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?

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.

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:

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.

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.

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.

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.

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.

The story started when journalist Deon de Lange from Independent Newspapers wrote a story last week on the Protection of Information Bill quoting a confidential parliamentary source who was critical of the fact that the ANC had agreed to consult further on the Bill while the Bill was before Parliament. This was clearly a case where the ANC was conflating the party and the state and set a dangerous precedent. ”It’s like the blind leading the blind and [the ANC] are confusing everybody,” the source told De Lange.

Parliament and the ANC slammed De Lange and the unnamed source in press releases issued last week and yesterday the secretary to Parliament, Zingile Dingani, wrote to De Lange’s editor invoking the alleged “Policy on Media Relations Management – 26 August 2009″. This is not a “policy” anyone has ever heard of before. Neither is it a “policy” that can be found on Parliament’s website. No journalist has ever heard of this “policy”. It is unclear whether this policy was invented over the past week or whether it was secretly developed and adopted two years ago without telling anyone. If it was secretly developed and adopted two years ago (by which body with what authority?), it remains unclear why this was not announced publicly.

Maybe Parliament knew that such a policy would not fly and that it would be criticised by all and sundry.

Mr Dingani has asked De Lange’s editor to explain why he should not invoke a clause from the alleged “policy” to revoke De Lange’s permit to work as a journalist in Parliament. The relevant section of the alleged “policy” reads as follows:

8.4.3 Journalists should not approach party support staff or employees of Parliament to seek information on parliamentary matters. All enquiries are to be made through the Media Relations office.

8.5.2 No employee may speak to the media in their capacity as an employee of parliament or give press releases or statements on behalf of parliament except employees assigned to do so.

8.6.1 An employee may only communicate with the media on parliamentary matters if he/she is authorised to do so by the secretary.

9 (c) the Manager: PCS is also responsible for ensuring that this policy is communicated to members of the media.

10. Breach of policy… b) Any breach of this policy by a member of the media may lead to accreditation being revoked and or the person being removed from the precinct of parliament.

This “policy” — if it exists — clearly infringes of the right to freedom of expression (which includes ­the freedom of the press and other media). However, this must be balanced against other provisions of the Constitution. Obviously Parliament would be permitted — if the correct procedures are followed and policies adopted in line with the Constitution – to regulate access to the Parliamentary precinct for security reasons. This is not what happened in this case.

Thus sections 59 and 72 of the Constitution states that the National Assembly and the National Council of Provinces must conduct its business in an open manner, and must hold its sittings, and those of its committees, in public. However, it also states that reasonable measures may be taken ­ to regulate public access, including access of the media, to the Assembly and the NCOP and its committees; and to provide for the searching of any person and,where appropriate, the refusal of entry to, or the removal of, any person.

Moreover sections 57 and 70 of the Constitution states that the National Assembly and the NCOP may determine and control its internal arrangements, proceedings and procedures; and may make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.

Arguably, rules adopted by either of the houses of Parliament to regulate the flow of information to journalists may be found to be valid if it only placed reasonable limits on the right to freedom of expression and of the media to achieve a pressing and legitimate goal. It would be reasonable if it was aimed at achieving a legitimate and important purpose and if this purpose outweighed the interest of the public to be kept informed about what was happening in Parliament. It would obviously not be easy to demonstrate that it was reasonable to limit the rights of journalists in the manner supposedly done by this “policy” as it will be assumed that journalists should have free reign to speak to whoever they wished and that a journalist could not be punished for doing his or her job. The alleged “policy” — for this reason alone — would probably not pass constitutional muster.

But there is a far bigger problem with the infringement on the freedom of the media in this case, namely that Parliament as an institution (as opposed to the National Assembly or the NCOP) has no constitutional or other legal authority to adopt rules that would limit the right to freedom of expression enshrined in the Bill of Rights.

Officials – as opposed to our elected representatives in one or both houses of the legislature — are not authorised to infringe on our rights under any circumstances. In the absence of legislation that specifically regulates and allows for the limitation of the access of journalists to Parliament in the manner supposedly proposed by the quoted “policy” and in the absence of specific rules adopted by members of the National Assembly, the NCOP or jointly by both, there is no legal authority for these rules and they are thus null and void.

Mr Dingani has just as much power to prohibit journalists from attending Parliament as I have the authority to order the President of the country to issue a visa for the Dalai Lama. If I was Mr De Lange and his editor I would just laugh at Mr Dingani and dare him to bar me from Parliament. He has no legal authority to do so as the rules on which he is purportedly relying has no legal force. Any attempt to bar a journalist from Parliament for not reporting what its officials want would thus be unlawful.

The larger issue is of course why Parliament and the ANC has so overreacted to this story in the way it has. Even worse than the DA did with Anna Majavu, Parliament and the ANC has overstepped the mark here. For some reason some officials of Parliament and leaders of the ANC (who are not always that easy to distinguish from one another) was outraged by the fact that an official of Parliament could actually criticise a decision of the majority party (a decision which seemingly undermines the very authority of Parliament).

Whether it was wise for the official to comment, is neither here nor there. It may be argued that the official (who is supposed to be loyal to Parliament and not the government of the day or the governing party) had a duty to speak out, but my argument does not hinge on this. What is relevant is that the ANC and the ANC aligned officials in Parliament have completely over-reacted to this of the record comment by a Parliamentary official.

 In any event, the threats issued by the secretary of Parliament will go nowhere as they cannot legally be executed.

The Cape Bar is, arguably, the least “transformed” Bar in the country. There is also a widespread perception that many members of the Cape Bar is less than enthusiastic about the appointment of judges who happen not to be white and male and members of the old boys club. (Whether this perception is based on fact and hence justified, is not relevant for the present discussion.) Its challenge to the JSC decision was therefore always going to be portrayed by some as another anti-transformation move aimed at retaining the influence of white Bar Council members over the appointment of judges.

Political perceptions aside, the resulting judgment in the case of The Cape Bar Council v The Judicial Service Commission and Another makes for interesting reading and reminds us that the JSC is not above the law — despite the attitude of some of its members. Unfortunately the JSC has not always covered itself in glory and has often acted in a manner not compatible with the Constitution.

The judgment is thus helpful as it sets out the manner in which the members of the JSC ought to — but does not always — arrive at decisions.

The judgment, authored by Koen J (Mokgohloa J concurring), reminds us that the JSC exercises a public power and is hence controlled by what is prescribed in the Constitution and the law. Although decisions by the JSC relating to the selection, nomination and appointment of judges do not constitute administrative action in terms of the Promotion of Administrative Justice Act (PAJA), such decisions could nevertheless be reviewed in terms of the principle of legality.

In this regard, the court reminded the JSC that it is bound by the requirements of the Rule of Law. An incident of the Rule of Law is the principle of legality and this entails that a body like the JSC exercising a public power “may exercise no power and perform no function beyond that conferred upon them by the law”. The exercise of such a power may also not be arbitrary and must be rational. In other words, there must be a rational objective basis justifying the connection made by the decision maker between the material available to her on which she  made the decision and the conclusion she eventually reaches.

The judgment also confirmed that the JSC – as a public body — must perform its functions openly and transparently as this is required to give effect to two of the founding values of our Constitution that is foundational for our democracy, namely accountability and transparency. This is also why a public body like the JSC should normally be required to provide reasons for its decisions. Unless a person affected by a decision can discover the reason behind the decision, she may be unable to tell whether the decision is reviewable or not. Providing reasons also assures an affected person that her case was considered properly and forces the decision maker to formulate reasons that would withstand scrutiny, thus forcing it to evaluate all the relevant considerations correctly and carefully.

In the past, in the absence of consensus, the members of the JSC would be required to vote for each nominee. As the court pointed out, it is unclear from the JSC submission whether each member had as many votes as there were vacancies (three votes, say, if there were three vacancies in a division) or whether a member could vote for as many candidates as she wished. The court assumed that the former process was used. What was clear was that a member of the JSC could vote for fewer candidates than there were vacancies in a division.

Only those nominees who obtained a majority of the votes (thirteen) would be selected for appointment to the bench. (The JSC selects High Court judges for appointment and thus “nominates” them, after which the President must appoint those selected. This means that, in effect, the JSC appoints the judges to the High Court.)

Whatever process was actually used, it was clearly flawed. The majority of members of the JSC could in effect veto the appointment of even the most brilliant and progressive lawyer committed to the values enshrined in the Constitution by abstaining from voting for that candidate or from abstaining from voting for ANY candidates. This the members could do without providing any rational basis for their decision.

The JSC stated in its defence that this procedure was indeed rational and that it complied with the principle of legality because that was the procedure it had chosen (finish en klaar, so to speak) and because reasons could not be given for selecting or not selecting a candidate for appointment because the voting was done by secret ballot and the reasons of individual members for voting or not voting for a candidate were thus unknown. The JSC nevertheless contended that when members of the JSC exercise their vote, they take cognisance of their constitutional mandate (and do not consider other irrational or impermissible factors). The court did not buy this argument, stating that:

It is difficult to follow how that statement can be made. The deponent clearly would not know what the individual members of the JSC took into account, nor does he refer to the deliberations that took place or indicate the sources of his knowledge, such as that members of the JSC informed them of their reasoning. No other members of the JSC has deposed to an affidavit confirming this account insofar as it concerns them, as being correct.

The court found that there was no reason why the JSC could not furnish reasons for its decisions. Reasons are provided for recommending candidates for appointment to the Constitutional Court, and these reasons are then forwarded to the President for his consideration. The court thus asked why reasons could not similarly be provided by the JSC for its decisions to recommend or not to recommend candidates for appointment to the High Court.

The question of whether reasons should be provided for appointment or non-appointment of judges is a difficult one. On the one hand, the judgment must surely be correct when it points out that the provision of reasons for a decision to recommend or not to recommend the appointment of a candidate would possibly infuse more predictability and rationality into the process of appointment. On the other hand, providing reasons for the non-appointment of a candidate could be highly embarrassing for such a candidate and might dissuade talented candidates from putting their names forward.

Perhaps the best way to proceed would be to require the JSC to formulate reasons for the appointment or non-appointment of candidates but to have to furnish those reasons only to the relevant candidates on request. This would mean that the JSC would normally not be required to announce their reasons to the public at large. Nominees could then be protected and the integrity and legitimacy of the bench safeguarded while the JSC would remain accountable.

The judgment was also highly critical of other aspects of the manner in which the JSC arrives at decisions about the nomination of High Court judges. Although the JSC provided contradictory information to the court about the voting procedure (do members get as many votes as there are vacancies or can they vote for as many candidates as they wished?), it was assumed that each member could only vote for as many nominees as there were vacancies in a division.

As the court points out, this process would be arbitrary and irrational as a candidate would have a far better chance of being selected where there was a small number of shortlisted candidates than where there were large number of candidates. It is therefore conceivable that the same candidate would not be selected for appointment in one round because she might be competing against several candidates, yet would be selected during the next round because there were fewer candidates competing for the same post. A post could therefore remain unfilled merely because “too many” candidates were nominated for positions in a single round.

As those candidates achieving the lowest support were not eliminated and votes for them were not transferred to other more popular candidates, this meant that the votes of members of the JSC who voted for unpopular candidates are currently “wasted”. There was seemingly no opportunity for these votes to be transferred to other candidates, which left open the possibility that no vacancies would be filled in any given round (even where imminently suitable candidates had applied for the positions available) as no candidate might achieve the thirteen votes required for appointment.

What the court did not mention was that this procedure invited members of the JSC to engage in political lobbying before interviews are conducted. If one had a strong preference for candidate X, one might try to lobby for that candidate to ensure that other like-minded members of the JSC would not split their vote. One might also be tempted to “trade” votes by telling other members of the JSC that one would support “their” candidate if they supported “your” candidate.

The court was careful not to prescribe which voting system should be used by the JSC but it did find that the JSC was required to settle on a clear and less arbitrary system of voting than the one it seemed to have employed in the past. The court also declined to make a finding advanced by the amicus curiae that the JSC could not refuse to appoint a candidate because of broader concerns for equity. What was required was for these reasons to be clearly articulated when reasons are provided for leaving vacancies unfilled.

The most perplexing and perhaps embarrassing aspect of the events that led to this court case, was that the JSC was not properly constituted when it had to consider appointments to the Cape High Court bench.

Relying on the wording of section 178 of the Constitution as well as on precedent first set in the Premier of the Western Cape v Acting Chairperson, JSC the court found that the absence of the President of the SCA from the deliberations, turned valid proceedings into invalid proceedings. These proceedings were thus not in accordance with the dictates of the Constitution and hence unlawful and constitutionally invalid.

Given the fact that section 178(7) of the Constitution explicitly provides for the Deputy President of that court to act as an alternate on the JSC in the absence of its President, and given the precedent set in the Premier of the Western Cape case, it is hard to understand how the JSC could have continued with its meeting while its members should have known that it was no longer properly constituted.

The members of the JSC must either have been completely ignorant of the law as set out by our courts or it must have decided deliberately not to adhere to the law and the Constitution. Either way, the decision by the JSC to continue with its deliberations even when it stopped being properly constituted must rank as one of the least explicable decisions ever taken by that body. I say this, knowing very well that it has not excelled in the past in making legally plausible and vaguely justifiable decisions and that it has been successfully sued by a wide array of individuals as diverse as Judge President John Hlophe and Premier of the Western Cape Hellen Zille.

The process through which judges are selected for appointment by the JSC will always be fraught with controversy. Only the most naive or gullible person would contend that politics play no role in this selection of judges. In a constitutional democracy judges have enormous power. They can declare invalid acts of Parliament and members of the executive and can develop the common law to soften the effects of the often harsh consequences that old common law rules still have on the interests of the less powerful, the marginalised and oppressed.

There is no consensus about what a truly independent judge infused with the values enshrined in our Constitution would look like. Depending one one’s political affiliations one might have different criteria for a good judge. It is often said that the JSC should appoint only independent-minded judges. But if one asks what this means, one soon realises that “independence” is not viewed in the same light by everyone. A DA MP might well believe that an independent judge is one whose views is not too dissimilar from her own, while an ANC MP might believe an independent judge is one whose views are more or less in accordance with her own views.

This does not mean that the process of selecting judges cannot be improved by stating more clearly what the criteria for appointment should be. The credibility of judicial selection by the JSC would surely be enhanced if the process was more transparent and logical and if the JSC felt that it was more accountable for its decisions. This balanced judgment of the High Court might go some way to infuse some transparency and rationality into the process and to limit the political excesses that the process invites.

Could it be that the Act infringes on the right to privacy guaranteed in section 14 of the Constitution by requiring all cellphone users to provide their service provider with personal details about themselves, including their names, identity numbers and home addresses? What is the purpose of the Act and does it strike the correct balance between the need to respect the right to privacy and the need to allow for the interception of private communication in order to combat crime?

The Act does far more than requiring cell phone users to provide personal information  about themselves to the company who issued the cell phone or SIM-card to them. The owner of a cell phone or SIM-card has a duty in terms of the Act to report the theft, destruction or loss of that phone or SIM-card to the police within a reasonable period after having reasonably become aware of the loss, theft or destruction of the phone or SIM-card. The police must then immediately provide the person who reported the theft or loss with written proof that the report has been made and must keep a record of this theft or loss.

The aim of this section is clearly to ensure that all SIM-cards and phones can be identified and linked to a specific users. If that SIM-card or phone is then used to commit a crime, the person involved can be tracked.

But keeping track of cell phones and SIM-cards is not the main purpose of the Act. The main purpose is to regulate the interception of  private communication between individuals. One intercepts communication by listening in or recording that communication. A communication can include communications via email, phone calls, letters or private and personal conversations between individuals. Section 2 of the Act prohibits such interceptions, which means that without the requisite legal permission no one can legally record your phone calls or your private conversations without your consent and neither can they hack into your computer and access your emails.

This does not mean that one of the parties to a communication cannot record it as this is explicitly allowed for by the Act. So, where a police officer phones a criminal suspect and talks to that suspect the conversation can be recorded. The Act seems to be aimed at the interception of a communication by a party who is not involved in the communication. A third party can also intercept a communicatin between two people if one of the people involved in the communication has given permission for this. The Act also allows the recording of phone calls to, say, a call centre by a business running that call centre.

The Act does allow the interception of phone calls and the like by the police but usually only if permission has been granted to do so by a judge. A judge can only grant such permission if strict criteria are met. For example, if the judge is satisfied that there are reasonable grounds to believe that a serious offence has been or is being or will probably be committed or that the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic is necessary and if there are reasonable grounds that the information sought will actually be obtained by the interception, that judge can give permission for the interception.

The Act also places a general prohibition on the disclosure of any information obtained in terms of the Act. This means the cell phone provider cannot disclose your address obtained when you RICA’d to anyone else. It also means that unless certain strict criteria are met, recordings of your phone calls made in terms of an order given by a judge cannot be made public and cannot be used in a court of law against you.

This is quite a complicated Act and it is impossible to summarise its various provisions in this short post. It may also be possible that I have missed something in the Act that might be glaringly problematic. But – on paper, at least – it seems as if there are sufficient safeguard in the Act to justify the limitations it imposes on the right to privacy.

Section 14 of the Constitution states that everyone has the right to privacy which includes the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed. The Act therefore clearly limits this right but I suspect that any limitation would be justifiable in terms of the limitation clause. Because a judge is required to authorise the interception of communications by the police and because one’s private details may not normally be provided to third parties, the Act seems to strike the right balance between the need to protect one’s privacy on the one hand and the need to combat crime on the other.

Of course, the big problem is that there is a widespread perception that our various intelligence services do not always adhere to the Act and that private communications are intercepted without judicial authorisation. If this is true, it will be very difficult to address the problem as the very police who might illegally be listening in to one’s phone calls will be required to investigate the crime they are busy committing.

What is required is for the establishment of an independent body who could monitor the police and intelligence service to ensure that they do not break the law.  Section 210 of the Constitution does provide  for civilian monitoring of the activities of the intelligence services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members. But it is unclear whether this inspector of intelligence has the requisite independence and political will to ensure that the intelligence services do not break the law.