is not fit and proper with due regard to his experience, conscientiousness and integrity, the appointment is invalid. But what happens if there are serious questions about whether these minimum requirements have been met by the appointee, but no definitive finding about whether an appointee meets these requirements have been made by an independent and impartial tribunal? What is the duty of the court to enforce respect for the Rule of Law, when the evidence placed before it is inconclusive?

As the SCA pointed out, the Constitutional Court has stated on numerous occasions that the exercise of power by the President is constrained by the principle of legality, which is implicit in our constitutional ordering. Firstly, the President must act within the law and in a manner consistent with the Constitution. He or she therefore must not misconstrue the power conferred. Secondly, the decision must be rationally related to the purpose for which the power was conferred. If not, the exercise of the power would, in effect, be arbitrary and at odds with the rule of law.

Prof Motala argues that the SCA had wrongly relied on the findings of the Ginwala Enquiry (which he argued that court took to be the “objective truth”) to find that the appointment did not meet the objective requirements prescribed by section 9 of the NPA Act. It seems to me that although Prof Motala identified the factual difficulties surrounding the case, he misunderstood the legal reasoning of the SCA (and hence misrepresented the scope of that judgment).

The SCA had not, as far as I can tell, taken the findings of the Ginwala Enquiry to be the “objective truth”. If it had done so, Prof Motala’s criticism would be completely valid. What the SCA did do, was to find that the findings of the Ginwala Enquiry (and the extremely negative comments about Mr Simelane’s integrity made by judges of two different courts) raised serious questions about whether Mr Simelane met the objective requirements as set out in the NPA Act (requirements included in the Act to ensure the independence of the NPA) and that this required the President to follow a systematic procedure to determine whether these findings and comments disqualified Mr Simelane from being appointed NDPP or not.

Because there were serious question about Mr Simelane’s legal fitness for the job, the President had a duty to engage in a real and earnest manner with the issues raised. According to the SCA, his failure to do so was irrational as there was no rational link between the purpose of the exercise of the power (appointing a NDPP who is fit and proper and who will safeguard the independence of the NPA) and the manner in which the power was exercised.

(The Constitutional Court established this principle that the manner in which a power is exercised to achieve a specific purpose is relevant when determining whether the principle of legality had been satisfied in the Albutt case where it found that the President had acted irrationally when he approved the pardoning of apartheid era criminals in order to achieve reconciliation without allowing for consultation with the victims of the criminal offences. By failing to allow for a process of consultation with the victims, there was no rational connection between the purpose of achieving national reconciliation and the act of pardoning the apartheid era criminals.)

The SCA argument thus essentially boils down to this: Given the questions raised about Mr Simelane’s fitness to hold office, the principle of legality required the President — at the very least — to undertake a proper enquiry of whether the objective requirements of section 9(1)(b) were satisfied to ensure the independence of the NPA. What was required was for the President to obtain sufficient and reliable information about the candidate’s past work experience and performance; sufficient and reliable information about the candidate’s integrity and independence; and in cases like that of Mr Simelane where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

Where Prof Motala goes wrong, in my view, is by somehow reading the SCA judgment as accepting the findings of the Ginwala Enquiry about Mr Simelane as objectively true and as binding the President to these findings. As far as I can tell, it did not do anything of the sort. As the SCA judgment clearly states:

There may well be answers forthcoming from Mr Simelane on the issues raised by the [Ginwala Enquiry] report, but at the very least they required interrogation [by the President].

What made the appointment irrational and unlawful was that there was not — in the view of the SCA – sufficient interrogation of the various findings and statements by the Ginwala Enquiry and by the judges of two different courts which cast doubt on Mr Simelane’s fitness to hold office. (Requiring interrogation of the findings of the Ginwala Enquiry can surely not be equated – as Prof Motala does -with accepting these findings as objectively true?) Thus, said the SCA, the process followed by the President was not rationally related to the purpose of the appointment — the safeguarding of the independence of the NPA.

It is so that the Constitutional Court may look at all the facts and may find that there was indeed sufficient interrogation by the President of the various adverse findings against Mr Simelane and the various adverse comments made by judges of the High Court and the Constitutional Court about Mr Simelane’s integrity. Or it may find — somewhat contradicting its Albutt decision — that in the absence of a finding by a court that Mr Simelane was fit and proper, the President was not required to follow a more onerous process of actually considering and weighing all the negative comments made about Mr Simelane by the Ginwala Enquiry and by judges of the High Court and the Constitutional Court.

If I was Mr Simelane’s lawyers I would strongly push the first point (the second point seeming to be rather difficult to sustain) by highlighting exactly what President Zuma had done to interrogate the various adverse findings and comments against Simelane and by arguing that the facts demonstrated that the President had indeed followed a procedure that was rationally related to the purpose of his exercise of power.

Now, this might be difficult to show, given the fact that the President had previously argued that as the democratically elected head of the executive he had the absolute power to decide whether Mr Simelane was fit and proper. (And legally this argument was perhaps not the wisest one to have made in the High Court and before the SCA, as it misconstrued the nature of the requirement of s 9 and ignored the fact that section 9 set some minimum objective criteria that had to be met before the appointment of the NDPP could be deemed to be valid.) But a different court may well look at the evidence and conclude that a less onerous form of interrogation was required and that the President had satisfied this less onerous standard of interrogation.

My view is that one could thus easily criticise the SCA judgment on the basis that it had not given due regard to the facts placed before the court by the President and the Minister of justice. What one could not plausibly do without misconstruing the judgment of the SCA, was to argue that the SCA had accepted the findings of the Ginwala Enquiry as objectively true and then lambasting the SCA for playing politics. The latter line of reasoning seems at best to completely misread the judgment and at worst to deliberately misrepresent it for political purposes.

Can the government intervene in Limpopo?

Dec 6th, 2011

by Pierre De Vos.

41 comments

The statement of the national cabinet issued yesterday announcing that the national executive is intervening in three Provinces because of concerns “about the state of financial management and governance” in those provinces, once again highlights the nature of the quasi-federal system established by our Constitution. It raises questions about the nature of the relationship between provincial governments and the national government.

More cynical observers — including the ANC Youth League - have also asked questions about the timing and the motivation of this announcement and might wonder whether it has anything to do with President Jacob Zuma’s fight back campaign to neutralise his political opponents inside the ANC. Can it be a co-incidence that the most drastic kind of intervention allowed by the Constitution was only launched in the home province of Julius Malema?

Who knows?

Cabinet announced that it had “received reports on trends in provincial under spending, overspending and challenges with supply chain management” in Gauteng, Limpopo Province and the Free State. It has therefore decided, amongst other things, that “Limpopo Provincial Government be placed under a section 100 (1)(b) intervention of the Constitution” and that members of the National Executive will assume responsibility for the Provincial Treasury, Education, Transport & Roads, Health and Public Works of Limpopo Province.

Section 100(1)(b) of the Constitution seemingly allows for this move as it states that “[w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation,… [by] assuming responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service; maintain economic unity; maintain national security; or prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole”.

The Provincial executive of Limpopo has a constitutional duty in terms of section 125(2) of the Constitution to implement all national legislation within the functional areas listed in Schedule 4 or 5 and to co-ordinate the functions of the provincial administration and its departments. These functions include those now taken over by the national executive. One assumes the cabinet believes that the Limpopo Province is “unable to fulfil its obligations” to run the various functions now taken over by the national executive as it is allegedly experiencing a cash crisis. According to the cabinet statement:

They used up their R757,3 million overdraft facility with the Corporation for Public Deposits (CPD). The CPD is the subsidiary of the South African Reserve Bank which facilitates banking arrangements that national, provincial governments and state owned entities have with the Reserve Bank within which they inter-lend to each other with the approval of the National Treasury. Limpopo had requested that their facility should be increased by R1 billion (to R1,7 billion)from the National Treasury for the province to pay salaries and wages on the 23 November 2011. This request was declined but alternative arrangements were made for an early transfer (2 days before the actual date of transfer) of their equitable share in order to be able to pay salaries.

If this is correct, the provisions of section 100(1)(b) quoted above (in terms of which this action was taken) is probably suitably broad to ensure that this intervention is constitutionally allowed. After all, if a Province runs out of cash and cannot pay the salary of its employees, the intervention might be said to be necessary to ensure that the province provides a minimum standard for rendering a service.

This section represents a potentially radical incursion on the autonomy of a Province and should be read narrowly so as not to empower the national government to interfere in the workings of a province merely for political reasons. This is so because an expansive reading would be in conflict with the larger scheme of the Constitution which creates provincial governments with both exclusive powers and powers it has to exercise in concurrence with the national government. Nevertheless, even on a constricted reading, the requirements of section 100(2) are probably met.

The Constitution does contain a safeguard to protect the abuse of this section for political purposes. However, this safeguard will work best where the balance of powers in the various provinces are more evenly spread. The section states that when the national executive intervenes in a province in terms of subsection (1)(b) a “notice of the intervention must be tabled in the National Council of Provinces (NCOP) within 14 days of its first sitting after the intervention began; the intervention must end unless it is approved by the Council within 30 days of its first sitting after the intervention began; and the Council must review the intervention regularly and make any appropriate recommendations to the national executive”.

The NCOP consists of ten person delegations from each province and densely populated provinces have exactly the same say in the NCOP as thinly populated provinces. In a scenario where a majority of the smaller provinces are governed by opposition parties, this section would ensure that the national government would not abuse the section for political purposes. As the ANC controls 8 of the 9 provinces and hence 8 of the 9 NCOP delegations, one assumes a vote to ratify this decision of the cabinet is a mere formality.

Interestingly, the cabinet also announced less invasive measures which will apply to the Free State Province, where (with the agreement of the Premier), directives will be issued in line with section 100 (1)(a) by the relevant members of the National Executive for the following departments: Provincial treasury; and Police/Roads & Transport. This section states that [w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations”.

This step would ordinarily precede the steps taken in terms of section 100(1)(b) and the fact that no such preliminary action was taken in the Limpopo case will add fuel to the fire of the speculations that while some kind of intervention in Limpopo was practically required, the extent of the intervention reeks of political meddling. I have absolutely no idea if this is the case or not. It might well be that the situation in Limpopo is so dire that the cabinet had no choice but to intervene in the drastic manner that it did.

But given the political ramifications of this interventions, the more suspicious among us will invariably ask questions about the motivation behind this radical interference in the autonomy of a province.

It is necessary to highlight one last issue raised by this intervention. It reminds us that where corruption thrives, efficient governance can be dramatically derailed and can lead to disaster for the government and for the people it is supposed to serve. It might be trite to say, but it is important to remind ourselves that corruption and maladministration may have serious consequences for service delivery and will eventually directly affect the lives of the poor. Where a provincial government dishes out tenders to well-connected politicians like Julius Malema (or the friends of Julius Malema) and where such tenders are inflated, the cash eventually runs out — with disastrous consequences for the poor.

If it is true that the Limpopo Provincial government has been milked dry by Mr Malema and his cronies – as alleged by various newspapers – then the intervention comes as a sort of acknowledgment of the deleterious effects of corruption. Somebody eventually has to pay for the cars, the houses and the expensive watches. The people who pay are seldom the well-connected and the rich. More often than not they are the very poor whose interests are supposedly being advanced by those who have abused the system.

“No one is above the law”

Dec 1st, 2011

by Pierre De Vos.

147 comments

In commenting on the (re-)appointment by President Jacob Zuma of Mr Willem Heath as the head of the Special Investigating Unit (SIU), an editorial in Business Day this morning notes that President Jacob Zuma has acted consistently ”to draw around him an iron ring of men he relies on to keep him safe. South Africa and its interests are not part of this particular calculation. The fact that the fraud and corruption charges against him, expediently dropped before the last general election, could quite easily be resuscitated is at the centre of everything he does”.

Part of this pattern was the appointment, early in his tenure as President, of Adv. Menzi Simelane as National Director of Public Prosecution (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the President from future prosecution for taking a bribe from fraudster Shabir Shaik.

President Zuma’s recent statement that the executive ”has the sole discretion to decide policies for the government”, that the executive “must be allowed to conduct its administration and policy-making work as freely as it … can” and that the “powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”, can thus arguably be read as an expression of concern about the Constitutional Court’s decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring President Zuma had erected around himself to protect himself from prosecution for corruption.

It is against this background that today’s judgment of the Supreme Court of Appeal (SCA) declaring the appointment of Menzi Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others a unanimous court, in a judgment authored by judge Mahommed Navsa (Heher, Mhlantla, Majiedt JJA and Plasket AJA concurring) the SCA found that the President had acted irrationally and hence unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998.

Perhaps believing that it was required to provide the President with some pointers on the nature of a constitutional democracy like ours, the SCA pointed out that ours is a democratic state founded, amongst other values, on the supremacy of the Constitution and the rule of law. Section 1(d) of the Constitution commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.

This meant that the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of President Zuma, the SCA then proceeded to make the following powerful observation:

No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The SCA pointed out that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has “awesome powers” and “that it is central to the preservation of the rule of law”, it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The SCA again reminded us that in the Certification judgment the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. “There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”

This is why the NPA Act requires that the NDPP must, inter alia “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.” This was an objective standard. The President could not decide, based on his own personal views and disregarding all the available evidence, that his choice for NDPP was “fit and proper”.

This is so because the relevant section of the NPA Act does not use the expression “in the President’s view” or some other similar expression. Qualities like “integrity” must be assessed objectively. A person would have integrity if he or she possesses characteristics like‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability.

In the light of the above the President was required to obtain sufficient and reliable information about the candidate’s past work experience and performance; to obtain sufficient and reliable information about the candidate’s integrity and independence; and in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

In this case the starting point of the President was wrong. The Minister of Justice had stated that the President told him, at the outset, before asking for his input, that the President had “firm views” on appointing Mr Simelane as NDPP. The President could not argue, as he did, that absent any firm evidence to the contrary he could conclude that Simelane was fit and proper. More was required from the President to comply with the law.

This would especially be the case in a situation like the one under review where serious findings of impropriety had been made by the Ginwala Enquiry and by a court of law against the President’s choice of NDPP.

A fundamental problem for the Minister and the President is that they both considered that the GE [Ginwala Enquiry] report was irrelevant or, based on a rigid view that the GE enquired into Mr Pikoli’s fitness for office and did not concern Mr Simelane’s integrity. It is clear from the President’s account of the discussion with the Minister and from his description of his mindset…. that he took the view that the GE report, insofar as it related to Mr Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Mr Simelane disqualified for future appointments. The President and the Minister wrongly discounted Minister Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the PSC’s [Public Service Commission's] attitude in this regard. It ought also to have been a matter of concern that the GCB had been poised to enquire into Mr Simelane’s conduct ─ it is a matter that would directly affect public perception about his candidacy. It is not unlikely that the GCB probe ground to a halt because of the ensuing litigation.

The Ginwala Enquiry report was directly relevant to the questions required to be addressed in the appointment process. They bring his integrity directly into question. They were issues of serious concern to Minister Surty, with whom the PSC agreed. There may well be answers forthcoming from Mr Simelane on the issues raised by the GE report, but at the very least they required interrogation.

The Minister and the President therefore both made material errors of fact and law in the process leading up to the appointment of Mr Simelane. This speaks to both rationality and legality. The President is required to act in good faith and must not misconstrue his powers. In failing to take the findings of the Ginwala Enquiry into account, the President took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.

It is clear that the President did not undertake a proper enquiry of whether the objective requirements of the NPA Act were satisfied. In fact, “on the available evidence the President could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience”.

The SCA concluded its judgment by responding to the view expressed by the President that he was “the choice of the people. The Constitution vests in him the power to apply his value judgment and appoint a NDPP who meets the objective criteria and is a fit and proper person to hold such office.” This view implies that because the President was democratically elected he had the right to choose anyone he wished as head of the NDPP and to determine whether the requirements for a NDPP prescribed in the NPA Act was met. It mirrors previous statements made by the President about the separation of powers doctrine. The SCA dismissed this view by quoting former Chief Justice Ishmael Mahommed.

“The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.” These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.

The judgment could therefore be read as engaging in a dialogue with the executive about the power of the judiciary vis-a-vis the executive. It reminds the President that he is not above the law and that he cannot ignore the law or the judgments of the courts enforcing the law.

I would guess that the judgment would not go down well with President Zuma and others who have launched direct or veiled attacks against the judiciary and against the very principle of a supreme Constitution enforced by the courts. How the executive responds to this judgment is therefore pivotal to the future health of our constitutional democracy. Attempts to subvert the judgment or undermine the court who made it, would send a signal that the current government opposes the notion of a constitutional democracy. A sober and considered response would go a long way to allay fears among some that the executive is indeed not committed to our constitutional project.

One further issue needs to be highlighted. For the moment Adv. Simelane is not legally prohibited from continuing in his post. Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. However, as a practical matter, it would probably be in the best interest of the administration of justice and the criminal justice system as a whole if Adv. Simelane voluntary stepped aside until the Constitution Court has either confirmed or overturned the SCA decision.

It must be recalled that we have a system of objective invalidity, which means an unconstitutional act by the President is unconstitutional from the moment it was taken. If the Constitutional Court confirms that the President had acted unconstitutionally, then the appointment of Adv. Simelane would be void and all decisions taken by him since appointment would have no force and effect unless otherwise directed by the Constitutional Court. Surely, it would be better if this legal uncertainty is not further exacerbated by the continuing presence of Adv. Simelane as NDPP.

If the Constitutional Court overturns the SCA judgment, Adv. Simelane could then resume his duties and little harm would have been done to the administration of justice. However, if that court confirms the SCA decision and Simelane had stepped aside now, it would then not be faced with the difficult issue of what to do about the legality of all the decisions taken by Simelane since the SCA had found that his appointment was unlawful. It would be understandable if the first reaction of a defiant government and an even more defiant Simelane would be to want to continue in office, but this would not be in the best interest of the government or the country. Hopefully, after considered reflection, the best interest of the country will weigh heavier than the ego’s of the personalities involved in this case with Adv. Simelane and with the government and a decision will be made for Adv. Simelane to step aside until the Constitutional Court has delivered its judgment.

Should a court help to make the state’s case for secrecy?

Nov 29th, 2011

by Pierre De Vos.

157 comments

The right of every person to have access to any information held by the state is guaranteed by section 32 of the Constitution. The Promotion of Access to Information Act (PAIA) gives effect to this right. Unfortunately, many state officials (as well as private bodies) undermine respect for the Rule of Law by refusing to adhere to the provisions of PAIA, either by not responding to requests for access to information at all, or by refusing access to information where this refusal is not clearly justified by the provisions of PAIA.

Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

How to fix the Secrecy Bill and make it constitutionally compliant

Nov 24th, 2011

by Pierre De Vos.

90 comments

The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.

Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access ”any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.

There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.

At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.

Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.

First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.

This must be read with section 14(3), which must also be deleted. This section states that:

Specific considerations with regard to the decision whether to classify state information may include whether the disclosure may-

(a) expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;

(b) clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised;

(c) seriously and substantially impair national security, defence or intelligence systems, plans or activities;

(d) seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;

(e) violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or

(f) cause life threatening or other physical harm to a person or persons.

Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.

It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.

Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.

Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.

Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.

First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it secret.

Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.

Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.

I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.

Jacob Zuma

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Should a court help to make the state’s case for secrecy?

How to fix the Secrecy Bill and make it constitutionally compliant

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