Constitutional Hill

Rule of Law

A worrying attack on the Rule of Law

Mar 22nd, 2012
by Pierre De Vos.
78 comments

The decision of the Supreme Court of Appeal (SCA) on Tuesday in the Jacob Zuma case, must come as a political – but not yet as much of a legal – blow to President Jacob Zuma. Coming just as the unofficial succession debate is hotting up, this judgment will provide some ammunition to President Zuma’s opponents inside the ANC as it will remind party activist and ordinary voters alike that Zuma had a corruption case to answer, that his financial advisor was convicted of bribing him but that he never got his day in court to clear his name.

It is important to note that the decision does not deal with the merits of the case brought by the DA, as the NDPP and the President have been using stalling tactics to ensure that this case is not finalized before the ANC elective conference this December. The question of whether the decision of the National Director of Public Prosecutions (NDPP) to drop all corruption charges against Jacob Zuma was unlawful and should be set aside, will only be considered once an appeal of this judgment had been finalised by the Constitutional Court, and then only if the Constitutional Court confirms the SCA judgment.

Legally there is therefore still a long way to go. Even if the Constitutional Court confirms the SCA judgment, the merits of the case will then have to be ventilated in the High Court and will almost certainly be appealed to the SCA and then the Constitutional Court. But the Constitutional Court judgment might well be finalized before December, which would mean that if the SCA judgment is confirmed, the NDPP will have to hand over almost all relevant documents which were considered by the NDPP when he made the controversial decision to drop charges against Zuma to the court. The NDPP would not have to hand over the written submissions made to the NPA on behalf of Zuma as these documents are confidential – unless President Zuma waives his right to confidentiality in this regard.

As Navsa J explained, this will present difficult choices for the NDPP and for President Zuma, as they run the risk of ultimately losing the case if they fail to put sufficient documents before the court to legally justify the decision to drop the charges against the President. Such information, crucially, will have to include evidence of the tape recordings which ostensibly led to the dropping of charges as well as evidence about the way the tapes were obtained and by whom they were made. I quote from the judgment.

In the event of an order compelling production of the record, the office of the NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in the review application. If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s decision not to waive the confidentiality of the representations made by him. On the other hand, a reduced record might redound to the benefit of the NDPP and Mr Zuma.

Interestingly, the SCA decided not to deal with the question of whether a decision by the NPA to drop charges constituted administrative action under the Promotion of Administrative Justice Act (PAJA). Instead it found that the decision was reviewable under section 1(c) of the Constitution. This is where the curious statement of the ANC becomes relevant. In the statement following the judgment the ANC said, amongst others:

This matter, whilst it receives a deeper legal analysis, we however want to highlight the following:

  • The continued attempt by the DA to use the Courts to undermine and paralyse government.
  • The granting of blanket permission to political parties to can review any State decisions, using Courts.
  • How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

Given these facts, it is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of State.

Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law. The Rule of Law requires, at a minimum, that public power must be exercised in accordance with the law and in a rational manner. The ANC statement suggests that when the government of the day (or in this case the NPA) acted illegally (in the sense that it ignored the law or was not authorised by law to act or where there was no rational relationship between the act and the reasons given for the act, then a political party should not be allowed to approach a court to challenge this flouting of the law and the Constitution as this would open the floodgates of litigation, would undermine all organs of state and would paralyse government.

As I see it, this seems like an extraordinary admission on the part of the ANC that the government it heads flouts the law and the Constitution so regularly that it would be completely paralysed if it is taken to court every time this happens. Why else would political parties flood the courts (spending millions of Rand they could have spent on election campaigns) unless they believe they can prove that the government has flouted the law. I am not sure the statement was meant to make this admission, but that is the necessary implication of it. The SCA dealt with the floodgates argument in the following (to my mind convincing) passage, starting with a quote from a High Court judgment:

“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.”

Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’.

What the ANC does not seem to understand is what is at stake here: the very essence of respect for the Rule of Law, a founding value of our Constitution contained in section 1(c) of the Constitution. That section proclaims the supremacy of the Constitution and the concomitant supremacy of the Rule of Law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. When a political party approaches the court on a Rule of Law question, it is also helping to safeguard democracy. This principle is important, and is explained thus in the judgment:

Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.

The ANC should have thanked the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections. This does not mean the DA will ultimately win their case. This will have to be decided afresh by the High Court. There are two aspects relating to the Rule of Law that might be relevant to this case, depending on the facts and depending on the evidence placed before a court.

First, although the judgment does not expressly say so, the NDPP would not have acted in accordance with the law and the Constitution, if he had dropped the charges on grounds not provided for in the NPA’s prosecuting policy to which the NPA is bound. What will make the NDPP’s case more difficult is that the acting NDPP, Mokothedi Mpshe, had failed to refer to the prosecuting policy at all when he provided reasons for the dropping of charges. The argument would therefore be that the charges were not dropped in accordance with this legally binding prosecution policy and was thus unlawful and an affront to the Rule of Law.

But there is a second aspect of the Rule of Law which might apply here. This is that when public power is exercised in terms of the Constitution or other legislation, this exercise of power had to be rational. As Navsa pointed out, “the rule of law also requires rationality as a prerequisite for the validity of the exercise of all public power”. This means that where somebody exercises public power, there must be a rational connection between the decision taken and the stated reasons or goal of that decision. Where reasons were cribbed from an overturned Hong Kong decision, say, the body making the decision will have some work to do to convince a court that the decision was rational.

However, it is important to note that the SCA did not endorse the view that the decision would have to be viewed on these two grounds. That, said Navsa, was a question for the high court – the court seized with the application for the review. Because arguments made by the NDPP about the extent to which the decision was reviewable were premature, it was for the High Court to determine the grounds of review. Criticising the now suspended head of the NDPP, Menzi Simelane, (which was not the first time Simelane has been criticised by our courts) on this point, the SCA remarked that it “is difficult to understand why it persisted in pursuing the appeal on this aspect. It does not reflect well on the NDPP.”

It might well be that eventually a court will decide that there are sufficient reasons to grant a permanent stay of prosecution in this case. But usually those decisions are taken by a judge, not by the NDPP. If the NDPP had acted irrationally or if it had not followed its own prosecution policy it would have flouted the law for political reasons and would have treated one person – the current President – as above the law. That is why it is important that the courts decide whether this decision was valid or not. Who knows, the evidence provided by the NDPP (and perhaps by President Zuma, if he decides to release his submissions to the NDPP) might satisfy the courts that this decision did not flout the Rule of Law.

If that were to be the case, the ANC would have again have to thank the DA for clearing this up and for helping our courts to reaffirm our confidence in our prosecuting authority. At the moment the NPA is not a body that instils much confidence with anybody, as there is some evidence that it has been politically captured by the Zuma faction inside the ANC over the past three years (and there is some evidence that it was politically captured by the Mbeki faction before that). I suspect the statement was made not because of a sudden attack of conscience or principle on the part of the ANC, but rather because the judgment provided a political opening for opponents of President Jacob Zuma and needed to be discredited.

In doing so, this statement represents a worrying attack on the Rule of Law.

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.

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.

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?

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.

How to fix the Secrecy Bill and make it constitutionally compliant

Nov 24th, 2011
by Pierre De Vos.
90 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Helen Zille, the HIV populist

Nov 10th, 2011
by Pierre De Vos.
66 comments

Political leaders holding executive office (like the President and the nine Premiers) cannot be expected to know everything about every conceivable subject. That is why they employ advisors to assist and advise them. However, sometimes they think they know everything about everything (always a dangerous thing for a politician to think, as we know from experience with former President Thabo Mbeki) and sometimes their advisors fail to do their job properly.

Thus President Jacob Zuma, apparently ill served by his legal advisors, have made some serious blunders over the past two years. First he relied on an obviously unconstitutional provision to try and extend the term of office of a great Chief Justice, then he appointed a retired Constitutional Court judge to lead an inquiry into Bheki Cele’s fitness to hold office when he was legally required to appoint a judge from the High Court or the Supreme Court of Appeal.

It is unclear whether Premier Helen Zille relied on advisors before making truly astonishing statements about the criminalisation of sex or whether she came up with her hare-brained scheme all by herself.

Zille said earlier this week that she was so worried about the spread of HIV and its cost to the government that she wants men who have multiple sexual partners and refuse to use condoms to be charged with attempted murder. Zille told a wellness summit hosted by the provincial health department in Newlands on Tuesday that it was time the government shifted its exclusive focus from treating diseases to preventing them and promoting wellness.

If she was quoted correctly, her statement represents a frontal attack on the Rule of Law and the basic principles of criminal law applicable in any democratic society.

If she said that men who have multiple sexual partners and refused to use condoms should be charged with attempted murder regardless of whether they are HIV positive and regardless of whether they knew that they were HIV positive, she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.

A fundamental principle of the criminal law in a country that adheres to the rule of law is that one could only be charged and found guilty of a crime (or attempting to commit a crime) if one could be proven to have had the intention to commit the crime or (in exceptional cases) had the knowledge that his or her actions could have resulted in the commissioning of unlawful action and nevertheless negligently proceeded to act. In South Africa culpable homicide is the unlawful and negligent killing of another. Attempted murder is committed where one inentends to kill somebody else but fails in doing so.

Merely potentially endangering the life of another can never be culpable homicide or attempted murder and one cannot be convicted of attempted culpable homicide. One can only be convicted of attempted murder if it can be proven that one had the intention to kill another but failed to do so. In S v Naidoo the SCA set out the position quite clearly:

What the crimes of murder and culpable homicide have in common is a fatal outcome for a human being. Absent a death, absent the particular crime. What they do not have in common is that absent a death, there may be a conviction of attempted murder but not a conviction of attempted culpable homicide. The reason for the difference lies in the distinction between the two forms of mens rea which are essential elements of the respective crimes of murder and culpable homicide.

The crime of murder cannot be said to have been committed unless the act or omission which caused death was intentionally committed or omitted and death was the desired result, or, if not the desired result, at least actually foreseen as a possible result the risk of occurrence of which the accused recklessly undertook and acquiesced in. In short, dolus in one or other of its manifestations (directus, eventualis, indeterminatus, etc) is the kind of mensrea which must have existed. Where the act or omission is accompanied by such dolus but death does not in fact ensue, it is easy to understand why the accused’s conduct should be visited none the less with penal sanctions. A deliberate attempt to commit the crime of murder cannot be ignored and left unsanctioned simply because the perpetrator has failed to achieve his or her objective.

Where it can be proven that a person intentionally tried to kill another by infecting him or her with the HIV virus (which would be very difficult to prove) a person could be charged with attempted murder. But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention. If somebody negligently transmits HIV to another and that person actually dies, the person could theoretically be charged with culpable homicide, but proving the causal link between the sexual act and the death of the person as well as the negligence on the part of the accused would be almost impossible to do.

Given the fact that anti-retrovirals are now widely accessible, a person who responsibly gets tested and take this medicine will in all probability live a long and productive life, which means that it would be almost impossible to prosecute someone for attempted murder as the state would not be able to show the causal link between the sexual act and the death.

In the age of ARVs, deliberately transmitting HIV to another could not be viewed as attempted murder because one’s action would not lead to the death of the other person. Where a person dies of an HIV related illness, the accused charged with his or her murder or with culpable homicide would argue that but for the failure of the deceased to take ARVs death would never have occurred and that there was hence no causal link between the sexual act and the death.

There are good reasons for this. In a constitutional democracy — as opposed to a theocratic state — the criminal law cannot be used to punish individuals merely for not conforming to Judaeo-Christian moral standards regarding sexual behaviour. If one criminalised all unprotected sex with one or several partners, one would be punishing people for something that might never have happened (HIV infection, leading to death) or for something they might not have foreseen at all (as they might not have believed that they were HIV positive at all or might not be HIV positive). One would be punishing people for not behaving in a manner one believes is appropriate — regardless of the consequences or potential consequences.

The criminal law then becomes an oppressive and authoritarian instrument of social control, turning large numbers of ordinary citizens into instant criminals. Where the criminal law punishes behaviour not based on the consequences or potential consequences of said behaviour but for its own sake and without taking into account the guilt of the accused, the Rule of Law is fundamentally undermined.

Perhaps Premier Zille was misquoted or she “misspoke” — as Hillary Clinton famously “misspoke when she said she had to evade sniper fire when she was visiting Bosnia in 1996 as first lady when, in fact, she was greeted by flower-bearing children. Perhaps she meant to say that somebody who has multiple sexual partners and knows that he is HIV positive but nevertheless fails to use a condom and then transmits HIV to a partner who later dies from AIDS related illnesses should be charged with attempted murder.

Even so, this view is quite shockingly misinformed and would have disastrous consequences. It would create an incentive for some men not to get tested for HIV and hence not to take ARVs. Not only would the men then die needlessly but those men would be also far more likely to transmit HIV to their sexual partners. This is because an HIV positive person on ARVs whose viral load becomes undetectable are far less likely of transmitting HIV than one who is not on ARVs and whose viral load is high.

Criminalising sexual behaviour in this way might therefore increase the rate of HIV transmission. It will certainly not decrease it.

Julius Malema is often criticised for being a populist — saying things that are truly idiotic or even dangerous but which he knows would be popular with his constituency. But he is not the only populist politician around. This statement by Premier Zille is a classical populist statement: idiotic and dangerous but quite popular with a certain constituency. She should have known better. And if she did not, she should have known to ask somebody who is a bit more knowledgable than herself to inform her about the legal and medical issues around HIV.

Why Zuma cannot appoint Evita Bezuidenhout as NDPP

Nov 3rd, 2011
by Pierre De Vos.
35 comments

Yesterday President Jacob Zuma again expressed concern about the manner in which the judiciary allegedly “interferes” with the work of the executive and with the judicialisation of essentially political disputes, stating that there was a need “to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation”.

President Zuma – quite correctly, in my view — stated that “the executive, as elected officials, has the sole discretion to decide policies for Government”. Stating that he respected the powers and role conferred by our constitution on the legislature and the judiciary, he nevertheless insisted that the “executive must be allowed to conduct its administration and policy making work as freely as it possibly can”.

The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We also reiterate that in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections. This interferes with the independence of the judiciary.

These remarks are similar to remarks, made a month or two ago, which created some anxiety amongst some constitutionalists who have become anxious about the government’s continued commitment to constitutionalism. Unfortunately, the President’s remarks reflect, at best, a rather simplistic view of the principle of separation of powers. It also lacks the requisite detail and nuance that would allow us to analyse the remarks in a sensible and responsible manner.

When President Zuma states that the executive must be allowed to make policy “as freely as it possibly can”, it is not clear what is meant by this. It could mean — quite correctly — that the executive has the sole power to formulate and implement policies that are compliant with the Constitution. It could also mean — quite alarmingly — that even when the executive formulates and implements policies that are in conflict with the Constitution, courts should not interfere because (unlike the government of the day) judges have not been elected in a popular vote.

And what does he mean when he warns that people should not try to co-govern the country through the courts? Does he mean that purely political issues should not be brought to the courts, or does he mean that those who disagree with the policies implemented by the government should not approach the courts to have such policies declared invalid — even when the policies are clearly in conflict with the provisions of the Constitution? If it means the former, what exactly does the President understand to be “purely political” issues?

The problem is that it is not possible to draw a clear line between “purely political” matters and questions about whether the Constitution and the law had been complied with. Yesterday, in a radio interview with John Maytham on Cape Talk, Steven Friedman inadvertently illustrated this point quite well. He pointed out that it was problematic when courts became involved in purely political issues and then mentioned the case of the DA challenging the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) as a case in point.

Friedman is wrong when he asserts this is not a matter that should be taken to court. In fact, in a constitutional democracy where the rule of law is respected, this kind of appointment might very well require intervention by the courts.

The National Prosecuting Authority Act states that the President can appoint any fit and proper person with the requisite legal qualification as NDPP. But what happens if the President appoints somebody as NDPP who is not fit and proper or does not have the requisite legal qualification? For example, if the President were to appoint Schabir Shaik as NDPP, he would not be acting in accordance with the law and any court would have a duty — if so requested — to declare that appointment unlawful and invalid. If it failed to do so, it would in effect sanction lawlessness and would signal that it believed that the President was above the law.

It would be of no use for the President to asserted that he had the power to appoint an NDPP and that he believed Shaik indeed possessed the requisite qualifications for the job: in a constitutional democracy an action does not comply with the law merely because the President claims that it does.

Parliament can of course amend the NPA Act to change the provision requiring that the NDPP possess a legal qualification and had to be fit and proper and as long as these changes complied with the Constitution – including the requirement, affirmed by the Constitutional Court in the First Certification case, that the NPA had to be independent — the President could then appoint somebody as NDPP who complied with the newly introduced requirements. What the President cannot do is flout the existing law merely because he is the President and has decided that the requirements of the law are not to his liking.

Similarly, if the President in effect delegated the power to appoint the NDPP to his Minister of Justice, this would be unconstitutional and any such appointment would be null and void. Until the Constitution is amended to allow the MInister of Justice to appoint the NDPP, only the President can do so. If the President delegated the power to somebody else, he would be acting unlawfully and the Constitutional Court would have no choice but to declare this purported delegation unconstitutional and hence null and void.

Section 1 of the Constitution also confirms that the exercise of power by the President has to conform to the principle of the Rule of Law. This means, at the very least, that the President must act in a rational manner. There must be a rational connection between the legitimate purpose being pursued by the Presidents and the action taken to pursue that purpose. If the President appointed Evita Bezuidenhout or Nic Rabinowitz as NDPP because he thought it would be lots of fun to have a comedian as NDPP, this would not be a legitimate purpose sanctioned by the law and hence would not be constitutionally valid.

I provide these examples to illustrate that a decision by the President that might appear to be purely “political” might nevertheless raise several legal and/or constitutional questions. When this happens anyone — including the DA – has a right to challenge the actions of the President in court. Surely we do not want to live in a country where the President routinely flouts the very laws adopted by the Parliament dominated by the party he is the leader of?

Of course, no President likes to be told that he had acted unlawfully and that a decision he has taken was null and void. To prevent this from happening a wise President will not attack the judiciary for doing its job, but would rather ensure that his legal advisors provide him with honest, reliable, precise and accurate advice so that he would avoid the embarrassment of having his decisions overturned by a court of law doing its constitutional duty.

Given the less than reliable legal advice provided to our President on several occasions since his appointment, I would contend that President Zuma might have misdiagnosed the problem. The problem is not primarily that our courts do not respect the separation of powers — by and large they do. The problem is that on several occasions the President has acted unconstitutionally or unlawfully because he received really terrible legal advice.

Only time will tell whether the appointment yesterday of Mr Michael Hulley as a part-time legal advisor to the President will solve this problem. Hopefully Mr Hulley is a better legal advisor than a businessman. If he is not, President Zuma will continue to be thwarted by our courts doing what they are constitutionally mandated to do – interpreting and applying the law without fear, favour or prejudice.

No more dithering: a constitutional duty to make a decision

Oct 19th, 2011
by Pierre De Vos.
64 comments

President Jacob Zuma has become known as a person who is far from eager to make decisions, especially if the decisions may have an effect on his political fortunes or when not making a decision appears to be politically expedient. Before the local government election, President Zuma failed to sign into law the Local Government: Municipal Systems Amendment Bill. The Bill – fiercely opposed by some Unions – was passed by Parliament on 19 April 2011 but was only signed into law by the President almost four months later, long after the unhappiness of Unions could have affected the electoral fortunes of the ANC at the local government polls.

More recently, the President has failed to act on recommendations by the Public Protector to take action against the Minister of Public Works, the National Police Commissioner and now the Minister of Cooperative Government and Traditional Affairs. The question is whether this seemingly inexplicable failure to deal in any way with some of the main recommendations of the Public Protector may be unconstitutional, whether the tardy inaction on the part of the President could be reviewed by the Constitutional Court and whether the President could be ordered to act on the recommendations of the Public Protector (which included recommendations to take action against these delinquent Ministers and the National Police Commissioner).

In terms of section 91(2) of the Constitution the “President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them” and in terms of section 207(1) the “President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service” and – we know after the Mastehtla judgment – may also dismiss the National Commissioner if he and his cabinet have lost confidence in the Commissioner and after the correct procedure was followed.  

I would contend that the principle of the separation of powers would normally preclude a court from instructing the President to fire either of the Ministers involved in the various scandals investigated by the Public Protector. The principle would also normally preclude a court from ordering the President to fire the National Police Commissioner (who can in any case only be fired after a full investigation was done and after the prescribed procedure was followed). The appointment of Ministers to a cabinet as well as the appointment of a Police Commissioner are essentially political decisions and the President would have a very wide discretion to appoint (and also to fire) people from these positions as he sees fit.

This means that if the President announced tomorrow that he had full confidence in the abilities of the National Police Commissioner and the two Ministers involved and that he had decided not to act against them at all, it would be difficult (but perhaps not impossible) for a court to review and set aside the decision.

It is true that the President has a duty to respond to the recommendations of the Public Protector, as the Public Protector has the constitutionally conferred power in terms of section 182(1) to take remedial action when maladministration has occurred. Furthermore, in terms of the principle of legality the President has a duty to act rationally when he responds to the various reports of the Public Protector. In other words, the President has a constitutional duty to make a decision in each case that is rationally related to a legitimate governmental purpose. This means the exercise of the discretion cannot be arbitrary, capricious or clearly exercised in bad faith.  But this is not a very difficult requirement to meet.

Perhaps in the case of Minister Sicelo Shiceka, where the dishonesty and incompetence of the Minister is revealed in such stark terms by the Public protector’s report, the only rational thing to do would be to fire the Minister. Perhaps there could be no legitimate purpose in keeping on in the cabinet a colleague who has been demonstrated to be such a dishonest and incompetent person. But making such an argument would not be easy as a court would not easily interfere in what it would see as essentially the exercise of a political discretion by the President.

This also means that the other offenders could easily be saved if the President stated that he has decided to retain them as National Commissioner and as Minister of Public Works respectively because they enjoy his confidence and are needed to fulfil the mandate of the government, that they have learnt their lesson and are taking remedial steps to ensure better administration in the Police Service (these days wrongly and constitutionally imprecisely called a Police Force) and in the Department of Public Works and that they will be given a second chance in a practical demonstration of the principle of ubuntu.

But what happens if the President refuses to make a decision at all about how to respond to the recommendations of the Public Protector? What happens if, instead of announcing that he has either fired or retained the three implicated individuals, the President continues to refuse to make a decision at all, stating for the next year that he was “studying” the reports of the Public Protector and asking the public to be patient while he studies and re-studies every comma of those bloody reports? Would the refusal to act where there is a legal duty to act itself not be reviewable by a court of law?

The Constitutional Court has stated (in the context of the pardoning power conferred on the President by section 84 of the Constitution) that there is a positive obligation on the President to make a decision either to pardon or not to pardon a person who has applied for a pardon. A person applying for a pardon does not have a right to be pardoned but he or she does have a right to have a pardon application “considered and decided upon rationally, in good faith, in accordance with the principle of legality, diligently and without delay”. 

In other words, where a power is conferred on the President by the Constitution or by legislation, the President must exercise that power. As the Constitutional Court confirmed in the SARFU judgment, the President cannot abdicate this power. An “abdication” of the presidential power would occur when the President unlawfully delegates a power conferred upon him or her (for example, by asking the Deputy President to act on his behalf); when the President acts under dictation (by taking instructions from Gwede Mantashe or the Guptas instead of applying his own mind to the matter); where the President “passes the buck” (by referring the matter to the National Assembly, say, when he is the only one empowered to act on the recommendations); or where the President fails to act at all.

The question here is whether there is a legal duty on the President to act. I would contend that there is. Section 181(3) of the Constitution states that organs of state (which includes the President) “through legislative and other measures, must assist and protect …[the Public Protector]… to ensure [its] independence, impartiality, dignity and effectiveness”.

Where the President fails to respond at all to recommendations of the Public Protector, the President would not be fulfilling this positive constitutional obligation to take action to ensure the effectiveness and dignity of the institution. A decision to completely ignore some of the recommendations of the Public Protector would send a signal that the President is not taking that institution seriously and would invite others to disregard the authority of that institution. It may well be fatal to the effectiveness of the office of the Public Protector.

The Public Protector does not have the right to demand that the two Ministers and the National Commissioner be fired. Neither does she have a right to expect that the President will always comply with all her recommendations where some of these recommendations have political consequences. These decisions will have political dimensions and also political consequences, and even the Public Protector cannot issue a binding order to the President to fire any of these delinquents. But she does have a right to have her recommendations in this regard “considered and decided upon” by the President in a rational manner and in good faith - in accordance with the principle of legality. She also has a right to have this decision made in a diligent manner and without delay. 

Every day the President dithers and refuses to act diligently and without delay, the chances increase that he may be in breach of his constitutional duty to act and that he is flouting the principle of legality, which is an incidence of the Rule of Law. After all, how long can we reasonably expect our President to take to study these various reports which each took me about two hours to read? A day, a week, a month? Surely, after about two weeks of dithering any reasonable person will conclude that the President is in breach of his constitutional obligations.

What is going on in Swaziland?

Oct 10th, 2011
by Pierre De Vos.
18 comments

South Africa recently granted a R2.5 billion bailout to the government of Swaziland’s King Mswati III to stave-off a financial meltdown in that country. However, news reports suggest that the king and his government (headed by Prime Minister Sibusiso Barnabas Dlamini) has now cooled to the idea and left the Memorandum of Understanding (MOU) associated with the loan unsigned and the loan in limbo.

The first tranche of the three-tranche loan was scheduled to be released in August 2011, but among the loan conditions were “confidence-building measures” on democracy, human rights and fiscal reform, as well as the “overhaul of its budgetary systems”. Although these conditions were criticised by the COSATU for being too vague and dismissed by pro-democracy activists in Swaziland as a “betrayal” of the Swazi people, the Swazi government nevertheless balked at the idea of actually having to become slightly less autocratic in return for receiving the handout from South Africa.

As far as we know, the South African government has therefore not yet transferred any money to Swaziland and is unlikely to do so in the near future.

And no wonder, because even the South African government — not a government who has had too many scruples about supporting tyrants and turning a blind eye to the oppression taking place in countries perceived to be “friendly” to South Africa —  might have been slightly embarrassed by recent events in Swaziland.

Given the fact that unlike China (whom our government desperately wants to be exploited by and hence whose instructions we seem to slavishly obey no matter how embarrassing and unprincipled this might be), Swaziland is a small country with an annual budget only slightly bigger than the annual budget of the National Youth Development Agency, even the South African government might think it cannot afford to be seen to support the total subversion of the rule of law in Swaziland. Unfortunately our government has not made a statement regarding the status of the loan in the light of the seemingly unlawful dismissal of a Swaziland High Court judge.

This weekend Praveen Sham and Nano Matlala issued a statement on behalf of the  Law Society of South Africa (LSSA) adding its voice to the utmost alarm expressed by the SADC Lawyers Association (SADCLA), the Law Society of Swaziland and other civil society organisations at the clear contempt for the rule of law and the debasement of Swaziland’s judicial system, signalled by King Mswati III’s removal of High Court Judge Thomas Masuku from office last week.

Last month, the LSSA joined other legal organisations calling on the Judicial Service Commission of Swaziland to hear the charges brought against Judge Masuku by Swaziland’s Chief Justice Michael Ramodibedi in public, which was not done. It was widely believed that the charges brought against Judge Masuku were vague, unsubstantiated and spurious. The charges included a claim that Justice Masuku had insulted the King in one of his rulings and that he had an illicit affair with a female judge.

Justice Masuku has been harassed and suspended in the past for challenging unlawful royal decrees. His rulings have helped protect human rights and his resistance to government pressure on the judiciary has been crucial to maintaining its independence.

As pointed out by the organisations observing the hearing, the disciplinary hearing itself was not conducted in compliance with fundamental principles of justice and fairness. The Chief Justice refused to recuse himself, notwithstanding the fact that he acted both as accuser and judge; the application for the hearing to be held in public was denied and the opportunity to cross-examine deponents to the affidavits attesting to Judge Masuku’s alleged misconduct was also refused. No reasons were provided for these decisions.

In response to these events, Swaziland’s lawyers recently took the unprecedented step of marching through the streets of Mbabane to highlight their frustration at the JSC’s unwillingness to receive their complaint against Chief Justice Ramodibedi. The march follows an instruction by the Chief Justice to the magistrates’ courts to proceed with criminal cases despite the lawyers’ current boycott of the courts which has resulted in the convictions of unrepresented accused.

The Law Society of Swaziland has complained about several directives issued by the Chief Justice. The most controversial one determines that no summons may be issued against the King’s office. This leaves several parties, including those who have engaged in commercial transactions with the King’s office, without remedy.

The Swazi Minister of Justice and Constitutional Development, David Matse, has been suspended, apparently because he refused to sign the dismissal letter of Judge Masuku.

South African newspapers have not given much attention to the events in Swaziland, perhaps because white farm owners are not involved in this fundamental attack on the rule of law in a neighbouring country. If this had happened in Zimbabwe it would have been splashed on the front pages of most newspapers. With the exception of the Mail & Guardian, I have not read anything in our media about the dismissal of the judge in Swaziland.

The Law Society should be commended for issuing a statement and for trying to draw attention to these events in a country who in theory is still in line to receive a huge loan from the South African government. It would be helpful if various Bar Councils add their voices to that of the Law Society to demonstrate that they, too, support the rule of law in neighbouring countries.

Our government should also state unequivocally that no loan will be granted to the autocrats in Mbabane unless judge Masuku is reinstated and unless Swaziland demonstrates a clear commitment to democratise.

← Earlier Posts