Constitutional Hill

Jacob Zuma

A 75% majority needed to amend powers of Constitutional Court?

Feb 17th, 2012
by Pierre De Vos.
66 comments

The statement by President Jacob Zuma about the need to “review” the powers of the Constitutional Court has elicited much comment. The Black Lawyers Association (BLA) has issued a welcome statement in which it argued – as I did earlier this week – that an amendment of the powers of the Constitutional Court would mean that we would be abolishing the current constitutional democracy “and remarry the parliamentary sovereignty”. On reflection, I suspect that I was wrong and that the powers of the Constitutional Court can be amended in such a way that we would not return to a system of parliamentary sovereignty, but which would return us to a system in which the supremacy of the Constitution as well as the Rule of Law is not upheld.

Let me explain.

The BLA correctly points out that such an amendment would be unlikely to hold water as it might require a 75% majority of members in the National Assembly to vote for it. The ANC at the moment has 65.9% of the seats in the National Assembly (3 seats short of a two-thirds majority)and the DA, Cope and the IFP (who would presumably all be opposed to such an amendment) holds 28.5% of the seats in the National Assembly. This means that the ANC will not be able to garner the necessary 75% majority to validly change this aspect of the Constitution.

This argument might, at first, seem strange as the powers of the Constitutional Court are contained in chapter 8 of the Constitution and the provisions in this chapter can be amended by a two thirds majority of members of the National Assembly (and six of the nine delegations in the National Council of Provinces). Section 165(5) states that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies”, based on the assumption that an order or decision is made by the majority of judges sitting in a case.

Section 167 of the Constitution sets out the powers of the Constitutional Court, confirming that the Constitutional Court is the highest court in all constitutional matters; that it may decide only constitutional matters, and issues connected with decisions on constitutional matters; and that it makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Section 167(4) states that only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; and may decide on the constitutionality of any parliamentary or provincial Bill referred to it by the President or Premier or Acts referred to it by 30% of the members of a legislature. That Court also has exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution; and to decide that Parliament or the President has failed to fulfil a constitutional obligation.

The pivotal section is probably section 167(5) of the Constitution, which states that:

The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

How could these powers be amended? One possibility is that the Constitution could be amended to remove the power of the Constitutional Court (as well as other courts) to review acts of the President and/or other members of the executive. This would mean that the Constitutional Court would retain the power to declare invalid acts of various legislatures but that it would not be allowed to inquire into whether the President or perhaps other members of the executive have infringed the rights of anyone or have acted in breach of their constitutional or other legal duties.

This would not make Parliament supreme again, but two other very serious and deeply problematic consequences would inevitably flow from such a possible amendment.

First, the executive would become more powerful and we would move in the direction of creating an imperial Presidency (much like the imperial Presidency created by the 1983 tricameral Parliament under PW Botha). This is because, in controversial matters, the majority party in Parliament will try to circumvent judicial review by the courts by delegating more and more power to the President and/or his executive. Although our courts have argued that unlimited delegation of powers by the legislature to the executive is not allowed as it infringes on the separation of powers (hence the declaration of invalidity of the provision on which the President relied to try and extend the term of office of the former Chief Justice), the Parliament would obviously delegate as much power as it legally can to the President.

As the President is not democratically elected (but elected by the National Assembly, which in effect means at the moment that it is elected by just over 4000 delegates at the ANC elective conference), such a move has the possibility of eroding the democratic nature of our system of government.

Second, the President would no longer be subject to the Constitution and the law and would, in effect, be above the law. If the President failed to exercise his powers as dictated by the Constitution or other legislation (as he was found to have done in the Menzi Simelane case) or if he acts in a way that infringes on the rights of others, his actions would not be reviewable and the President would then potentially become a law unto himself.

This would result in an indirect amendment of section 1(c) of the Constitution, which states that our democracy is founded, inter alia, on the value of the supremacy of the constitution and the rule of law. There will no longer be a supreme Constitution and neither will there be full respect for the Rule of Law. Even if section 1(c) of the Constitution is not itself amended, such an amendment to section 167 would result in an effective scrapping of section 1(c). This would, I contend, require a 75% majority in the National Assembly.

If Parliament amended section 167 in this way but relied on a two-thirds majority in the National Assembly in terms of the section 74(3) process, the Constitutional Court would be able to review this amendment and would be able to declare it invalid on the ground that the amendment should have been passed in terms of the section 74(1) process which requires a 75% majority in the National Assembly.

What the Constitutional Court would almost certainly not be able to do is to review an amendment on grounds not related to the question of whether the correct procedure (as prescribed in section 74) was used when the Constitution was amended. Some commentators seem to have suggested that the Constitutional Court can declare invalid a constitutional amendment because it clashes with other provisions in the Constitution. This is not correct. In the floor crossing case the Constitutional Court made this clear when it found that:

Amendments passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.

The curious part of this statement is that the part where the Court stated that there is “little if any” scope for such a review. This phrase probably gestures at the obiter dictum (not binding opinion) by Justice Mahomed in the Premier, KwaZulu-Natal v President of the RSA judgment, in which he raised the possibility that amending the basic structure of the Constitution would itself not be permissible. In that case he stated that:

It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an “amendment” at all.

But this statement was made with reference to the Interim Constitution, which did not contain a super-entrenched founding values section similar to section 1 in the 1996 Constitution. I would think that our Constitutional Court would argue that an amendment of the provisions of section 167 which would remove some powers from the Constitutional Court would amend the “basic structure” of the Constitution, but that the essence of this “basic structure” is contained in section 1 of the Constitution and therefore requires a 75% majority in the National Assembly.

The consequence of this is that the ANC dominated Parliament will not be able validly to amend the Constitution to radically reduce the powers of the Constitutional Court. If it did, the Constitutional Court will declare that amendment invalid. What would happen after that is, of course, anyone’s guess.

An unambiguous attack on constitutional democracy

Feb 14th, 2012
by Pierre De Vos.
117 comments

In 1934 the Appeal Court in the case of Sachs v Minister of Justice; Diamond v Minister of Justice had to consider the validity of a banning order issued by the Minister of Police. Banning orders, which prohibited a person from being present in specific areas because the Minister was satisfied that the person “is in the area promoting feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand”, was a powerful tool used by the authorities to restrict the political activities of those opposed to the policies of the government. In rejecting the challenge to the banning order, Stratford ACJ made the following statement about the nature of parliamentary sovereignty in South Africa:

[O]nce we are satisfied on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a Court of law to curtail its scope in the least degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the Courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its away, and that it is the function of courts of law to enforce its will.

Regardless of the spin later put on his words by presidential spin doctors, President Jacob Zuma’s latest comments about the judiciary reflect a yearning to return to this system of Parliamentary sovereignty. President Zuma said that there was a need to review the powers of the Constitutional Court because judges were not “special people”, but fallible human beings. As proof of this statement he pointed to the phenomenon of split judgments, saying:

How could you say that (the) judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court, we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with… There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case? That’s what has made the issue to become (one) of concern.

Judges were “influenced by what’s happening and who are influenced by you guys (the media)”, Zuma said. If the decisions of Parliament and the executive could be challenged, there was nothing wrong in questioning the decisions of the judiciary, he said.

Of course, President Zuma is correct that judges are fallible human beings and that different judges might view a legal question differently. (What he did not mention is that judges are usually slightly more intelligent than the average politician and usually far more honest. After all, as far as I know, no South African judge has ever faced bribery and corruption charges in court; no person has ever been convicted in South Africa for bribing a judge; and no judge has had to resign because he went to visit his drug dealing girlfriend in a Swiss jail on state expense.)

Reasonable lawyers often differ about what a legal provision or a judicial precedent might mean in a particular case. That is why lawyers take cases to court: most of them believe that they have some chance of winning their case or of getting a better deal for their client (even if they do lose the case). If they thought they had no chance of swaying the judge this way or that, they would not bother to submit papers and present oral arguments to court. They only believe that because reasonable people could differ on the correct interpretation and application of the facts or the law.

There is therefore nothing strange about different judges in the same court sometimes disagreeing with one another and writing a majority and minority opinion. Unlike some politicians, South African judges usually do not disagree with one another because they took bribes from different parties before the court or because they have another direct interest in the outcome of a matter. They do so because there is a genuine intellectual disagreement between the judges about the meaning of a legal rule or principle.

When this happens judges write different judgments in which they motivate why they took the view they took and these judgments can then be analysed and critiqued, thus keeping judges accountable for their decisions (unlike politicians, who are not held accountable for each decision they take, but are only held indirectly accountable by their party who might or might not gain more votes in the next election).

There is therefore also nothing wrong with criticising judicial decisions. Even sharp criticism of judicial decisions that engages with the legal arguments developed in a judgement must be welcomed, as such criticism and analysis ensure some form of accountability for the judiciary. (Of course, if a politician whose friend was convicted of bribing that politician argues that a specific majority decision handed down by the Constitutional Court is wrong, one might well take that opinion of the politician with more than a pinch of salt.)

But President Zuma’s claim that the powers of the Constitutional Court need to be reviewed because those judges sometimes hand down split decisions makes no sense whatsoever. Either the Constitutional Court has the power to interpret and enforce the provisions of the Constitution, or this power is taken away via a constitutional amendment. It is not possible to tinker with the powers of judicial review currently enjoyed by the Constitutional Court. Where a majority of judges, whose independence is guaranteed, are not allowed to review and set aside acts of Parliament or the executive, one does not have a constitutional democracy under the Rule of Law but a different system in which people enjoy rights by the grace of the majority party.

One can, of course, abolish the powers of the Constitutional Court to declare invalid legislation or acts of the executive, returning to a system of Parliamentary sovereignty which was in place during the apartheid years when the Sachs case was decided. This would mean that we would no longer live in a country in which the human rights of everyone is protected by the courts and President Zuma would then be free to act in accordance with even the most draconian legislation which would not be revieweable by the courts.

If one favoured a system, say, in which individuals could legally be arrested and detained without bringing them to trail, in which political opponents could be silenced with legally imposed “banning orders”, in which women or any unfavoured group (say, somebody who speaks Xhosa instead of Zulu or is disabled instead of able bodied) could legally be discriminated against by the government, then this system would obviously look particularly attractive.

But that is not the system on which the ANC had agreed years before the current Constitution was drafted. Recall that in 1989 in the Harare Declaration the ANC committed itself to the kind of system of judicial review that is currently in place in South Africa, affirming that in a democratic South Africa:

All shall enjoy universally recognised human rights, freedoms and civil liberties, protected under an entrenched Bill of Rights. South Africa shall have a new legal system which shall guarantee equality of all before the law. South Africa shall have an independent and non-racial judiciary.

There is no context which can explain away the words of the President about a need to review the powers of the Constitutional Court. Poor Mac Maharaj issued a statement in which he pretended that the President’s words could be interpreted to mean something completely different from what he actually said. But the statement about a need for a review of the Constitutional Court’s powers leaves no room for ambiguity or a different interpretation based on context. There is therefore no way to interpret President Zuma’s statement other than as an attack on the principles underlying a constitutional democracy.

In fact Maharaj’s statement added fuel to the fire by suggesting that the executive should be able to influence the judges. He stated that President Zuma’s statement that the powers of the Constitutional Court should be reviewed:

must therefore not be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution. This is an exercise that falls within the mandate of the Executive of formulating and reviewing policies of government which seek to advance the transformative character of our Constitution. It is anticipated that the outcome of this exercise will not only assist in developing value-based solutions to address the legacy of the past but will contribute in shaping our evolving constitutional jurisprudence.

This statement does not only fail to explain away the shocking attack of the President on our constitutional democracy, but signals that the Presidency has a rather strange understanding of the principle of the separation of powers and the independence of the judiciary. How the study by the executive of the judgments of the Constitutional Court could “contribute to the shaping of our evolving constitutional jurisprudence” without an attempt by the executive to intimidate the judges is unclear.

Judges have a constitutional duty to be impartial and independent. They cannot be swayed or influenced by the views of the executive who might wish to shape their jurisprudence. So if the executive aims to “shape” the decisions of the Constitutional Court, then it is aiming to interfere with the independence of the judiciary and hence to undermine one of the pillars of the constitutional democracy. This means that even the spin by the Presidency trying to excuse the inexcusable, displays a shocking lack of respect for our system of separation of powers and checks and balances.

One cannot interfere – legally, at least – with the supremacy of the Constitution and the independence of the judiciary without changing various provisions of the Constitution, including the founding values in section 1 which states, inter alia, that the “Republic of South Africa is one, sovereign, democratic state founded on the values of … supremacy of the constitution and the rule of law.” Such an amendment would require a 75% majority in the National Assembly, something the ANC would not be able to muster – even if they managed to bribe a few small parties to support its anti-constitutional scheme.

This suggests that (in the absence of a coup d’état)  President Zuma’s wish that the powers of the Constitutional Court should be reviewed and amended is never going to fly. He will just have to take his chances in the courts (as he has done on many previous occasions, often with great success) when various cases that could affect his corruption and bribery prosecution comes before the judiciary. Meanwhile, he should really think before he talks.

Should we be conferring titles on advocates?

Feb 13th, 2012
by Pierre De Vos.
63 comments

It is often the case that the provisions of a Constitution are drafted in response to a particular set of political, social and economic circumstances. Thus, some post-independence Constitutions contain provisions that specifically respond to the colonial experience and are aimed at eradication objectionable colonial-era practices or the effects of such practices.

For example, in response to the British class system imposed on India during colonial rule and as a symbol of the Constitution’s egalitarian ambitions, section 19 of the Indian Constitution (in its Bill of Rights) prohibits the Indian state from conferring titles – except for military and academic titles – on any citizen. It also prohibits Indian citizens from accepting any title from any foreign State.

South Africa’s Constitution did not go as far as the Indian Constitution and, in this small respect, is less egalitarian than its Indian cousin. Although our Constitutional Court has found (in the Hugo case) that the Constitution had abolished the notion of Royal prerogative powers (which was inherited from the British constitutional system and used to be exercised by the State President), our Constitution does contain a set of codified powers entrusted to the President by section 84(2) of the Constitution. Many of these powers are similar to the prerogative powers previously held by the State President before 1994. However, in our constitutional dispensation there are no powers derived from the Royal prerogative which are conferred upon the President other than those enumerated in section 84(2) of the Constitution.

Section 84(2)(k) of the Constitution states the President is empowered to “confer honours” on those deserving of it. Our Constitution therefore allows the President to confer honours (like the Order of the Baobab or the Order of Luthuli) on individuals who have rendered exceptional services beyond the ordinary call of duty in a particular field or to the nation as a whole.

Last week, in the case of Mansingh v President of the RSA, the North Gauteng High Court in a judgment authored by Phatudi J, had to decide whether this section authorised the President to confer the title of Senior Counsel (also popularly known as SC or Silk) on practicing advocates. This power to confer the status of silk on advocates used to form part of the Royal prerogative powers of the head of state. Members of the Bar must apply for this “honour” and their silk status is reliant on the Bar Council approving their application. Once they become silks they can charge higher fees for their services and, so it is argued, they also obtain a higher status among their colleagues.

The crisp legal question that had to be answered in this case was whether the provision in section 84(2)(k) of the Constitution empowered the President to confer silk status on “deserving” advocates.

But behind this legal question lies a policy question with profound political implications, namely whether it is advisable to retain a system of honours for advocates that might exclude many women and black South Africans from achieving the same professional status as the most exulted members of the Bar.

Bear in mind that members of the advocates’ profession themselves, in effect, select those advocates to be “honoured” with the status of Senior Counsel in accordance with rather vague criteria. Does this system in essence play a gatekeeper role? How many women and how many black South Africans have been “selected” to be “honoured” in this manner and which criteria were used to select them? Is it still tenable in a constitutional democracy to perpetuate a system of honours which harks back to our colonial past? Should we not rather follow the Indian example and abolish all these kinds of honours bestowed on a select group of people to bring our practices in line with the egalitarian spirit of the Constitution?

The judgment did not engage with these policy questions but focused on the meaning of section 84(2)(k). The applicant argued that the phrase “conferring honours” under section 84(2)(k) of the Constitution could not include the conferring of silk status on some advocates because it in effect resulted in the bestowing of a privilege on some people who did not earn it. Secondly, she argued for a narrow interpretation of honours to include honours for which one cannot apply but is bestowed on one by the President entirely based on a discretion exercised by him.

The court looked at the application procedure used by the Johannesburg Bar Council and noted that candidates are invited to apply for silk. The applicant must discuss his/her proposed application informally with the Leader of the Bar. The Bar council considers the application based on the candidate’s practice which should consist of good quality work. If the application succeeds, the Chairperson of the Bar discusses the recommended application(s) with the Judge President. If the Judge President approves of the application(s). He forwards the recommendation to the Minister of Justice and to the President who then formalises the appointment as silk.

As Phatudi J remarked, this process looks very different from the process followed with the conferring of normal honours like the Order of Luthuli or the Order of the Baobab:

Given these facts Phatudi J agreed with the applicant that there was a difference between a conferral of honours such as the Order of the Baobab (for which one cannot apply) and the conferring of the status of silk. The Order of the Baobab, for instance, is awarded to South African citizens for services distinguished beyond the ordinary call of duty. It is an “honour” awarded for exceptional and distinguished contribution in community service. I am reluctant to accept that the framers of our autochthonous Constitution were comfortable that the President is empowered in terms of section 84(2) (k) to confer the status of senior counsel on practising advocates.

Are the services and contributions made by practising advocates exceptional or beyond the ordinary call of duty that warrant an award of the status of senior counsel? Can an award of the status of senior counsel be equated with, for instance, Order of Luthuli or Order of the Baobab, the latter being awarded to South African citizens with distinguished service that is way above or beyond the ordinary call of duty?

If one assumes that an advocate has acted above and beyond the ordinary call of duty because he or she has charged very high fees to clients and represented them well in court, then the President might be viewed as having the constitutional authority to confer this honour of silk on them. If, however, one believes that advocates have merely done what others have done, namely to make a living as well as they could while raking in the money, then the Constitution may well be viewed as not conferring this power on the President.

Given the fact that unlike the Indian Constitution, our Constitution does not prohibit a citizen from being awarded a special title, the President might well have had the power to confer silk status on advocates if this power had been granted to him in terms of other legislation. However, there is no legislation, including the Admission of Advocates Act 74 of 1964 (Advocates Act) that empowers the President to institute, constitute and award the status of senior counsel to practising advocates or any legal practitioner who has displayed “good quality work” to the legal profession. The term “Senior Counsel” is not even defined in the Advocates Act. The term only appears in section 8A that provides that ‘[t]he President may at the request of any person appointed as a Senior Counsel of the Republic while in the service of the State, withdraw such appointment, and thereupon such person shall revert to the status which he had as an advocate immediately prior to that appointment’.

The judgment will now have to be confirmed by the Constitutional Court before it has any legal effect as it deals with an act of the President. If that court confirms the judgment, legislation may well be passed to allow the President to continue to confer this status on advocates. Such legislation might well have to contain more detailed and precise criteria for the conferral of this status to subject this practice to the disciplining power of the constitution which is supposed to establish a culture of justification – also in the legal profession.

But ironically, if the Constitutional Court confirms this judgment and no legislation is passed to allow for the continued conferral of the status of silk on advocates, those advocates who were made silk before 1994 would retain their status while those who were made silk after 1994 would lose their status. This would mean that those who obtained status of silk before 1994 would probably become even more sought after and they would be able to charge even higher fees than they currently do. Whatever happens, this judgment represents the start of the conversation about the conferral of professional titles on lawyers – not the end of that conversation.

Malema verdict might not be something to celebrate

Feb 6th, 2012
by Pierre De Vos.
68 comments

It is understandable that members of the chattering classes as well as other members of the public (including many rank and file members of the ANC yearning for a, perhaps mythical, simpler time when ANC Youth League members behaved properly and listened to their elders) on Saturday applauded the verdict of the ANC National Disciplinary Committee of Appeal (NDCA) which confirmed the guilty verdict against Julius Malema.

It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.

Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.

Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?

Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?

Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.

The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.

Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:

  • That the Botswana leadership of government poses a serious threat to Africa so we need a progressive government in Botswana;
  • We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
  • The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?

Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?

And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)

Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.

Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.

It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.

Law, politics and party disciplinary processes

Jan 26th, 2012
by Pierre De Vos.
47 comments

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.
193 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.

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