Constitutional Hill

Mail and Guardian

Media freedom is a right that benefits all

Some members of the media and some opponents of media freedom sometimes wrongly suppose that media freedom is a right primarily enjoyed by (and for the benefit of) journalists. A recent Constitutional Court judgment, which rehearses arguments that are also germane to the fight about the constitutionality of the Secrecy Bill, reminds us that media freedom is primarily a right enjoyed by and for the benefit of ordinary citizens.

The Mail & Guardian must be spending quite a handy sum of money on lawyer’s fees. But this money is largely well spent. The newspaper has been involved in several groundbreaking court cases, which have clarified important aspects of media freedom (as well as an important case dealing with the obligations of the Public Protector to investigate maladministration and corruption).

In Mail & Guardian Media Ltd and Others v Chipu N.O. and Others, the seemingly mundane question of whether a provision of the Refugee Act, which imposes absolute confidentiality in the handling of applications for refugee status and the information contained therein, allowed the newspaper to raise important questions about how secrecy can work against the public interest.

In finding that this absolute secrecy imposed on the refugee granting process by the Refugee Act constituted an unjustifiable limitation of the right to freedom of expression, the Constitutional Court in a unanimous judgment authored by justice Raymond Zondo, reaffirmed the important purposes served by the right to freedom of expression.

The Court recalled that the infringement of the right to freedom of expression was used in the Apartheid era “to achieve the degree of thought control conducive to preserve Apartheid and to impose a value system fashioned by a minority on all South Africans”. It thus re-affirmed that this right must be zealously guarded because it was integral to “democracy, to human development and to human life itself”. One of the many differences between the Apartheid era and our current dispensation was exactly that freedom of expression is now constitutionally protected.

A key purpose of this right is to enable the public to form and express opinions on a wide range of matters. The purpose of the right therefore goes far beyond the protection of journalists to write what they like. Quoting from a previous judgment, the Court stated that freedom of expression“lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.

As is the case with many other rights in the Constitution – including the social and economic rights – 
the right to freedom of expression is of fundamental importance to safeguard the human dignity of everyone. Where the right is not vigorously protected, ordinary people will be robbed of the ability to make important life choices. Their ability to exercise many of their other rights guaranteed in the Constitution would also negatively affected.

For example, freedom of expression empowers members of communities to expose maladministration and corruption, and to demand better service delivery from those elected to serve the people. When the right to freedom of expression is not protected, it becomes very difficult to be an active and responsible citizen, as you cannot hold elected servants of the people accountable for fear of being muzzled, intimidated, censored or harassed.

Although the protection of this right is of fundamental importance to safeguard the dignity of ordinary citizens, the media plays a key role in society, and is therefore not only protected by the right to freedom of expression but is also a key facilitator and guarantor of the right.

As the Constitutional Court once again affirmed, members of “the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.” The media therefore have an “obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.”

This means that when the right is limited – as is clearly also the case with the Secrecy Bill – a court will ask hard questions about whether the limitation is overbroad. This is because the limitation is not only imposed on the media, but on citizens who depend on the media to become informed about what goes right and what goes wrong in the country.

Put differently, the court will ask whether there are not less restrictive means of achieving the stated purpose of a piece of legislation that limits the right to freedom of expression (and by extension, the media).

In this case, the provision that imposed absolute secrecy on the asylum process obviously served several important purposes. Secrecy protected the integrity of the asylum process; it encouraged applicants for asylum to disclose information truthfully; and it protected asylum applicants and their families and friends in their countries of origin from possible dangers or threats to their lives and safety that could arise if the fact of the application for asylum and the information contained therein were disclosed.

But the imposition of absolute secrecy was not justifiable as it was clearly overbroad and imposed secrecy where the purposes set out above would not be served or would be trumped by the public interest.

As the Court pointed out, no purpose was being served by an absolute imposition of secrecy on the asylum process in the case of a person who, after arriving in South Africa, discloses publicly, maybe in a press conference, the reasons why he fled his country of origin and other information that is relevant to the asylum application. In such a case no purpose would be served by the absolute secrecy imposed by the provision of the Refugee Act.

Similarly where the asylum applicant has committed a crime against humanity or a crime against peace in his or her country of origin, refugee status would not be granted. There was no logical reason why the Refugee Act should impose absolute secrecy on the application for refugee status or for asylum. In such a case, the public interest in knowing that a person who has committed a crime against humanity is applying for refugee status would trump the interest of the applicant to have the process kept secret. What was required in each case was to ask whether the imposition of absolute secrecy was essential to achieve the important purpose of protecting innocent asylum applicants.

This line of reasoning, which invokes the public interest as an important factor to justify the waiving of rules which otherwise would have imposed absolute secrecy, might well become relevant when the Constitutional Court considers the constitutionality of the Secrecy Bill. Previous drafts of the (now drastically improved) Secrecy Bill would almost certainly have failed this test, as it made no provision for overriding secrecy in the public interest. Now, section 41 provides a partial public interest defence, amongst other in cases where classified documents reveal criminal activity.

What the Constitutional Court will have to ask is whether this partial public interest defence sufficiently narrows down the scope of the Secrecy Bill to justify the limitation. I am sure the argument will be made that it does not as it does not cover other disclosures of classified information in the public interest that do not rise to the level of criminality but “merely” deals with abuse of power, maladministration or covering up nepotism and other forms of non-criminal abuse.

However, I suspect the aspect of Secrecy Bill most vulnerable to attack is the definition of national security, which is defined in an open-ended manner, allowing the classifier to decide for him or herself whether specific documents would affect the national security or not. This kind of open-ended discretion allowing classifiers a wide discretion on how to define “national security” will almost certainly be abused and will hence be very vulnerable to attack.

In the Mail & Guardian judgment the Constitutional Court referred the impugned provision back to Parliament to be fixed. However, in the interim it provided a closed list of criteria binding on the Refugee Appeal Board whenever it had to decide whether secrecy was warranted or not. This interim remedy suggests that the Court is alert to problems that might arise when officials are granted a broad discretion that could be exercised in a manner that infringes on the fundamental right top freedom of expression.

This bodes well for the success of any future constitutional challenge to certain sections of the Secrecy Bill.

Authority and its discontents

Current affairs across the world raises the problematics of authority and sovereignty anew. Let’s begin with Sunday’s Greek elections. It is now fairly certain that the pro-bailout New Democracy party will lead the new government, although it failed to secure an outright majority. New Democracy leader Antonis Samaras is quoted as having said that the victory suggests that “the Greek people voted today to stay on the European course and remain in the eurozone”. In other words, Samaras claims that he and his party now speak with authority on behalf of the majority of Greek people (which in effect amounts to the majority of voters who turned out to vote in the election – 62%). New Democracy translates this turnout further into a vindication of European authority and the authority of the Eurozone. The anomaly here is of course that with this claim, Mr Samaras in fact defers Greek political authority to Europe and the Eurozone. But what is this “Europe” and the “European course” that the Greeks allegedly chose to remain on? In an excellent analysis written before the current elections, Slavoj Zizek wrote that the elections would represent a real choice for the Greeks: the establishment (New Democracy, Pasok) versus the “radical-leftist” Syriza. Zizek argues that the establishment realized that the elections represented a real choice this time and responded to this problem with the politics of fear: “if Syriza wins Greece will be thrown out of the Eurozone, causing the economy to collapse, which in turn will cause the Euro to collapse which in turn will lead to the devastation of Europe and perhaps the entire West as we know it”. As Zizek wrote: “Such predictions are self-fulfilling, causing panic and thus bringing about the very eventualities they warn against. If Syriza wins, the European establishment will hope that we learn the hard way what happens when an attempt is made to interrupt the vicious cycle of mutual complicity between Brussels’s technocracy and anti-immigrant populism. This is why Alexis Tsipras, Syriza’s leader, made clear in a recent interview that his first priority, should Syriza win, will be to counteract panic: ‘People will conquer fear. They will not succumb; they will not be blackmailed.’ Syriza have an almost impossible task.”

It cannot be doubted that these threats of total collapse advocated by the European establishment (read authority) caused many a Greek voter to rethink who they were going to vote for – effectively rendering the possibility of a “real choice” unimaginable for many. So in actual fact, Zizek’s hope for a real choice was destroyed in advance. The truth is that the European establishment in fact capitalized on the pre-existing fear on the part of many Greeks that a non-conservative victory would mark the collapse of their economy. Samaras followed suit, framing the election as a referendum on the Euro and continued to sponsor TV campaigns showing a forlorn schoolgirl asking why Greece wasn’t a member of the Eurozone. Time reports that it is the fear caused by this kind of mass-indoctrination that “pervaded the divided electorate”. But it is not at all a given that there is a direct link between, say, a victory for Syriza and economic collapse. It is in fact only the Communist Party that advocates an exit from the Eurozone, a tear-up of the bailout plan and a return to the Drachma and they do not have much support. Syriza consistently said that it supports the Eurozone and wants Greece to remain in it. Samaras’s strategy of pulling the wool over the electorate’s eyes was coupled by European tactics to portray a non-conservative victory as a sign that the Greeks are dishonest people who do not honor their promises to the rest of Europe to abide by the conditions of the austerity packages that have already been granted. Add to this the fact that it is not at all a given that the New Democracy victory will not lead to an exit from the Eurozone. Observers and market analysts have argued that Greece’s exit is “inevitable”. The whole of the Greece v Europe debacle can be viewed as a desperate attempt on the side of Germany (oops, I mean Europe) to establish its authority and supra-sovereignty over those “dissident” and “misbehaving” Greeks. The truth is that New Democracy has no authority other than the “authority” it ironically derives from and refers to that ambiguous signifier called “Europe”.

This brings us to Syria, where the crisis of authority has left more than 14 000 people dead. The Syrian government is no longer a government of authority but one of violence with the army deploying militias (known as “shabiha”) to carry out its more bloody murders. BBC News reports as follows: “As the repression of dissent intensified, the meaning of the word “shabiha” expanded, with people from across Syria beginning to use it to refer to pro-regime militiamen who acted with impunity”. And the UN peacekeeping chief, Herve Ladsous, has already stated that Syria is now in a situation of civil war. Meanwhile, moving your Google Earth cursor to the recently liberated country of the pharaos and the pyramids will find you a ruling military that has just granted itself sweeping powers aimed at staying in power without having authority after the dissolution of parliament following a court ruling. The Muslim Brotherhood  has denounced the step as “unlawful and a coup against democracy”.

And we’re back in South Africa where the spat between the ruling party and the ruling party’s youth league continues to dominate front pages. City Press reports this morning that the presidency has denied rumours that the President quickly flew to Mexico to attend the G20 when he heard that there was a possibility that he would be embarrassed by the youth if he were to speak at a Youth Day event in Port Elizabeth on Saturday. “Detractors”, such as, for instance, the Mail & Guardian, reported on Friday that Eastern Cape ANC leaders were told not to provide the platform at the event to any of Zuma’s potential presidential challengers. And Minister Collins Chabane was no hit as Zuma’s replacement when he told the youth that their participation in service delivery protests are exploitative and that they should rather play an important role in the uplifting of their communities by concentrating on their education. Pardon my ignorance, but I always thought that the two amount to the same thing – especially in a country where children are still going to school under trees and where the government fails to deliver the textbook supply for months.

If you ask me, Hannah Arendt’s contention (way back in the fifties) that the world is undergoing a crisis of authority, remains as true as ever.

Who is being brave?

What is a journalist to do when he or she is sued for defamation and the company or individual pursuing the defamation case demands that the journalist reveals his or her confidential sources on which the reporter relied when writing the alleged defamatory story? This is exactly what happened to Adriaan Basson when he was still working at the Mail & Guardian.

A company called Bosasa is suing Basson and the Mail & Guardian for publishing a story headed: “Very brave for a young man”. The article relates the facts around a chilling phone call received by Basson from communication strategist Benedicta Dube. Basson was perturbed by the phone call because it transpired that Dube knew where and what Basson had studied, where he was born, and what his ID number was. She also read to him the names of some of Basson’s friends and their professions. During their conversation of almost 18 minutes Dube also threw in lines such as: “You are very brave for a young man” and said she would “kill” Basson if he told anyone about their conversation. She has not sued Basson for reporting this phone call, so one must assume that his version of the phone call is true, which is kind of scary.

Bosasa did sue, because in the article Basson claims that he had exposed in the Mail & Guardian over a period of three weeks “the corrupt relationship between facilities management company Bosasa and the Department of Correctional Services”. Bosasa did not like being called corrupt (or perhaps it is the claim that the corruption originated from a relationship with the Department of Correctional Services that got them upset) and as part of its pre-trial manoeuvres, it demanded some documents from Basson and the Mail & Guardian. They provided the relevant documents but with the names of their sources redacted.

In a preliminary legal skirmish the parties asked the South Gauteng High Court to determine whether Basson and the Mail & Guardian had a legal right to protect their sources in this way – despite having a defamation case brought against it. In a judgment written by Tsoka J, which seems to deal with the potentially dry legal question of the correct interpretation of Rule 35 of the Uniform Rules of Court, the learned judge made an important ruling in defence of the freedom of the media.

Sub rule 2 of Rule 35 states that a party is not expected to produce documents or tape recordings “in respect of which he has a valid objection”. Tsoka pointed out that all the relevant documents were indeed disclosed. The only question was whether Basson and the Mail & Guardian had a valid objection against revealing the names of their sources. The Rule, said the judge, had to be interpreted in the light of section 16 of the Constitution which guarantees freedom of expression, which includes freedom of the media. Bosasa claimed that if it were denied access to the names of the confidential sources its right to a fair trial would be infringed.

As an aside: the latter claim by Bosasa is a peculiar, one might think perhaps a Freudian, slip on the part of Bosasa as it is not facing criminal charges and its right to a fair trial is thus not implicated at all. This is a civil case in which it is claiming damages from Basson and the Mail & Guardian for alleged defamation for damage to its reputation. (Basson and the newspaper claims, rather cheekily, that Bosasa has no reputation that could have been damaged by the article as the company is widely associated with corrupt activities.)

Tsoka J, quoting extensively from the important Constitutional Court case in Khumalo v Holomisa, emphasised the important role played by the print, broadcast and electronic media in the protection of freedom of expression in our society. The media are key agents in ensuring that the right to freedom of expression is enjoyed by all citizens. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media are also important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.

In order for the media to do its job, it is imperative that journalists are able to keep their sources confidential. In the absence of a guarantee of confidentiality, many sources would not co-operate with the media and ordinary citizens would be the poorer for it.

Tsoka then looked at the facts of the present case, noting that the contention between the parties is not whether the Mail and Guardian had acted with malice. It was therefore not relevant to its case who the confidential sources of the allegations of corruption were. The story was either true or it was untrue. The judge also rejected arguments that an Australian case which found that a journalist had to reveal his sources had to be applied here, presenting several arguments to justify this rejection. To my mind the best argument raised by the judge why the Australian judgment would not help Bosasa is neatly captured in the following statement by Tsoka J: “In any event, there is no Bill of Rights in Australia.” How it warmed my heart to read those words.

In any case, Tsoka found that the issue in each case would be whether the names of the sources would be pivotal to the case made by the party suing for defamation. Given the fact that Bosasa has to prove that the statements are defamatory and that Basson and the Mail & Guardian then has the onus to show that its defences against a claim of defamation is valid, the names of the newspaper’s sources at this stage is wholly irrelevant. The sources are allegedly employed by Bosasa and are fearful of reprisal, should their identities be revealed. As Bosasa has a duty to deal with the question of whether the allegations made are true or false, it is neither here nor there who the sources are who gave the information to the newspaper.

Although there is not a blanket journalistic privilege never to reveal one’s sources when one is sued for defamation to the contrary, in this case the sources should be protected as their identities are not central to the case and as they exercised a “laudable civic duty” by acting as whistle-blowers in a case of alleged corruption involving the state. The case may be different where a journalist receives information about the commission or pending commission of a serious crime, a journalist would be foolhardy to claim that it had to protect its sources providing such information. But this is not such a case.

Reading the judgment I could not help but wonder about the possible Oscar Wilde effect in a case like this where an institution like Bosasa sues a newspaper for defamation. Had Bosasa considered the risk it is taking? What happens if, during the trial, it becomes clear that the company was indeed embroiled in a corrupt relationship with the Department of Correctional Services? Has the Directors considered the risk of being arrested for corruption if this were to happen?

And why is Bosasa so adamant about getting accesses to the names of those who had leaked information to the Mail & Guardian? Is there any connection between this eagerness of the company to obtain this information and the implicit threat made to Adriaan Basson that he might get killed for investigating Bosasa? As things stand, this case has already been damaging to Bosasa as it has placed some doubt in the minds of reasonable individuals about its behaviour. It might not be corrupt (and this will only be ascertained during the trial), but has it not shot itself in the foot by its heavy handed legal approach to the case?

Is Bosasa and its directors the ones being brave for taking on the Mail & Guardian? After all, cross examination can often be devastating to those who try to hide things. Only time will tell.

“Truth and deceit know no status or occupation”

The alleged “investigation” and subsequent report by the then Public Protector, Lawrence Mushwana, into the Oilgate scandal lambasted the Mail & Guardian newspaper, contending that the newspaper’s reports on the scandal was “factually incorrect, based on incomplete information and documentation, and comprised unsubstantiated suggestions and and unjustified speculations”. Today a full bench of five judges of the Supreme Court of Appeal (SCA) confirmed that there was in essence no investigation by the Public Protector at all and that the report was no more than a whitewash.

In a damning judgment – which places a question mark over Adv Mushwana’s fitness to hold office as head of the South African Human Rights Commission – the SCA confirmed that the Public Protector “had no basis for discrediting the newspaper as he did”. In the process, the SCA provided clarity on the legal required manner in which the Public Protector had to investigate serious allegations of malfeasance and corruption. The judgement emphasises the importance of the role of the Public Protector in safeguarding our democracy and strengthens its hand in dealing with future investigations.

Although the judgement comes as a stunning loss for Muswhana, it must be viewed as a victory for the institution of the Public Protector.

The SCA judgement reminds us that – when investigating a complaint – the Public Protector must do more than merely adjudicating on verified information placed before it by others. The Public Protector is an investigator who, either on own innitiative or because it received a complaint, has a pro-active function to get to the bottom of allegations of maladministration or corruption. “He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.”

As the SCA judgement so eloquently stated today:

The Public Protector must not only discover the truth but must also inspire confidence that the truth has been discovered. It is no less important for the public to be assured that there has been no malfeasance or impropriety in public life, if there has not been, as it is for malfeasance and impropriety to be exposed where it exists. There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind only because evidence has not been advanced that proves the contrary. Before the Public Protector assures the public that there has not been such conduct he or she must be sure that it has not occurred. And if corroboration is required before he or she can be sure then corroboration must necessarily be found. The function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth.

When investigating any allegations levelled at state officials, politicians or public bodies, the Public Protector has to conduct such an investigation with an open mind, which is “universal and indispensable to an investigation of any kind”. That is the benchmark against which the SCA assessed the investigation in the Oilgate case.

That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring.

Today the SCA found that the Public Protector had not conducted the Oilgate investigation with an open mind. He had, in effect, acted as a spokesperson for those who he was called upon to investigate, merely stating as fact the claims made by the various bodies and individuals under investigation without testing the veracity of these claims in any way. This he did because he assumed that persons in high office are always persons of integrity whose version of events must be believed. The SCA found that this attitude was inappropriate.

Truth and deceit know no status or occupation. One expects integrity from high office but experience shows that at times it is not there. And while experience shows that journalists can be cavalier there are times when they are not. It is the material that determines the veracity of the speaker and not the other way round, and that applies universally across status and occupation. It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact. An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case. I have said before that an investigation calls for an open and enquiring mind. There is no evidence of that state of mind in this investigation.

The Mail & Guardian has now been vindicated – at least to the extent that the Public Protector’s  criticism of the newspaper was unfounded. One would think that Adv Mushwana, as well as the politicians who lambasted the newspaper after the whitewash report was made public, owe the newspaper an apology. Although is is highly unlikely that the newspaper’s detractors will apologise, it is worth noting that serious allegations were levelled at the newspaper at the time.

As the SCA judgement notes, Hansard’s report of proceedings in the National Assembly when the report was tabled records one member of Parliament asking of an opposing political party, on the basis of that finding, and to applause, what kind of party it was that relied upon newspaper reports of the Mail & Guardian for its political interventions. Another described the Mail & Guardian as “the choirmaster in the chorus of unsubstantiated allegations”. Yet another said that the report should “caution us to be ready for what we read in the papers and the credibility of relying on such material as [being] accurate and dependable”.

I hold no brief for the newspaper. Newspapers do make mistakes and if they do, they can be sued for defamation or taken to the Press Ombud. But in these days when the printed media is being used by some as a scapegoat to avert attention from the governance problems of the governing party or from serious allegations of corruption by politicians, one may do well to remember that one should not easily assume that allegations printed in the media forms part of a bourgeois or racist plot to discredit the National Democratic Revolution.

In short, what is required – for the media, the public, the politicians and the Public Protector – is to keep an open mind until the truth has been discovered. The Public Protector – using the guidelines developed by the SCA – is well-placed to discover that truth. Let us hope that the new Public Protector will continue the work she has been doing lately and will not shrink from her constitutionally mandated task. Our democracy deserves no less.

Who could have made up this stuff?

What on earth is going on at the Brett Kebble murder trial? So far two state witnesses have testified that they were involved in the killing of former mining magnate and ANC Youth League benefactor, Brett Kebble. They claim it was an “assisted suicide” and that they were so bad at the job that they were only successful at killing Kebble on the third attempt. Who could have made up this stuff?

First, boxer turned hit-man, Mikey Schultz, testified that he had actually pulled the trigger (after several bumbling attempts), but that Glen Agliotti had nothing to do with the murder. They then “sped off” (but kept to the speed limit for fear of being caught on  a speed camera) and destroyed the murder weapon in a chop-shop before melodramatically dumping the pieces of the gun into the sea.

Then ex Transvaal rugby player turned gangster (what is it with these sportsmen – can we ask some of them to go to work on the All Blacks before the next Tri-Nations game?), Nigel McGurk, told the court of his involvement in several hits – including the Kebble hit – but again stated that Agliotti had nothing to do with the murder of Kebble. (McGurk, like Schultz, may not be a very good witness, as advocate Laurence Hodes, appearing for Agliotti, at one point told him: “You’ve got a memory like red wine, it improves over time”.)

Yet Glen Agliotti is the person standing trial for the murder of Brett Kebble, while the two people who actually now claim to have killed Kebble are state witnesses and may well obtain indemnity from prosecution if the court finds that they testified frankly and honestly about the murder.

(Advocate Gerrie Nel, the guy who secured the corruption conviction against former police chief Jackjie Selebi, was supposed to lead the prosecution in this case but Menzi Simelane decided at the last minute to replace him. Not surprisingly, the new prosecutors appeared unprepared to lead the evidence: the lead prosecutor Advocate Dan Dakana today were constantly told what to ask by his colleague Advocate Kholeka Gcaleka.)

In any event, this arrangement by the NPA to offer possible indemnity to Kebble’s killers in order to prosecute Glen Agliotti, who may or may not have been involved directly with the murder at all, does not – on the available evidence – seem very wise or fair.

Of course, the trial is far from over and it might yet transpire that Agliotti was the mastermind behind the murder of Kebble and that the NPA had every reason to cut a deal with the actual killers to get to the “big fish”. But if it is found that Agliotti was not involved or that his involvement was not central to the killing, many questions will be asked about the decision by the NPA to cut a deal with the very people who claim to have killed Kebble.

Whatever transpires, there was nothing illegal in the deal done by the NPA with Shultz and McGlurk. Section 204 of the Criminal Procedure Act allows the NPA to cut deals like this and if the judge finds that any witness has testified “frankly and honestly”, the judge may indemnify that witness from prosecution – even if the witness had incriminated him or herself in the very crime he or she is testifying about. The discretion to grant indemnity is in the hands of the judge, so if the judge finds that a witness has not been frank and honest, the judge may refuse to grant indemnity to that witness – regardless of any deal done between that witness and the NPA.

Could it be that the NPA is playing a very clever game to try and secure the conviction of all the main players in this drama? Did the NPA offer indemnity to the main killers, knowing that they would be such bad witnesses that they would not testify frankly and honestly, thus making it impossible for the judge to grant them indemnity and opening the way for their own prosecution? Probably not, because section 204(4) states that the self-incriminating evidence of a witness denied indemnity could not be used against him if that witness were to be tried later.

This means that if Schultz or McGurg is not granted indemnity and the NPA decided to prosecute them for the murder of Kebble, the NPA would not be able to rely on the evidence led in court over the past two days in which they had explained in detail how they had killed Kebble.

Unless the NPA has more evidence up its sleeve implicating Agliotti as the mastermind of the Kebble murder, the indemnity granted to all the other main players in this drama makes little sense. Unless, of course, this was done to put pressure on Agliotti to force him to testify against his old friend Jackie Selebi. “If you do not testify truthfully against Selebi and implicate him, we will prosecute you for the murder of Kebble, so you better testify.”

If this was indeed the case – and I stress, it is too early to say for certain that it was – then many questions will be asked about the manner in which the NPA acted in these matters and the wisdom of the deals it cut. Although it is very important for the state to prosecute very powerful people like Selebi on charges of corruption (after all, when the top cop in the country is corrupt, the whole criminal justice system becomes suspect), I am not sure that it would be more important than securing the conviction of the actual murderers in a murder case – even where the case is one of alleged “assisted suicide”.

Personally I will withhold judgment on this until the end of the Kebble trial. Who knows what other evidence will be led by the state to vindicate its decision to cut a deal with the very people who now claim to have pulled the trigger in order for the NPA to go after the man who was found to have bribed the top cop.

Whatever happens though, the case has already provided utterly bizarre and riveting testimony. Surely somebody at ETV (or one day when they have money again, the SABC) must be commissioning a drama series based on these events. It has everything: political intrigue; larger than life characters (some of them marginally known sportsmen), a murder victim who was alleged to have led a triple life, sex and scandal with the alleged involvement of a rent boy, and office politics in the NPA.

NOTE: Some of the details in this post were gleaned from the riveting Twitter feeds posted by the Mail & Guardian amaBhungane reporter following the Kebble trial. Find them at: http://twitter.com/amaBhungane.

Moseneke story still no scandal

The Mail & Guardian continues its “expose” of the alleged dubious business dealings of Deputy Chief Justice Dikgang Moseneke in their paper this week. It claims that “the Moseneke family” has Congolese Oil Rights which were facilitated by “an alleged fraudster extraordinaire”, stating that:

Nozi Mwamba, the facilitator who helped pave the way for the Moseneke family’s Encha Group to obtain Congolese oil concessions, is wanted in France on charges that he was key to a multibillion-rand currency swindle. Mwamba, who lives in South Africa and his native Democratic Republic of the Congo (DRC), denies the charges, but has not returned to attend a trial under way in Paris.

After implicitly questioning the ethics of the Mail & Guardian for publishing the story last week and suggesting that there is far less of a scandal here than the sensational headlines suggest (at least a scandal involving the Deputy Chief Justice), I was taken to task by some who suggested that I am merely defending Moseneke because I am a fan of the Deputy Chief Justice.

After the most recent “revelations”, I am even more convinced that the way in which the newspaper has attempted to link Moseneke to unsavoury characters because his family trust owns shares in a company in which Moseneke’s brother is involved and who has done deals with questionable characters, really does not make much sense. I would expect better from my favourite newspaper.

In order for the story to make sense and to have any impact, Moseneke has to be linked to the unsavoury characters and the shenanigans of the people who do business with a company in which his family trust owns 18% of the shares. This is why the story has to fudge the issue by talking about the Moseneke family being involved with an alleged crook - as if the company in which Moseneke’s trust has an 18% stake is  a family business in which Moseneke is an active participant – as a prominent member of the family.

But a few paragraphs into the story one finds the following extraordinary statement which really nullifies the attempts of the newspaper to link Moseneke to the shady Mwamba: “There is no suggestion that he [Moseneke] was personally aware of Mwamba’s role.” I also searched in vain for any reference in the story to evidence that Moseneke plays an active role in the company in which his family trust owns 18% (so where is the family business?) or any suggestions that Moseneke as an 18% shareholder in the company, knew that the company were involved with shady characters.

Maybe I am missing something, but I find this rather naughty on the part of the newspaper. The Mail & Guardian has no evidence to link Moseneke in ANY way with the shady people it reports on in the latest story, but it nevertheless proceeds by using deliberately vague phrases like “the Moseneke family” to suggest that Moseneke is involved with a “fraudster extraordinaire”. 

Based on the fact that Moseneke’s family trust owns shares in a company that has done business with these shady characters, the paper suggests that Moseneke – as a member of the family – has links with a “fraudster extraordinaire”. However, it states itself that there is actually no evidence that Moseneke is in any way linked to these people. There is no evidence that Moseneke knows these people (despite the suggestions of the newspaper that there is a link), nor that he knows that the company in which his trust owns 18% was linked to these people.

I find this extremely unfair towards Moseneke. Let us use another example to demonstrate how the newspaper makes use of innuendo and hints to link Moseneke to wrongdoing without even a shred of evidence. We all recently learnt that Old Mutual owns a large stake in Zimbabwe Newspapers Ltd., a government controlled newspaper in Zimbabwe that daily prints hateful propaganda to help prop up Robert Mugabe. The company also has some business investments in Chiadzwa, the source of Zimbabwe’s blood diamonds and this means the company is contributing to the exploitation of local labour and the oppression of local communities.

If one follows the logic of the Mail & Guardian in these stories, any judge who owns shares in Old Mutual or (any judge who – like me – have an Old Mutual insurance policy) could therefore be smeared by associating that person with Robert Mugabe and his murderous cronies. I better get rid of my Old Mutual insurance policy because who knows when the Mail & Guardian will report that I own such a policy before trying to link me to the human rights abuses of the Mugabe regime.

One might argue that the two scenarios are different because in the Moseneke case he owns 18% (through a trust) in a company run by his brother. But in the absence of hard evidence that Moseneke is involved in the day to day running of the company in which his family trust holds an 18% share, there is absolutely no scandal here. Just as there is no scandal in me holding shares in Old Mutual because there is no evidence that I was part of an Old Mutual decision to prop up the tyrrant to our North, there is similarly no scandal about Moseneke in the absence of evidence that he was involved in the day to day running of this company. 

It seems to me the story would have had some merit if it had shown that: (i) Moseneke was actively involved in some executive capacity in the business in which his trust held a stake; or (ii) Moseneke had used his position or name as a judge (or his brother had used it with Mosenek’s knowledge) to gain some unfair advantage for the company in which his trust held a stake; or (iii) the company in which his trust held a stake had landed the government business or the DRC contracts in a corrupt manner and Moseneke knew about this; or (iv) that Moseneke had decided one or more cases in favour of the government to try and gain a specific advantage for the company in which his trust had a stake.

As the Mail & Guardian does not provide such proof, it remains a story that associates Moseneke with wrongdoing because his family trust invested in a company who might have had shady dealings. If that was the standard applicable to judges, no judge should ever be allowed to own any shares because, lets face it, many companies have been involved in shady deals or have been associated with shady characters or with the government. No Absa shares (as the government banks with them); no mining shares (who knows whether Brett Kebble might be involved or what the safety record is of the mines operated by the company); no Telkom shares; no Sasol shares; no shares in the retail sector (because who knows whether they buy clothes from sweat shops in China). Is Moseneke then not held to a higher standard than other judges?

Maybe it would be better for all South African judges to be forced to place all their shares in a blind trust (as is apparently the case in Canada), but that is not currently the situation. So, in the absence of any evidence that Moseneke did more than invest in a company through a family trust, really, there is no justification for reporting on this as if the Deputy Chief Justice has acted in contravention of the Code of Judicial Ethics.

The Public Protector in the dog box

Last week Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal.  The judgment bends over backward to be “fair and balanced” and not to jump to conclusions about why the Public Protector failed so dismally to adhere to its mandate and to do its job as required by the Constitution and the law.

However, after reading the full judgment it is impossible not to be concerned by the behaviour of the Public Protector’s office in this case and  not to wonder whether the author of the report, Public Protector head of special investigations Advocate Stoffel Fourie, acted in bad faith or whether he was “merely” incompetent and misguided when he failed to properly investigate complaints against the then Deputy President, the ANC, PetroSA and the Invume company whom the Mail & Guardian alleged at the time was a front company of the ANC.

Sadly, this saga further tarnishes the reputation of the Public Protector and his office. Even before this case was handed down, the Public Protector did not – to put it mildly – have a good reputation as a fearless watchdog and was widely perceived to lack the independence and courage to make findings that would embarrass well-connected individuals or politicians of the governing party.

To some extent this reputation was unfounded. The office of the Public Protector investigates over 20 000 complaints every year and has done excellent work, dealing with most of these complaints in a decisive and comprehensive manner.  The media does not report on the vast majority of these cases, and has focused only on those high profile politically charged cases where the Public Protector has often failed to deal with the complaints in a credible and comprehensive manner.

The perception that the Public Protector was not as independent and fearless as required by the Constitution was fueled in part by the fact that Lawrence Muswhana was appointed as Public Protector in 2002 after serving as an ANC MP and as the Deputy Chairperson of the National Council of Provinces (NCOP).  This appointment was clearly a mistake as it created the impression – rightly or wrongly – that the Public Protector was an ANC lackey who would do everything within his power to shield ANC politicians and the governing party from embarrasment.

Against this background the decision of the North Gauteng High Court is worrying indeed.

The judgment (which seems well-reasoned to me) is also significant because it confirms that public power conferred in terms of the Constitution or the law has to be exercised lawfully, rationally and in a manner consistent with the Constitution. The principle of legality requires that an official to exercise public power in accordance with the provisions of the law and the Constitution. Where an official misconstrues his or her powers or fails to adhere to the requirements set by the law or the Constitution for the exercise of those powers, the officials actions will be unlawful, regardless of whether it constitutes administrative action or not.

What is required is that the power had to be exercised in good faith and in a rational manner and thus should not  be arbitrary or manifest a “naked preferences” that serves no legitimate purpose. The court found that the Public Protector in this case acted irrationally because he failed to summons any person to give evidence; failed to obtain the relevant documents; failed to to contact any of the relevant role players to hear their version of events and stated that most of the facts in the Mail & Guardian stories were incorrect without ever having investigated this!

The relevance of this judgment therefore extends beyond the present case as it confirms – contrary to what Justice Minister Jeff Radebe has alleged in the Sunday Times and again in The Thinker – that the decision by the NPA to drop charges against President Jacob Zuma can be reviewed and set aside if the head of the NPA misconstrued his powers, acted in bad faith or irrationally or failed to a adhere to the provisions of the Constitution.

If the Head of the NPA had dropped the charges without having regard to the prosecution policy – which he is constitutionally bound to do – he would have acted contrary to the principle of legality and a court would then have to declare the dropping of charges unlawful.

As the Acting Head of the NPA had failed to mention the prosecution policy when he gave reasons for his decision to drop the charges against Zuma, plagiarised a Hong Kong decision which was later overturned on appeal in justifying his decision and relied on as yet unpublished recordings that must have been illegally handed over and obtained by the legal team of President Zuma, it seems to me there is a very strong possibility that a court could find that the dropping of charges were unlawful.

But that is perhaps a debate for another day and another court.

When (and how) to judge the judges?

The debate sparked by criticism levelled by attorney, Eric van den Berg, in the Sunday Times against a newly appointed black female judge who gagged the Mail & Guardian, is an important one, so although late in the day I decided to add my two cents worth.

In a letter to the Sunday Times Advocate Vuyani Ngalwana (picture) objected to the piece by Van den Berg, arguing that it was inappropriate for lawyers to criticise judges personally and that the criticism could only have been levelled because the judge was black. He argued, in effect, that such criticism would never have been aired had the judge been a white male.

I think it is of utmost importance to assert that lawyers, academics and even members of the public have a right – no, a duty – to criticise judges when it is appropriate to do so. Judges – like the rest of us – are subject to the Rule of Law and cannot be expected to be above criticism and complaint. We live in an open and transparent democracy in which judges should not be shielded from criticism.

Judges – who form the third branch of the government – have immense powers in our new Constitutional order and will often exercise this power in ways that will have political consequences. The work judges do, are therefore just as open to scrutiny and criticism as the work done by members of Parliament of the Executive.

After all, unelected judges have the power to declare invalid legislation passed by the democratically elected Parliament and they are only accountable to higher courts where their judgments are appealed to, and to the general public. Criticism of judges who – in one’s opinion – had made wrong legal or policy choices or had ignored the values of the Constitution serves as an important and valuable check on the exercise of power by the third branch of government.

Despite this strongly held view, I cannot but agree with Advocate Ngalwana that the article by Mr Van den berg was completely unacceptable. I emphatically disagree with the judgment of the Judge in the Mail & Guardian gagging case, and I think an article explaining the legal and policy reasons for such disagreement would have been entirely appropriate.

In the present case the problem was that Mr. Van den Berg went much further than merely explaining why in his opinion the judge had erred by gagging the Mail & Guardian. He attacked the judge personally and left the distinct impression that she was incompetent and stupid because she was an affirmative action appointment.

Such an attack is not much different from the personal attacks launched by the ANC Youth League and others on Judge Hilary Squires after the conviction of Schabir Shaik. Then many of the people who now do not see anything wrong with the Van den berg article correctly pointed out that personal attacks on judges undermine respect for the Constitution and the Rule of Law.

In this case, the attack is even more problematic because it occurs against the background of legal culture still infected with racism. It is difficult to deny that many black judges – and black female judges in particular – are often subjected to thinly veiled racially motivated criticism about their abilities and skills.

I am not saying black judges should be beyond criticism or that such criticism should be reserved for legal journals. Far from it: in my opinion lawyers and academics should not hide in their ivory towers but should take part in robust debate about the wisdom of different judgments by the various Courts.


What I am saying is that those who attack judges personally and hint broadly that they cannot do their job, are really attacking the legal system itself because they plant a seed in the minds of ordinary people who are supposed to rely on the Courts that some judges can never be trusted. This is a dangerous and stupid thing to do, not least because it will further contribute to racial polarization and suspicion mongering in our society.

Judge errs in gagging Mail and Guardian, but truth reavealed

If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.

After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.

She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.

I find the logic of the learned judge, well, spectacularly flawed.

It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.

He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.

Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.

So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.

In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.

This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.

It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation – the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?

If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.

This seems to suggest that the Judge is untransformed and that she has not internalised the values of openness and freedom enshrined in the Constitution. It would be a good thing to send her on a crash course to familiarise herself with the values of the Bill of Rights. I, for one, would be happy to assist if she was at all interested in learning more about the Bill of Rights.