Constitutional Hill

Seminar Room

CASAC submission to Parliament on work of its Nkandla committee

_________________________________________________________________

SUBMISSION TO PARLIAMENT 

BY THE COUNCIL FOR THE ADVANCEMENT 

OF THE SOUTH AFRICA CONSTITUTION (CASAC) 

23 APRIL 2014 

_________________________________________________________________

INTRODUCTION 

1. On 9 April 2014 the Speaker of the National Assembly made the following Announcement:

On 2 April 2014, the President of the Republic of South Africa submitted the following documents which were tabled on the same day – 

a) Letter in response to Public Protector’s report [Report No. 25 of 2013/14]; 

b) Proclamation by the President of the Republic of South Africa (Proclamation No. R59, 2013); and 

c) Copy of the Public Protector’s report.

After consultation with the Chief Whip of the majority party and senior whips of the other parties, I have decided in terms of Rule 214(1)(b) to appoint an ad hoc committee, the committee to – 

a) consider the submissions by the President of the Republic of South Africa in response to the Public Protector’s report and make recommendations, where applicable; 

b) exercise those powers as set out in Rule 138 that are necessary in carrying out this task; 

c) consist of twelve members, as follows:- 

ANC 7 

DA 2 

COPE 1 

IFP 1 

Other parties 1; and 

d) report no later than 30 April 2014.

2. The Committee has since been established. From the reports of the media, other than the Congress of the People, all other political parties have taken up their positions in the Committee.

3. In terms of its constitution, the Council for the Advancement of the South African Constitution (CASAC) stands for several founding values. These include:-

3.1 the idea of progressive constitutionalism;

3.2 the protection and advancement of the founding values of the Constitution which include a deliberative, participatory and inclusive democracy;

3.3 the notion that the Constitution is a living, not a static, document and must evolve to deepen democracy;

3.4 the rule of law must be used as an important foundational block in advancing constitutionalism;

3.5 the notion that private and public power should be exercised within the law and must enhance a culture of responsibility and accountability to guard against arbitrary use and abuse of power and authority;

3.6 in advancing its mission, CASAC acknowledges that there is a gap in the living reality of many South Africans who do not have access to the constitutional promises embodied by the notions of equality, human dignity and socio-economic rights. For this gap to be closed, on a progressive basis, public resources ought to be used in the interests of the majority of the people, rather than to benefit a few.

4. It is with these considerations in mind that CASAC welcomes the decision by the Speaker to appoint an ad hoc committee to conduct an investigation into the report of the Public Protector and the President’s response, and make appropriate recommendations. We note, however, that the ad hoc committee has not been provided with specific terms of reference. In terms of Rule 138 the Committee will exercise the same powers as those conferred on any other committee of the National Assembly, an aspect to which we revert below.

5. Furthermore, the time limit provided for the committee to undertake its assignment is extremely short, bearing in mind the complexity and length of the report under consideration. These factors may ultimately challenge the forensic ability of the ad hoc committee and place a question mark over the reliability of its findings or recommendations. Nevertheless, we make these submissions on the basis of what we consider to be the important findings made by the Public Protector, which require answers from the President.

6. It is worth recalling, briefly, some important provisions of the Constitution.

RELEVANT CONSTITUTIONAL PROVISIONS 

7. South Africa is founded on several values, articulated in Section 1 of the Constitution. They include human dignity, the achievement of equality and the advancement of human rights and freedoms, the supremacy of the Constitution and the rule of law, and a multi-party system of government to ensure accountability, responsiveness and openness.

8. Section 83 establishes the office of the President. The President is, under Section 83(1) the head of the State and the head of the National Executive. He is obliged to uphold, defend and respect the Constitution as the supreme law of the Republic. The President is also required to promote the unity of the nation and that which will advance the Republic.

9. In terms of Section 89 of the Constitution, the President can be removed from office by the National Assembly. Section 89 provides as follows:

(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of – 

a) a serious violation of the Constitution or the law; 

b) serious misconduct; or 

c) inability to perform the functions of office. 

(2) Anyone who has been removed from the office of President in terms of sub-section (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

10. The National Assembly is responsible for holding the National Executive accountable. Section 55 of the Constitution sets out the oversight powers of the National Assembly. In Section 55(2) the National Assembly is required to provide mechanisms “to ensure that all executive organs of State in the national sphere of government are accountable” to Parliament. Furthermore, the National Assembly is required to maintain oversight of the exercise of National Executive  authority, including the implementation of legislation and the oversight over any organ of State.

11. Section 181 provides for the establishment of six institutions which support constitutional democracy. They include the Public Protector, whose report is the subject of examination by the present committee. Section 181(2) provides that Chapter 9 institutions are independent and subject only to the Constitution and the law. These institutions should be impartial and exercise their powers and perform their functions without fear, favour or prejudice. In Section 181(3) it is provided that other organs of State through legislative and other measures “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” No person or organ of State may interfere with the functioning of Chapter 9 institutions. (Section 181(4)). Under Section 181(5), Chapter 9 institutions are accountable to the National Assembly.

THE FINDINGS AGAINST THE PRESIDENT 

12. The Public Protector has made several findings in her report. We do not wish to focus on each and every finding made in the report. Our interest is limited to the findings made against the President and to making submissions pertaining to how Parliament should hold the President accountable for the findings made by the Public Protector.

13. The findings appear from page 427 onwards in the Report of the Public Protector. An extract of the relevant findings is the following:-

(4) It is my considered view that the President, as the head of South Africa Incorporated, was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and State resources, but failed to discharge his responsibilities in terms of the latter. I believe the President should have ideally asked questions regarding the scale, cost and affordability of the Nkandla Project. He may have also benchmarked with some of his colleagues. He also may have asked whose idea were some of these measures and viewed them with circumspection, given Mr Makhanya’s non-security background and the potential of misguided belief that his main role was to please the President as his client and benefactor.

(5) It is also not unreasonable to expect that when the news broke in December 2009 of alleged exorbitant amounts, at the time R65 million on questioned security installations at his private residence, the dictates of sections 96 and 237 of the Constitution and the Executive Ethics Code required of President Zuma to take reasonable steps to order an immediate enquiry into the situation and immediate correction of any irregularities and excesses. 

(6) His failure to act in protection of State resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by Section 96 of the Constitution.

IMPLICATIONS OF THE FINDINGS 

14. Section 96(2)(b) of the Constitution provides that members of the Cabinet (including the President) may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

15. The section sets a very high standard. It does not prohibit only actual conflict of interest. It also prohibits the President from putting himself in a position where there is a “risk of a conflict”. This requires far more from members of the Cabinet than the Constitution requires from ordinary public servants.

16. The rationale for this stringent requirement for members of Cabinet is clear: members of the Cabinet exercise immense power and they must be above suspicion that they have abused their powers. In a democracy, people agree to grant the power to govern them to others on condition that those who exercise the power do so fairly, lawfully, honestly and in the public interest. That is even truer of the office of the President.

17. When a member of cabinet places herself in a position where a decision in the public interest will may be in her private interest, it undermines public trust not only in the individual, but in the office itself. Any situation that can be said to undermine public trust or faith in the office or its occupant must be said to be contrary to s 96(2)(b).

18. The findings of the Public Protector with regard to President Zuma clearly meet that threshold. When the President addresses the question of public spending on his residence at Nkandla, he inevitably affects his own private interests. In other words, there is “the risk of a conflict between” his official responsibilities and his private interests: the public interest is to prevent unnecessary or wasteful expenditure; his private interest is to secure a more lavish or comfortable home. That conflict of interests will inevitably lead to a loss of trust in President Zuma, and the office of President.

19. Section 89 states that Parliament “may” remove the President on the grounds of “a serious violation of the Constitution or the law” or “serious misconduct”. The purpose of the provision, unlike the motion of no confidence provision in s 102, is to ensure that the President does not abuse his position. It is not linked, like s 102 is, to a President’s popularity or performance. There are specific instances that can justify a removal under s 89: violations, misconduct and inability. The section exists to protect the office, and to protect the Republic form those who cannot exercise the powers of the office faithfully.

20. The use of the adjective “serious” indicates that there are some constitutional violations and some forms of misconduct that are not serious enough to justify removing the President. Where is the line between “serious” and non-serious violations or misconduct? This, in CASAC’s view, is an issue that must primarily be dealt with by Parliament. While courts may in some situations be required to rule on the issue,1 s 89 affords the power to Parliament as a legislative and political body to determine when misconduct is so serious that it warrants the President’s removal.

21. However, while the ultimate determination of how to act under s 89 is, by its nature, a principally political matter, Parliament is obliged to act rationally in reaching that decision. The Constitutional Court has repeatedly made clear that not only must decisions be rational, the process that is followed in reaching those decisions must also be rational.2 In the words of Justice Yacoob: “[B]oth the process by which the decision is made and the decision itself must be rational.”3

22. The Public Protector found that President Zuma knowingly benefitted from the upgrades to the Nkandla residence, and failed to take any steps to curb out of control spending that redounded to his benefit. Those are serious findings. Depending on the exact facts, it could legitimately be treated as serious misconduct, or a serious constitutional violation.

23. For the National Assembly to make a rational determination of whether President Zuma’s conduct warrants removal, it must make sure it has all the relevant facts before it. What did the President know and when? Why did he fail to act to prevent the uncontrolled spending? Was his misleading of Parliament indeed bona fide as the Public Protector concluded? Were the costs related to private renovations separated from state expenditure? The Public Protector made findings on these issues, and was unable to make findings on others. Some of her findings depart from those of the task team established by Government to investigate the issue.

24. The Assembly has the power under s 56 of the Constitution to summon any person to “give evidence under oath” and to require them to produce documents. In order to make a rational decision on whether or not the President is guilty of serious misconduct or serious violations of the Constitution, it must not merely consider the Public Protector’s Report; it must obtain additional information to address the unanswered questions in the Report. The Public Protector’s Report makes many negative findings, but also raises many questions. In order to determine whether the President’s established misconduct and violations of the Constitution are indeed “serious”, he needs to be questioned by Parliament.

THE BREACH OF THE CODE OF ETHICS FOR MEMBERS OF THE EXECUTIVE 

25. The Public Protector has also found that the President has breached paragraph 2 of the Code of Ethics.

26. Paragraph 2 of the Code of Ethics provides for “general standards” to be observed by members of the Executive. Consistently with the finding that the President failed to uphold the provisions of section 96 and 237 of the Constitution, it is submitted that the Committee can probe the issue of whether the President acted in breach of paragraph 2.1(b) and 2.1(d).

27. The above provisions (i) impose an obligation on the President to fulfil the obligations imposed; and (ii) require the President to act in a manner which safeguards the integrity of the office of the President or the government.

28. The factual finding of the Public Protector is that in December 2009, the President became personally aware of the expenditure at his property, which at that stage was estimated at R65 million. Despite this awareness, he failed to take action to prevent further expenditure, thereby placing his personal interest in conflict with those of his office. Furthermore, the finding of the Public Protector shows that the failure by the President to take steps in December 2009 in effect allowed further unchecked expenditure, resulting in more than R200 million by the time the matter came to be investigated by the Public Protector.

29. When considering the implications of the violations of the Ethics Code, as found by the Public Protector, the Committee must take into account that the President, as Head of the National Executive, is required to exercise executive oversight over other members of National Executive. That creates a responsibility that he must lead by example.

THE ISSUE OF THE SPECIAL INVESTIGATING UNIT INVESTIGATION 

30. Before the establishment of the Ad Hoc Committee, it was reported that the President had decided that he would respond to the Report of the Public Protector, after certain further investigations had been conducted by the Special Investigating Unit (SIU). The President confirmed this in his letter to the Speaker dated 01 April 2014. 16

31. This stance by the President should not be entertained for the following reasons:

31.1 In terms of section 55 of the Constitution, it is clear that the President is accountable to the National Assembly, in his capacity as Head of the Executive. He is unable to dictate the terms of his engagement with the National Assembly.

31.2 In terms of section 181 of the Constitution, all organs of state, including the executive must assist chapter 9 institutions to ensure their effectiveness, impartiality and independence. The view taken by the President, effectively to equate the report of the Public Protector with a report prepared by members of the President’s Cabinet, diminishes the status of the report of the Public Protector. Furthermore, the failure to act in terms of the report – without challenging the report in any court of law – effectively undermines the effectiveness and the independence of the Public Protector.

31.3 The SIU investigation is limited to the matters outlined in the Proclamation by the President (No. R. 59, 2013) which focus on the Department of Public Works. The SIU is not competent to investigate the findings of the Public Protector, namely that the President acted in breach of the Constitution and the Code of Ethics. Any investigation by the SIU will not address those issues. Under the Constitution and the Executive Members Ethics Act, that is the responsibility of Parliament.

32. It is therefore submitted that the investigation by the National Assembly cannot be made subject to the report of the SIU. The National Assembly is not subservient to the SIU. If (as we submit) the President must answer certain questions, there is no legal or constitutional impediment to such course of action.

Lawson Naidoo

Executive Secretary

CASAC

Endnotes

1 For example, if a President is removed and challenges his removal on the ground that his misconduct was trivial.

2 See, for example, Albutt v Centre for the Study of Violence and Reconciliation and Others [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC); and Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC).

Democratic Alliance (above) at para 34.

Extract from Nkandla Report: How Zuma stymied investigation

This is an extract from the Public Protector Report on the Nkandla scandal, setting out in detail how President Jacob Zuma delayed the investigation and failed to answer many of the questions posed to him. It seems that it is partly because of this failure that the Public Protector, being cautious to a fault, found that although President Zuma lied to Parliament he may not have had the intention to do so.

1184841_10152298054824770_242354332_n

PART G: THE RESPONSES SUBMITTED BY THE PRESIDENT IN REPLY TO QUESTIONS PUT TO HIM DURING THE INVESTIGATION 

6.77. On 29 January 2013, I wrote to the President to inform him of my investigation of the complaints referred to in paragraph 2 above. I specifically stated the details of the complaint lodged by Prof De Vos in connection with the statement that the President allegedly made to the National Assembly on 15 November 2012 that the development of the first phase of his private residence was financed by a commercial bank that secured a mortgage bond in respect of the property.

6.78. My letter also stated that:

You will be afforded an opportunity to respond in full to the allegations, once I am in a position to provide you with more detailed information regarding the matters concerned. 

It would be of assistance to me to consider the merits of the complaint lodged by Prof De Vos, if you could request the Presidency to provide me with a copy of the registered bond relating to your private residence and any other relevant documentation and/or information pertaining to the funding thereof. Such documentation and information will, due to the nature thereof, be kept secure and handled with the appropriate discretion and confidence.

6.79. I received no response from the Presidency in respect of my request for information, despite having approached it again in this regard on 11 April 2013, 21 June 2013 and 19 August 2013. I also wrote to the President directly in this regard again on 29 July 2013, but received no response.

6.80. Eventually, I personally met with the President in connection with my investigation on 11 August 2013, a day before my inspection of the works implemented by the DPW at his private residence at Nkandla. I have made reference to my discussions with the President on certain aspects of the Nkandla Project under different headings in this report.

6.81. During our meeting, I also provided the President with a set of written questions that related to my investigation and in respect of which I required his response. The President undertook to provide me with a written response.

6.82. As no response to my questions was forthcoming, I approached Dr Lubisi, the Director-General in the Presidency, again requesting his assistance in this regard, on 26 August 2013.

6.83. A copy of my written questions with annexures had to be provided to the Presidency, at its request, on 27 August 2013.

6.84. Eventually, I had to write to the President directly on 16 September 2013 to again request his response to my set of questions.

6.85. My questions were as follows:

1. Did you or the Presidency request that security measures be installed at your private residence at Nkandla after you were appointed as the President in May 2009, as provided for in the Cabinet Policy on Security Measures at the Private Residences of the President, Deputy President and former Presidents and Deputy Presidents, dated 20 August 2003? If so, kindly indicate who made the request, when and how. 

2. Were the measures that the Department of Public Works intended to implement at your private residence communicated to you by the Minister of Police, as contemplated by the Cabinet Policy? If so, what were your impressions of the proposed measures and did you formally consent thereto? 

3. Where you at any stage informed of the cost of the proposed security measures? If so, who presented the cost to you, what was the amount, and how did you respond to it? 

4. Your private residence was declared a National Key Point by the Minister of Police, in terms of the National Key Points Act, on 8 April 2010. According to the evidence obtained during the investigation you were notified accordingly by means of a notice (Annexure A) signed by the Minister of Police. Can you kindly confirm that this notice was served on you? 

5. What was you understanding of the declaration of your private residence as a National Key Point in terms as your responsibilities as the owner? 

6. Did you at any stage respond in terms of the notice by taking measures to secure your private residence, as required by the National Key Points Act and the notice? If so, what measures were taken? 

7. From the evidence it appears that the Minister of Police acted on your behalf, as contemplated by section 3A of the National Key Points Act, when he had your private residence secured. Were you notified of this, as is required by the Act and if so how? 

8. Were you ever advised by the Minister of Police that any part of the cost of securing your private residence as a National Key Point would be recovered from you? If so, when and how? 

9. According to the evidence, you met with representatives of the Department of Public Works and the South African Police Service at you private residence on 12 August 2009, where you were briefed on the security measures that were to be installed in the three new dwellings that you were constructing. Is this correct, and if so can you kindly explained what transpired at this meeting. 

10. The evidence obtained during the investigation also indicates that you complained on several occasions about the slow progress made with the implementation of the security project. Is this correct, and if so can you kindly explain the reasons for your concerns and how it was addressed? 

11. According to the evidence, you requested the former Minister of Public Works, Mr G Doidge, to look into the delay. Is that correct? If so, did he report back to you and what were the nature of his reports? 

12. Mr M Makhanya, the architect that you appointed in respect of your private construction on the premises, was also appointed by the Department of Public Works as the Principal Agent for the security project. Did he present you with the designs of the Department of Public Works’ security project? If so, can you recall which designs were presented to you and how you responded to it? 

13. According to the documentation obtained during the investigation, former Minister of Public Works, Ms G Mahlangu-Nkabinde, informed you in writing of the progress made with the implementation of the security project, shortly after she was appointed, on 5 November 2010. (Annexure B) Can you kindly look at the copy of this letter and indicate whether you received it and how you responded to it. 

14. Former Deputy Minister of Public Works, Ms H Bogopane-Zulu indicated during the investigation that she discussed the security measures with you. She also raised the possible apportionment of costs of the security measures between you and the state with you and requested a document to be prepared by the project team in this regard. The document was prepared and delivered to the Ministry of Public Works. (Annexure C) Can you please look at this document and indicate whether it was presented to you, and if so what your response was? 

15. If the document was not presented to you, was the apportionment of costs ever discussed with you? If so when and by whom? 

16. Did you ever enquire into it, and if so what was the response that you received? 

17. Deputy Minister Bogopane-Zulu also indicated that she discussed the conversion of the fire-pool on the premises into a swimming pool with you and that you supported the idea that it could be used to teach children of the village to swim. Is this correct? 

18. Kindly indicate whether you are aware of the reasons why the fire-pool was converted into a swimming pool and whether the additional and apportionment of such costs were discussed with you. If so, who discussed it with you, and what was your response? 

19. The implementation of the security project resulted in the relocation of four households that were living on the site. Were you consulted in connection with the relocation and, if so, what was your response? Did you issue any instructions in this regard? 

20. According to the evidence, you apparently indicated that you were opposed to more contractors working on the site when Phase 2 of the project commenced, that is the construction of staff housing, etc. Is this correct and if so why were you opposed to more contractors? Did you issue any instructions in this regard? 

21. Deputy Minister Bogopane-Zulu further indicated during the investigation that you supported her idea that the military clinic should be designed in such a way that it could also be used by members of the community. What is your response to that? 

22. It was also indicated during the investigation that you raised concerns about the bullet resistant glass that was installed in your houses. Is this correct and if so, can you kindly explain 

23. A newspaper report alleged that two of your brothers, Messrs Joseph and Mike Zuma improperly benefitted from the security project when items that were destined for it were delivered at their houses. What is you comment on this allegation? 

24. As indicated in my letter addressed to you on 29 January 2013 (Annexure D), I have also received a complaint in connection with a statement that you made to Parliament about the bond on the property concerned. I have repeatedly requested to be provided with the relevant documents to enable me to deal with this complaint. Are you now in a position to provide these documents? 

25. Would you be willing to disclose the amount that you paid for the construction of the three new dwellings? 

26. How often do you use your private residence at Nkandla for official purposes? 

27. Is there any particular reason why you would prefer to use your private residence for official business rather than any one of the official residences that are available to you? 

28. Did you at any stage enquire into the cost of the security project, which was obviously extensive? If not, did you not feel obliged to do so as the head of state and as a substantial amount of public money was obviously being spent? 

29. How would you describe your involvement in the security project that was implemented by the Department of Public Works at your private residence?” 

6.86. The President provided me with a response under a covering letter from the Acting Secretary of the Cabinet, dated 1 October 2013. His response was in the form of a statement, signed by him on 30 September 2013.

6.87. In the opening paragraphs of his statement, the President denied that he was ever apprised of the fact that his conduct formed part of my investigation.

6.88. He proceeded by explaining the location of his family homestead at Nkandla and the history of his occupation of the property. Of particular significance to the subject of my investigation, is the following extract of the President’s statement:

12 As the political environment stabilized in the coming years with the advent of our new democracy, I now felt more confident to effect improvements to the family homestead in order that it could cater for our needs more adequately. 

13 I proceeded to engage a building contractor to effect the improvements to my homestead. Several new rondavels, each self-contained, were constructed. 

14 These improvements were financed by a home loan obtained from one of the four largest commercial banking institutions in the Republic upon satisfaction of their collateral requirements. The property is still subject to a mortgage and I continue to meet my financial commitments in terms thereof. 

15 In the ensuing years and as I began to play a leading role in government, I had to submit to the security protocols which senior government officials are subjected to. Static security was provided from the South African Police Services (SAPS), (sic) Ulundi, while protection services were provided from SAPS Eshowe. 

16 This meant that additional rondavels were constructed on my homestead in order to cater for the accommodation of those police officials assigned for my protection, given the lack of infrastructure in Nkandla. In addition, a car port and storerooms were also constructed. 

17  In 1999 I was appointed as the Deputy President of the Republic. As a consequence of my increased responsibilities in government I received a higher volume of frequent guests at my home in Nkandla. This, coupled with the fact that my family had grown over the years, my family and I decided to embark on fairly extensive and modern improvements to the property. 

18  To this end we engaged contractors and commissioned the building of three new houses which would be developed in phases over additional neighbouring land which we acquired with the consent of the local chief. 

19 The construction of the houses commenced under the direction of Minenhle Makhanya Architects. 

20 In 2009 I was appointed as President of the Republic. Immediately upon my inauguration, members of the security cluster informed me regarding the result of the security assessment which attached to the office that I now hold, including my residence at Nkandla. 

21 As President of the Republic I have the benefit of residences at Mahlambhandlophu in Pretoria, Genadendal in Cape Town and John Dube House in Durban, all of which I make extensive use of. Equally, I maintain my private residence at Nkandla. 

22 Like most South Africans, I am particularly proud of my community and never miss an opportunity to go home to Nkandla-the demands of my work schedule permitting. I sometimes wish it otherwise, but I do not shed my status as President when I am at home in Nkandla. People continually visit me, seek my advice, support and counsel on a whole range of matters. Similarly, matters of government do not grind to a halt during these all too in-frequent visits to my homestead. 

23 In the course of the engagements with the security cluster, I initially met with then Minister Doidge, senior SAPS officials and other government officials at my homestead in a consultative process regarding improved security due to my occupying the office of President of the Republic. 

24 I thereafter facilitated a meeting between the same grouping of persons and Minenhle Makhanya Architects, the consultant who was already engaged with building work at my home so that there would be as little disruption as possible to the work already commissioned. Secure In Comfort A Report of the March 2014 Public Protector 

25 From time to time I received briefings both formally and informally from the various Ministers engaged with the security enhancements although I was not intimately involved with the finer details. 

26 At these briefings I expressed concern with what appeared to be inordinately lengthy delays which impacted on my family. Equally, I found some of the security features like the bullets-proof (sic) windows an excessive encroachment on my use and enjoyment of my property. 

27 Regarding the rationale for the adoption of particular security features, I deem it neither prudent nor proper for me to comment, particularly where the Public Protector has had access to a range of Ministers and officials properly tasked with this responsibility. 

28 The security upgrades are to be distinguished from the construction of buildings which provide infrastructural support for security personal (sic). 

29 I take exception to the continued conflation of the security upgrades with the construction of buildings for the benefit of security personnel. Whilst neither were at my behest, the latter is directly attributable to the fact of my residence being located in a rural area with all the attendant challenges. Even people drawn from rural communities can play a role in the development of our constitutional democracy.

30 With regard to my address to parliament, I submit with respect, that insofar as it is alleged that I have misled parliament on the existence of my bond over the Nkandla Property, parliament is best placed to enquire into this matter should it so desire. 

31 Likewise, it is not proper for me to account for alleged conduct of members of my family who are not dependents of mine. Transgressions of the law by whomsoever should be reported to the appropriate authorities.

6.89. As the President’s statement did not provide answers to most of my written questions listed above I replied to him on 8 October 2013, listing the outstanding responses that were required and stated that:

 I regarded it as prudent to provide you with an opportunity to respond to these matters as part of my investigation and it would be appreciated if you could still consider doing so, to enable me to include your version of the events in my report.

As far as your response in respect of my investigation into the complaint relating to the statement that you reportedly made to Parliament pertaining to the existence or not of a bond over your property is concerned, you will recall that I raised this with you when I informed you of my investigation, in my letter dated 29 January 2013. 

I indicated in my said letter that the concern raised by the complainant is the impression that you might have violated the provisions of the Executive Ethics Code by misleading Parliament. I also referred you to the public statement of the Presidency of 20 November 2012 that the information pertaining to your bond would be made available to “an authorized agency or institution empowered by the law of the land”. You will respectfully agree with me that this includes the Public Protector. 

In addition to the normal manner in which I approach investigations, I relied on the commitment in the Presidency’s statement when I approached you with the request on this aspect of my investigation. 

I accordingly wish to appeal to you to provide me with the relevant documents pertaining to the bond that you referred to. The information contained in these documents will be handled discreetly as it relates to your private affairs. All that I really need to verify in this regard is that the bond exists and that it relates to your private residence at Nkandla. Providing me access to the documents in the presence of your legal advisors or the Secretary to the Cabinet will also suffice in this regard.

6.90. In his reply, dated 24 October 2013, the President indicated that he required copies or excerpts of evidence, reports and documents that were referred to in my questions, before he could respond. He further stated that:

Regarding your request that I make available my personal bond documents for your perusal, I attach hereto the relevant transcript extracted from Hansard which bears out the following: 

The Zuma family has built their own home; 

The home has been there for a long time; 

I engaged the banks and am still paying a bond on the first phase of my home; 

I am still paying a bond this day. 

Having regard to the content and context, it becomes abundantly clear that such bond relates to the first phase of the development and well before I assumed the office of President. As I understand, it does not relate to the period of your investigation nor does it shed light on any aspect thereof. 

Accordingly, I hold the view that the disclosure you seek would be unnecessary. 

6.91. I again regarded it as necessary to respond to the President to clarify my earlier requests. In my letter addressed to him on 29 October 2013, I reiterated that the complaint that I received in respect of the bond does not relate to the security measures that were installed and implemented at his private residence, but to the statement that he made in the National Assembly on 15 November 2012, the contents of which are contested. I explained that:

It was in order to clarify this issue that I requested you to provide me with access to the bond documents. As matters stand at the moment, I am not in any position to make a finding on the merit of this complaint and would therefore urge you to reconsider my request in this regard.

6.92. The President was also referred to the fact that a number of my questions do not refer to any evidence, reports or documents. In respect of questions that did relate to documents, I provided him with copies of such, which were also attached to my original questions and later resubmitted to his office. As far as the references to “evidence” were concerned, which only related to three of my questions, I indicated that it would be covered extensively in this Provisional Report, a copy of which will be presented to him for his comments. The President’s reply is still awaited.

6.93. The following excerpt of the Hansard that I was referred to by the President in his letter of 24 October 2013 is of particular significance to the matters considered during the investigation:

When I became the President, all of us in the family agreed to extend our home, as I was extending it. Then government came and said that it had to install security features at my residence. By the time government came, the contractors were on site that had been enlisted by the family and not by the government or Public Works. Government had a plan regarding what it wanted to do. Government wanted to improve the fence, etc. I told government that I had my own plan-which was a comprehensive plan- to extend my home. What then happened was that I allowed government to meet with the contractors who were already on site because government, from a security point of view, insisted that they needed to participate. 

So, even the manner in which the question was asked-the question being: have you instructed the Minister to tell the contractors to stop working- suggests that the contractors were brought by Public Works. Public Works found those contractors constructing my home. 

They had to agree to what government wanted them to do at my home. The government had specific things they wanted to do to my houses, not build houses for me. A wrong impression has been created in the country, that the government has built a home for me. That is not true.

6.94. I never received a further response from the President to the questions posed to him.

LRC submission on WOmen’s Empowerment And Gender Equality Bill

SUBMISSIONS BY

THE LEGAL RESOURCES CENTRE TO THE PORTFOLIO COMMITTEE ON WOMEN, CHILDREN AND PEOPLE WITH DISSABILITIES ON

THE WOMEN’S EMPOWERMENT AND GENDER EQUALITY BILL 50 OF 2013

The Legal Resources Centre (LRC), established in 1979, is a South-African based Human Rights Organisation with regional offices in Johannesburg, Durban, Grahamstown and Cape Town. The Organisation uses the law as an instrument of justice for the vulnerable and marginalized, including poor, homeless, and landless people and communities who suffer discrimination by reason of race, class, gender, and disability or by reason of social, economic, and historical circumstances. The strategies employed to secure the protection and promotion of human rights include impact litigation, law reform, participation in partnerships and development processes, education, and networking within South Africa, the African continent and at the international level.

The LRC through its Gender Rights Project (“the project”) focuses on empowering women by providing: legal advice; legal representation and negotiation; and by participating in advocacy and law reform.

INTRODUCTION

The Legal Resources Centre is thankful for the opportunity to make written submissions to the Portfolio Committee on Women, Children and People with Disabilities in respect of the Women’s Empowerment and Gender Equality Bill 50 of 2013.

We further welcome the introduction of legislation which seeks to realise, respect and protect the right to gender equality in South Africa. Our country has significant levels of gender inequality which manifests in the personal as well as professional lives of women. These high levels of inequality continue to prejudice women’s advancement both within their homes as well as within their formal work place.

We note and appreciate that government has taken steps to address the realisation of the right to gender equality and that a number of key statutes have been enacted to respect and protect the right to equality. These positive steps need to be acknowledged and built upon if government is to meet its Constitutional obligations in respect of gender equality.

A. COMMENTS ON THE BILL AND ITS IMPLEMENTATION

1. What the Bill aims to achieve:

The proposed purpose of the Bill is “to give effect to section 9 of the Constitution of the Republic of South Africa, 1996, in so far as the empowerment of women and gender equality is concerned; to establish a legislative framework for the empowerment of women; to align all aspects of laws and implementation laws relating to women empowerment, and the appointment and representation of women in decision making positions and structures; and to provide for matters connected therewith.”

The Preamble of the Bill goes further to state that “As the Republic’s constitutional and international commitments in the field of human rights include the promotion of gender equality and the prohibition of unfair discrimination against women and the elimination of gender based violence; and as a measure to address discrimination against women are essential to the transformation of gender relations in the Republic”

The purpose and preamble all point to the gender inequality in our country and government’s obligation and commitment to address such inequality. This commitment is noted however based upon our practical experience we are deeply concerned that the Bill in its current form cannot begin to realise all of the obligations that exists in respect of achieving gender equality for the reasons set out below.

Women are not a homogenous group and legislation focused on formal equality as oppose to substantive equality will not in any meaningful way begin to address gender discrimination and inequality in our country.

We submit the Bill uses broad descriptive ideals without addressing in any meaningful way the plight of ordinary South African women. The Bill appears to over emphasise the need for policy development both in the public as well as private sphere to empower women. It is our submission that a number of policies, programmes and frameworks are already in existence and that there implementation has been deeply problematic. Therefore the failure of gender empowerment does not lie in the lack of policies and plans, but in their implementation and execution.

It is out submission that this aspect of the Bill leaves much to be desired as there is very little emphasis on the implementation of existing or future policies and plans. The Bill relies heavily on an assumption that everyone in the private and public sphere all want to achieve gender equality and that it is merely their lack of policy that has hampered participation and transformation. The reality is a somewhat grimmer picture and this needs to be taken into account when considering the implementation of the Bill.

The powers of the Minister although broad in scope, appears limited to only enabling her use of “1 any dispute resolution mechanism to address non-compliance” with the Act. We submit that if the Bill merely requires the development and implementation of a policy the Minister would find it extremely difficult to hold anyone to account for non – compliance as all a public or private body would have to show is that a policy was in deed developed, and that there has been implementation. The quality and impact of the policy and how it is implemented does not appear to have any emphasis, which in our opinion is the key to achieving the objective of the Bill.

The Bill does off course appear to give the Minister powers to engage and make recommendations and suggestions on proposed policies, but again this does not guarantee that her suggestions would be taken on board or in the event that they are not it would be found that the body in question has not complied with the obligations of the Act.

2. Terminology and Definitions

This brings us to the terminology or definition of what the Bill seeks to achieve, which is substantive equality. We submit that the definition of substantive equality fall far short of what it should be, and the model proposed in the Bill would simply amount to formal equality, which really is gender equality in fact and law. In order to achieve true substantive equality we need to begin to look further than quota systems of 50% and start looking at meaningful transformation and empowerment. Substantive equality requires that when policies and programmes are developed to advance women the individual woman is taken into account.

The definition of gender in the South African constitution speaks to so much more than merely women, men, girls and boys. The Constitution is inclusive and the protection and obligations extend to women, men, girls, boys, lesbian, gay, bi-sexual, trans-sexual as well as intersex persons. The Bill therefore should not limit issues of gender equality and inequality as being issues between men and women and girls and boys. Gender equality in terms of our constitution cannot be limited to mean “the full and equal enjoyment of rights and freedoms and equal access to resources, opportunities and outcomes, by women, men, girls and boys;” Yet this is what the Bill proposes in the definitions clause, and we submit that if this belief system was the foundation of the formulation of the content of the Bill then the Bill is not only flawed, but unconstitutional as it discriminates in its application to sexual minorities.

3. Implementationshortcomings:

The actual implementation of the Bill is deeply concerning to us. We however limit our submissions to what we believe are key shortcomings.

We would be interested in what costing has been done in respect of the actual cost for implementation of the Bill. In its current form, the Bill requires private and public bodies to provide the Minister with their reports within one year of being designated to do so. How many reports does the Minister or Department envisage receiving and what capacity does the Department have to do an in depth examination of the reports. Recommendations and suggestions to the reports are envisaged and this once again raises concern around the capacity of the Department to provide such recommendations and suggestions in order to effect real change. A very real reality is also what financial resources would be required from private bodies in order to implement elaborate policies and would lack of financial resources or claims thereof be sufficient to allow private bodies, which do not have access to government’s budget be sufficient to release them from their obligations in respect of implementation of the policies they have drafted.

A number of statutes enacted over the past few years have suffered serious implementation problems as a result of financial resources ranging from the Domestic Violence Act, 1998 the Criminal Procedure (Sexual Offences and Related Matters Amendment)Act, 1998 are amongst those. It would certainly be disheartening to see the introduction of further legislation that relies so heavily on financial resources and which proper allocation and planning has not been done.

The Bill seeks to provide the equal realisation of a number of rights in the Bill of Rights. These are the rights to Education and training, Access to health including sexual reproductive health, safety and security of the person (education on prohibited practices and gender based violence) These rights currently all fall under the mandate of existing government departments who are tasked with the realisation and protection of the rights. Our experience has been that many of these government departments such as the Department of Health and the Department of Justice have existing gender departments or women’s departments that focus on the implementation of legislation and policies so as to advance gender equality and the provision of specific services to women and girls. We therefore anticipate the very real risk of duplication of efforts and resources to achieve what is at the end of the day the same goal.

Another example of duplication would certainly be the lodging of reports by public and private bodies on implementation of their gender advancement policies. A similar exercise has been conducted by the Commission for Gender Equality over the last few years where they have called public and private bodies to publicly account to the Commission on implementation of policies seeking to advance women. In 2013 the Commission released a report after having conducted such public hearing. The Bill seeks to duplicate exactly these types of enquiries except for proposes to do so on paper by filing reports and recommendations.

We emphasise the need for an approach that sees the harmonization of interventions between public bodies in order to achieve gender equality. This is currently sorely absent in the implementation of government policies and plans. By requiring the adoption of further policies and plans as the Bill does would surely lead to further proliferation of the issue of gender equality as oppose to creating a united commitment to transformation.

4. Shortcomingsoroversight

The Bill deals in Section 11 with the socio-economic empowerment of women in rural areas, and makes the very serious error of assuming that women in rural areas live on farms, or are married to men who work on farms or seek access to agricultural land. Women in rural areas are not a homogenous group of individuals the problems they face in respect of gender equality and empowerment are not all related to land and farm worker conditions.

Section 11(d) further states that measures must be put in place to “ensure equal representation and meaningful participation of women in traditional councils” The Bill therefore further cements the plight of women in rural areas to work under or to submit to traditional leadership, which is steeped in patriarchal principles and believe systems. The Bill is silent on how women must achieve such representation if they so choose to participate and silent on what should happen in the event that such engagement is denied and culture or custom is used to justify the denial.

We submit that the Bill completely ignores the plight of the rural women and is indicative of little to no research being done on what is needed to realise gender equality and empowerment for rural women

The most serious of shortcomings in the Bill is the assumption that all women are formally employed and so private institutions and bodies account for the workplace equality and government accounts for the socio-economic conditions. There is no reference to the recognition of women’s unpaid work and labour, and the very real fact that women continue to do the bulk of housework and care work in respect of the children and elderly. The Bill remains silent on the gender equality at play within the private environment that women find themselves where more often than not the true reality of patriarchy and gender inequality is at play.

No recognition is given to the woman who is the community care worker and who meets the socio-economic needs of her community on her pension grant. She performs unpaid work on a daily basis and is on the forefront of gender discrimination and inequality, but without being formally employed who will be held to account to develop a policy that will address her empowerment?

The United Nations Special Rapporteur on Extreme Poverty recently released a report on Unpaid Work, Poverty and Women’s Human Rights in which she details the direct link between unpaid work, poverty and women’s inequality. She calls on governments to begin to address the issue of women’s unpaid work by giving them the recognition needed and calls for the development to address their inequality and empowerment. The Bill misses this very real opportunity to begin to address the issue.

CONCLUSSION

We welcome the opportunity to engage with the Portfolio Committee and the Department on solutions to eradicating gender inequality and women’s empowerment. We therefore make the following recommendations in respect of the way forward.

We recommend that an evaluation be conducted of all existing policies which seeks to advance women’s empowerment and gender equality. That this process commences with government and that the resources be made available to enable this process. The evaluation we recommend should not merely be focused on the existence of policies and programmes, but also its content and implementation as well as the measurable impact it has had on the target audience.

Such a process would enable the different department to evaluate where their successful models of intervention lie and what gaps or failures exist. Through such a process we will be able to determine how to address the root causes of inequality without merely addressing the results thereof.

Prepared by: Charlene May and Mandivavarira Mudarikwa – Legal Resources Centre

Founding document of Awethu! A People’s Platform for Social Justice

Awethu! A People’s Platform for Social Justice

In the twenty years since South Africa’s first democratic elections, the gains that have been made in law and in policy have not significantly impacted on the experience of inequality in our society. Our celebrated Constitution mandates government to transform South Africa into a country of equality, dignity and justice. Yet many of us are hungry, unhoused, have little access to basic services and suffer high levels of violence. Our celebrated Constitution calls on us to participate actively in our government. But we are increasingly alienated from government, shut out of decision-­‐making and punished for protest and dissent. We cannot claim with any confidence that we are a democracy when inequalities of class, race, sex/gender and other discriminations persist to the degree they do. We cannot claim to be a democracy when collective democratic contestation is met with suspicion, police fire and repression.

We are at a critical point in our history. Either democracy must be deepened and greatly extended, or it will be lost to us. We have in our hands our constitution, which provides important instruments we can use to strengthen our struggles for social change. All progressive people and organisations in South Africa need to unite in a clear campaign to retrieve the project of democracy for all who live here. It is time to reassert and reclaim people‘s power over government. It is time to rally a strong political voice, based in communities, workplaces and schools, for social justice, equality, environmental transformation, solidarity, deepening democracy and dignity for all.

Awethu! It is Ours!

Inequality is widening when it should be narrowing.
Women, girls and sexual minorities live in fear of a constant threat of violence. Poor communities bear the brunt of environmental damage caused by old and new industries.
Mining is increasing land dispossession and destruction of the environment Large amounts of state funds are legally spent on luxuries for the politically powerful, while many struggle to put food on the table.
Too often, our police force and public service have acted without integrity or justice.
Public health services and schools are failing.
Rural people are marginalised from constitutional rights.
Unemployment is rising.
Corruption is everywhere.
There is no social justice in South Africa.

There are undemocratic tendencies in our government and the private sector. Important decisions are taken behind closed doors in the interests of few and at great expense to the majority. When people protest about inequality, poverty, pollution, land dispossession and lack of access to basic rights, many senior political leaders do not take their messages seriously, label them and attempt to silence them. Increasingly, the very protests that are a sign of the democratic spirit are met with terrible state violence. In the face of what we describe, the elected representatives of the people in parliament spend more time defending the decisions of their party bosses than promoting the rights of the people.

Business seems happy with a government that cracks down on workers and communities claiming their rights to protest. Business also wants more of our national wealth for itself. It wants policies that protects the wealthy, destroys the environment and limits our democratic rights.

If we continue on this path the poor will remain poor for a long time to come. Many more will become poorer. Inequality will grow. The effects of poverty and inequality on other forms of violence will increase.. This is not what people fought for, were imprisoned for and died for. This need not be. We are a country rich in resources, leadership and ideas.

We call for a broad, independent civic initiative that puts the political system on trial for failing to improve the lives of millions, that demands a more people-­‐centred, participatory democratic project that holds government accountable to a political process that belongs to, and should serve, all of us equally.

Awethu! It is Ours!

We are organisations and individuals who stand for social justice, equality, environmental transformation, solidarity, deepening democracy and dignity of all who live in our country. We value the democratic principles of accountability, collective deliberation, and inclusive decision-­‐making. We aspire to a collectively owned, bottom-­‐up process led by collective conversation about a way forward to a more radically democratic South Africa. All who are compelled by these principles are welcome to join in this platform to transform our democracy.

The Awethu! platform will not become another bureaucratic structure, but will campaign together as a non-­‐aligned people’s project. We will stimulate, support and build a movement that consolidates existing democratic conversations and actions across the country into a unified platform, where ideas and solidarities can spread and unseat conservative and anti-­‐democratic political processes.

We call on like-­‐minded organisations and individuals to join our efforts and advance their democratic alternatives on our collective platform. We must, together, generate answers and solutions to address the challenges for the next 20 years of democracy.

To this end, we propose a first campaign around the 2014 national elections:

  • ●  Demand full disclosure by all political parties contesting the 2014 election of their funding sources;
  • ●  Undertake a People’s Audit of top 20 politicians on the lists of the major political parties. This will look at their lifestyles, personal financial interests and track records on corruption. The audit will also outline their positions regarding fulfilling the rights to education, health, land, socio-­‐ economic justice, and labour rights;
  • ●  Conduct a People’s Audit of election manifestos;
  • ●  Convene provincial meetings to discuss priorities and strategies to realise

    socio-­‐economic rights, including health, basic education, sanitation, food, land and housing. These may culminate in the compilation of a charter embodying the principles for social justice, equality, environmental transformation, deepening democracy and dignity together with grass roots solutions to make democracy work for all ;

  • ●  Hold national and provincial marches to reclaim the spirit of 27 April 1994 and renew hope in social justice and state accountability.

    Awethu! It is Ours!

For further information, or to subscribe to the Awethu! platform, please contact Diane Massawe on 082 341 5436 or email awethuplatform@gmail.com.
page3image12280
page3image12552
page3image12824

page3image12984

page3image13520

Freedom Under Law v NDPP – scathing judgment (in full) against NPA in Mdluli matter

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG, PRETORIA)

 

CASE NO. 26912/12 

 

 

In the matter between:

 

Freedom Under Law

Applicant

 

and

 

 

The National Director of Public Prosecutions

 

First Respondent

 

The National Commissioner: South African

 Police Service

 

 

Second Respondent

The Head: Specialised Commercial Crime Unit

Third Respondent

The Inspector-General of Intelligence

Fourth Respondent

Richard Naggie Mdluli

Fifth Respondent

Minister of Safety and Security

Sixth Respondent

                                                                       

JUDGMENT

 

Murphy J

 

1. This application is a matter of public interest and national importance on account of it raising significant issues of propriety, accountability and justifiable conduct in the governance of the Republic. The main issue is whether certain decisions made by the various respondents to withdraw criminal and disciplinary charges against the fifth respondent, Lieutenant-General Richard Mdluli (“Mdluli”), the Head of Crime Intelligence within the South African Police Service (“SAPS”), were unlawful.

 

2. The applicant, Freedom under Law (“FUL”), a public interest organisation, seeks an order directing the National Prosecuting Authority (“the NPA”) to reinstate several withdrawn criminal charges, (including murder, attempted murder, kidnapping, assault, fraud and corruption), against Mdluli. It also seeks orders directing the National Commissioner of SAPS (“the Commissioner”) to reinstate withdrawn disciplinary charges against Mdluli arising from the same alleged misconduct.

 

3. FUL is a non-profit company as contemplated in section 10 of the Companies Act.[1] It was established in 2008 and has offices in South Africa and Switzerland. It is actively involved inter alia in the promotion of democracy, the advancement of and respect for the rule of law and the principle of legality as the foundation for constitutional democracy in Southern Africa. Its board of directors and international advisory board are made up of respected lawyers, judges and role players in civil society in various parts of the world.

 

4. Dr Mamphela Ramphele, the deponent to the founding and supplementary affidavit, is a member of the international advisory board of FUL and was previously Vice-President of the World Bank in Washington and Vice-Chancellor of the University of Cape Town. She was a universally recognised leader of the Black Consciousness Movement in the struggle against apartheid and is currently President of Agang, a new political formation in South Africa. The deponent to the replying affidavit is the chairperson of the board of FUL, Justice Johann Kriegler, a retired judge of the Constitutional Court, who in 1994 served as Chairperson of the Independent Electoral Commission overseeing the first democratic election in South Africa.

 

5. Both the Constitutional Court (“the CC”) and the Supreme Court of Appeal (“the SCA”) have in the past recognised the right of FUL to act in the public interest in terms of section 38 of the Constitution in relation to infringements of the Bill of Rights.[2] FUL has on occasion also been admitted by the courts as amicus curiae in important cases involving constitutional matters.

 

6. These review proceedings, brought in terms of Part B of the Notice of Motion, challenge the decisions of the first, second and third respondents to withdraw the criminal and disciplinary charges that were pending against Mdluli who, though currently interdicted by this court from performing his duties, remains the Head of Crime Intelligence within SAPS; and, as stated, are aimed at reinstating the criminal and disciplinary charges forthwith. The present proceedings were preceded by an urgent application, in terms of Part A of the Notice of Motion, for an interim order interdicting Mdluli from carrying out his functions and the Commissioner from assigning any tasks to him pending the finalisation of the review proceedings. The interim order was granted by Makgoba J on 6 June 2012.

7. The first respondent is the National Director of Public Prosecutions (“the NDPP”), the head of the NPA. The NDPP is appointed by the President of the Republic and invested by section 179(2) of the Constitution and Chapter 4 of the National Prosecuting Authority Act[3] (“the NPA Act”) with the powers, functions and duties to institute criminal proceedings on behalf of the State and to carry out any necessary function and duty which is incidental thereto. At the time these proceedings were launched, the office of the NDPP was vacant as a consequence of the decisions of the SCA and the CC finding the appointment of the previous incumbent, Advocate Simelane, to be unconstitutional on the grounds of his being unfit to hold office. During the period relevant to these proceedings, the position was occupied by Advocate Nomgcobo Jiba, who served as the Acting NDPP until the recent appointment of Mr Nxasana as NDPP by President Zuma.

8. The second respondent is the Commissioner, who in terms of the relevant legislation is the head of SAPS. The Commissioner withdrew the disciplinary charges against Mdluli and reinstated him as Head of Crime Intelligence in SAPS. Section 207(2) of the Constitution, read with the relevant provisions of Chapter 5 of the South African Police Services Act[4] (“the SAPS Act”) and the Regulations made in terms thereof, oblige the Commissioner to ensure that members of SAPS diligently fulfil their duties to prevent, combat and investigate crimes, maintain public order, protect and secure the inhabitants of the Republic, and uphold and enforce the law of the land. The Commissioner and his or her provincial or divisional subordinates have the duty to institute and prosecute disciplinary action against any member of SAPS who is accused of and charged with misconduct and to suspend from office such a member, pending the outcome of disciplinary proceedings.[5]

9. When these proceedings commenced, the office of the Commissioner was occupied by Lieutenant-General Nhlanhla Mkhwanazi (‘the Acting Commissioner”), who was serving in an acting capacity, following the suspension of the former Commissioner, General Bheki Cele, on grounds of alleged impropriety. Subsequent to the commencement of these proceedings and the ultimate dismissal of General Cele, President Zuma appointed General Mangwashi Phiyega as Commissioner. The impugned decisions of the Commissioner withdrawing disciplinary charges and reinstating Mdluli in his position were taken by Lieutenant-General Mkhwanazi.

10. The third respondent is Advocate Lawrence Mrwebi, (“Mrwebi”), a Special Director of Public Prosecutions, and the head of the Specialised Commercial Crimes Unit (“SSCU”) within the NPA. It was he who took the decision and gave instructions to withdraw charges of fraud and corruption against Mdluli. Other charges of murder, attempted murder, kidnapping, intimidation and assault were withdrawn by Advocate Chauke (“Chauke”), Director of Public Prosecutions (“DPP”) for South Gauteng, who has not been cited as a party, it having been deemed sufficient to cite the NDPP as titular head of the NPA to whom Chauke is accountable.

11. The fourth respondent is Ambassador Faith Radebe, the Inspector General of Intelligence (“the IGI”), appointed in terms of section 7 of the Intelligence Services Oversight Act.[6] She is the only respondent not to not to oppose the application and has filed a notice to abide.

12. The fifth respondent, Mdluli, did not actively oppose the relief sought in Part B of the notice of motion. He filed an answering affidavit opposing the relief sought in Part A of the notice of motion. He however did not file further opposing papers and was not represented at the hearing before me.

13. The sixth respondent, the Minister of Safety and Security, was joined in the proceedings to give effect to the interim order interdicting the assignment of tasks to Mdluli pending the finalisation of the review. He has joined the Commissioner in opposing the application.

14. In sum, FUL seeks to review and set aside four decisions in relation to Mdluli: the decision taken by Mrwebi on 5 December 2011 to withdraw the corruption and related charges; the decision taken by Chauke on 1 February 2012, to withdraw the murder and related charges; the decision taken by the Acting Commissioner, on 29 February 2012, to withdraw the disciplinary proceedings; and the decision, of 27 or 28 March 2012, to reinstate Mdluli as the Head of Crime Intelligence within SAPS. It also seeks an order directing that the criminal and disciplinary charges be immediately re-instated and prosecuted to finalisation, without delay.

Preliminary evidentiary and procedural issues

15. The background facts giving rise to the review are for the most part common cause. However, in its founding affidavit FUL conceded that it was compelled by force of circumstances in bringing the application to rely on hearsay statements reported in the media and elsewhere. It accordingly made a general application for any hearsay evidence to be admitted in the interests of justice in terms of section 3 of the Law of Evidence Amendment Act.[7] It based the application on five broad considerations: the relevant source documents relating to the decisions were inaccessible as they are under the control of the respondents; some of the statements have been reported in the media and have not been repudiated by the respondents; the impugned decisions were taken without any public explanation in violation of the constitutional obligation of transparency, openness and accountability; the review deals with subject matter of significant public interest; and the respondents would suffer no material prejudice by the admission of the hearsay, with any prejudice being outweighed by the public interest in proper justification of the decisions.

16. In motivating the admission of the evidence, FUL did not identify the specific statements upon which it hoped to rely. Nonetheless, it is evident that it had in mind a range of statements made in certain newspaper articles, as well statements and reports made by members of SAPS and the NPA (in particular Colonel Kobus Roelofse and Colonel Peter Viljoen of the Directorate Priority Crime Investigations in Cape Town, the Hawks; and Advocate Glynnis Breytenbach of the NPA) who investigated the allegations against Mdluli but were inhibited by institutional constraints and perceived conflicts of interest from deposing to confirmatory affidavits.

17. In the answering affidavits filed by the NDPP and the Mrwebi, the hearsay evidence was for the most part dealt with in general terms without any particular statement being objected to. The Commissioner largely avoided dealing with the merits of the factual allegations in relation to the decisions, raised mainly technical defences and objected to the hearsay in general terms.

18. In reply, FUL reiterated the point that the problem of hearsay in most respects would have fallen away had the NDPP and the Commissioner taken the court into their confidence by making full and frank disclosure regarding the Hawks investigation and by consenting to their employees testifying in these proceedings. Instead, it alleged, the deponents, in violation of their constitutional obligations of transparency and accountability, strained to withhold vital information in their possession. FUL therefore submitted that it is not open to the respondents to seek to have the evidence disallowed on the basis that it is hearsay when they have declined to fulfil their obligation to provide it.

19. The dispute between the parties about hearsay, delineated as it is in such general terms, is frankly much ado about not a great deal and not especially helpful in deciding any disputes of fact. Because evidence was sourced from other proceedings in which evidence was given under oath, most of the relevant factual issues have become less contentious. And where there are factual disputes they must be resolved by reference to the principles in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.[8] For the reasons put forward by FUL, I will adopt a generous approach. The hearsay nature of any statements allowed as evidence in the interests of justice, and which form the basis of averments of either party, will nonetheless influence the determination of the veracity, probability, reliability and ultimate cogency of the averments.

20. FUL complained furthermore that the respondents have, through their conduct, delayed and frustrated the prosecution of the review. Each of the first to third respondents was called upon, in terms of Rule 53 of the Uniform Rules of Court, to file a record of decision, and reasons, justifying his or her decision under attack.  Each of them failed to file a record timeously or on request. FUL was compelled to serve Rule 30A notices, upon which the first and third respondents eventually filed incomplete records. FUL’s attorney addressed a letter to the state attorney on 25 July 2012 requesting a complete record of decision itemising twelve identified items that had not been disclosed, including the representations made to the NDPP by Mdluli requesting the withdrawal of charges, communications with the IGI and the Auditor General to whom the allegations of misconduct had been referred for investigation, representations made by Advocate Breytenbach to Mrwebi recommending that the charges not be withdrawn and so on. The request was not heeded. FUL also had to bring an application to compel production of the Commissioner’s record. Even then an incomplete record was delivered. The Acting Commissioner filed a record comprising only two letters notifying Mdluli of the withdrawal of the disciplinary charges and the upliftment of his suspension. 

21. The respondents’ failure to comply fully with their obligations to file complete records of decision undermined FUL’s ability to prosecute the review and has meant that it has had to rely on evidence put up by itself, sourced from other proceedings in which the respondents were involved, in particular those involving the suspension and discipline of Advocate Breytenbach, a Senior Deputy DPP of the NPA who doggedly insisted on the prosecution of Mdluli. On 30 April 2012 the NDPP suspended Breytenbach pending the outcome of an investigation into a complaint made against her in an unrelated matter some six months before her suspension. Breytenbach has contended in the other proceedings that the complaint was spurious and the real reason for her suspension was the stance she took in relation to the prosecution of Mdluli. She challenged her suspension by way of an urgent application to the Labour Court, which was struck from the roll for want of urgency. She was ultimately cleared of all charges (additional charges having been preferred against her after her suspension) in a disciplinary hearing held under the auspices of an independent chairperson. In the absence of a complete record of decision, FUL has relied on the affidavits filed in the Labour Court application and the transcript of the cross examination of NPA witnesses in the disciplinary hearing to supplement its evidence.

22. The failure to file complete records timeously contributed to a delay in the proceedings. The review in terms of Part B of the Notice of Motion was heard almost two years after it was first instituted. Throughout that time, Mdluli remained suspended on full pay. Despite the incomplete records of decision, FUL filed its supplementary founding affidavit on 8 October 2012, and a further supplementary founding affidavit, necessitated by the paucity of the records filed and by further documents becoming publicly available, on 14 March 2013. It meant that the respondents had to file answering papers by no later than 02 May 2013. None of the respondents filed answering papers in the review by that date. 

23. Ultimately the Deputy Judge President (“the DJP”) directed the respondents to file answering papers by 24 June 2013, to enable the matter to be heard on 11 and 12 September 2013. Even then, the second and sixth respondents filed their answering papers only on 25 June 2013, and the first and third respondents filed theirs on 4 July 2013 – nine court days late. The NDPP and Mrwebi in addition did not file their heads of argument on 12 August 2013 as directed by the DJP, preferring to do so a month late on 9 September 2013, two days before the hearing, much to the inconvenience of the court and the other parties. The respondents filed additional affidavits in the afternoon of the day before the hearing. Despite being ambushed in this way, the applicant did not object to their admission, no doubt because it preferred not to have the matter postponed. I indicated to the parties that the creditworthiness of the averments made in the late filed supplementary affidavits would have to be assessed in the light of the applicant not having had a right of reply to them. It was agreed by all parties to proceed on that basis.

24. The reasons for the various delays, and late filing, are sparse and mostly unconvincing. However, in the interests of justice I was persuaded that the matter should proceed without further delay and condoned the non-compliance with the rules and directives of the DJP. Suffice it to say that the conduct of the respondents is unbecoming of persons of such high rank in the public service, and especially worrying in the case of the NDPP, a senior officer of this court with weighty responsibilities in the proper administration of justice. The attitude of the respondents signals a troubling lack of appreciation of the constitutional ethos and principles underpinning the offices they hold.

25. FUL submitted that the respondents’ conduct in delaying the proceedings, their lack of transparency and their attitude to disclosure and the admission of any hearsay evidence gives rise to an inference that they lack adequate justification for the decisions at issue. The legitimacy of that submission is borne out by the analysis which follows.

The facts

26. As stated, the facts giving rise to the application are for the most part common cause. Mdluli joined SAPS on 27 August 1979. He rose through the ranks and was finally appointed as the Head of the Crime Intelligence Division of SAPS on 1 July 2009. The position is one of the senior leadership positions within SAPS and in the intelligence community of the state. The incumbent exercises complete control over all surveillance that any division of SAPS carries out in any investigation, and has access to highly sensitive and confidential information, and to the funds making up the Secret Service Account (“the SSA”). The position calls for an official with an exemplary record of honesty, discretion and integrity.

27. On 31 March 2011, Mdluli was arrested and charged with 18 counts, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm, and with defeating the ends of justice. These charges alleged that on 17 February 1999 Mdluli was party to the unlawful and intentional killing of Mr Tefo Ramogibe, who at the time was married to Ms Tshidi Buthelezi, a former lover of Mdluli. The charges of attempted murder, kidnapping etc. make allegations that Mdluli and persons associated with him brought pressure upon the relatives and friends of Ramogibe by violence, kidnapping and other threatening means with the aim of bringing the relationship between Ramogibe and Buthelezi to an end. Ramogibe was shot dead during a pointing out while in the company of SAPS officers from Vosloorus Police Station. The pointing out was held ostensibly for the purpose of gathering evidence in relation to a case of attempted murder opened by Ramogibe at the Vosloorus Police Station a few days previously. At the time Mdluli was Branch Commander of the Detective Branch at Vosloorus. Although Mdluli was a suspect in the investigation into the murder and attempted murder of Ramogibe, he was not arrested on the charges and the matter did not proceed to trial. Much of the original docket and certain exhibits have since been lost or have disappeared.

28. Information about the discontinued investigation surfaced shortly after Mdluli was promoted to Head of Crime Intelligence in late 2009. In light of the seriousness of the charges and on the weight of the evidence, the then Commissioner, General Cele, after following due process, suspended Mdluli from office on 8 May 2011 and instituted disciplinary proceedings against him. Mdluli is of the opinion that the allegations have re-surfaced as part of a conspiracy against him by those opposed to his promotion to high rank. In a letter dated 3 November 2011, addressed to President Zuma, the Minister of Police and the Acting Commissioner, Mdluli alleged that Commissioner Bheki Cele, and other senior officers, Generals Petros, Lebeya and Dramat were “working together against” him. In the letter he tactlessly stated:

“In the event that I come back to work, I will assist the President to succeed next year”

He did not explain how he would assist the President, but it is reasonable to assume that he had in mind the conference of the governing party in 2012 at which President Zuma was re-elected as party leader for a second five year term. His entreaty to the President implies that Mdluli believed he had it in his gift to use his influence and the means at his disposal to the advantage of the President. The Minister later responded by causing the allegations of conspiracy to be investigated by a special task team which ultimately found them to be baseless.

29. Mdluli made various appearances in court on the murder and related charges. The matter was postponed to later dates without Mdluli being asked to plead to the charges.

30. In late September 2011 Mdluli was arrested and charged on further charges of fraud, corruption, theft and money laundering (“the fraud and corruption charges”). The charges relate to the alleged unlawful utilization of funds from the SSA for the personal benefit of himself and his spouse. Mdluli was brought before the Specialized Commercial Crimes Court in Pretoria and granted bail. He was not asked to plead to the charges. The case was postponed to 14 December 2011.

31. The investigation of these charges was conducted by Colonel Viljoen of the Hawks who worked in conjunction with Advocate Smith of the Specialised Commercial Crimes Unit (“the SCCU”). Smith applied for a warrant for the arrest of Mdluli on 1 August 2011. The application was authorised by the magistrate on 6 September 2011, and executed on 20 September 2011.

32. The evidence in relation to the fraud and corruption charges is derived from an affidavit made by Viljoen in support of the application for the warrant of arrest of Mdluli and a report from Colonel Roelofse. Neither officer has deposed to an affidavit in these proceedings on the grounds of conflict of interest. Strictly speaking their evidence is hearsay. However, none of the respondents deny the averments in relation to the nature of the charges or their investigation, and they may be accepted to be common cause.

33. The charges allege that Mdluli received an unlawful gratification in an approximate amount of R90 000 when he used the funds of the SSA to acquire two vehicles supposedly for covert use, but which were recovered from his wife at their home in Cape Town. As part of the transaction, he is alleged to have traded in his own vehicle, which was valued at about R90 000 less than the amount Mdluli owed as outstanding instalments under his credit agreement. The purchase of the new vehicles, apparently for the use of himself and his wife, was allegedly done in such a manner that discounts payable to the Secret Service were applied for Mdluli’s personal benefit and extinguished his obligation to pay R90 000 to his credit provider.

34. The charges thus essentially allege that Mdluli abused state financial resources for private gain for his and his wife’s benefit. The SSA is controlled by the crime intelligence unit over which Mdluli exercises control. The charges are therefore serious, impacting upon the proper administration of justice and control of state resources, and raise the question of Mdluli’s fitness for his position.

35. In his answering affidavit filed in the Part A proceedings, Mdluli dealt mainly with procedural issues related to his suspension, his constitutional right to be presumed innocent, attacks on his integrity in the media, the alleged conspiracy against him and the leaking of classified information. Although expressing doubt about the sufficiency of the evidence against him, he did not address the specifics of the allegations made in respect of the various criminal charges in any detail or disclose his defence in relation to them.

36. The legal representatives of Mdluli addressed, and delivered by hand, written representations to the NDPP on 26 October 2011. They were not disclosed by the respondents, as one might have expected, as part of the Rule 53 process. They are annexed as part of Annexure GB 10 to the affidavit of Breytenbach filed in the Labour Court proceedings. The opening paragraph reads:

“We hereby make representations to you as to why you should review the preference of charges against our client Lt Gen Mdluli and possibly withdraw the charges against him, as proceeding against him is less likely to result in a conviction on any of the charges preferred against him”

The Acting NDPP, Advocate Jiba, made no mention of these representations in her answering affidavit. Her scant averment on the issue is to the effect that “the decisions” of the Special DPP and the DPP who instructed the charges to be withdrawn “have not been brought to my office for consideration in terms of the regulatory framework”; the implication of her statement being that she has made no decision in relation to the representations.[9]

37. The representations contend for the most part that the charges arose from a conspiracy against Mdluli by fellow officers and others who disapproved of his promotion.

38. Written representations in relation to the fraud and corruption charges, dated 17 November 2011, were delivered by hand to Mrwebi in his capacity as a Special DPP and the head of the SCCU. They record that similar representations, presumably in relation to the murder and related charges, had been made to Chauke, the DPP South Gauteng. In the representations to the Special DPP, Mdluli’s legal representatives alleged an abuse of the criminal justice system and stated:

“Our instructions are that Mdluli’s arrest is a continuation of the dirty tricks and manoeuverings relating to the contestation and jostling for the position of Head of Crime Intelligence.”

The representations made to Chauke, although alluded to in his record of decision filed in terms of Rule 53, do not form part of the record of this application.

39. Mrwebi in response to the representations made to him requested a report from Breytenbach and sight of the docket.  An initial report was submitted to Mrwebi under cover of a memorandum from Breytenbach. Mrwebi was dissatisfied with the report and asked for more information. A final report prepared by Smith was placed before Mrwebi on 2 December 2011. The reports and memorandum argued in favour of pursuing the case against Mdluli.

40. Mrwebi stated in his answering affidavit that after he considered the reports and examined the docket, he concluded that there “were many complications with the matter particularly with regard to the nature and quality of evidence” and how that evidence had been obtained. He was of the view that “there was no evidence, other than suspicion linking the suspects to the alleged crimes”. He also had concerns that the evidence had been acquired improperly because documents in relation to the SSA are privileged and that the documents could not be relied on until the IGI waived the privilege. And, thus, he believed there would be problems with the admissibility of the incriminating documentation. As will appear presently, this account is inconsistent with the objective facts as reflected in contemporaneous correspondence.

41. Mrwebi determined to withdraw the fraud and corruption charges against Mdluli and prepared a memorandum and a “consultative note” setting out his reasons dated 4 December 2011. Mrwebi did not disclose these obviously relevant documents as part of his record of decision belatedly filed in terms of Rule 53. They came to light however as annexures to Breytenbach’s founding affidavit in her application to the Labour Court.

42. Mrwebi said that he met with Advocate Mzinyathi, the DPP of North Gauteng, on 5 December 2011 to “discuss” the matter. He claims that the consultative note was incorrectly dated and was in fact drafted after he met with Mzinyathi. There is some doubt about this, but because in the final analysis not much turns on the issue I am prepared to accept that the note was written on 5 December 2011. The consultative note is addressed to Mzinyathi and Breytenbach. The opening paragraph records that Mrwebi had consulted with the DPP North Gauteng, as required by section 24(3) of the NPA Act. Mzinyathi in a confirmatory affidavit, filed on the day before the application was enrolled for hearing, contradicts this. His averments in that affidavit create the distinct impression that his engagement with Mrwebi on 5 December 2011 was in the way of a brief encounter in which the issues were not fully canvassed. They did however meet again on 9 December 2011 and had a more substantive discussion. In the consultative note, Mrwebi expressed his essential view in relation to the prosecution as follows:

“Essentially my views related to the process that was followed in dealing with the matter particularly in view of the fact that the matter fell squarely within the mandate of the Inspector-General in terms of the Intelligence Services Oversight Act, 40 of 1994. I noted that it is only the Inspector General who, by law, is authorised to have full access to the Crime Intelligence documents and information and thus who can give a complete view of the matter as the investigations can never be complete without access to such documents and information.”

Later in the note, after briefly referring to the investigation, Mrwebi stated:

“However, because of the view I hold of the matter, I do not propose to traverse the merits of the case and the other questions any further. Whether there was evidence in the matter or not, is in my view, not important for my decision in the matter. The proposition which I allude to below, should alone and without any further ado, be dispositive of the matter.”

43. The proposition in question, and thus the sole reason for his decision to instruct the charges to be withdrawn, was his belief that those charges fell within the exclusive preserve of the IGI in terms of section 7 of the Intelligence Services Oversight Act.[10] It is common cause that Mrwebi did not consult the SAPS or the IGI prior to withdrawing the charges and that Mzinyathi and Breytenbach informed Mrwebi at the meeting with him on 9 December 2011 that the IGI was not authorised to conduct criminal investigations. However, their advice did not prompt him to change his stance.

44. In his answering affidavit, as I mentioned earlier, Mrwebi attempted to cast a different spin on his reasons for passing the matter to the IGI. He referred it to the IGI, he said, because he believed “that the IG would not only help with access to documents and information” but could also resolve the issue of privilege. He was merely postponing the matter until the IGI sorted out the evidentiary problems.

45. Subsequent events do not bear that out. In particular, correspondence from the IGI to the Acting Commissioner dated 19 March 2012 indicates that she understood the matter to have been referred to her to investigate and institute proceedings. This letter was forwarded to the NDPP and Mrwebi on 23 March 2012, after the IGI’s legal adviser had prevailed unsuccessfully upon Mrwebi to re-instate the charges against Mdluli. In her letter the IGI commented on Mrwebi’s consultative note as follows:

“The IGI derives her mandate from the Constitution of the Republic of South Africa, 1996 and the Intelligence Services Oversight Act, 1994…which provides for the monitoring of the intelligence and counter-intelligence activities of the Intelligence Services…Any investigation conducted by the IGI is for the purposes of intelligence oversight which must result in a report containing findings and recommendations…The mandate of the IGI does not extend to criminal investigations which are court driven and neither can IGI assist the police in conducting criminal investigations. The mandate of criminal investigations rests solely with the Police. As such we are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that the matter be referred back to the NPA for the institution of the criminal charges.”

Her perception is patent. She appreciated that Mrwebi had instructed the charges to be withdrawn and discontinued the criminal proceedings. Both Breytenbach and Mzinyathi understood the position likewise. Mrwebi took no apparent steps to heed the advice of the IGI.

46. In his answering affidavit, and in the consultative note, Mrwebi stated that he consulted with Mzinyathi on 5 December 2011 in terms of section 24(3) of the NPA Act before making his decision. The provision requires that a Special Director may only discontinue criminal proceedings “in consultation” with the relevant DPP. The nature and extent of the consultation that occurred is a matter of dispute. The record of Breytenbach’s disciplinary proceedings indicates that it may have fallen short of the statutory requirement.

 

47. What transpired between Mrwebi and Mzinyathi at their meetings on 5 December 2011 and 9 December 2011 is of decisive importance. It was the subject of extensive and thorough cross examination by Advocate Trengrove SC, counsel for Breytenbach, during her disciplinary proceedings. The respondents have not placed the authenticity, accuracy or reliability of the record in issue. It therefore may be accepted as a correct and complete account of the testimony of Mrwebi and Mzinyathi under oath in those proceedings. Considering that Mrwebi and Mzinyathi are senior officers of the court, one may assume the evidence was given with due consideration to the need for propriety and appropriate candour.

 

48. After lengthy cross examination by Mr. Trengrove, Mrwebi conceded that when he took the final decision, either on 4 December 2011 or 5 December 2011, to withdraw the charges and discontinue the prosecution of Mdluli on the fraud and corruption charges, he did not know Mzinyathi’s view of the matter and did not have his concurrence in the decision. He admitted that he took the decision prior to writing the consultative note and did so relying on representations made to him in confidence by anonymous people, who he was not prepared to name and whose input he did not share with Mzinyathi.  Mzinyathi’s views were conveyed to Mrwebi for the first time in an email on 8 December 2011 in response to the consultative note, after Mrwebi had already informed Mdluli’s attorney that the charges would be withdrawn.

 

49. Mzinyathi acknowledged such to be the case during his evidence in the disciplinary proceedings. He was referred during cross examination to the email and affirmed the correctness of its content. In the email Mzinyathi stated:

 

“I am concerned that you indicate in your memorandum to me that you will advise the attorneys of Mr. Mdluli of your instruction that charges be withdrawn. I hold the view that such advice to the attorneys would be premature as I do not share your views, nor do I support your instruction that the charges will be withdrawn.”

 

50. Mzinyathi also confirmed that at the meeting on 9 December 2011 (attended by the two of them and Breytenbach), Mrwebi took the position that he was functus officio because he had already informed Mdluli’s attorneys of the intended withdrawal. Mzinyathi and Breytenbach, unable to persuade Mrwebi to reverse the decision, then prevailed on him to withdraw the charges provisionally, to which he agreed. Mzinyathi retreated somewhat from this testimony in his confirmatory affidavit filed on the day before the application was enrolled to be heard. His explanation of events in the affidavit differs from his testimony at the disciplinary hearing with regard to the degree of concurrence. His exchange with Advocate Trengrove is therefore important. The most relevant part merits quoting in full:

Trengrove: Now when you, when you then saw him the following day on the 9th….he told you that he was functus officio, do you remember that?

Mzinyathi: He did indeed.

Trengrove: Because he had already informed the attorneys of his decision to withdraw the charges.

Mzinyathi: Yes

Trengrove: Do you know that he sent off that letter to the attorneys withdrawing the charges, at the same time sending you those memos (including the consultative note)?

Mzinyathi: Oh, I was not aware.

Trengrove: That is what he told us in evidence. So, by the time he met with you on 9 December 2011 he said he was functus officio, correct?

Mzinyathi: Yes

Trengrove: And we all know that functus officio means that I have taken my decision and I no longer have the power to reopen it, correct?

Mzinyathi: Yes

Trengrove: So that presented you with a fait accompli, the horse had bolted, the case will have to be withdrawn.

Mzinyathi: Indeed.

51. In the supplementary founding affidavit, delivered in March 2013, six months before the application was heard, FUL dealt comprehensively with Mzinyathi’s involvement, his evidence in the disciplinary enquiry and the contention that the failure to consult him rendered the withdrawal of the charges illegal. Mzinyathi, it may be re-called is the DPP for North Gauteng, the most senior public prosecutor in Pretoria. The record shows he has been involved in this dispute from the beginning. His evidence in the Breytenbach disciplinary hearing was that he disagreed with the decision which had been presented to him as a fait accompli. This was the factual basis upon which FUL relied in the founding and supplementary affidavits, as well as its heads of argument, to submit that the withdrawal of the charges was illegal.

 

52. Mrwebi in his answering affidavit did not deal with Mzinyathi’s testimony at the disciplinary enquiry (or for that matter with any of the averments in the supplementary founding affidavit). His account of the events between 5 December 2011 and 9 December 2011 takes the form of a general narrative which does not admit or deny the specific allegations in the supplementary founding affidavit. He nonetheless maintained that he had consulted Mzinyathi. The answering affidavit was not accompanied by a confirmatory affidavit from Mzinyathi, who therefore initially did not confirm Mrwebi’s general account. In his confirmatory affidavit filed at the eleventh hour, the day before the hearing, without any explanation whatsoever for it being filed six months after the delivery of the supplementary founding affidavit, Mzinyathi, differing from his evidence at the hearing, confirmed the allegations in Mrwebi’s affidavit as they relate to him, thus saying in effect for the first time that he had indeed concurred in the decision. 

 

53. Mzinyathi elaborated further, in paragraphs 7 to 9 of the affidavit, that Mrwebi approached him at his office on 5 December 2011, told him that he was dealing with representations regarding Mdluli and needed to consult him. Mrwebi mentioned to him that he was busy researching the Intelligence Services Oversight Act and then left his office. The impression created, as mentioned earlier, is that no substantive discussions took place that day and hence clearly there was no concurrence before Mrwebi wrote the consultative note and communicated with Mdluli’s attorneys. Later Mzinyathi heard from Smith that Mrwebi had instructed the prosecutor to withdraw the charges. He then wrote the email of 8 December 2011 to Mrwebi and met him on 9 December 2011 together with Breytenbach. At the meeting he was persuaded that the matter was not ripe for trial and agreed to the provisional withdrawal of the charges. This differs materially from his original position that he was unable to influence the decision because it had been finally taken but conceded to the characterisation of the withdrawal as provisional as a compromise partially addressing his concerns.

 

54. Taking account of how it was placed before the court by Mzinyathi, after FUL’s heads of argument were filed, without explanation for its lateness, and its inconsistency with his testimony at the disciplinary hearing that he was presented with a fait accompli and was unable to influence the decision because Mrwebi claimed to be functus officio, this evidence of the DPP of North Gauteng, to the effect that he ultimately concurred, must regrettably be rejected as un-creditworthy. The affidavit is a belated, transparent and unconvincing attempt to re-write the script to avoid the charge of unlawfulness. The version in the supplementary founding affidavit, originally uncontested by Mzinyathi, and corroborated by Mzinyathi’s testimony in the disciplinary hearing, must be preferred and accepted as the truth.

 

55. In light of the contemporaneous evidence, Mrwebi’s averment in the answering affidavit that he consulted and reached agreement with Mzinyathi before taking the decision is equally untenable and incredible to a degree that it too falls to be rejected.

56. That a decision to withdraw the charges and discontinue the prosecution had been made without the concurrence of Mzinyathi is borne out not only by Mzinyathi’s email of 8 December 2011 and his evidence at the disciplinary hearing, but also by Mrwebi’s own interpretation of events. In his answering affidavit, Mrwebi described the purpose of the visit by Breytenbach and Mzinyathi to his office on 9 December 2011 as being “to discuss their concerns that they do not agree with my decision”. After discussing the evidentiary issues, according to Mrwebi, they agreed with his position that the case against Mdluli was defective, had been enrolled prematurely and could be reinstated at any time. Breytenbach, he said, agreed to pursue the matter and would come back to him with further evidence. Breytenbach failed to pursue the matter diligently and did not come back to him. He then considered the matter “closed”, as he stated in a letter to General Dramat of the Hawks, on 30 March 2012. The court, on the basis of this account, is asked to accept that the reason the prosecution has not been re-instated is that Breytenbach failed in her duty to obtain additional evidence and report back, as she had promised at the meeting of 9 December 2011.

57. Breytenbach, as mentioned, was suspended from her position as Regional Director of the SCCU in late April 2012, on numerous unrelated charges of which she was later acquitted at the disciplinary hearing.

58. Mrwebi’s reference to “my decision” in his answering affidavit implies that he believed the decision to withdraw the charges against Mdluli was his decision and one made prior to the meeting of 9 December 2011 without the concurrence of Mzinyathi. His use of the term “closed” in the letter to Dramat, albeit a few months later, supports Mzinyathi’s evidence that Mrwebi viewed himself as functus officio, was unwilling to re-instate the charges and that the decision was presented to him as a fait accompli. The subsequent agreement to categorise the charges as “provisional” was a concession to his concerns, which did not alter Mrwebi’s prior unilateral decision and instruction that the charges should be withdrawn. Mrwebi’s own evidence thus supports a finding that the decision to withdraw the fraud and corruption charges was taken by him alone before the meeting of 5 December 2001, and prior to his writing of the consultative note, without the concurrence of Mzinyathi.

59. Had Mrwebi genuinely been willing to pursue the charges after 9 December 2011, one would have expected him to have acted more effectively. He justified his supine stance on the basis that Breytenbach had not come back to him with additional evidence to cure the defects in the case. He implied that had she done her job, the charges would have been re-instated.

60. FUL was justifiably sceptical in its reply to these allegations. Paragraph 106 and 107 of the reply read:

“106. Advocate Mrwebi’s version as set out in this paragraph is, I submit, palpably implausible and in conflict with his ipsissima verba. In its ordinary meaning ‘closed” is unequivocal. As it is used in Advocate Mrwebi’s letter to General Dramat, seen in the context, there can in my submission be no doubt that Advocate Mrwebi was implacably opposed to any prosecution against General Mdluli.

107. Indeed, I submit that the very attempt to adhere to the untenable casts serious doubt on the veracity of the deponent and moreover casts a shadow over the propriety of his decision to block the prosecution of General Mdluli.”

61. The attempt to blame Breytenbach is frankly disingenuous and unconvincing, as is Mrwebi’s subsequent claim that investigations into the charges are continuing. Three experienced commercial prosecutors and two senior police investigators were satisfied in early December 2011 that there was sufficient evidence to prosecute Mdluli on these charges immediately. Breytenbach, who is an experienced prosecutor with more than two decades of experience in the criminal courts, accused Mrwebi, in her founding affidavit in the Labour Court application, of “blind and irrational adherence to his instruction that the charges be withdrawn” and of frustrating her efforts to prosecute to the extent of having her suspended on spurious charges. The assertion that Breytenbach agreed that the case against Mdluli was defective is irreconcilable with the contemporaneous evidence, particularly a threat made by her in a memo to the NDPP to seek legal relief to compel the NPA to pursue the charges, and is accordingly wholly improbable.

 

62. In a 24 page memo to the Acting NDPP dated 13 April 2012, annexed to her affidavit in the Labour Court application, Breytenbach made a forceful argument in favour of proceeding against Mdluli on the corruption charges and stated her view that the instruction to withdraw the case against Mdluli and his co-accused, Colonel Barnard, was “bad in law and in fact illegal”. She asked the NDPP for an internal review of Mrwebi’s decision not to institute criminal proceedings and to review the lawfulness of the decision. 

 

63. The memo is a credible indication that the decisions were indeed brought to the attention of the Acting NDPP for consideration. The NDPP in her answering affidavit, though not dealing directly with the memo, maintained that the decisions to withdraw charges had not come to her office for consideration “in terms of the regulatory framework”. Be that as it may, the memo leaves no doubt that Breytenbach did not consider the case against Mdluli to be “defective”. She was confident that there was a good prima facie case and reasonable and probable cause for a prosecution, so much so that she wanted a review by the NDPP of the Special DPP’s decision and requested permission to re-enrol the charges and to pursue additional charges in relation to Mdluli’s misuse of the funds of the SSA. Her firm conviction that there was a good case against Mdluli was the reason she wrote the memo. Breytenbach concluded:

 

“Our professional ethics dictate that we pursue the matter to its logical conclusion, which may include, of necessity, taking further steps if there is no agreement between us”

 

64. Breytenbach’s attempts to have the charges re-instated were not successful. She was suspended about two weeks later on 30 April 2012.

 

 65. Mrwebi offered no detail at all in his answering affidavit of any continuing investigation into the fraud and corruption charges by SAPS or the NPA, nor did he name any person supposedly seized with them. He also did not comment on the recommendation of the IGI that criminal proceedings should be instituted against Mdluli. His averments in the answering affidavit regarding continuing investigations, on the face of them, are unsubstantiated and hence unconvincing. He sought belatedly to supplement his deficient evidence in these respects in his supplementary answering affidavit filed on 10 September 2013.

 

66.  Motivated in part, as he said, by a need to respond to what he considers to be a withering attack by Justice Kriegler on his integrity, credibility, and the propriety of his decisions, and hence by implication his suitability to hold his office, Mrwebi delivered the supplementary answering affidavit (making averments going beyond the challenge to his integrity) on the day before the matter was enrolled for hearing, two months after the replying affidavit was filed and one month after the applicant filed its heads of argument. His reasons for taking so long are not compelling and pay little heed to the fact that his timing ambushed the applicant and denied it the opportunity to deal with the allegations made in the affidavit.

 

67. For the most part, the affidavit does not take the matter further and basically repeats his assertion that the decision was not unilateral and that investigations are continuing. Mrwebi referred for the first time in this affidavit to five written reports from members of the prosecuting authority who are investigating the matter, the contents of which he was disinclined to share with the court for strategic and tactical reasons on the grounds that disclosure will hamper and prejudice the investigation. He was however prepared to share with the court the fact that the NPA has experienced “challenges” in relation to the declassification of documents. Moreover, on 25 June 2013, three months before the hearing of the application, it was established by investigating prosecutors that the evidence of the main witness (who is not identified by name) will have to be ignored in its entirety because it is apparently a fabrication not reflecting the true version of events. The exact nature of that evidence and the basis for its refutation is not disclosed.

 

68. For reasons that should be self-evident, it is not possible to attach much weight to this evidence. The applicant has been denied the opportunity to respond to it, and by its nature it is vague and unsubstantiated. Mrwebi, by his own account, and for reasons he does not explain, sat on this information for three months before disclosing it to the court on the day before the hearing. The averments accordingly can carry little weight on the grounds of unreliability. The conduct of the Special DPP, again, I regret, as evidenced by this behaviour, falls troublingly below the standard expected from a senior officer of this court.

 

69. Accordingly, in the final result, I am compelled to find that Mrwebi took the decision to withdraw the charges against Mdluli without the concurrence of Mzinyathi and decided to discontinue the prosecution.

 

70. The fraud and corruption charges were formally and “provisionally” withdrawn in the Specialised Commercial Crimes Court on 14 December 2011. FUL submits that a provisional withdrawal which has endured for two years may be considered to be a permanent withdrawal. The characterisation of the withdrawal as provisional, as I explain later, would not normally deflect from any proven illegality or irrationality of the decision.

71. The charges of murder and related offences were withdrawn on 14 February 2011 by Chauke, the DPP for South Gauteng, based in Johannesburg, the area of jurisdiction in which the alleged offences were committed. Chauke determined to withdraw the charges on 1 February 2012 and publicly announced the fact on 2 February 2012. In his reasons for decision and in his supporting answering affidavit, Chauke explained that given the seriousness of the charges and the lack of direct evidence to sustain the charge of murder, he decided to withdraw the charges provisionally and for an inquest to be held to determine the cause of death of Ramogibe. Chauke withdrew the 17 other charges of intimidation, assault, attempted murder and kidnapping because he wanted to avoid fragmented trials.

72. An inquest is an investigatory process held in terms of the Inquests Act[11] which is directed primarily at establishing a cause of death where the person is suspected to have died of other than natural causes. Section 16(2) of the Inquests Act requires a magistrate conducting an inquest to investigate and record his findings as to the identity of the deceased person, the date and cause (or likely cause) of his death and whether the death was brought about by any act or omission that prima facie amounts to an offence on the part of any person. The presiding officer is not called on to make any determinative finding as to culpability.

73. In his supporting answering affidavit, Chauke explained that he took the decision to withdraw the charges and to refer the murder allegations to an inquest in response to the written representations made on behalf of Mdluli to the DPP South Gauteng in November 2011. He did not annex a copy of those representations to his affidavit.

74. The inquest was held during the course of April and May 2012. The magistrate handed down his reasons six months later on 20 November 2012. The reasons suffer a measure of incoherence and the ultimate findings are contradictory. He found first that an inference of Mdluli’s involvement would be consistent with the facts but not the only inference. He then concluded:

“The death was brought about by an act prima facie amounting to an offence on the part of unknown persons. There is no evidence on a balance of probabilities implicating Richard Mdluli…..”

75. The magistrate found correctly that the inquest had no jurisdiction to deal with the other charges against Mdluli.

76. In its supplementary founding affidavit delivered in March 2013, FUL submitted that the evidence put up in the inquest discloses a prima facie case against Mdluli of murder, kidnapping, assault with intent to do grievous bodily harm and defeating the end of justice.

77. In relation to the killing of the deceased, given that he was shot three times by unknown assailants, there is no doubt that an offence was involved. The only question for the magistrate, in terms of section 16(2) of the Inquest Act, was whether the death was brought about by conduct prima facie amounting to an offence on the part of any person. A prima facie case will exist if the allegations, as supported by statements and real documentary evidence available, are of such a nature that if proved in a court of law by the prosecution on the basis of admissible evidence, the court should convict.[12] The magistrate’s conclusion that an inference of Mdluli’s involvement would be consistent with the proved facts amounts to a finding that Mdluli has a prima facie case to answer. The magistrate in effect (but perhaps unconsciously) accepted that although a case had not been established beyond reasonable doubt or on a balance of probabilities, there was a prima facie case of murder against Mdluli. It was not the responsibility of the magistrate to establish culpability either beyond reasonable doubt or on a balance of probabilities.

78. The affidavits before the inquest and the evidence as summarised by the magistrate in his written reasons do indeed support a conclusion that there is a prima facie case against Mdluli on the murder and related charges. The magistrate found the following to be common cause. Mdluli and Ramogibe, the deceased, were both in a relationship with the same woman, Buthelezi, from 1997 until the murder of the deceased in 1999. Ramogibe had secretly married Buthelezi during the period in question. Mdluli was upset about the relationship “and on a number of occasions addressed the issue”. On 23 December 1998 Ramogibe was the victim of an attempted murder. He reported the incident to the Vosloorus SAPS. Ramogibe was requested to report to the Vosloorus police station to meet with the investigating officer and to point out the scene of the attempted murder. On 17 February 1999, Ramogibe was taken to the scene in Mdluli’s official vehicle, a green Volkswagen Golf. Ramogibe was murdered at the scene on that day while pointing it out to the investigating officer.

79. In its supplementary founding affidavit, FUL highlighted the following key attributes of the evidence demonstrating a prima facie case against Mdluli, and upon which the magistrate’s inference of Mdluli’s involvement is soundly based.

80. The deceased’s mother, Ms Maletsatsi Sophia Ramogibe, testified that during 1998 Mdluli came to her home looking for the deceased, obviously unhappy with the fact that the deceased was in a relationship with Buthelezi. A few days later, Mdluli came and fetched her and took her to the police station. There she found her son bleeding with his shirt covered in blood. Mdluli insulted her son in his presence and warned him to keep away from Buthelezi. Her son was killed a few days later. After his death, Ms Ramogibe’s daughter, Jostinah, was kidnapped and raped (confirmed by her in a confirmatory affidavit). She later received a call from an unknown caller who warned her that if she proceeded to press the case of her son’s murder all her daughters would be killed.

81. Ms Alice Manana, an acquaintance of the deceased and Buthelezi, described how in August 1998 she was allegedly kidnapped, intimidated and assaulted by Mdluli and two fellow officers of the Vosloorus SAPS, and forced to disclose the whereabouts of the couple and to take the police to them at Orange Farm. The deceased and Buthelezi were then taken to Vosloorus police station where they were assaulted for 30 minutes before being discharged. On 17 October 1998, Ms Manana was repeatedly shot by an assailant who shot her at the front door of her home. During the shooting, she saw Mdluli sitting in the driver’s seat of a green Volkswagen Golf, which she knew belonged to him, parked outside her house.

82. Buthelezi, now deceased, stated in an affidavit deposed to before her death that she and the deceased had been kidnapped and assaulted by Mdluli and his colleagues.

83. Five other witnesses, including the deceased’s father, testified that Mdluli had visited them repeatedly looking for the deceased and informed them that he would kill Ramogibe if he did not end his relationship with Buthelezi. Mr Steven Buti Jiyane testified that Ramogibe had periodically stayed at his family home because Mdluli was threatening to kill him.

84. Mary Lokaje in her affidavit heard the shooting of Ramogibe outside her house and saw three uniformed policeman running away from the scene, and saw the Golf being driven away.

85. Various affidavits by police officers who investigated the murder were filed confirming that Mdluli was the main suspect in the case although there was no evidence of his direct involvement in the murder and dealing with the loss of the dockets and evidence linked to some of the charges.

86. The magistrate did not reject any of this evidence. He in fact accepted it. In the conclusion to his reasons, the magistrate stated:

“But be this as it may, their evidence of Mdluli being to such a degree upset with Oupa’s (Ramogibe) relationship with an estranged Tshidi (Buthelezi) that they deemed it necessary to have reported it and mentioned it in their affidavits shortly after Oupa’s death, runs like a golden thread through the murky waters of their evidence. Evidence that he passed threats to kill Oupa, whether made repeatedly or not, against the background of the strong current of Mdluli’s emotions at the time, is in my opinion overwhelmingly probable” (emphasis supplied).

He then found that it had been proved on a balance of probabilities that Mdluli was “highly upset and humiliated” by Ramogibe’s relationship with his former lover, had not come to terms with the fact that Buthelezi had ended their relationship, had made threats to kill Ramogibe and that his family would mourn him and had wanted Ramogibe out of Buthelezi’s life in the hope that he could rescue his relationship with her. He, however, went on to point out that it might be difficult to link the threats, intimidation and alleged kidnapping to the ultimate fatal shooting of Ramogibe. The inability to call Buthelezi, now deceased, was in his opinion a complicating factor. These weaknesses (and others) in the evidence led the magistrate to conclude that an inference of Mdluli’s involvement was permissible but not conclusive. His ultimate conclusion that there was no evidence on a balance of probabilities “implicating” Mdluli is wrong and inconsistent with his otherwise correct assessment and evaluation of the evidence.

87. Neither the Acting NDPP nor Chauke dealt meaningfully in their answering affidavits with the incriminating evidence against Mdluli, FUL’s submissions regarding the evidence, or the finding of the magistrate that an inference of Mdluli’s involvement was consistent with the facts.

88. The Acting NDPP, after setting out the legal and policy framework, confined herself to the following averments in paragraphs 19-24 of her answering affidavit:

“19. When Advocate Chauke decided to withdraw the criminal charges of murder and related charges against the Fifth Respondent (Mdluli), he was authorised to do so by the Act, the Policy and the Policy Directives.

20. I am aware that Advocate Chauke referred the matter to an inquest by a magistrate and that the magistrate found that there was no evidence on a balance of probabilities implicating the Fifth Respondent and his co-accused in the death of Mr Ramogibe.

21. The decisions of the Third Respondent and Advocate Chauke on this matter have not been brought to my office for consideration in terms of the regulatory framework.

22. In the light of the above I did not take any decision referred to in the Applicant’s founding affidavit. In terms of section 22(2)(b) of the NPA Act, I may intervene in any prosecution process when policy directives are not complied with. I may also in terms of section 22(2)(c) of the NPA Act review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations of the accused person, within the time period specified by me, the complainant or any party whom I consider to be relevant.

23. At this stage there was no policy contravention and/or representations received by me to warrant my intervention as set out above.

24. This therefore makes the application to review the withdrawal of charges by this honourable court premature.”

The Acting NDPP fails to mention the representations made to her by Breytenbach, or that Mdluli’s written representations of 26 October 2011 were in fact addressed to her. Nor does she refer to the magistrate’s finding that an inference of Mdluli’s involvement was consistent with the proven facts. 

89. Chauke in his answering affidavit similarly ignored some of the inquest findings, saying simply that the magistrate had found there was no evidence implicating Mdluli. Clearly there is evidence implicating Mdluli. The magistrate’s conclusion is anyhow not decisive. Guilt or innocence is a matter for the trial court tasked with the responsibility of determining culpability. Section 16(2) of the Inquests Act only requires a magistrate conducting an inquest to determine whether the death was brought about by any act or omission that amounts prima facie to an offence on the part of any person and, insofar as this is possible, a finding as to whom the responsible offenders might be.[13]The DPP is besides not bound by the findings of the inquest.

90. Chauke added that resources should not be wasted pursuing inappropriate cases where there is no prospect of success. On that basis he concluded that it would be “presumptuous and foolhardy” to proceed with the prosecution. He, in other words, is of the opinion that the charges provisionally withdrawn should now be finally withdrawn. He also contended that an inappropriate or “wrong” decision to prosecute would undermine the community’s confidence in the prosecution system. FUL’s predictable rejoinder is that his withdrawal of the charges has already done so.

91. It is difficult to fathom why the DPP of South Gauteng has not proceeded with the 17 charges of attempted murder, assault, kidnapping etc. after the inquest. His reason for provisionally withdrawing them in his reasons for decision was that he wanted to avoid fragmented trials. The inquest resolved that problem. If he did not want to pursue the murder charge on the basis of the inquest finding, he had a duty to continue with the balance of the charges and has given no reason for not proceeding. The evidence given in relation to them during the inquest, on the limited information available, looks reasonably cogent and compelling.

92. In terms of the prosecution policy and directives issued in terms of the NPA Act, there is a duty to pursue a prosecution where there is a reasonable prospect of success, and regard should always be had to the nature and seriousness of the offence and the interests of the broader community. Despite the obvious anomalies in the inquest findings, the evidence as a whole, read particularly with the witness statements, establishes a prima facie case and points to more than a reasonable prospect that a prosecution on the murder and related charges may meet with success on at least some of the counts.

93. Two weeks after the criminal charges against Mdluli were withdrawn, on 29 February 2012, the Acting Commissioner withdrew the disciplinary charges against him and disciplinary proceedings were terminated. Mdluli was therefore re-instated and resumed office from 31 March 2012. During April 2012, his role was extended to include responsibility for the unit which provides VIP protection to members of the National Executive, including President Zuma.

94. However, shortly afterwards, as a result of the serious allegations of conspiracy that he had levelled against other senior members of the SAPS, the Minister announced, on 9 May 2012, that Mdluli would be re-deployed from his post as Head of Crime Intelligence whilst those allegations were investigated by a ministerial task team. It will be re-called also that on 19 March 2012 the IGI recommended that Mdluli be prosecuted on the fraud and corruption charges.

95. The applicant launched these proceedings on 15 May 2013. On the same day the Acting Commissioner re-initiated disciplinary proceedings and brought charges against Mdluli, the nature and extent of which remain unknown. Mdluli was suspended for a second time on 25 May 2012 pending the outcome of that new process.  As mentioned earlier, this court on 6 June 2012 granted the relief sought in Part A of the notice of motion and interdicted Mdluli from discharging any function or duty as a member and senior officer of the SAPS pending the outcome of this review; and further interdicted the Commissioner and the Minister from assigning any function or duty to him. 

96. In a press statement issued by SAPS on 5 July 2012 it was announced that the ministerial task team, headed by Chief State Law Adviser, Mr Enver Daniels, had found that there was no evidence of a conspiracy against Mdluli and that the officials and his colleagues who had accused him of criminal conduct had acted professionally, in good faith and with a proper sensitivity to the issues at hand.

97. No steps have been taken to re-instate the murder or related charges against Mdluli since that date – even though, to repeat, the evidence put up in the inquest proceedings discloses at least prima facie cases of murder, kidnapping, attempted murder, assault to do grievous bodily harm and defeating the ends of justice against Mdluli. Chauke has given no indication of whether the murder investigation is being continued or not.

The structure of the prosecuting authority and the power to withdraw charges against an accused person

 

98. Before considering the grounds of review, it will be useful to examine the legislative provisions governing the structure and functioning of the prosecuting authority.

 

99. Section 179(1) of the Constitution establishes a single national prosecuting authority in the Republic, which is required to be structured in terms of an Act of Parliament. The relevant statute is the National Prosecuting Authority Act [14] (“the NPA Act”), which was enacted shortly after the Constitution was adopted. The NPA Act must be read together with Chapter 1 of the Criminal Procedure Act[15] (“the CP Act”) titled “Prosecuting Authority”, which has been amended to reflect the post-constitutional arrangements established by the NPA Act.

 

100. In terms of section 179(1) of the Constitution the prosecuting authority consists of the NDPP, who is the head of the prosecuting authority, and is appointed by the President; and DPPs and prosecutors as determined by the NPA Act.[16] The single prosecuting authority consists of the Office of the NDPP and the Offices of the prosecuting authority at the High Courts.[17] The Office of the NDPP consists of the NDPP, Deputy NDPPs, Investigating Directors and Special Directors and other members of the prosecuting authority appointed at or assigned to the Office.[18]

 

101. The powers of a Special Director are relevant to this case. A Special Director is defined in section 1 of the NPA Act to mean a DPP appointed under section 13(1)(c), which provides that the President, after consultation with the Minister and the NDPP, may appoint one or more DPP as a Special Director to exercise certain powers, carry out certain duties and perform certain functions conferred or imposed on or assigned to him or her by the President by proclamation in the Gazette.

 

102. Section 6 of the NPA Act establishes an Office for the prosecuting authority at the seat of each High Court in the Republic. Each Office established by this section consists of the head of the Office, who is required to be a DPP or a Deputy DPP, and other Deputy DPPs and prosecutors appointed in terms of section 16(1) of the NPA Act. Prosecutors are appointed on the recommendation of the NDPP or a member of the prosecuting authority designated for that purpose by the NDPP. They can be appointed to the Office of the NDPP, the Offices at the seat of a High Court, to the lower Courts or to an Investigating Directorate established by the President in terms of section 7.

 

103. Section 179(2) of the Constitution provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. Section 179(4) importantly provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.

 

104. The power to institute and conduct criminal proceedings as contemplated in section 179(2) of the Constitution is given legislative expression in section 20(1) of the NPA Act, which reads:

           

“The power, as contemplated in section 179(2) and all other relevant sections of the                     Constitution, to-

                       

(a) institute and conduct criminal proceedings on behalf of the State;

 

(b) carry out any necessary functions incidental to instituting and            conducting

such criminal proceedings; and

 

(c) discontinue criminal proceedings,

 

            vests in the prosecuting authority and shall, for all purposes be exercised on behalf of the          Republic.”

 

105. All DPPs and Deputy DPPs in Offices at the seat of a High Court, as well as DPPs who are Special Directors in the Offices of the NDPP, are entitled to exercise the powers in section 20(1) in respect of the area of jurisdiction for which he or she has been appointed.[19] There is an important qualification though in respect of Special Directors which has obvious relevance to this case. Section 24(3) of the NPA Act provides:

 

“A Special Director shall exercise the powers, carry out the duties and perform the functions conferred or imposed on or assigned to him or her by the President, subject to the directions of the National Director: Provided that if such powers, duties and functions include any of the powers referred to in section 20(1), they shall be exercised, carried out and performed in consultation with the Director of the area jurisdiction concerned.”

 

The intended effect of the proviso to section 24(3) is that whenever a Special Director based in the office of the NDPP wishes to institute, conduct or discontinue criminal proceedings he or she is obliged to act “in consultation with” the DPP of the High Court in the area of jurisdiction concerned.

 

106. Prosecutors are competent to exercise the power in section 20(1) to the extent that they have been authorised by the NDPP or a person designated by the NDPP.

The powers of DPPs, Deputy DPPs and Special Directors to carry out the duties and functions contemplated in section 20(1), are to be exercised subject to the control and directions of the NDPP.[20]

 

107. Section 22 of the NPA Act defines the scope of the powers, duties and functions of the NDPP. Section 22(1) provides that the NDPP as head of the prosecuting authority shall have the authority over the exercising of all the powers, and the performance of all the duties and functions conferred or imposed on or assigned to any member of the prosecuting authority. Section 22(2) gives verbatim effect to section 179(5) of the Constitution.  Section 179(5) reads:

           

“The National Director of Public Prosecutions -

 

(a) must determine, with the concurrence of the Cabinet member responsible for              the administration of justice, and after consulting the Directors of Public                                 Prosecutions, prosecution policy, which must be observed in the prosecution                  process;

 

(b) must issue policy directives which must be observed in the prosecution                     process;

 

(c) may intervene in the prosecution process when policy directives are not                      complied with; and

 

(d) may review a decision to prosecute or not to prosecute, after consulting the               relevant Director of Public Prosecutions, from the following:

 

(i) The accused person.

(ii) The complainant.

(iii) Any other person or party whom the National Director considers to be                 relevant.”

 

108. The power of the NDPP to issue policy directives contemplated in section 179(5)(a) and (b) must be exercised with the concurrence of the Minister and after consulting the DPPs.[21]

 

109. Section 22(4) bestows additional powers, duties and functions on the NDPP. They include a duty to maintain close liaison with DPPs inter alia to foster common policies and practices and to promote co-operation in relation to the handling of complaints in respect of the prosecuting authority;[22] as well as a duty to assist DPPs and prosecutors in achieving the effective and fair administration of criminal justice.[23]

 

110. The powers, duties and functions of DPPs are set out in section 24 of the NPA Act.  They include the power to institute and conduct criminal proceedings. Although section 24(1) makes no express reference to the power to discontinue proceedings, such power vests in a DPP by virtue of section 20(3) which confers on DPPs the authority to exercise the powers in section 20(1), including the power to discontinue proceedings in terms of section 20(1)(c). Section 24(1)(d) is a general provision which empowers DPPs to “exercise all powers conferred or imposed on or assigned to him or her under any law which is in accordance with the provisions of this Act”.  As I will discuss presently, section 6 of the CP Act confers the power to withdraw charges or to stop a prosecution upon DPPs and prosecutors. There can accordingly be no doubt that DPPs have the power to discontinue criminal proceedings. However, as I have explained, the power of a Special Director, who is by definition a DPP, is qualified by the proviso to section 24(3). Similarly, only a DPP who is not a Special Director[24] may give written directions to a prosecutor within his or her area of jurisdiction who institutes or carries on prosecutions[25]

 

111. Section 6 of the CP Act provides:

 

 “Power to withdraw charge or stop prosecution.- An attorney-general or any                            person conducting a prosecution at the instance of the State or any body or person                  conducting a prosecution under section 8, may -

   (a) before an accused pleads to a charge, withdraw that charge, in which event                            the accused shall not be entitled to a verdict of acquittal in respect of that                            charge;

   (b) at any time after an accused has pleaded, but before conviction, stop the                              prosecution in respect of that charge, in which event the court trying the                                      accused shall acquit the accused in respect of that charge: Provided that                                where a prosecution is conducted by a person other than an attorney-general                           or a body or person referred to in section 8, the prosecution shall not be                                        stopped unless the attorney-general or any person authorized thereto by the                       attorney-general, whether in general or in any particular case, has consented                                thereto.”

 

The withdrawal of charges and the stopping of a prosecution after plea have different consequences. If the charge is withdrawn before plea, an accused is not entitled to an acquittal and the charges can be re-instated at some future date. The stopping of a prosecution, as envisaged in section 6(b), involves a conscious act to terminate the proceedings after a plea has been entered, in which event an accused will be entitled to an acquittal and to raise the plea of autrefois acquit (double jeopardy) if the prosecuting authority should attempt to re-institute criminal proceedings on the same or substantially similar charges. A stopping of a prosecution may occur only at the instance of a DPP[26] or with his consent. A prosecutor, however, may withdraw charges. At issue in this case is whether a Special Director may withdraw charges or instruct a prosecutor to withdraw charges without the consent of a DPP, a matter to which I will return when discussing the grounds of review.

 

112. The NDPP, acting in terms of section 21 of the NPA Act, has issued a Policy Manual containing a Prosecution Policy and Policy Directives. They set out relevant policy considerations which normally should inform any decision to review a prosecution or to discontinue proceedings by withdrawing charges or stopping a prosecution. The NDPP has stated in her answering affidavit that the review of a case is a continuing process taking account of changing circumstances and fresh facts which may come to light after an initial decision to prosecute has been made.  This may occur, and I imagine often does occur, after the prosecuting authority has heard and considered the version of the accused and representations made on his or her behalf.

 

113. Paragraph 4(c) of the Prosecution Policy provides that once a prosecutor is satisfied that there is sufficient evidence to provide reasonable prospects of a conviction a prosecution should normally follow, unless “public interest demands otherwise”. It continues:

 

“There is no rule of law which states that all provable cases brought to the attention of the Prosecuting Authority must be prosecuted.  On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the fair administration of justice.”

 

The policy further provides that when considering whether or not it will be in the public interest to prosecute, prosecutors should consider all relevant factors, including the nature and seriousness of the offence, the interests of the victim and the broader community and the circumstances of the offender.

 

114. Part 5 of the Policy Directives deals with the withdrawal and stopping of cases.  The guidelines draw a clear distinction between withdrawing charges and the stopping of a prosecution. Paragraphs (8) and (9) of Part 5 note that the stopping of a prosecution in terms of section 6(b) of the CPAct effectively means that the prosecuting authority is abandoning the case and accordingly, as a rule, criminal proceedings should only be stopped when it becomes clear during the course of the trial that it would be impossible to obtain a conviction or where the continuation thereof has become undesirable due to exceptional circumstances.

 

115. Likewise, in relation to the withdrawal of charges, paragraph (1) of Part 5 states that once enrolled, cases may only be withdrawn on compelling grounds “e.g. if it appears after thorough police investigation that there is no longer any reasonable prospect of a successful prosecution”. Paragraph (5) provides that no prosecutor may withdraw any charges without the prior authorisation of the NDPP or the DPP where the prosecution has been ordered by either the NDPP or DPP; while paragraph (6)(a) stipulates that the advice of the NDPP or DPP should be sought where the case is of a sensitive or contentious nature or has a high profile.

 

116. Part 6 of the Policy Directives governs the question of representations. It generally provides that representations should be given earnest attention. Paragraphs (5) and (6) have assumed importance in this case. They read:

 

.  Where a decision of a lower court prosecutor to prosecute or not to prosecute is the                   subject matter, representations should be directed to the Senior or Control                                   Prosecutor, and thereafter to the DPP, before the final appeal is made to the NDPP.                       Potential representors should, where possible, be advised accordingly.

 

As a matter of law and policy, the NDPP requires that the remedy of recourse to the                    DPP be exhausted before representors approach the NDPP.”

 

The reviewability of prosecutorial decisions

 

117. The NDPP in in paragraph 47.7 of her written submissions argued that section 179(5)(d) of the Constitution, allowing her to review decisions to prosecute or not to prosecute, excludes the power of the courts to review non-prosecution. Mr Hodes SC, on behalf of the NDPP, initially persisted in argument with the contention that the Constitution vests exclusive power in the NDPP to review prosecutorial decisions. The courts, he submitted, have no power to review any prosecutorial decision, only the NDPP may do so and her decision will be final and not reviewable. That can never be; if only because the SCA has already pronounced that prosecutorial decisions are subject to rule of law review. It is inconceivable in our constitutional order that the NPA would be immune from judicial supervision to the extent that it may act illegally and irrationally without complainants having access to the courts. Considering the implications, one can only marvel at the fact that senior lawyers are prepared to make such a submission. The mere existence of a permissive extra-judicial measure allowing the NDPP to review decisions to prosecute or not to prosecute taken by subordinates on policy, evidentiary and public interest grounds, does not deny an aggrieved party access to court. Section 179(5)(d) of the Constitution does not aim to oust the constitutional and statutory jurisdiction of the courts to review on grounds of legality, rationality and administrative reasonableness.

 118. During the course of argument counsel’s line of reasoning evolved and transformed, as it had to, into two principal assertions: first, granted that judicial review of prosecutorial decisions is constitutionally ordained, it is restricted to extremely limited grounds; and second, resort to the courts is excluded until the process envisaged in section 179(5)(d) of the Constitution has been exhausted. I deal in this part only with the nature and extent of the power to review prosecutorial decisions. I will consider counsel’s contention that the section 179(5)(d) process must be exhausted before resort to the courts is permitted at a later stage in this judgment.

119. At times it would be naïve of the courts to pretend to be oblivious to the political context and consequences of disputes before them.[27] In politically contentious matters, the courts should expect to be called upon to explicate the source, nature and extent of their powers. There has been much public commentary in the media in relation to this case which has sought to represent the issue of contestation to be about the extent of judicial power in relation to the executive. There is an important and legitimate element of truth in that. A danger exists though in the arising of a false perception that the courts when exercising judicial review of prosecutorial decisions may trespass illegitimately into the executive domain.

120. It accordingly seems to me imperative, in the light of counsel’s submissions, to deal comprehensively with the power of the courts in relation to executive decisions of this kind. I do so in the hope of dispelling the myth that the courts are untowardly assuming powers of review, and to illustrate that the powers of the courts to review prosecutorial decisions are clearly defined and are consistently exercised within the parameters set by the Constitution and Parliament.

121. The discretion of the prosecuting authority to prosecute, not to prosecute or to discontinue criminal proceedings is a wide one. Nonetheless, as is reflected in the Prosecution Policy Directives, the prosecuting authority has a duty to prosecute, or to continue a prosecution, if there is a prima facie case and if there is no compelling reason for non-prosecution.

122. Courts all over the world are reluctant to interfere with a prosecuting authority’s bona fide exercise of the discretion to prosecute. In R (On the Application of Corner House Research and Others) v Director of the Serious Fraud Office[28] the House of Lords (per Lord Bingham) expressed the need for deference and caution, stating that courts should disturb the decisions of an independent prosecutor only in “highly exceptional cases”. Courts recognise that at times it will be within neither their constitutional function nor practical competence to assess the merits of decisions where the polycentric character of official decision-making, including policy and public interest considerations, mean they are not susceptible or easily amenable to judicial review.[29] The constitutional requirement that the prosecuting authority be independent, and should exercise its functions without fear, favour or prejudice, justifies judicial restraint.

 

123. However, judicial restraint can never mean total abdication. The discretions conferred on the prosecuting authority are not unfettered. In the United Kingdom, for instance, prosecutors must exercise their powers in good faith and so as to promote the statutory purpose for which they are given, direct themselves correctly in law, act lawfully, exercise an objective judgment on the relevant material available to them, and be uninfluenced by any ulterior motive, predilection or prejudice.[30] Hence, although following a deferential approach in the UK, review of all prosecutorial decisions is permissible on legality and rationality grounds.

 

124. Our law is not significantly different. Courts will interfere with decisions to prosecute where the discretion is improperly exercised (illegal and irrational),[31] mala fides,[32] or deployed for ulterior purposes.[33] They will do so on the ground that such conduct is in breach of the principle of legality. The constitutional principle of legality requires that a decision-maker exercises the powers conferred on him lawfully, rationally and in good faith.[34] The standard applies irrespective of whether or not the exercise of power constitutes administrative action in terms of the Promotion of Administrative Action Act[35] (“PAJA”), our legislative code of administrative law which gives effect to the constitutional right to administrative action which is lawful, reasonable and procedurally fair,[36] and which to a considerable extent shapes the separation of powers between the judiciary and the executive. PAJA provides a broader range of review grounds than the principle of legality. Section 1(ff) of PAJA, however, excludes decisions to institute or continue a prosecution from the definition of administrative action.

125. The law in relation to decisions not to prosecute or to discontinue a prosecution is in some respects different. The CC has recognized in an obiter dictum that different policy considerations may apply to a decision to prosecute and a decision not to prosecute.[37]The SCA has also referred to the policy considerations underpinning the exclusion of decisions to prosecute from administrative review.[38] In National Director of Public Prosecutions v Zuma[39]Harms DP acknowledged in an obiter dictum the possibility of a judicial review of a decision not to prosecute and held that such review had not been excluded by PAJA. In Democratic Alliance and Others v Acting National of Public Prosecutions and Others[40] Navsa JA, without referring to the view of Harms DP in Zuma, seemed to intimate, also in an obiter dictum, that a decision to discontinue a prosecution might not be reviewable under PAJA, but held that a decision to discontinue a prosecution was in any event subject to a rule of law review. The learned judge of appeal said:

“While there appears to be some justification for the contention that a decision to discontinue a prosecution is of the same genus as a decision to institute or continue a prosecution, which is excluded from the definition of ‘administrative action’ in terms of section 1(ff) of PAJA, it is not necessary for us to finally decide that question. Before us it was conceded…that a decision to discontinue a prosecution was subject to a rule of law review. That concession in my view was rightly made …[I]n Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA) this court noted that the office of the NDPP was integral to the rule of law and to our success as a democracy. In that case this court stated emphatically that the exercise of public power…must comply with the Constitution.”

 

126. So whether or not PAJA applies, decisions not to prosecute or to discontinue a prosecution are subject to legality and rationality review. Legality review, if I may state the obvious, is concerned with the lawfulness of exercises of public power. Decisions must be authorised by law and any statutory requirements or preconditions that attach to the exercise of the power must be complied with.  Rationality review is concerned with the relationship between means and ends and asks whether the means employed are rationally related to the purpose for which the power was conferred. The process followed in reaching a decision must also be rational.[41] As pointed out by the CC in Democratic Alliance v President of the Republic of South Africa and Other[42] a rationality standard prescribes a low threshold of scrutiny, and hence validity, for executive or administrative action. It is the minimum threshold requirement applicable to the exercise of all public power by members of the executive and other functionaries.

127. Rationality review also comprises a procedural element. A refusal to include relevant and interested stakeholders in a process, or a decision to receive representations only from some to the exclusion of others, may render a decision irrational. In Albutt v Centre for the Study of Violence and Reconciliation and Others[43] the CC held that the exclusion of victims from participation in a special pardon dispensation was irrational because it disregarded the objective of nation building and reconciliation in the legislative scheme.

128. Decisions coloured by material errors of law, based on irrelevant considerations or ignoring relevant considerations could arguably be considered to be illegal or irrational. Traditionally these grounds are acknowledged as distinct review grounds, like the ground of unreasonableness, which permits review of decisions that no reasonable person could have so decided. These grounds are available in our law under PAJA in respect of decisions that fall within the definition of “administrative action”. As some of the challenges made by the applicant to the decisions of the respondents in this case are predicated upon such grounds, it is necessary to consider if they are available. This requires me to make a finding whether or not a decision to discontinue a prosecution (or to withdraw charges) is administrative action within the meaning of that term as defined in section 1 of PAJA. 

129. Section 1(ff) of PAJA, as mentioned, explicitly excludes decisions to institute or continue a prosecution from the definition of administrative action, and hence such are patently not reviewable under PAJA. The legal position with regard to decisions not to prosecute or to discontinue a prosecution is less clear. The CC has not pronounced finally on whether the decision not to prosecute constitutes administrative action; and the SCA, as mentioned, has expressed two different prima facie opinions on the matter.

130. In general, a decision will constitute administrative action if it is made under an empowering provision and taken by an organ of state exercising a power in terms of the Constitution, or exercising a public power or performing a public function in terms of legislation, which adversely affects the rights of any person and which has a direct, external legal effect.[44] The SCA and the CC have interpreted the definition to include a decision which has the capacity to affect legal rights and where it impacts directly and immediately on individuals.[45] 

131. The NDPP and the DPPs, making up the prosecuting authority in terms of the Constitution and the NPA Act, are unquestionably organs of state. In addition, the power of non-prosecution is a corollary to the power to institute and carry out criminal prosecutions.[46] The power derives from s 179(2) of the Constitution which provides that the prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. It follows that a decision by the prosecuting authority to withdraw charges or to stop a prosecution constitutes the exercise of a power in terms of the Constitution. It involves exercising a public power in terms of legislation, namely the NPA Act; and has a direct, external legal effect. It results in a prosecution being stopped or avoided. And, lastly, it adversely affects the rights of the public, and at least the complainants, who are entitled to be protected against crime through, amongst other measures, the effective prosecution thereof.  A decision to withdraw criminal charges or to discontinue a prosecution accordingly meets each of the definitional requirements of administrative action.

132. A purely textual interpretation of the definition of administrative action thus confirms that prosecutorial decisions in general do indeed constitute administrative action and are subject to review under PAJA. This is affirmed further by the fact that section 1(ff) excludes from the definition of administrative action specific instances of prosecutorial discretion, namely the institution and continuance of a prosecution, thus implying ex contrariis that other prosecutorial decisions, most especially the decision not to institute or to discontinue a prosecution, are not so excluded.[47]  That choice by the legislature appears to have been deliberate, and is based on sound policy considerations. Professor Cora Hoexter in her seminal work, Administrative Law in South Africa, comments on the exclusionary clause as follows[48]:

“The intention behind this provision, as reflected by the draft Administrative Justice Bill appended to the South African Law Commission’s 1999 report, was to confine reviews under PAJA to decisions not to prosecute. There is less need to review decisions to prosecute or to continue a prosecution as types of administrative action, since such decisions will ordinarily result in a trial in a court of law.”

I would accordingly respectfully disagree with the obiter dictum of Navsa JA, in Democratic Alliance and Others v Acting National of Public Prosecutions and Others,[49] that a decision to discontinue a prosecution is of the same genus as a decision to prosecute. For the reasons stated by Professor Hoexter, a decision of non-prosecution is of a different genus to one to institute a prosecution. It is final in effect in a way that a decision to prosecute is not.

133. In addition to the language of the definition of administrative action incorporating prosecutorial decisions within its ambit, as well as the implication of the text of the exclusionary clause, (that but for its terms a decision to prosecute would have fallen within the definition and would have constituted administrative action), the original historical intent, as evidenced in the context and the travaux preparatoire mentioned by Professor Hoexter, fortifies the proposition that the intention of the legislature was to limit the extent of the exclusion and bestow a more extensive power of review over decisions not to prosecute or to discontinue a prosecution. Added to that, as already intimated, there are legitimate structural and prudential arguments justifying the distinction. There is no need to review decisions to prosecute because the lawfulness and rationality of the decision can be challenged in the subsequent criminal trial; but there is perhaps a need for wider review of a decision not to prosecute because without it there will be inadequate supervision.    

134. Consequently, the preponderance of the modalities of interpretation, the text, historical intent, the ethos of our culture of justification, prudential and structural considerations, and doctrine, all point inexorably to the conclusion that it was the intention of Parliament, pursuant to its obligation in section 33(3) of the Constitution to enact PAJA, that decisions not to prosecute or to discontinue prosecutions would be subject to judicial review in terms of PAJA.

135. Such a finding, I trust, will not be viewed as a case of the courts assuming the power of review on the basis of casuistic practice or doctrine, or worse still, a judicial whim, as the media and social commentators appear sometimes mistakenly to believe. It is not the judiciary which has mandated judicial review of decisions not to prosecute or to discontinue prosecution. It is Parliament that has done so. In fulfilment of its obligation to define the parameters of the doctrine of the separation of powers, Parliament enacted PAJA.

136. I make the point, and most likely labour it, because the bald submission was made in argument, repeatedly, and at times vociferously, that a court exercising a power to review a decision of the prosecuting authority to discontinue prosecution ipso facto will trespass on the executive domain. The constitutional ethos and the governing legislative provisions, textually and contextually, demonstrate that proposition to be false. Arguments of this order are predicated on an incorrect understanding of the principle of the separation of powers. They misstate the proper legal position and carry the danger of demeaning the courts in the eyes of the public by misrepresenting the nature and legitimacy of the judicial function.

137. In conclusion, therefore, the law enacted by Parliament, in compliance with the obligation entrusted to it by the founders of our Constitution, imposes a duty on judges to review certain prosecutorial decisions. Far from trespassing into the executive domain, any judge in the South African constitutional order who declines deferentially to review a decision not to prosecute, in the mistaken belief that he or she is mandated by the doctrine of the separation of powers to do so, will ironically be acting in violation of the doctrine of the separation of powers. PAJA has separated the powers. And the power to review a decision not to prosecute has been constitutionally and legislatively separated to the judiciary.

138. A similarly misplaced argument calling for deference was advanced in the CC in Democratic Alliance v President of the Republic of South Africa and Others[50]in an attempt to persuade the court to adopt restraint in a rationality review of a decision of the President on the ground that review would violate the separation of powers. The argument was rejected as follows:

“It is therefore difficult to conceive how the separation of powers can be said to be undermined by the rationality enquiry. The only possible connection might be that rationality has a different meaning and content if separation of powers is involved than otherwise. In other words, the question whether the means adopted are rationally related to the ends in executive decision-making cases somehow involves a lower threshold than in relation to precisely the same decision involving the same process in the administrative context. This is wrong. Rationality does not conceive of differing thresholds. It cannot be suggested that a decision that would be irrational in an administrative law setting might mutate into a rational decision if the decision being evaluated was an executive one. The separation of powers has nothing to do with whether a decision is rational. In these circumstances, the principle of separation of powers is not of particular import in this case. Either the decision is rational or it is not”

139. By the same token, the submission, made on behalf of the NDPP in this case, that the court should not exercise a review power over prosecutorial decisions or, if it does so, should decline from ordering a prosecution because that would offend against the principle of the separation of powers, is, as I have said, equally unsustainable. Either the decision is administrative action or it is not. If it is, it may be reviewed on the grounds enunciated in section 6 of PAJA and one of the remedies provided for in section 8 of PAJA must be appointed. Our law, unlike that of other countries, rests upon a fundamental right to administrative justice and a legislative code unambiguously bestowing a power to review decisions not to prosecute or to discontinue a prosecution on the courts.

140. There is in any event no logical reason to confine review of non-prosecution to grounds of illegality and irrationality, while excluding grounds such as reliance on irrelevant considerations, ignoring relevant considerations or even unreasonableness. These standards are judicially determinable and just as capable of application as the standards of legality and rationality. It seems to me, therefore, inherently wrong to allow laxity to prosecutors, by permitting them to act unreasonably or unfairly, when there is no compelling policy or moral reason for doing so, especially in an era where throughout the world corruption and malfeasance are on the rise. Our Parliament in permitting review of non-prosecution on these grounds is patently of similar persuasion.

The withdrawal of the fraud and corruption charges

141. The first impugned decision is the one of 5 December 2011 taken by Mrwebi to withdraw the fraud and corruption charges preferred against Mdluli on 20 December 2011. The charges essentially allege that Mdluli abused the State’s financial resources for private gain for his and his wife’s benefit. The SSA, as I have mentioned, is controlled by the crime intelligence unit over which Mdluli exercises control.

142. FUL contends that that decision by Mrwebi to withdraw the fraud and corruption charges is liable to review on the five alternative grounds. First, in terms of the Constitution, only the NDPP is entitled to discontinue a prosecution. The decision was therefore ultra vires. Second, the decision was unlawful because it was taken by Mrwebi alone, when he could only take such decision in consultation with the DPP of North Gauteng. Third, the decision was irrational because it was taken without properly consulting the prosecutors and investigators directly involved in the case. Fourth, the decision was arbitrary because it was taken in the face of overwhelming evidence in support of prosecution. Fifth, the decision was based on Mrwebi’s incorrect belief that the fraud and corruption charges could only be investigated by the IGI and was thus based on a material error of law.

 

143. The first ground rests on an interpretation of section 179(5)(d) of the Constitution, which empowers the NDPP to review a decision to prosecute or not to prosecute, after consulting with the relevant DPP, the accused, the complainant and any other relevant person. In National Director of Public Prosecutions v Zuma[51] the SCA held that the power of review conferred on the NDPP by section 179(5)(d) of the Constitution  “can only be an ‘apex’ function, in other words, a function of the head of the NPA qua head”, which according to FUL suggests that no other functionary within the NPA may exercise the power of review.

144. Section 179(3)(b) of the Constitution provides that national legislation must ensure that DPPs are responsible for prosecutions in specific jurisdictions, but specifically adds that the provision is subject to subsection (5). The cross reference to subsection (5) implies that the DPPs are answerable to the NDPP who in terms of the various paragraphs of the subsection has the power to determine prosecution policy and the right to intervene in the prosecution process to ensure compliance with policy directives, as well as the right of review conferred in paragraph (d). The rationale for such arrangement, according to FUL, would appear to be that once commenced a prosecution should continue to conclusion unless there are weighty considerations justifying cessation. In order to avoid inappropriate influence in that regard, the Constitution consciously assigned the function of review to a more impartial official at the apex, removed from the jurisdiction in which the prosecution was commenced.  FUL accordingly submits that only the NDPP is entitled to re-visit a decision to prosecute made by a member of the NPA and to withdraw the charges; and then only after proper consultation as contemplated by section 179(5)(d). If correct, it would follow that Mrwebi had no power to withdraw the fraud and corruption charges at all. It was incumbent on him to refer the matter to the NDPP. He did not do that. His decision would accordingly be ultra vires, and could be set aside on that basis alone.

145. I am not persuaded that this submission is correct. I doubt its merit from a pragmatic and policy perspective. It would be onerous indeed if every decision to discontinue a prosecution taken by prosecutors throughout the country had to pass across the desk of the NDPP. The argument also takes insufficient account of the context and legislative scheme enacted by the NPA Act, section 6 of the CP Act and the Prosecution Policy which, as the Acting NDPP has pointed out in her answering affidavit, allow DPPs to discontinue a prosecution and more junior prosecutors to withdraw charges and stop prosecutions.

146. As head of the SCCU, Mrwebi was a Special DPP, appointed in terms of section 13(1)(c) of the NPA Act. A Special Director is entitled to exercise the powers and perform the functions assigned to him pursuant to his appointment.  In terms of section 24 of the NPA Act, a DPP may institute and conduct criminal proceedings and carry out functions incidental thereto as contemplated in section 20(3). They include the powers in section 20(1) to institute and conduct criminal proceedings on behalf of the State; carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and to discontinue criminal proceedings. Both a DPP and a Special DPP may therefore discontinue a prosecution.[52]

 

147. Moreover, a DPP, or a more junior prosecutor, is empowered by section 6 of the CP Act to withdraw charges or stop a prosecution in circumscribed circumstances with the only limitation being that the prosecution shall not be stopped in terms of section 6(b) unless the DPP or any person authorized thereto by the DPP, whether in general or in any particular case, has consented thereto. Likewise, a prosecutor may withdraw a charge in terms of section 6(a), but where the NDPP or the DPP has ordered the prosecution he or she will need prior authorisation. Where the case is of a sensitive or contentious nature or has high profile, then in terms of the Policy Directives the prosecutor is only required to seek the advice (not even the permission) of the NDPP or DPP.

 

148. It is therefore evident from section 20(1)(c) of the NPA Act, section 6 of the CP Act and various provisions of the Policy Directives that legislation and prevailing practice permit prosecutors in many cases to withdraw charges without referring the question to the NDPP for permission or review. The Acting NDPP is accordingly correct in her submission that in terms of the NPA Act and the Policy Directives Mrwebi did not need to refer the decision to withdraw the fraud and corruption charges to the NDPP. 

149. In my opinion, section 179(5)(d) of the Constitution does not reserve an exclusive power to the NDPP to discontinue a prosecution. It merely empowers the NDPP to review a decision of her subordinates to prosecute or not to prosecute, and specifies the procedure he or she should follow. The use of the verb “may” in section 179(5)(d) is indicative of a permissive discretion rather than a mandatory pre-condition. The NDPP may review decisions to prosecute or not to prosecute, at his or her own instance or on application from affected and interested persons. The intention of the drafters of the constitutional provision was not that all withdrawals of charges have to be approved by the NDPP.  

 

150. Be that as it may, and whatever the case, there is no need to pronounce finally on this ground because the decision to withdraw the charges was in fact illegal for other non-constitutional reasons.

151. Mrwebi, as I have said, is a Special DPP appointed by President Zuma as such on 1 November 2011 under proclamation 63 of 2011 published in Government Gazette no. 34767 of 25 November 2011 and in terms of section 13(1)(c) of the NPA Act. The section allows the President after consulting the NDPP and the Minister to appoint “special” DPPs. These are not ordinary DPPs or prosecutors. They have special duties and functions. In terms of the subsection they are “to exercise certain powers, carry out certain duties and to perform certain functions conferred or imposed or assigned to him or her by the President by proclamation in the Gazette.” In terms of the proviso to section 24(3) of the NPA Act a Special DPP may only exercise the powers referred to in s 20(1) of the NPA Act, including the power to discontinue criminal proceedings, in consultation with the Director of the area of jurisdiction concerned.[53] The rationale for this arrangement is that certain key decisions of a Special Director should be subject to the supervision of the most senior ordinary prosecutor in the area of jurisdiction. In this case, the relevant Director was the DPP of North Gauteng, Mzinyathi.

152. The requirement in section 24(3) of the NPA Act that the Special Director exercise any power to discontinue proceedings “in consultation with” the DPP meant that he could only do so with the concurrence or agreement of the DPP.[54] In MacDonald v Minister of Minerals and Energy[55]the principle was explained as follows:

 

“Likewise, where the law requires a functionary to act ‘in consultation with’ another functionary, this too means that there must be concurrence between the functionaries, unlike the situation where a statute requires a functionary to act ‘after consultation with’ another functionary, where this requires no more than that the ultimate decision must be taken in good faith, after consulting with and giving serious consideration to the views of the other functionary.”

 

153. The NPA Act in various provisions reflects that distinction, by requiring certain powers to be exercised “after consultation with” a specified functionary, while others can only be taken “in consultation with” the functionary.[56] Parliament in enacting legislation is presumed to have known of the rulings of the courts on the interpretation of terms enacted in the legislation, and thus to have consciously adopted and used them in the same sense.[57]. By using the term “in consultation with” in the proviso to section 24(3) of the NPA Act, Parliament consciously and deliberately introduced a requirement that a Special DPP may only discontinue a prosecution with the concurrence of the DPP in the area of jurisdiction.

154. The evidence,  extensively analysed above, shows that Mrwebi did not consult with Mzinyathi before taking the decision to withdraw the charges, let alone obtain his concurrence. By the time he met Mzinyathi he had formed a fixed, pre-determined view and was not open to persuasion never mind willing to submit to disagreement. Both he and Mzinyathi confirmed under oath in the Breytenbach disciplinary proceedings that the decision to withdraw was a fait accompli by the time Mrwebi raised it with Mzinyathi. Under cross examination by counsel for Breytenbach, Mrwebi conceded that he had taken the decision to withdraw the charges before he wrote the consultative note. It is evident from both Mzinyathi’s email of 8 December 2011 and his testimony that Mrwebi did not seek Mzinyathi’s concurrence because he believed he was functus officio.

155. Mrwebi did not claim in his answering affidavit that Mzinyathi assented to the withdrawal of the charges at the 5 December 2011 meeting. He hardly could because Mzinyathi repeatedly confirmed that he did not support the withdrawal of the fraud and corruption charges against Mdluli. It is clear from the contemporaneous correspondence and his evidence in the disciplinary proceedings that Mzinyathi wished the case to continue. Mzinyathi’s changed version of the position he took in the meeting of 9 December 2011, set out in his belatedly filed confirmatory affidavit, for the reasons stated, is not credible or reliable.

156. Hence, Mrwebi’s claim in paragraphs 27-29 of his answering affidavit that Mzinyathi and Breytenbach agreed on 9 December 2011 that the case against Mdluli was defective and should only proceed with the assistance of IGI and the Auditor General is both irrelevant and improbable. It is irrelevant because Mrwebi by that time on his own admission had already taken the decision to withdraw the charges, without obtaining the consent of the DPP, North Gauteng. It is improbable for the same reasons, and also because it is in conflict with the contemporaneous and subsequent documents prepared by Breytenbach and Mzinyathi, with their conduct and with their testimony on the course of events. On the basis of that evidence it is clear that Mrwebi took the decision to withdraw the fraud and corruption charges without first securing the DPP’s consent, which is a jurisdictional prerequisite under the NPA Act. His decision was unlawful for want of jurisdiction and must be set aside for that reason alone in accordance with the principle of legality.

157. There was some debate in argument about whether Mrwebi’s decision and his consequent instruction to Breytenbach and Smith to withdraw the charges constituted a discontinuance of criminal proceedings as contemplated in section 20(1)(c) of the NPA Act. If it did not, there was no requirement for Mrwebi to have obtained the concurrence of the DPP.

158. The applicable legislation uses three expressions with regard to the powers involved in a cessation of enrolled criminal proceedings. Section 6 of the CP Act speaks of the power to withdraw a charge and the power to stop a prosecution. The NPA Act refers to the power to discontinue criminal proceedings. The question arising is whether the powers in section 6 of the CP Act are specific instances of the more general power to discontinue a prosecution. Logically and linguistically it would seem they are. The Oxford English Dictionary gives as the first meaning of the word “discontinuance”:

“the action of discontinuing or breaking off; interruption (temporary or permanent) of continuance; cessation”

“Cessation” in turn means:

“ceasing, discontinuance, stoppage, either permanent or temporary”.

This meaning was accepted as the definitive meaning of the word in Cape Town Municipality v Frerich Holdings.[58] In Mazibuko v City of Johannesburg, [59] however, it was held that the cessation was required to be of a more permanent nature to amount to discontinuance. The meaning of the term naturally will depend on its context.

159. The withdrawal of charges in terms of section 6 of the CP Act has as its immediate consequence the interruption or stoppage, permanent or temporary, of a prosecution. The stopping of a prosecution, because of the resultant availability of the plea of autrefois acquit, will always be permanent. The possibility of a permanent cessation in both instances justifies the conclusion that they are species of the same genus, namely discontinuance. Accordingly, a decision by a DPP to withdraw charges under section 6(a) of the CP Act constitutes an exercise of the discretion to discontinue criminal proceedings in section 20(1)(c) of the NP Act. To repeat: in terms of section 24(3) of the NPA, a Special DPP like Mrwebi may only exercise that discretion with the concurrence of the DPP. On the facts he did not have it.

160. It has always been a principle of our common law that where a statute confers power on a public functionary subject to certain preconditions or jurisdictional facts, a failure to comply with the preconditions will render the exercise of the power illegal. Such jurisdictional facts are a necessary pre-requisite to the exercise of the statutory power.[60] If the jurisdictional fact does not exist, the power may not be exercised and any purported exercise of the power will be illegal and invalid. It is trite that all exercises of public power are reviewable on the same grounds for non-compliance with the constitutional requirements of the rule of law.[61] The decision of Mrwebi and his instruction to withdraw the fraud and corruption charges consequently falls to be set aside irrespective of its categorisation as administrative action or not. If we accept that the decision did constitute administrative action as defined, it is reviewable in terms of section 6(2)(b) and section 6(2)(i) of PAJA which provide that a court has power to review administrative action if a mandatory and material procedure or condition prescribed by an empowering provision was not complied with, or if the action is otherwise unconstitutional or unlawful.

161. The decision and instruction are similarly vulnerable to review on other grounds. In deciding to withdraw the corruption and fraud charges against Mdluli, Mrwebi considered representations from Mdluli’s lawyers, and from further unnamed operatives. He did not, however, call for or consider representations from the investigators in the case, the Hawks, the IGI or the Acting Commissioner of Police. Nor did he consult the prosecutors directly involved in the case on his decision to refer the matter to the IGI. He contends that he was not required to do so. FUL has argued he was obliged to consult with these stakeholders in terms of section 179(5)(d) of the Constitution, which compels the NDPP to consult with the accused, the complainant and any relevant party whenever she reviews a decision to prosecute. That duty, according to FUL, applies equally to subordinate functionaries performing the same role in terms of legislation. Section 20(3) of the NPA Act provides that the powers in section 20(1) of a DPP to discontinue a prosecution are subject to the Constitution.

162. The provisions of section 20(1)(c) of the NPA Act and section 6 of the CP Act are silent on the question of consultation. It may be that an argument could be advanced that these provisions read with the Policy Directives violate section 179(5)(d) of the Constitution, which infringement might be cured by reading the procedural requirements of section 179(5)(d) into these sections. That argument was not made before me. The less adventurous submission made by Mr Maleka SC on behalf of FUL, if I understand it correctly, is that section 20(1)(c) of the NPA Act must be read in conformity with the constitutional provision.

163. While it is correct that the Constitution requires legislation to be interpreted, where possible, in ways which give effect to its fundamental values and in conformity with it, reading words into a statutory provision should only follow upon a pronouncement of constitutional invalidity under s 172(1)(a) of the Constitution. A court, however, should still prefer an interpretation of legislation that falls within constitutional bounds over one that does not, provided it can be reasonably ascribed to the provision. Legislation, which is open to a meaning which would be unconstitutional but is reasonably capable of being read and applied in conformity with the scheme envisaged by the Constitution, should be so read, but the interpretation and application of it may not be unduly strained.[62]  

 

164. I hesitate to pronounce definitively on whether the requirements of the Constitution should be read directly into the legislation solely on the basis that the powers in section 20(1) of the NPA Act are stated to be subject to the Constitution. There is no need to do so. The decision, as I have found, is illegal for not complying with the duty to consult the DPP and it is unnecessary to resort to the Constitution to introduce, as a concrete requirement, jurisdictional facts which the legislation has not expressly enacted. More compelling though, in my possibly pedantic view, and in the end of equal consequence, is FUL’s argument that the failure properly to consult was fatal to the validity of Mrwebi’s decision in this case because it did not meet the requirements of rationality. An interpretation that the powers conferred by the legislation should be exercised rationally in conformity with the Constitution will not be unduly strained and will give sufficient effect to the fundamental values.

165. The constitutional principle of legality requires that a decision-maker exercises the powers conferred on him lawfully, rationally and in good faith.[63] The standard applies irrespective of whether or not the exercise of power constitutes administrative action in terms of PAJA. Rationality review, as explained earlier, is concerned with the relationship between means and ends and asks whether the means employed are rationally related to the purpose for which the power was conferred. The process followed in reaching a decision must be rational.[64]  A refusal to include relevant and interested stakeholders in a process, or a decision to receive representations only from some to the exclusion of others, may render a decision irrational.[65]

166. Given the purpose and objectives of the power to discontinue a prosecution, to ensure justice in the prosecutorial process, once Mrwebi decided to consider representations from any relevant person, the standard of rationality required him to deal with all stakeholders even-handedly and to consider representations both from those in favour of withdrawal and those against.[66]  The process by which he reached his decision was arbitrary, and the consequent decision irrational, because the means were not rationally linked to the purpose. He could not do justice without hearing all relevant stakeholders. At the very least, he had to observe the Policy Directives, which he also failed to do. The Prosecution Policy requires the advice of the NDPP to be sought where a sensitive, or contentious, or high profile case is to be withdrawn.[67] My understanding of the position of the NDPP is that Mrwebi’s decision was not referred to her.

167. For those reasons also, the decision to withdraw the fraud and corruption charges was irrational and consequently illegal.

168. FUL has lastly argued that Mrwebi’s decision was coloured by material errors of law, based on irrelevant considerations and, though it does not say so in so many words, intimated that the decision was so unreasonable that no reasonable person could have so decided. Strictly speaking, because of my findings that the decision was illegal and irrational in violation of the principle of legality, I do not need to deal with these submissions. However, in view of the possibility of an appeal, it seems appropriate to make a finding on the merit or otherwise of these review grounds as well.

169. To recap briefly: a decision to discontinue prosecution is administrative action within the meaning of that term as defined in section 1 of PAJA. Mrwebi’s decision to withdraw the fraud and corruption charges and to discontinue the prosecution is accordingly susceptible to review on PAJA grounds other than illegality and irrationality.

170. The charges of fraud, corruption and money-laundering were initiated against Mdluli as a result of a comprehensive investigation by Colonel Viljoen that uncovered the evidence in support of his prosecution. The prosecutors, the DPP, and the IGI all opposed the withdrawal of those charges. Breytenbach, the regional head of the SCCU, wrote a detailed memorandum to the NDPP cogently motivating why the charges should not be withdrawn. The Prosecution Policy requires that cases should only be withdrawn on compelling grounds.

171. Mrwebi, however, advanced only two reasons for his decision to withdraw the charges, which were recorded in his consultative note of 4 December 2011, and which were far from compelling.  First, he was concerned that the charges initiated against Mdluli may have been pursued with an ulterior motive. Second, he found that the offences with which Mdluli had been charged fell within the mandate of the IGI and could only be investigated by her offices. Mr Maleka submitted that each of these findings was unfounded, and was based on irrelevant considerations and material errors of law and fact.

 172. The factual claim of a conspiracy against Mdluli by his colleagues was investigated and rejected by an inter-ministerial task team established for that purpose. The evidentiary basis for that decision is not before me and I am unable to assess its probative value. But, in any event, an improper motive would not render an otherwise lawful prosecution unlawful[68] and would not excuse a prosecutor from engaging with the merits of the case. Mrwebi at the outset stated openly in his consultative note of 4 December 2011 that he saw no need to engage with the merits of the case against Mdluli. In accordance with his incorrect understanding that it was a matter for the IGI he considered it unnecessary to traverse the merits or to evaluate the evidence. He believed the referral to the IGI was “dispositive of the matter”. He took the decision without regard to the merits of a prosecution in the interests of justice and thus ignored mandatory relevant considerations.

 

173. The purported referral to the IGI was equally misdirected. The IGI’s oversight role over the intelligence and counter-intelligence services is restricted to monitoring their compliance with the Constitution and other laws, and to receive complaints of misconduct.[69] As mentioned by the IGI in her letter of 19 March 2012 to the Acting Commissioner, the IGI’s mandate does not extend to criminal investigations. Mrwebi’s decision to withdraw the fraud and corruption charges because he apparently believed them to fall within the exclusive purview of the IGI was accordingly based on a material error of law. Yet, despite being aware of the IGI’s view, as appears from his reasons for decision dated 12 July 2012, he irrationally adhered to his position. 

174. These were the only reasons advanced by Mrwebi at the time he decided to withdraw the charges. His decision was thus evidently based on errors of law and fact. He took account of irrelevant considerations and ignored relevant considerations.  The decision is therefore liable to review in terms of sections 6(2)(b), and 6(2)(e)(iii) of PAJA. In so far as the decision was attended by factual errors, and in view of Mrwebi’s stance overall, the decision was not rationally connected to the information before him and the purpose of the NPA Act, and is thus reviewable also under section 6(2)(f)(ii)(bb) and (cc) of PAJA.

175. As discussed earlier, in his reasons filed pursuant to Rule 53 and in his answering papers, Mrwebi took a different tack. He there claimed that there was insufficient evidence to support a successful prosecution against Mdluli and that he referred the matter to the IGI so that she could investigate or facilitate access to the privileged documentation required. The withdrawal of the charges, he said, was merely provisional, to allow for further investigation to take place. This version is at odds with the contemporaneous reasons Mrwebi gave for his decision, and the evidence of Breytenbach and Mzinyathi in the disciplinary proceedings.  Even if the charges were supposedly provisionally withdrawn in court, Mrwebi’s pronouncements at the time evinced an unequivocal intention to stop proceedings altogether. He considered the referral to the IGI as “dispositive”; and in his letter of 30 March 2012 to General Dramat he referred to the matter as “closed”. In the circumstances, his new version is implausible and probably invented after the fact, in what FUL submits was “a last-ditch attempt to explain his otherwise indefensible approach”. But even if the decision was in fact “provisional”, its qualification as such does not save it from illegality, irrationality and unreasonableness. A provisional decision which languishes for two years without any noticeable action to alter its status may be inferred to have acquired a more permanent character.

176. For all of the many reasons discussed, the decision and instruction by Mrwebi to withdraw the fraud and corruption charges must be set aside. It was illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it.

The withdrawal of the murder and related charges

 

177. The second decision challenged by FUL is the decision of Chauke, the DPP of South Gauteng, to withdraw the murder charge and refer the issue of Ramogibe’s death to an inquest and to withdraw all the other charges against Mdluli, to avoid “fragmented trials” in order to allow Mdluli to stand one trial where he could answer all of the charges against him. FUL challenges the decision on three grounds:  it was taken by the DPP, South Gauteng when only the NDPP is entitled to review a decision by another official of the NPA to discontinue a prosecution; it was taken without proper consultation; and was unfounded and irrational.

 

178. I have already addressed FUL’s contention that the NDPP has exclusive power to review and withdraw a decision to prosecute. The power conferred on the NDPP to review the decision of a subordinate to prosecute or not to prosecute by section 179(5)(d) of the Constitution and section 22 of the NPA Act, in my estimation, does not directly exclude or limit the power conferred upon a DPP by section 20(1)(c) of the NPA Act to discontinue criminal proceedings and by section 6 of the CP Act to withdraw charges or to stop a prosecution. It was never intended in enacting the constitutional provisions that the NDPP would be the sole repository of the power to discontinue a prosecution.

 

179. However, as I explained in the analysis of the first impugned decision, any decision by an official of the prosecuting authority to discontinue a prosecution will need to be properly informed by relevant considerations if it is to be upheld as rational. The failure to consult with affected and interested parties often, if not invariably, will have the consequence that vital relevant information is ignored and the decision will be coloured by irrationality because there is no rational connection between the information available to the official, the purpose of the empowering provision, the decision and the reasons for it.

 

180. Accordingly, I accept FUL’s submission that the rule of law and the requirement of rationality constrained Chauke to consider representations from the complainants and victims of the alleged crimes. Chauke did not deny the averments made in the founding affidavit and the supplementary founding affidavit that he did not seek input from the victims and other role players. He referred only to representations from the legal representatives of Mdluli. Moreover, the Policy Directives also obliged him to seek the advice of the Acting NDPP before withdrawing the murder and related charges. Both the Acting NDPP and Chauke confirm in their affidavits that he did not refer the matter to her. The decision to withdraw those charges was accordingly taken without the legal and rational prerequisites to the exercise of the power being met. The process leading to the decision being taken was irrational because it lacked input from crucial stakeholders in the process. It also appears to have given no weight at all to the evidence of the victims of the other crimes as alleged in the 17 non-murder charges, from which it may be inferred symptomatically that Chauke failed to apply his mind to all the relevant considerations mandated by the Constitution, and in the ultimate analysis acted capriciously; meaning that his decision was reviewable in terms of section 6(2)(e)(vi) of PAJA.

 

181. The details of the investigation that led to the murder and related charges being preferred against Mdluli are painstakingly set out in a report by the investigating officer, Colonel Roelofse, which strictly speaking is hearsay, but with the content of which none of the respondents has taken issue. The evidence against Mdluli also appears from the affidavits filed in the inquest proceedings, which, as discussed, include affidavits from different witnesses claiming that they were personally intimidated, assaulted and/or kidnapped by Mdluli; and affidavits from seven witnesses who personally witnessed Mdluli threatening to kill Ramogibe, or threatening and assaulting other people. This evidence presents a compelling prima facie case against Mdluli.

182. In terms of the Prosecution Policy Directives, Chauke may only withdraw charges in the face of such formidable evidence if there are compelling reasons to do so. Yet, he has advanced none. Instead, he has stated puzzlingly that he is disinclined to prosecute because there is no direct evidence linking Mdluli to the murder of Ramogibe. He has offered no evaluation of the cogency of the circumstantial evidence against Mdluli. And although circumstantial evidence involves an additional tier of inferential reasoning, it is incorrect to assume such evidence in the end will prove less cogent than direct evidence. All involved in the administration of criminal justice, including I imagine Chauke, the most senior public prosecutor in Johannesburg, know that circumstantial evidence at times can be more persuasive than direct evidence. In any event, there is in fact direct evidence in relation to the charges of attempted murder, kidnapping and assault, which were withdrawn as a corollary to the decision to avoid prosecuting Mdluli on a piecemeal basis.

183. Chauke’s reliance on the inquest finding for his decision not to proceed is patently irrational. An inquest, as I explained when discussing the facts, is an investigatory process directed primarily at establishing a cause of death where the person is suspected to have died of other than natural causes. It is not aimed at establishing anyone’s guilt and, indeed, could not competently do so.[70] The presiding officer is not called on to make any finding as to culpability. An inquest is no substitute for a criminal prosecution because it cannot determine guilt. In fact, once criminal charges have been brought in relation to a particular death, an inquest will generally be precluded, since the two processes should not run concurrently.

184. Chauke’s motive for referring the matter to an inquest is therefore dubious. The identity of the deceased was known, as was the cause of his death. The only outstanding issue is the culpability of Mdluli. Chauke could never have hoped to establish Mdluli’s culpability, and to resolve the criminal prosecution, by referring the matter to an inquest. The inquest findings are not binding on the prosecuting authority. Chauke’s statement in his affidavit that in the light of the inquest finding “it would be presumptuous and foolhardy” to prosecute is accordingly wrong in law and symptomatic of the irrationality of his decision, evincing as it does a lack of rational connection between the purpose of his decision, the various empowering provisions, the evidence before him and the reasons he gave for his action.

185. In any event, to state the blatantly obvious, and as the magistrate himself was at pains to point out, the inquest could only deal with the murder charges. It could not, and did not, address the remaining 17 charges of kidnapping, assault, intimidation and defeating the ends of justice that were preferred against Mdluli. It follows that a referral to inquest proceedings could never have provided a sufficient basis to withdraw those remaining charges. The justification of avoiding fragmented trials fell away on 2 November 2012, almost a year ago, when the magistrate handed down his reasons. Chauke has failed to address these other charges (and the purported basis for their withdrawal) in his answering affidavit at all. As Mr Maleka correctly submitted, that must be because he has not properly applied his mind to those charges, and the correctness of their withdrawal; or, more troublingly, perhaps because he is acting capriciously and with an ulterior purpose.

186. Accordingly, the decision to withdraw the murder and related charges was taken in the face of compelling evidence for no proper purpose, is irrational and therefore reviewable on legality and rationality grounds, as well as in terms of section 6(2)(e) and (f) of PAJA and falls to be set aside.

The NDPPs arguments on reviewability and the duty to exhaust internal remedies

 

187. In both his written submissions and in argument, counsel for the NPA gave little attention to the review grounds raised by FUL in relation to the two impugned decisions, and concentrated instead upon the contention that the court had no power to review the decisions of a DPP or Special Director. As he put it in paragraph 12 of his heads of argument:

 

“The most significant aspect that this Honourable Court will be required to decide is whether it does in fact have the right (sic) to review these two decisions.”

 

The submission was developed in paragraphs 42-43 of the heads as follows:

 

“These statutory provisions have been the subject matter of numerous judicial decisions.  Nevertheless, despite commentary and statements to the contrary, it has never been judicially pronounced that there is in fact a right to review a decision by a Director of Public Prosecutions or the National Director of Public Prosecutions to provisionally withdraw criminal charges against an accused person.

Put somewhat differently, the Applicant’s legal representatives are challenged to identify any matter in which such an application for review has succeeded and resulted in a decision by the First Respondent or any of its subordinates to withdraw charges being set aside and the First Respondent being compelled to forthwith reinstate criminal charges and prosecute them without delay, which is the relief sought herein against the First and Third Respondents.”

188. After analysing the judgment of Harms DP in National Director of Public Prosecutions v Zuma[71] in some detail, counsel submitted that the decision was authority for various propositions, only three of which are relevant for present purposes (the others have been disposed of in the preceding analysis). In paragraph 47 of the heads he submitted: firstly, a prosecutorial review is not an administrative decision that is subject to review in the normal course or in terms of PAJA; secondly, a decision to withdraw charges pending the receipt of further evidence and to prosecute or not to prosecute is not necessarily final; and thirdly a decision to prosecute or not to prosecute is not subject to judicial review.

189. As to the first proposition, if by a “prosecutorial review” is meant an exercise by the NDPP of her discretion under section 179(5)(d) of the Constitution, then the contention is not sustainable. As I have said, and it bears repeating, it is inconceivable that the Constitution intended to exclude judicial review of such decisions entirely. Whether the decision would be administrative action or not is possibly debatable, but the authorities already discussed leave no doubt that any action in terms of that provision will still be subject to a rule of law review on grounds of legality and rationality. However, it is important to note, we are not here concerned with a review under section 179(5)(d). Although Mdluli’s initial representations were addressed to the NDPP, it does not seem that she acted on them. Mrwebi and Chauke took the impugned decisions. The decisions at issue are in fact decisions to withdraw charges in terms of section 6 of the CP Act

190. The third proposition, presumably with section 6 of the CP Act in mind, is plainly wrong. For the reasons spelt out earlier, when discussing the reviewability of prosecutorial decisions, a decision to prosecute is subject to rule of law review and a decision not to prosecute or to discontinue a prosecution is subject to rule of law review and in addition to review in terms of PAJA. Nor do I accept Mr Hodes’ related submission that the possibility of obtaining a certificate of nolle prosequi and the right to pursue a private prosecution in terms of section 7 of the CP Act ousts the review jurisdiction of the courts. The existence of this procedure cannot be read to give the NDPP carte blanche to act without regard to the requirements of legality, rationality and reasonableness. The suggestion is preposterous and no more need be said.

191. The second proposition does however pose a legitimate challenge. It forms the basis of the argument counsel developed in court that resort to the court should be denied until internal remedies are exhausted. All the deponents who filed affidavits on behalf of the NPA highlighted the alleged “provisional” nature of the decision to withdraw charges. And, the Acting NDPP consciously pleaded that the decisions to discontinue the prosecutions “have not been brought to my office for consideration in terms of the regulatory framework” and submitted that the application to review the withdrawal of the charges by the court was accordingly “premature”.

 

192. The regulatory framework to which the NDPP refers is of course section 179(5)(d) of the Constitution read with section 22(2)(c) of the NPA Act which permit her to review decisions of her subordinates to prosecute or not to prosecute. It includes also Part 6 of the Policy Directives, in particular paragraphs (5) and (6) which provide that where a decision of a lower court prosecutor to prosecute or not to prosecute is the subject matter, representations should be directed to the Senior or Control Prosecutor, and thereafter to the DPP, before the final appeal is made to the NDPP. It is explicitly stated that as a matter of law and policy, the NDPP requires that the remedy of recourse to the DPP be exhausted before representors approach the NDPP. Unfortunately, these provisions were not referred to in argument and I do not have the benefit of counsel’s submissions regarding their content or status. They normally would require compliance, and do indicate an intention to introduce a duty to exhaust internal remedies by representors (which FUL is not) where representations have been made. However, for reasons I will elucidate presently, non-compliance is not fatal to this review application.

 

193. First of all, the categorisation of the withdrawal of charges as “provisional” is inconsequential. All withdrawals which do not amount to the stopping of a prosecution in terms of section 6(b) of the CP Act are provisional in the sense that it always remains possible to re-institute charges withdrawn under section 6(a) of the CP Act. The withdrawal of charges under section 6(a) of the CP Act, as explained, and as I suspect is the case in the majority of withdrawals, can easily become permanent. The mere characterisation of an illegal, irrational or unreasonable decision as provisional would not automatically save it from review. Provisional or not, an illegal decision will normally be set aside.

 

194. The fact of the matter, and the more relevant truth, is that the NDPP can review any decision “not to prosecute” in terms of section 179(5)(d) of the Constitution and section 22(2)(c) of the NPA Act; and the real inquiry therefore is whether the decisions of Mrwebi and Chauke to discontinue the prosecution of Mdluli on the respective charges could only be reviewed in court once the applicant had exhausted the remedy of a review before the NDPP under those provisions.

 

195. FUL’s response to the contention that the application is premature is somewhat cryptic. In paragraph 78 of the replying affidavit it first rejects the proposition that only the NDPP may review the decisions of DPPs and Special DPPs to discontinue a prosecution and then in paragraph 79 states:

 

“In any event, it is plain that the first respondent has long since been aware of the relevant decisions and at the very least tacitly confirmed them.”

 

The Acting NDPP did not make any replicating averment in answer to this plea. In the belatedly filed supplementary answering affidavit, Mrwebi merely re-asserted that the court has no power at all to review prosecutorial decisions, which is patently wrong, and, as Justice Kriegler rightly says, a little worrying to hear from a senior prosecutor. In fairness though, Mrwebi did add that the application was in any event “premature”. However, Mrwebi did not take issue with the allegation that the NDPP had tacitly confirmed the decisions to withdraw. She clearly has done exactly that.

196. The dispute that forms the subject matter of this application has been on-going for more than 18 months since February 2012. Given its high profile nature and the outcry about it in the media and other quarters, there can be no doubt that the NDPP was aware of it, and its implications, from the time the charges were withdrawn. Mdluli’s representations were sent to her and she referred them down the line; probably rightly so. But she was nonetheless empowered by section 179 of the Constitution to intervene in the prosecution process and to review the prosecutorial decisions mero motu; yet despite the public outcry she remained supine and would have us accept that her stance was justified in terms of the Constitution. She has not given any explanation for her failure to review the decisions at the request of Breytenbach made in April 2012. Her conduct is inconsistent with the duty imposed on all public functionaries by section 195 of the Constitution to be responsive, accountable and transparent.

197. Besides not availing herself of the opportunity to review the decision, she waited more than a year after the application was launched before raising the point and then did so in terms that can fairly be described as abstruse. Her “plea” made no reference to the relevant paragraphs of the Prosecution Policy Directives, the relevant provisions of PAJA or the principles of the common law. A plea resting only on an averment that an application is “premature” is meagrely particularised and lacks sufficient allegations to found a complete defence that there had been non-compliance with a duty to exhaust internal remedies. Had we to do here with a set of particulars of claim, they would have been excipiable on the grounds of being vague and embarrassing.

198. At common law the mere existence of an internal remedy is not enough by itself to indicate an intention that the remedy must first be exhausted before bringing a rule of law review.[72] As I have said, I consider the power in section 179(5)(d) of the Constitution to be permissive. There is nothing in the provision itself, or expressly stated or necessarily implied in the legislative scheme as a whole, which overtly requires a person aggrieved by a decision to discontinue a prosecution to first take the matter on review to the NDPP.

199. Moreover, in Maluleke v MEC for Health and Welfare, Northern Province,[73] Southwood J remarked, correctly in my respectful opinion, that the duty to exhaust internal remedies, if one exists, will seldom be enforced where the complaint is one of illegality, or, I would add, one of irrationality, or in cases where the remedy would be illusory. It is reasonable to infer from the Acting NDPP’s supine attitude that any referral to her would be a foregone conclusion and the remedy accordingly of little practical value or consequence in this case. Her stance evinces an attitude of approval of the decisions. Had she genuinely been open to persuasion in relation to the merits of the two illegal, irrational and unreasonable decisions, she would have acted before now to assess them, explain her perception, and, if so inclined, to correct them.

200. Section 7(2)(c) of PAJA is more stringent than the common law and permits exemption from the duty to exhaust internal remedies only in exceptional circumstances on application. I am satisfied that there are exceptional circumstances in this case, being those pleaded by FUL. Admittedly, there is no formal application for exemption, primarily I imagine because the special plea, if that, was so abstrusely pleaded; which is sufficient basis to grant condonation. In Koyabe v Minister of Home Affairs[74] the Constitutional Court stated that these requirements should not be rigidly enforced and should not be used by officials to frustrate the efforts of an aggrieved person or to shield the decision-making process from judicial scrutiny. Furthermore, and most importantly in this case, the remedy in question must be available, effective and adequate in order to count as an existing internal remedy. For the reasons I have stated, a referral to the NDPP in this case would be illusory. Had the NDPP truly wanted to hold the remedy available, instead of simply asserting that the application to court was premature, as a senior officer of the court she would (and should) have assisted the court by reviewing the decisions and disclosing her substantive position in relation to them and their alleged illegality and irrationality. She has not pronounced at all on the decisions or for that matter the evidence implicating Mdluli. Her stance is technical, formalistic and aimed solely at shielding the illegal and irrational decisions from judicial scrutiny.

201. In any event, if I am wrong in this, the more stringent PAJA standard does not apply to a rule of law review, and the duty to exhaust internal remedies before resorting to such a review may be dispensed with on the grounds and for the reasons to which I have already alluded.

202. In the result, the failure of FUL to resort to a review in terms of section 179(5)(d) of the Constitution is no bar to this application or the jurisdiction of the court.

The withdrawal of the disciplinary proceedings and the reinstatement of Mdluli

 

203. FUL challenges the decision to withdraw the disciplinary charges against Mdluli, made by the Acting Commissioner, Lieutenant-General Mkhwanazi, on 29 February 2012, as well as the related decision of 27 March 2012 to lift his suspension and to re-instate him to his position, on two grounds: firstly, it contends that the Acting Commissioner took those decisions acting on the dictates of another, and therefore failed to discharge his duties under s 207(2) of the Constitution; and in taking those decisions, the Acting Commissioner failed to protect the integrity of the SAPS, and to give effect to the SAPS Act and Regulations.

204. The Commissioner has raised defences that FUL has no standing to challenge the decisions, and the court no jurisdiction to hear them, because they are disciplinary labour matters within the prerogative of the Commissioner and any dispute in that regard within the exclusive jurisdiction of the Labour Court. She contended further that the review of the disciplinary proceedings have become moot since new disciplinary proceedings were initiated on 15 May 2012 and Mdluli was re-suspended on 25 May 2012.

205. Section 207(2) of the Constitution provides:

“The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.”

206. As the official responsible for managing and controlling the SAPS, it fell to the Acting Commissioner to take disciplinary decisions concerning high-level officials. He had to exercise the discretion conferred on him himself, and could not abdicate his decision-making power to another, nor act on the instructions of a functionary not vested with those powers.[75] 

207. In paragraph 45 of the founding affidavit FUL, alleged that the Acting Commissioner publicly stated in Parliament that he took the decisions to withdraw the disciplinary charges on instruction from authorities “beyond him. It added that by acting on the instructions of authorities beyond him, the Acting Commissioner failed to act independently in the discharge of his functions, and accordingly acted inconsistently with section 207 of the Constitution. Mkhwanazi in his answering affidavit filed in the proceedings related to Part A of the notice of motion, did not deny making the statement or the inference drawn. In paragraph 4 of his affidavit he admitted that he had read FUL’s founding affidavit and the annexures thereto but went on only to deal with points in limine, without admitting or denying any of the averments in the founding affidavit.

208. A respondent in motion proceedings is required in the answering affidavit to set out which of the applicant’s allegations he admits and which he denies and to set out his version of the relevant facts. A failure to deal with an allegation by the applicant amounts to an admission. An admission, including a failure to deny, will be binding on the party and prohibits any further dispute of the admitted fact by the party making it, as well as any evidence to disprove or contradict it.[76] Mkhwanazi must accordingly be taken to have admitted that he acted under dictation, without independence and inconsistently with his constitutional duties.

209. In paragraph 47 of her answering affidavit, the Commissioner (who was appointed subsequent to the events at issue in these proceedings) in response to the averments in paragraph 45 of the founding affidavit stated:

“General Mkhwanazi was quoted out of context.  As I understood and this is what he later clarified was that his response was in relation to the issue of the withdrawal of charges, which falls within the domain of the NPA, which invariably in his view affected the purpose of the continued suspension and disciplinary charges then. General Mkhwanazi never obtained instructions from above. His confirmatory affidavit will be obtained in this regard.  Should time permit, I will ensure that the copy of Hansard being the minutes or the transcription of the parliamentary portfolio committee meetings is obtained and filed as a copy which will clarify the issue.”

 

210. No confirmatory affidavit was filed on behalf of Mkhwanazi, despite the issue being raised repeatedly and it being evident that the court would be called upon to assess the probative value of the statement and to make a factual finding about whether he had acted under dictation or not.

211. In paragraph 14 of his judgment in the Part A proceedings, Mokgoba J expressed concern about the allegations of political interference in the disciplinary process and noted that Mkhwanazi had not disputed them in his answering affidavit. The learned judge subtly pointed to the need for the allegations to be addressed.

212. As the issue was not adequately dealt with in the answering affidavits, FUL, in paragraph 64 of the replying affidavit, contested the explanation by the Commissioner, noted that the confirmatory affidavit and objective evidence had not been delivered, and intimated that it would argue that the appropriate factual finding should be made. It did so again more fully in paragraph 83 of its heads of argument. Despite all of these calls to the Commissioner to file an affidavit from Mkhwanazi explaining the statement, the Commissioner did not oblige.

213. When the matter was raised in argument before me, Mr Mokhari SC, counsel for the Commissioner, asserted implausibly that the non-filing of a confirmatory affidavit by Mkhwanazi was merely an oversight. He undertook to file an affidavit by the close of proceedings. It was made clear to him that absent a confirmatory affidavit, the hearsay averment of the Commissioner could not be accepted as a tenable and creditworthy denial and that the averment of FUL was likely to be preferred. After all, Mkhwanazi is available as a witness and the Commissioner in her answering affidavit gave an undertaking to file a confirmatory affidavit. After an adjournment, Mr Mokhari informed the court that his instructions were that no affidavit from Mkhwanazi would be filed. Nor has any objective evidence of his alleged statements been provided, notwithstanding the Commissioner’s tender in this regard. Mr Maleka predictably submitted that the most credible explanation for the non-filing is that neither Mkhwanazi nor Hansard supports the Commissioner’s interpretation. The allegation has always been that Mkhwanazi acted under the unauthorised and unwarranted dictates of persons who had no constitutional or legal authority over or interest in the decision. Despite having had ample opportunity, he has not refuted that allegation.

214. In the premises, the Commissioner’s explanation is untenable and must be rejected. The explanation is irreconcilable with the Acting Commissioner’s clear statement. The statement that he was instructed by authorities “beyond” him is unambiguous and cannot bear the meaning that the Commissioner contends for. Mkhwanazi was not subject to the authority of or any instruction by the NPA.

215. That Mkhwanazi dropped the disciplinary charges on orders from above, is furthermore borne out by the Rule 53 record filed on his behalf. The record he supplied comprises nothing more than two letters addressed to Mdluli, one notifying him of the withdrawal of the disciplinary charges against him and the other advising him of his re-instatement. There is no charge sheet or correspondence dealing with the allegations or the process to be followed. From this it may be reasonably inferred that Mkhwanazi did not apply his mind to the facts at all, because he was inclined on the basis of instructions from beyond to stop the process irrespective of the merit or otherwise of that action.

 216. The inescapable finding is that the decisions of the Acting Commissioner to withdraw the disciplinary charges and to re-instate Mdluli as head of Crime Intelligence were taken in an attitude of subservience pursuant to an unlawful dictation from a person unknown, who was “beyond” the Acting Commissioner. They were therefore unlawful and invalid. An abdication of power violates the principle that the responsibility for a discretionary power rest with the authorised body and no one else.

217. The second prong of FUL’s attack on these decisions is that the Acting Commissioner failed to protect the integrity of SAPS and to abide by its legislative framework. Every organ of state is required to exercise the powers conferred upon it accountably, responsively and openly, and to protect the integrity of the institution by ensuring the proper exercises of powers by its functionaries.[77] Congruent with that, the Commissioner is required to maintain an impartial, accountable, transparent and efficient police service.[78] The SAPS, in turn, is tasked with preventing, combating and investigating crime, and with upholding and enforcing the law.[79]

 

218. To ensure the proper functioning of the SAPS, the Commissioner, in discharging his obligations under section 11 of the SAPS Act, must protect and give effect to SAPS Discipline Regulations.[80] These provide that serious misconduct must be referred to disciplinary proceedings[81] and that, where there is strong evidence to suggest that the member will be dismissed, the member must be suspended.[82] A suspension is a precautionary measure.

 

219. By withdrawing the disciplinary proceedings against Mdluli and allowing him to resume his senior position in the SAPS when there were serious and unresolved allegations of misconduct against him, which called into question his integrity, the Acting Commissioner frustrated the proper functioning of the SAPS Act and the Discipline Regulations. He also undermined the integrity of the SAPS and failed to ensure that it operated transparently and accountably. His conduct could only serve to damage public confidence in the SAPS, particularly where no reasons were advanced for that decision and in the face of public disquiet about possible political interference.

 

220. The decisions to withdraw the disciplinary charges and to re-instate Mdluli were accordingly taken in dereliction of the Acting Commissioner’s constitutional and statutory duties to control and manage the SAPS in any open, transparent, accountable, impartial and efficient manner, and fall also to be set aside on that basis.

221. On both legs, the review sought by FUL is a rule of law review and it is unnecessary to locate the review grounds within the provisions of PAJA, or to determine whether the action constituted administrative action for that purpose.[83] The decisions are illegal for both the reasons advanced.

Standing, jurisdiction and mootness in relation to the decision to withdraw the disciplinary charges

222. Rather than engaging with the substance of the claims of illegality, the Commissioner confined herself to formal defences. As mentioned, she contended that FUL lacks locus standi to bring this review, that this court has no jurisdiction over it, and that the review of the decisions is, in any event, moot or academic.

223. Neither the Commissioner nor the NDPP questioned FUL’s public interest standing to review the withdrawal of criminal charges against Mdluli. But the Commissioner contended that FUL has no standing to challenge the decision to withdraw disciplinary charges against Mdluli and to re-instate him to his post on the grounds that those decisions are labour decisions that are only liable to challenge by a party to the employment contract at issue. This is not correct. As discussed, the Commissioner is required, under s 207(2) of the Constitution, to manage the SAPS and to maintain the discipline and integrity of the force. The disciplinary powers are public powers and the fitness of Mdluli to hold a high ranking position in the SAPS is a matter of public concern. As Mr Maleka submitted, the issues have implications for public order and legitimacy of SAPS as a law-enforcement body. For as long as the disciplinary allegations against Mdluli remain unresolved, his presence in the senior echelons of the SAPS will diminish public confidence. The disciplinary decisions are therefore public in nature, and liable to review on the grounds of illegality, at the instance of FUL acting in the public interest.

 224. The Commissioner’s claim that this court has no jurisdiction in terms of section 157(1) and (2) of the Labour Relations Act[84] (“the LRA”) to review the disciplinary decisions is similarly unfounded. These provisions read:

(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from - 

            (a)        employment and from labour relations;

 

 (b)       any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and 

 

(c)        the application of any law for the administration of which the Minister is responsible.”

 

225. The Commissioner argued that the relief sought by FUL is in effect a suspension from employment. The order obtained in Part A proceedings interdicted Mdluli from discharging any function or duty as an employee of SAPS. Consequently, Mdluli has been suspended from his employment. It was argued that the suspension of Mdluli can only be done in compliance with the SAPS Discipline Regulations read with section 186(2) of the LRA. Since the Labour Court has exclusive jurisdiction in terms of section 157(1) to deal inter alia with unfair labour practices, it was submitted that the High Court may not adjudicate such matters. The argument went further, asserting in addition that the High Court can only assume jurisdiction over a labour matter if it involves a Bill of Rights violation as contemplated by section 157(2) of the LRA.

226. Section 157(1) of the LRA confirms that the Labour Court has exclusive jurisdiction over any matter which the LRA prescribes should be determined by it, which includes the power to review unfair labour practice determinations by bargaining councils or the Commission for Conciliation Mediation and Arbitration (“the CCMA”). In terms of section 191 of the LRA, disputes about unfair labour practices must be referred either to the CCMA or a bargaining council with jurisdiction, and the award of such body is reviewable by the Labour Court. The labour forums, it is correct, do indeed have exclusive power to enforce LRA rights to the exclusion of the High Courts. However, the High Courts and the Labour Courts have concurrent jurisdiction to enforce common-law contractual rights and fundamental rights entrenched in the Bill of Rights insofar as their infringement arises from employment.[85]

227. The argument that the jurisdiction of the High Court is excluded on account of the dispute being one regarding an unfair labour practice is fundamentally misconceived and wrong, being based upon a misunderstanding of the relevant statutory provisions. It is also predicated on the false supposition that the present case involves an unfair labour practice. It most certainly does not. The relevant part of the definition of an unfair labour practice in section 186(2) of the LRA reads:

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—(b) the unfair suspension of an employee”

 

It must be read with section 191(1) of the LRA which provides:

 

“(1) (a) If there is a dispute about the fairness of a dismissal, or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to—

(i) a council……; or

(ii) the commission, if no council has jurisdiction”

 

It is thus clear from the definition that an unfair labour practice can only “arise between an employer and an employee” and from the procedural provision that only an employee can refer an unfair labour practice dispute to the CCMA or a bargaining council.

 

228. Notwithstanding section 157(1) of the LRA, other existing common law and statutory causes of action remain available to litigants, even in cases that arise factually out of an employment relationship between an organ of state and an individual. In Gcaba v Minister of Safety and Security and Others[86] the CC explained the position thus:

 

“Furthermore, the LRA does not intend to destroy causes of action or remedies and section 157 should not be interpreted to do so. Where a remedy lies to the High Court, section 157(2) cannot be read to mean that it no longer lies there and should not be meant to mean as much. Where the judgment of Ngcobo J in Chirwa speaks of a court for labour and employment disputes, it refers to labour-and employment-related disputes for which the LRA creates specific remedies. It does not mean that all other remedies which might lie in other courts, like the High Court and Equality Court, can no longer be adjudicated by those courts. If only the Labour Court could deal with disputes arising out of all employment relations, remedies would be wiped out, because the Labour Court (being a creature of statute with only selected remedies and powers) does not have the power to deal with the common-law or other statutory remedies”

 

229. The only jurisdiction removed from the High Court by section 157 of the LRA, therefore, is that in respect of those causes of action which the LRA prescribes should be dealt with by the Labour Court, and for the most part that is confined to the review of unfair dismissal and unfair labour practice awards, and the adjudication of operational requirement dismissals and unfair employment discrimination. The High Court retains its jurisdiction over all other causes of action. In fact, section 157(2) of the LRA takes nothing away from the High Court’s jurisdiction. It merely confers a concurrent human rights jurisdiction on the Labour Court in respect of Bill of Rights violations in the employment context, which it otherwise would not have enjoyed. It does not restrict the jurisdiction of the High Court, as the Commissioner incorrectly assumes. The purpose of the provision is to give jurisdiction to the Labour Court not to remove it from the High Court. There is accordingly no merit at all in the submission that the High Court must establish a Bill of Rights violation before it may “assume jurisdiction” over a labour matter. The Commissioner’s argument misconstrues the wording and import of the subsection; she has it the wrong way round.

 

230. Likewise, FUL’s challenge to the Acting Commissioner’s disciplinary decisions does not involve an unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee. The mere fact that the remedy appointed by the court may be akin to a suspension is not sufficient for the dispute to be categorised as an unfair labour practice. A dispute in order to be an unfair labour practice, as I have said, must be between an employee and his or her employer and must arise in the employment relationship. The dispute between FUL and the Commissioner is not one which falls within the employer-employee nexus, but one which raises issues concerning the legality (and, consequently, the constitutionality) of the Acting Commissioner’s decisions, and his application and interpretation of the SAPS Act and the Regulations. It is also a matter that affects the complainants’ and the public’s constitutional rights to the protection of the rule of law. The effects of the decisions on Mdluli, which may well be the subject of an employment dispute, are not the subject of this application.

231. The review of the Acting Commissioner’s disciplinary decisions accordingly falls within the jurisdiction of this court. 

232. The Commissioner’s contention that the review of the Acting Commissioner’s disciplinary decisions has become academic cannot be sustained either. She says the issue is now moot because disciplinary proceedings have been “instituted” against Mdluli and he is currently under suspension. The original disciplinary charges against Mdluli were dropped and he was re-instated in March 2012. It is common cause that Mdluli was re-suspended on 25 May 2012, shortly after this application was launched. Although it has been stated that the intention was to discipline Mdluli it is not clear on what disciplinary charges. Neither the charges in the original disciplinary proceedings nor the new disciplinary charges have been disclosed in the Rule 53 record on behalf of the Commissioner, or in any of the answering affidavits. There is no evidentiary basis to assume that the disciplinary charges and reasons underlying the most recent suspension are the same as the previous occasion; indeed, to the contrary, there are indications that his suspension may relate to other charges related to the defrauding of the SSA. The relief sought by FUL is for Mdluli to be arraigned on all of the original charges.

233. But even if we accept that the charges are the same, the court has not received any assurance from the Commissioner that she will not allow them to be dropped again. Indeed, but for the order of Makgoba J, Mdluli would have been within his rights to return to work in late July 2012. In terms of the Discipline Regulations, if an employee is suspended with full remuneration, the employer must hold a disciplinary hearing within sixty calendar days from the commencement of the suspension. Upon the expiry of the sixty days, the chairperson of the hearing must take a decision on whether the suspension should continue or be terminated.[87] It follows that a failure to convene disciplinary proceedings will result in the suspension automatically lapsing.  Mr Mokhari was unable to give the court an assurance that a hearing had been convened at which the chairperson had taken a decision on whether the suspension should continue or be terminated. The suspension in terms of the regulations has accordingly probably lapsed. That fact alone disposes of the claim of mootness.

 234. Moreover, there is no evidence of any serious intent to proceed with the disciplinary process or to finalise the matter, despite Mdluli having been suspended again more than a year ago. Yet the Commissioner in these proceedings seeks to discharge the interdict granted by Makgoba J on the spurious jurisdictional grounds just discussed, without conceding that the disciplinary proceedings should not have been withdrawn and without furnishing any undertakings that they will be pursued to finality. The Commissioner wants the interdict discharged and is happy for the disciplinary process to lapse. She apparently sees no need to place any obstacle in the way of Mdluli’s return to work, despite her constitutional duty to investigate the allegations against him and the unfeasibility of his holding a position of trust at the highest level in SAPS until the truth is established in a credible process. For as long as there are serious unresolved questions concerning Mdluli’s integrity, he cannot lawfully act as a member and senior officer of the SAPS, or exercise the powers and duties associated with high office in the SAPS.[88] 

235. The review of the Acting Commissioner’s decisions is for those reason by no means academic. There remains a live dispute between the parties, and any relief granted will have practical effect.[89]

Remedies

236. The automatic consequence of my findings in relation to the withdrawal of the criminal charges is that the charges will revive. FUL however seeks in addition an order directing that the fraud and corruption charges be re-enrolled and prosecuted without any further delay. Such is permissible in terms of section 172(1)(b) of the Constitution and section 8 of PAJA which empower the court on review to grant an order that is just an equitable. Given the respondents’ equivocal stance and their dilatory and obstructive approach to these proceedings, it is necessary to expedite the prosecution not only in the public interest but also in the interests of Mdluli who cannot resume his duties while the charges are pending.

237. Counsel for the NDPP has argued in relation to the criminal charges that they should be referred back to the NDPP for a fresh decision instead of the court ordering a prosecution. There may be polycentric issues around the prosecution in relation to the evidence and possible defences, so he contended, which will make the prosecution difficult. I would venture the old adage: “where there is a will there is a way”. In the hands of skilled prosecutors, defence counsel and an experienced trial judge, I am confident that justice will be done on the evidence available, leading as the case may be to convictions or acquittals on the various charges in accordance with the law and justice. But more than ever, justice must be seen to be done in this case. The NDPP and the DPPs have not demonstrated exemplary devotion to the independence of their offices, or the expected capacity to pursue this matter without fear or favour. Remittal back to the NDPP, I expect, on the basis of what has gone before, will be a foregone conclusion, and further delay will cause unjustifiable prejudice to the complainants and will not be in the public interest. The sooner the job is done, the better for all concerned. Further prevarication will lead only to public disquiet and suspicion that those entrusted with the constitutional duty to prosecute are not equal to the task.

238. The same can be said with regard to those responsible for the disciplinary process.

239. Accordingly, the orders sought by FUL are appropriate, just and equitable.

240. With regard to the question of costs, Mr Maleka, assisted by Ms Yacoob and Ms Goodman, together with their instructing attorneys, acted on behalf of FUL pro bono and in the public interest. A costs order must accordingly be restricted to the recovery of disbursements.

Orders

241. The following orders are made:

 

(a) The decision made on or about 5 or 6 December 2011, as the case may be, by the third respondent in terms whereof the criminal charges of fraud, corruption and money laundering instituted against the fifth respondent under case number CAS 155/07/2011 were withdrawn, is hereby reviewed and set aside

 

(b) The decision made on 2 February 2012 by or on behalf of the first respondent in terms whereof the criminal charges of murder, kidnapping, intimidation and assault with intent to cause grievous bodily harm and defeating the ends of justice under case number CAS 340/02/99 were withdrawn, is hereby reviewed and set aside.

 

(c) The decision made on 29 February 2012 by or on behalf of the second respondent in terms whereof the disciplinary proceedings instituted by the second respondent against the fifth respondent were withdrawn, is hereby reviewed and set aside.

 

(d) The decision made on 31 March 2013 by or on behalf of the second respondent in terms whereof the fifth respondent was reinstated as Head of Criminal Intelligence in the South African Police Services with effect from 31 March 2012, is hereby reviewed and set aside.

 

(e) The first and third respondents are ordered to reinstate forthwith the criminal charges which were instated against the fifth respondent under case number CAS 155/07/2011 and case number 340/02/99 and to take such steps as are necessary to ensure that criminal proceedings for the prosecution of the criminal charges under the aforesaid cases are re-enrolled and prosecuted diligently and without delay.

 

(f) The second respondent is ordered to reinstate disciplinary charges which had been instituted against the fifth respondent but were subsequently withdrawn on 29 February 2012, and to take such steps as are necessary to institute or reinstate disciplinary proceedings that are necessary for the prosecution and finalisation of the aforesaid disciplinary charges, diligently and without delay.

 

(g) The first, second, third and sixth respondents are ordered to pay the costs of this application jointly and severally, the one paying the others to be absolved on the basis that the applicant’s attorneys and counsel appear pro bono.

 

(h) The Taxing Master is directed that the applicant’s costs nevertheless should include all the disbursements and expenses of the applicant’s attorneys of record.

 

 

 

 

JR MURPHY

JUDGE OF THE HIGH COURT



[1] Act 71 of 2008

[2] Freedom under Law v Acting Chairperson: Judicial Services Commission and Others 2011 (3) SA 549 (SCA)

[3] Act 32 of 1998

[4] Act 68 of 1995

[5] Regulations 12 and 13 of the Discipline Regulations published under the SAPS Act in GNR. 643 GG 28985 on 3 July 2006.

[6] Act 40 of 1994.

[7] Act 45 of 1988

[8] 1984 (3) SA 623 (A) at 634-635

[9] Para 21 of the confirmatory affidavit of the first respondent at page 1758 of the record.

[10] Act 40 of 1994

[11] Act 58 of 1959.

[12] Du Toit, Commentary on the Criminal Procedure Act Juta at 1-4T-7

[13] Marais NO v Tiley 1990 (2) SA 899 (A) at 901E-H.

[14] Act 32 of 1998

[15] Act 51 of 1977

[16] Section 4 of the NPA Act

[17] Section 3 of the NPA Act

[18] Section 5 of the NPA Act

[19] Section 20(3) and (4) of the NPA Act

[20] Section 20(3) and (4). of the NPA Act

[21] Section 21 of the NPA Act

[22] Section 22(4)(b) of the NPA Act

[23] Section 22(4)(d) of the NPA Act

[24] i.e. one appointed in terms of section 13(1)(a)

[25] Section 24(4)(c)(ii)(bb) of the NPA Act

[26] A DPP is the equivalent of an Attorney-General under the old legislation.

[27] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 8.

[28] [2008] UKHL 60 at paras 30-32

[29] Matalulu v Director of Public Prosecutions [2003] 4 LRC 712 at 735-736.

[30] R (On the Application of Corner House Research and Others) v Director of the Serious Fraud Office [2008] UKHL 60 at para 32

[31] Highstead Entertainment (Pty) Ltd t/a “The Club” v Minister of Law and Order 1994 (1) SA 387 (C)

[32] Mitchell v Attorney-General Natal 1992 (2) SACR 68 (N).

[33] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 38.

[34] Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at paras 48-49; Masetlha v the President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at paras 78-81.

[35] Act 3 of 2000

[36] In section 33 of the Constitution.

[37] Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235 (CC) at para 84

[38] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 35 .

[39] 2009 (2) SA 277 (SCA) para 36 fn 33.

[40] 2012 (3) SA 486 (SCA) at para 27

[41] Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC).

[42]  2013 (1) SA 248 (CC) at para 42

[43] 2010 (3) SA 293 (CC) at paras 65-68.

[44] Section 1 of PAJA. 

[45] Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA) at para 23; and Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others 2013 (3) BCLR 251 (CC) at para 30

[46] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 64.

[47] Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 at 712

[48] 2ed (Juta & Co, Cape Town, 2012) at 241-242, citing the South African Law Commission (Project 115) “Report on Administrative Justice” (August 1999)

[49] 2012 (3) SA 486 (SCA) at para 27

[50] 2013 (1) SA 248 (CC)

[51] 2009 (2) SA 277 (SCA) at para 55 et seq.

[52] Provided when a Special DPP does so, he or she acts in consultation with the relevant DPP proviso to section 24(3) of NPA Act.

[53] The proviso to section 24(3) of the NPA Act.

[54] President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 63.

[55] 2007 (5) SA 642 (C) at para 18.

[56]  See, for example sections 13(1)(c), 16(3), 22(6)(a) and 43A(9)(b) of the NPA Act.

[57] De Villiers v Sports Pools (Pty) Ltd 1975 (2) SA 253 (RA) at 261

[58] 1981 (3) SA 1200 (AD)

[59] 2010 (4) SA 1 (CC) at para 120

[60] South African Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C) at 34G-H

[61] Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA) at para 27.

[62] Minister of Safety and Security v Sekhoto and Another [2011] 2 All SA 157 (SCA)

[63] Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at paras 48-49; Masetlha v the President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at paras 78-81.

[64] Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC).

[65] Albutt v Centre for the Study of Violence and Reconciliation and Others Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at paras 65-68.

[66] That obligation flows from the rule of law and para 3 of Part 5 of the Prosecution Policy.

[67] Prosecution Policy para 6(a).

[68] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 37.

[69] Section 7(7) of the Intelligence Services Control Act 40 of 1994.

[70] De’ath (substituted by Tiley) v Additional Magistrate, Cape Town 1988 (4) SA 769 (C) at 775G.

[71] 2009 (2) SA 277 (SCA)

[72] See generally Hoexter Administrative Law in South Africa at 538 et seq

[73] 1999 (4) SA 367 (T) at 372G-H

[74] 2010 (4) SA 327 (CC) para 38

[75] President of the Republic of South Africa and Others v SARFU 2000 (1) SA 1 (CC) at paras 38- 41

[76] Water Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588 (A) 605H.

[77] Section 195(1) of the Constitution; see also Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA) at para 66

[78] Section 11(1) of the SAPS Act. See also section 195(1)(e)(f) and (g) of the Constitution.

[79] Section 205(3) of the Constitution.

[80] GNR 643 GG 28985 3 July 2006.

[81] Regulation 12(1) provides:

“ Subject to regulation 6 (2), a supervisor who is satisfied that the alleged misconduct is of a serious nature and justifies the holding of a disciplinary hearing, must ensure that the investigation into the alleged misconduct is completed as soon as reasonably possible and refer the documentation to the employer representative to initiate a disciplinary enquiry.”

[82] Regulation 13.

[83]The decisions to suspend Mdluli and to institute disciplinary proceedings against him were made pursuant to the powers conferred by the SAPS Discipline Regulations. The revocation of those decisions was in terms of the same public power. A decision by an organ of state to abandon disciplinary proceedings against a high-ranking police official and to re-instate him to his post while matters concerning his honesty and respect for the law remain unresolved is public in nature. It affects the security and the stability of South Africa, and goes to the accountability of its officials. The decisions have direct external legal effect, and affect the public’s right to have the alleged misconduct against a high-level police official assessed and finally determined.  For those reasons, FUL submits, not unconvincingly, that the decisions constitute administrative action liable to review under PAJA.

[84] Act 66 of 1995

[85] Makhanya v University of Zululand 2010 (1) SA 62 (SCA) at para 18, and section 157(2) of the LRA

[86] 2010 (1) SA 238 (CC) at para 73

[87] Regulation 13(4).

[88] Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248(CC).

[89] President, Ordinary Court Martial and Others v Freedom of Expression Institute and Others 1999 (4) SA 682 (CC) at para 16

“Of Good Report”: Film and Publications Appeals Tribunal judgment

Before the Film and Publication Appeal Tribunal

2/2013

 

In the matter between:

 

Spier Films SA                                                                                                                                                      First  Appellant

Jamil XT Qubeka                                                                                                                                                 Second Appellant

                                                                                                                                                                                   

and

 

The Film and Publication Board                                                                                                                 Respondent

__________________________________________________________________________________

 

Appeal against the classification of the film – Of Good Report

__________________________________________________________________________________

 

Professor K Govender

(Chairperson)

Introduction

On the 16th and 17th July 2013, a Classification Committee (‘the Committee’), appointed in terms of the Films and Publications Act 65 of 1996 (‘the Act’), assigned the film Of Good Report a ‘refused classification’ in terms of section 18(3)(a) of the Act, effectively banning the film. The Committee was of the view that the film contained a scene of child pornography, and stopped viewing the film after 28 minutes and 16 seconds. The film was scheduled to open at the Durban International Film Festival (‘the film festival’), but as a consequence of this decision the film could not be broadcast, distributed or exhibited in public[1], and so the producers and distributors of the film could not show it as the opening film of  the film festival. In addition, it is an offence for any person unlawfully to possess any film that ”contains depictions, descriptions or scenes of child pornography…”[2]. An appeal was immediately lodged, and we were requested to hear this appeal as a matter of urgency. The Film and Publication Board (the Board) must be complimented for setting up the appeal as a matter of urgency, thus allowing the issues to be ventilated in an open hearing.

The appeal was heard on Saturday, 27 July 2013. The appellants were Spier Films (the producers) and Jamil XT Qubeka, the director of the film. In addition to the members of the Appeal Tribunal established in terms of the Act (‘the Tribunal’), I requested Professor Ann Skelton, a recognised child rights expert, to sit with the Tribunal and consider this appeal. Prior to the commencement of the formal proceedings, the film was viewed in its entirety by members of the Tribunal together with Professor Skelton, officials of the Board, the appellants, and the various legal teams. The appellants were represented by Mr S Budlender (instructed by Webber Wentzel) and the respondent was represented by Mr S Risiba, assisted by Mr R Mkhwanazi and Mr S Tshabalala. I am obliged to Mr Budlender and Mr Risiba for preparing written heads of argument despite  severe time constraints.

After hearing arguments and reflecting fully on the issues raised, the Tribunal was of the view that the Committee had erred materially in refusing classification to this film. Given the badge of dishonour and ignominy attached to a finding that a film contains scenes of child pornography, and given the unanimous view of the Tribunal that the decision of the Committee was unsustainable in law and fact, it was decided that it was in the interests of justice to make a ruling immediately and to provide reasons later. On the day, therefore, the following ruling was made:

  1. The decision of the Committee made on the 16th and 17th July 2013 that the film Of Good Report is refused classification, is set aside.
  2. The film Of Good Report is assigned a classification of 16 (V) (N) (S).
  3. No person under the age of sixteen is allowed to see this film.
  4. Full reasons for the decisions will be given by or before the end of August 2013.

These are the reasons for our conclusions.

Description of the film

This is a sombre, grim, and menacing film shot in black and white. The film starts with the seemingly demented main male character, Parker Sithole, pulling out teeth that appear to be embedded in his head. This bizarre opening scene is only explained at the end of the film. The fleeting and brief scenes of humour in the film are barely noticeable, and are deeply buried under the intensity of the themes and by the unrelenting discomfort of witnessing a sexual predator who easily gains the confidence of decision-makers who run schools, and then preys on young girls. An accomplished Parker Sithole – he reads Shakespeare, dances, is academically bright, and plays cricket – develops an obsessive relationship with one of his pupils, the beautiful and riveting Nolitha. The striking similarity of her name to Lolita – the novel written by Vladimir Nabakov and published for the first time in France in 1955 – is not co-incidental. Lolita is a story about the well-educated Humbert Humbert who becomes obsessed with the twelve-year-old daughter of his landlady, and explores the dangers of this obsessive relationship and the impact that it has on the victim.[3] To underscore the link with Lolita, there is a direct reference in the closing sequence of the film to the novel when a schoolgirl, holding the book, casts what appears to be a glance of admiration at Parker Sithole.

Initially Parker Sithole is unaware that Nolitha is a pupil at the school, and after an encounter at the local tavern, he has sexual relations and intercourse with her. She initiates the contact and is a willing participant in the sexual activities that occur in his rented residence. At this point, the audience is unsure of the age of Nolitha. We then discover that she is a learner in the grade 9 class taught by Parker Sithole. Their obsessive and passionate relationship continues unabated. She falls pregnant, has what appears to be a difficult abortion, and then absents herself from school. Parker Sithole, who never speaks in the film, prevails on Nolitha’s grandmother to send her back to school. We see a devious and conniving intent on his part, and the gullibility of those who trust him because he is ‘of good report’. However, Nolitha sees him for what he is, is no longer interested in him, and rebuffs Parker’s desperate attempts to re-ignite their passionate liaison. She begins to enjoy the company of male companions of her own age whose material possessions appear to add an extra lure. We notice how attracted Parker Sithole is to the young pupils in gymslips – and distracted by them; and a comment by a fellow teacher, Mr September, that Parker’s illness (his obsession with girls) is worse than his own alcoholism, resonates.

Parker Sithole sheds the façade of the genteel educator and attempts to kill the man whom he perceives to be Nolitha’s boyfriend. In a scene in which he is portrayed as the grim reaper, he endeavours to decapitate the boyfriend, but is interrupted and does not carry out his intent. However, his obsession continues unabated, and he kidnaps and murders Nolitha; and after coldly conducting research into the technique, in a haunting scene he dismembers her body and disposes of the remains. There is a sense of relief when he is apprehended by a conscientious but over-enthusiastic police officer. However, the ending is not reassuring: we are left with a sense of foreboding that Parker Sithole, a man of good report but profoundly evil, still lurks within our midst.

I now turn to an analysis of relevant legal issues.

The constitutional imperative of protecting children, and the applicability of the reasoning in De Reuck

I proposed dealing with a number of legal issues that were raised during the hearing, and then applying the relevant and applicable legal principles to the classification of the film.

One of the central objectives of any society is to protect its children and allow them to enjoy their childhood without premature exposure to adult experiences, and without their having to experience damaging, harmful, and inappropriate behaviour, whether directly or indirectly. The Constitution enjoins us to protect children from maltreatment, neglect, abuse, and degradation.[4] The Act explicitly lists the protection of children as one of the important and solemn objectives that must be respected by the bodies functioning in terms of the Act.[5] Child pornography is a scourge that causes serious harm to our society; and the proliferation of this material is a matter of great concern. Legislation that criminalises child pornography is a manifestation of our commitment to protecting our children, and an affirmation of their right to human dignity. This correlation between legislation against child pornography and the dignity of children was expressly recognised by the Constitutional Court in De Reuck v Director of Public Prosecutions:[6]

Children merit special protection by the state and must be protected by legislation which guards and enforces their rights and liberties. This is recognised in section 28 of our Constitution. Children’s dignity rights are of special importance. The degradation of children through child pornography is a serious harm which impairs their dignity and contributes to a culture which devalues their worth.

Society has recognised that childhood is a special stage in life which is to be both treasured and guarded. The state must ensure that the lives of children are not disrupted by adults who objectify and sexualise them through the production and possession of child pornography. There is obvious physical harm suffered by the victims of sexual abuse and by those children forced to yield to the demands of the paedophile and pornographer, but there is also harm to the dignity and perception of all children when a society allows sexualised images of children to be available. The chief purpose of the statutory prohibitions against child pornography is to protect the dignity, humanity, and integrity of children.

Little need be said about the second purpose of section 27 [of the Act] which is to protect children from being used in the production of child pornography. The expert evidence in this case confirms that abusing children in this way is severely harmful to them.The psychological harm to the child who was photographed is exacerbated if he or she knows that the photograph continues to circulate among viewers who use it to derive sexual satisfaction.Thirdly, there is a reasonably apprehended risk of harm from child pornography. The state produced evidence to suggest that images of children engaged in sexual conduct may be used in one of the three ways to harm children, firstly, to “groom” children for sexual abuse by showing them acts other children have purportedly performed; secondly, to reinforce cognitive sexual distortions, i.e. the belief that sex with children is acceptable; and finally for paedophiles to fuel their fantasies prior to committing an act of sexual abuse.

In De Reuck, the court concluded that the state is obliged to make every effort to combat child pornography, as the harm caused by child pornography is real and ongoing.[7] It recognised the real harm that is caused directly and indirectly to children by child pornography. The challenge facing our society is to deal with this scourge in a responsible and proportionate manner that accords with the purport and objectives of our Constitution. This is precisely what the court in De Reuck sought to do by providing a detailed framework, outlined later in this judgment, on how to determine whether a film contains scenes of child pornography. Court decisions of this nature provide the certainty that is necessary to guide the discretion of functionaries such as classification committees. Conclusions that Constitutional Court judgments that were specifically designed to assist the exercise of discretion are no longer applicable must not be arrived at lightly.

It is common cause that the Committee did not have regard to the guidelines and framework laid down in De Reuck. There must be a clear and unequivocal legal justification for not doing so, and in this case there simply was no legal basis for the view put forward that the reasoning in De Reuck was not binding on and applicable to classifiers.

The applicability and precedent value of the reasoning in XXY

Subsequent to the De Reuck judgment, this Tribunal considered an appeal against the finding that the film XXY contained child pornography. The Tribunal in March 2009 found, firstly, that the De Reuck judgment is directly applicable despite certain amendments made to the Act since the De Reuck judgment was handed down, which altered the definition of child pornography and related sections dealing with the subject. The Tribunal then proceeded to provide a set of guidelines on how to determine whether an image or scene depicted in a film contains child pornography. The respondent in this matter sought to argue that the findings of the Tribunal do not create precedents that must be followed by the classification committees. In support of this far-reaching submission, reference was made to Derby-Lewis and Another v Honourable Chairman of the Committee on Amnesty of the Truth and Reconciliation Commission,[8] where a full bench of the Cape High Court held:

If other amnesty committees have given the provisions under review a different interpretation to that which we regard as correct, that is unfortunate. Amnesty committees are administrative bodies exercising a quasi-judicial function. They do not have a system of judicial precedent equivalent to stare decisis. Even if they did, their interpretations would not be binding on the High Court, to which aggrieved or disappointed parties may turn for relief on judicial review.[9]

The Tribunal is not in the same position as the Amnesty Committee: the Tribunal is an administrative appeal tribunal established in terms of section 3 of the Act, and is required to exercise its functions independently and without bias. Not respecting the decisions of the Tribunal would make the requirements of independence meaningless. The requirement of independence emphasises that as a second decision-maker, the Tribunal brings a different and reflective judgment to bear on the issues. Its appellate jurisdiction is akin to that of ordinary courts of appeal: Section 20(3) of the Act enables the Tribunal to make legally binding decisions and, in the case of an appeal, it may refuse the appeal, confirm the decision, give such decision as the Board may have given, and amend the classification of the film, game, or publication. Importantly, in terms of section 20(5) of the Act, a decision of the Tribunal is deemed to be a decision of the Board, and has legally binding consequences. As Professor Lawrence Baxter noted:

[W]here the appellate tribunal is empowered to ‘confirm, vary or set aside’ the decision of the authority a quo, or where it is empowered to ‘substitute its decision’ for that which is on appeal, then the appellate jurisdiction is at least that of ordinary appeal (…)  If, in addition, the decision of the appellate body is deemed by the legislation to be that of the authority a quo, then the appellate powers of the former body are almost certainly of the widest kind.[10]

Baxter further recognised that administrative tribunals specially created to hear administrative appeals (such as the Tribunal) are ‘the closest analogies to a proper system of administrative courts’.[11] Similar sentiments were expressed by Professor Hoexter[12] who states:

Appeals to an administrative tribunal specially created to hear administrative appeals, such as licencing appeal boards and town planning appeal boards. These bodies often exhibit a degree of independence and begin to resemble a proper system of administrative courts.

Professor Hoexter specifically cites the Appeal Tribunal empowered by s 20 of the Films and Publications Act as an example.

The Tribunal has, since its inception, provided guidance to classification committees (which are perhaps the more appropriate comparison to amnesty committees) on how to exercise their discretion in terms of the Act. The judgments of the Tribunal are compiled and made available to classifiers and to the public.

Officials of the Board and the Committees are not permitted, in their own discretion, to decide whether decisions of the Tribunal are correct or incorrect and then just apply those decisions that they deem to be correct. This would be a direct violation of the Act, which imbues the Tribunal with special decisional powers, and it would be contrary to the principles of the rule of law, which require certainty only gained through consistency in interpretation. If any interested party – in this case, the Board – is dissatisfied with the decision of the Tribunal, its proper recourse is judicial review. If, following an application for judicial review, the decision of the Tribunal is not set aside, then it is a legally binding decision and must be upheld. It is legally untenable to suggest, as the respondent did, that the findings of the Tribunal are not binding on the Board, as this would be contrary to the enabling Act, which attempts to create a situation allowing for a legal framework to be erected in order to resolve classification disputes, provide certainty, and ultimately guide classifiers, who are the primary decision-makers under the Act.

In summary, the reasoning of the Tribunal in XXY will bind classification committees, and ought to have bound the Committee classifying Of Good Report.

Relevant factors to be considered in determining whether a film contains child pornography

The Committee assessed the first sexual scene involving Parker Sithole and Nolitha as being child pornography and stopped watching the film immediately it became apparent that Nolitha was a child and a learner at the school. The respondent supports this approach by relying on Regulation 16(1)(a) of the Films and Publications Regulations[13] (the regulations), which provides that ”if a classification committee discovers child pornography during any classification process, the film, game or publication process shall be handled as follows (…) The classification process shall be stopped…”.

Heavy reliance was also placed on Section 18(3) of the Act, which provides:

The classification committee shall, in the prescribed manner, examine the film or game referred to it and shall –

(a)    Classify the film or game as a ‘refused classification’ if the film or game contains –

(i)              Child pornography, propaganda for war or incitement of imminent violence; or

(ii)             The advocacy of hatred based on any identifiable group characteristic and that constitutes incitement to cause harm,

(…)

unless, judged within context, the film or game is, except with respect to child pornography, a bona fide documentary or is of scientific, dramatic  or artistic merit or is on a matter of public interest.

The proviso in this subsection permits a film or game containing propaganda for war or one containing scenes inciting imminent violence to be assigned an appropriate classification if it is a bona fide documentary or is of scientific, literary, or artistic merit, or on is a matter of public interest. The proviso does not, however, apply to films, games, or publications containing child pornography. This means that if the film, game, or publication contains child pornography, it is to be refused classification; and the fact that it is bona fide documentary or is of scientific, literary, or artistic merit, or is on a matter of public interest, does not permit the classifiers to give it anything less than a ‘refused classification’. Thus, if a film contains child pornography it must be banned.

The respondent appeared to emphasise this section in order to support the contention that context must not be taken into account when dealing with films alleged to contain child pornography. However, on a proper reading of section 18(3) of the Act, together with the definition of child pornography in the Act, it becomes apparent that context must be taken into account in determining the initial enquiry into whether the film, game, or publication contains child pornography; and once it is determined that the film does indeed contain child pornography, the proviso (effectively a second enquiry) has no application. It is therefore imperative that the initial appraisal of whether the film, game, or publication is child pornography must be made with regard to the context. If this was not so, then – given the width of the definition of child pornography and sexual conduct under the Act – a written description in a newspaper of a paedophile stalking and then engaging in sexual conduct with his victims, even if the case were a matter of considerable public concern or interest, would constitute child pornography. The effect of this would be that freedom of expression would be unreasonably and unjustifiably infringed; and it was for this reason that the court in De Reuck adopted a context-sensitive analysis. Given the drastic consequences that flow from a film being labelled as ‘child pornography’ (namely, that once the conclusion is reached that the film is child pornography the film must be refused classification, even if the redeeming provisions in the proviso apply), the issue of whether the film contains child pornography must be decided with reference to the principles established in De Reuck. The appellants contended that, had the Committee followed the principles in De Reuck, it would have reached a very different conclusion; and they submitted that the decision of the Committee was directly at odds with the reasoning in De Reuck.

This brings another issue raised by the respondent to the fore:  What is the applicability of De Reuck in the present circumstances?

In essence, the main contention advanced by the respondent in this regard is that the reasoning in De Reuck has not been applicable since the enactment of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act). The crux of the respondent’s argument is that the new definition of child pornography contained in the Sexual Offences Act is much broader than the definition of child pornography in the Films and Publications Act and considered and interpreted by the Constitutional Court in De Reuck. Accordingly, as the respondent argued, if the definition of child pornography in the Sexual Offences Act is directly applicable to classifiers discharging responsibilities under the Films and Publications Act, different considerations from those canvassed in De Reuck may apply, rendering De Reuck almost obsolete.

However, the problem that the respondent encounters in its argument is that it never submitted to the Tribunal in XXY that the broad definition of child pornography in the Sexual Offences Act took precedence over the narrower definition of child pornography in the Films and Publications Act. The entire matter in XXY was argued on the definition of child pornography as contained in the Act itself, without reference to the definition of child pornography in the Sexual Offences Act. There are material and significant differences between the Films and Publications Act definition, which was found to be constitutional in De Reuck, and the very broad definition that is contained in the Sexual Offences Act. (I digress to state that, given the reasoning in De Reuck and some of the comments in Print Media SA and others v Minister of Home Affairs,[14] serious questions may arise about the constitutionality of any definition of child pornography and sexual conduct,  which excludes the qualification that the film must intend to stimulate erotic as opposed to aesthetic sentiments)

Section 1 of the Films and Publications Act defines child pornography as follows:

‘child pornography’ includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted, made to appear, look like, or described as being, under the age of 18 years –

(i)              engaged in sexual conduct;

(ii)             participating in, or assisting another person to participate in sexual conduct; or

(iii)            showing or describing the body or parts of the body of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation.[15]

 ‘Sexual conduct’ in turn includes:

(i) male genitals in a state of arousal or stimulation;

(ii) the undue display of genitals or of the anal region;

(iii) masturbation;

(iv) bestiality;

(v) sexual intercourse, whether real or simulated, including anal sexual intercourse;

(vi) sexual contact involving the direct or indirect fondling or touching of the intimate parts of a body, including the breasts, with or without any object;

(vii) the penetration of a vagina or anus with any object;

(viii) oral genital contact; or

(ix) oral anal contact.

The Sexual Offences Act defines ‘child pornography’ as follows:

‘‘child pornography’’ means any image, however created, or any description or presentation of a person, real or simulated, who is, or who is depicted or described or presented as being, under the age of 18 years, of an explicit or sexual nature, whether such image or description or presentation is intended to stimulate erotic or aesthetic feelings or not, including any such image or description of such person —

(a) engaged in an act that constitutes a sexual offence;

(b) engaged in an act of sexual penetration;

(c) engaged in an act of sexual violation;

(d) engaged in an act of self-masturbation;

(e) displaying the genital organs of such person in a state of arousal or stimulation;

(f) unduly displaying the genital organs or anus of such person;

(g) displaying any form of stimulation of a sexual nature of such person’s breasts;

(h) engaged in sexually suggestive or lewd acts;

(i) engaged in or as the subject of sadistic or masochistic acts of a sexual nature;

(j) engaged in any conduct or activity characteristically associated with sexual intercourse;

(k) showing or describing such person—

(i) participating in, or assisting or facilitating another person to participate in; or

(ii) being in the presence of another person who commits or in any other manner being involved in, any act contemplated in paragraphs (a) to (j); or

(l) showing or describing the body, or parts of the body, of such person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any category of persons under 18 or is capable of being used for the purposes of violating or offending the sexual integrity or dignity of that person, any person or group or categories of persons;

The respective definitions of child pornography in the two Acts are materially different, in that the definition in the Films and Publications Act – like all its predecessors – states that child pornography “includes any image…” (my emphasis). By contrast, the word “includes” is conspicuously omitted in the definition in the Sexual Offences Act, which provides simply that child pornography “means any image…”. The significance of the word “includes” was directly considered by the court in De Reuck, which held as follows:[16]

Pornography is notoriously difficult to define and child pornography no less so. For this reason alone, it is unlikely that the legislature intended merely to add meaning to the term on the assumption that its primary meaning was not in need of definition. Rather the purpose of the list would seem to be to give the word a more precise meaning. That this is in fact the legislative intention is suggested by the contrast between the definition of ‘child pornography’ and some of the other definitions in section 1, which provide that a term ‘includes’ certain things ‘without derogating from the ordinary meaning of that word’. Although the legislature could have avoided ambiguity by stating that child pornography ‘means’ only the images listed, the use of ‘includes’ in the definition is consistent with an intention that the list should define, and thus be coloured by, the primary meaning of child pornography.

Thus two options presented themselves to the court in De Reuck: it could have found that the list of images in the definition is exhaustive of what constitutes child pornography; or, alternatively, that the use of the term “includes” in the definition of child pornography in the Act suggests that the list extends the meaning of the term being defined, and the true meaning has to be ascertained from the context in which it is used. The court chose the latter interpretation.

In De Reuck, the court concluded that the primary meaning related to material that involved the stimulation of erotic feelings rather than aesthetic feelings. Referring to the dictionary definition of child pornography, the court provides the following primary definition of ‘child pornography’[17]:

According to The New Shorter Oxford English Dictionary, ‘pornography’ means:

“The explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc., in a manner intended to stimulate erotic rather than aesthetic feelings; literature etc. containing this.”

This is a useful guide. I would observe, however, that erotic and aesthetic feelings are not mutually exclusive. Some form of pornography may contain an aesthetic element. Where, however, the aesthetic element is predominant, the image will not constitute pornography. With this qualification, the dictionary definition above fairly represents the primary meaning of ‘pornography’. ‘Child pornography’ bears a corresponding primary meaning where the sexual activity described or exhibited involves children. In my view, the section 1 definition is narrower that this primary meaning of child pornography.

Thus the critical aspect of this definition is whether the film was intended to stimulate erotic as opposed to aesthetic sentiments; and if the intent was to achieve the latter, then the film could not be deemed to contain child pornography. This analysis seeks to balance the important societal necessity of combating child pornography without unjustifiably and unreasonably infringing the freedom of expression and other rights, including the freedom of expression, the right to dignity, and reputation. Stated differently: De Reuck came up with the most suitable means of achieving the purpose of combating child pornography in films, games, and publications without unjustifiably and unreasonably limiting freedom of expression and other rights.

The respondent contends that much of this analysis stems from the Act’s definition of child pornography. It submits that the operative definition of child pornography presently is the definition contained in the Sexual Offences Act, which is much wider, does not require that context be taken into account, and appears to have been drafted in reaction to the De Reuck judgment.

Taken to its logical conclusion, the argument by the respondent is that the definition in the Sexual Offences Act supplanted and replaced the definition in the Act. But this conclusion is untenable in law for the reasons that follow. This Tribunal in XXY  held that the change in wording did not materially impact on the definition of child pornography laid down in De Reuck, for the following reasons:

It is instructive that the post-2004 definition follows a very similar structure. It is a recognised principle that the legislature is deemed to know the law. It was thus open for the legislature, when drafting the 2004 amendment, to define child pornography exhaustively rather than retaining the word ‘includes’. This would have unequivocally indicated that it was distancing itself from the reasoning in De Reuck. Knowing of the Constitutional Court’s reasoning and decision in De Reuck, the legislature retained the very word that was considered to be particularly important in the analysis of the court in concluding that the definition is not exhaustive. This is a strong indication that the post-2004 definition was not intended to depart materially from the definition given in the De Reuck case.

In the definition section of the Act, words like ‘film’ and ‘publication’ are defined exhaustively. The fact that the legislature chose to retain ‘includes’ in the definition of child pornography suggests that the list is not exhaustive. However, the respondent now argues that the XXY decision, which was handed down subsequent to the Sexual Offences Act, is incorrect and should not be followed.

The respondent has never previously challenged the Tribunal’s reasoning in XXY. Thus, as at 2004, the definition of child pornography in the Act was informed by the reasoning in the De Reuck case. The respondent’s contention, as I understand it, is that the applicable definition of child pornography changed significantly after Parliament passed the Sexual Offences Act in 2007. Their contention is that that definition became applicable to the decision in terms of the Films and Publications Act as well.  Further, the respondent contends that the Tribunal’s mistake in XXY was to apply the outdated and inapplicable reasoning of De Reuck, based on an extinct legislative position.

I digress for a moment to restate that, when the XXY case was argued, this submission was never made on behalf of the Board. It is therefore assumed that at the time XXY was argued, the position of the Board must have been that the definition in the Films and Publications Act regulated its classifications, as the Sexual Offences Act had been passed at the time the matter was heard. This is the first time that it has been contended that the broader definition in the Sexual Offences Act is applicable. In any event, for the reasons canvassed below, the Board is incorrect in its argument that, firstly, XXY is incorrect and should not be followed, and secondly, its broader argument that the correct definition of child pornography to be applied to the present matter is the one contained in the Sexual Offences Act.

Firstly, in direct contradiction to the assertion made by the Board at the hearing – that the definition in the Sexual Offences Act is applicable to classification – the Chief Classifier’s report[18] in the matter makes reference to the definition of child pornography in the Act, and does not refer to the definition in the Sexual Offences Act. It is clear from the report that the classifiers applied the definition in the Act and not the definition contained in the Sexual Offences Act.

Secondly, the definition section in the Sexual Offences Act, prior to defining each concept, states ‘[i]n this act unless the context indicates otherwise…’ Thus it appears that definitions listed in the Sexual Offences Act are operative for the purposes of that Act unless the context indicates otherwise. I was not referred to any section, and neither could I find any section, that indicates that the definition of child pornography in the Sexual Offences Act is to be extended to the Films and Publications Act. The objective of the Sexual Offences Act is ‘to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act.’[19] (my emphasis). Thus organs of state when seeking to achieve the objectives of the Sexual Offences Act must give full effect to the provisions of that Act. However this does not mean that the definitional provisions journey beyond the provisions of the Sexual Offences Act to the Films and Publications Act and to the classification process.     Further, the schedule to the Sexual Offences Act lists the sections of other Acts that have been amended or repealed by it. No reference is made in this schedule to any section in the Act being amended. We must thus conclude that the Sexual Offences Act had no impact on the implementation of the classification process in the Act. It is apparent that the intent of the legislature, after the passing of the Sexual Offences Act, was to leave the more nuanced and closely crafted specific definition of child pornography in the Act applicable to classifications, and intended the much broader definition to be applicable for the purposes of the Sexual Offences Act.

It is apparent that the definition in the Act has not been overruled, and has been retained with some changes that are inconsequential to the issue being considered. We thus have a specific definition for the purposes of the Act, and a more general definition that is used in the Sexual Offences Act.  From this a third reason develops: The presumption of interpretation generalia specialibus non derogant, which means “that a subsequent general legislation is deemed not to derogate from a prior special act”[20], is applicable in this instance. The specific definition in the Act takes precedence over the general definition in the Sexual Offences Act. In Sasol Synthetic Fuels v Lambert[21], the presumption was described thus:

 A closely related principle, generalia specialibus non derogant (general words (rules) do not derogate from special ones), leads to the same result. The matter is put thus in R v Gwantshu 1931 EDL 29 at 31:

When the Legislature has given attention to a separate subject and made provision for it the presumption is that a subsequent general enactment is not intended to interfere with the special provision, unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms. This case is a peculiarly strong one for the application of the general maxim per Lord HOBHOUSE delivering the judgment of the Privy Council in Barker v Edger ([1898] A.C. at p. 754). ‘Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly . . . altered . . . merely by force of such general words, without any indication of a particular intention to do so.’ In such cases it is presumed to have only general cases in view and not particular cases which have been already otherwise provided for by the special Act. Having already given its attention to the particular subject and provided for it the Legislature is reasonably presumed not to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language . . . (Maxwell, Interpretation of Statutes, 7th ed. 153)

Thus the specific definition of child pornography contained in the Act applies to classification decisions made in terms of that Act, while the general definition contained in the Sexual Offences Act applies more generally to matters covered in the Sexual Offences Act.

Indeed, this Tribunal in XXY made reference to the definition in the Sexual Offences Act, and stated:[22]

As is apparent from this definition, there was a clear intent on the part of those who drafted it to depart from the reasoning of the court in De Reuck. The word ‘includes’ is omitted, and the requirement that the film or publication be objectively deemed to appeal to the erotic as opposed to the aesthetic – the gravamen of the De Reuck reasoning – is expressly excluded. In contrast, the post-2004 definition in the Films and Publications Act is materially and substantially similar to the definition that was considered in the De Reuck matter.

In 2009, aware of the comments in De Reuck and XXY,[23] Parliament passed a number of amendments to the Act. This last set of amendments to the Act obviously post-dated the Sexual Offences Act. However, in so far as the definition of child pornography was concerned, there was no material change to the earlier definitions in the Act. For ease of reference, the 2009 definition of child pornography as amended is repeated below, with the amendments appearing in bold:

‘child pornography’ includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted or made to appear, look like, represented or described as being, under the age of 18 years –

(i)              engaged in sexual conduct;

(ii)             participating in, or assisting another person to participate in sexual conduct; or

(iii)            showing or describing the body or parts of the body of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation.

What is clear from the amended definition under the Act is that, unlike the definition in the Sexual Offences Act, the word ‘includes’ is retained in this definition, surviving the amendment process.  Considerable weight must be attached to the fact that Parliament, after the passage of the Sexual Offences Act with its own vastly different definition of child pornography, passed an amendment to the Act in which it clarified and retained important and relevant aspects the original definition of child pornography from the Act. The 2009 definition retains those aspects and features of the definition that were deemed critical in De Reuck and XXY, while expressly not following the broad definition contained in the Sexual Offences Act. Parliament, being aware of the reasoning in both De Reuck and XXY, retained the very words that resulted in the decision by the Constitutional Court: that when dealing with alleged child pornography, context and intention must be considered.  Specifically, the test is whether the film, game, or publication is intended to stimulate erotic rather than aesthetic feelings. It is clear that Parliament did in fact endorse the reasoning of De Reuck and XXY, as it passed an amendment to the definition of child pornography that retained the textual aspects crucial to the decisions made in the two cases. This is the fourth reason why the Board’s submission is incorrect that the definition of child pornography in the Sexual Offences Act overrides that in the Films and Publications Act. The 2009 amendment is the last word, and is the definition to be applied by the Committee.

Finally, the current guidelines[24] refer to the definition contained in the Act[25] and make no reference to the definition in the Sexual Offences Act. Further, the guidelines state that “all classification decisions must consider the context, impact and the release format of material”.[26] This is in accordance with what was said in De Reuck and XXY.

In these circumstances, the argument by the respondent that the definition of child pornography in the Sexual Offences Act is applicable to the classification of films, publications, and games is without substance. The definition that is operative and applicable to the classification of films, games, and publications in terms of the Act is the definition contained in section 1 of the Act. There is therefore no legal basis for the contention that the reasoning in De Reuck and XXY is not applicable.

Revisiting the analysis in De Reuck

The court in De Reuck held that ”it is not possible to determine whether an image as a whole amounts to child pornography without regard to the context”.[27] As stated earlier, the court held that the definition of child pornography in the Act includes the primary meaning that the film, game, or publication must intend to stimulate erotic rather than aesthetic feelings. This aspect of the definition is based on the Oxford English Dictionary definition of pornography. Thus if the material cannot be classified as pornography, it will not be deemed to be child pornography. It is important in this context to note that Mr R Mkhwanazi (for the respondent) conceded that the film Of Good Report was not pornographic.

In De Reuck, the position was summarised as follows:

The overarching enquiry, objectively viewed, is whether the purpose of the image is to stimulate sexual arousal in the target audience. This entails considering the context of the publication or film in which the image occurs as a visual presentation or scene. The court conducts the enquiry from the perspective of the reasonable viewer. The image will not be child pornography unless one or more of the four prohibited acts listed below is explicitly depicted for this purpose. The person ‘who is shown as being under the age of eighteen years’ in the image may be real or imaginary. The prohibited acts are:

(a)  a child engaged in sexual conduct;

(b)  a child engaged in a display of genitals;

(c)  a child participating in sexual conduct; and

(d)  a child assisting another person to engage in sexual conduct.

It is clear from later definitions of child pornography that the display or descriptions of parts of the body of a child will amount to child pornography if, assessed within context, it amounts to sexual exploitation or is capable of being used for the purposes of sexual exploitation.

As stated above, the test is whether the scene or scenes are intended to stimulate sexual arousal in the target audience. In order to assist classifiers in exercising this discretion, the following guidance was given by this Tribunal in XXY[28]:

The following issues must be considered cumulatively:

  1. Does the film or publication stimulate erotic rather than aesthetic feelings? If the image is not reasonably capable of stimulating sexual arousal in the target audience, then it is unlikely to fall within the definition of child pornography.
  2. The subjective views of the filmmakers are not determinative. The issue is whether a reasonable viewer would deem the purpose of the film or publication to stimulate erotic rather than aesthetic feeling.
  3. In making this determination, regard must be had to context. The more sexually explicit the image or scene, the more likely it is to be deemed to appeal to erotic as opposed to aesthetic sensibilities.
  4. The image or description must be of a person, real or simulated, who is, or is described as being, under the age of eighteen. The image must be reasonably capable of being perceived as being that of a person under the age of eighteen.
  5. The image will not be child pornography unless one or more of the four prohibited acts listed below is depicted for this purpose. The prohibited acts are:

(i)       a child engaged in sexual conduct;

(ii)      a child engaged in a display of genitals which amounts to sexual exploitation or in such manner that it is capable of being used for the purposes of exploitation;

(iii)     a child participating in sexual conduct; and

(iv)    a child assisting another person to engage in sexual conduct.

  1. If the examiners are in doubt about the true nature of the film or publication, it must be referred to the Review Board.

For the reasons stated earlier, these guidelines are still applicable and relevant. It was common cause that neither the reasoning in De Reuck nor that in XXY was used by the classifiers. We are unsure whether, at the time, this was an oversight or whether they were advised that these cases were not applicable, as was argued on their behalf before the Tribunal in the present matter. In either instance, the failure to apply these principles resulted in material errors of law being committed. It is probable that, had these principles been applied, the classifiers would have reached a different conclusion in this case.

Reliance was placed on section 16(1) of the regulations, which states that if the Committee discovers child pornography during the classification process, the film, game, or publication process must be stopped. The meaning assigned in the Act is applicable to the regulations, unless the context indicates otherwise.[29] I was not referred to anything in the regulations, and neither was I able to find anything in the regulations, that indicates that the definition of child pornography in the Act is not applicable. Therefore the reasoning in De Reuck and XXY is equally applicable to the regulations. This means that the process is to be stopped only if the Committee makes a definitive finding, applying the Act, the regulations, and the reasoning in De Reuck and XXY, that the film contains images that are child pornography. They must conclude that the film, assessed within context, is intended to stimulate sexual arousal in the target audience. However, it must be stressed that the viewing of the film must not be stopped unless the Committee is of the view that the images seen are so explicit and of such a nature that the only inference that can be drawn is that the film is intended to stimulate sexual arousal in the target audience, and that this assessment would not change notwithstanding the content of the rest of the film. In most instances, the assessment of whether the images amount to child pornography can only be made after the film is viewed in its entirety, the scenes that cause concern are objectively evaluated within context, and a determination is made whether the film in intended to stimulate sexual arousal within the target audience. It is only if the ultimate conclusion is reached that the film contains child pornography that the Committee is required to stop the classification process. If there is any uncertainty about whether the film contains images of child pornography, then the entire film must be viewed before this determination can be properly made.

It is vitally important that classifiers are fully informed of the jurisprudence that has developed around the various sections of the FPB Act, the regulations and the guidelines, so as to ensure that they are able to make what are sometimes difficult decisions that accords with the applicable legal principles.

Application of the relevant legal principles to the film

I now turn to an analysis of whether the film Of Good Report, assessed within context, contains scenes that – from an objective perspective – can be deemed to be intended to stimulate sexual arousal in the target audience. The appellants correctly conceded that the film contained scenes of a person who appears to be, looks like, or is represented as being under the age of eighteen engaged in sexual conduct. It is also common cause that what was portrayed cannot be described as explicit sexual conduct. Regrettably, the respondent in its submissions did not fully focus on this aspect in either their heads of argument or in their oral submissions.

The first scene that prompted the classifiers to conclude that the film contained scenes of child pornography portrayed intimate relations between Parker Sithole and Nolitha, was longer than the other scenes, and was much more suggestive and revealing. The protagonist share an intimate kiss, Parker runs his hand along her thigh, , and buries his face between her thighs, Nolitha’s underwear is removed and we hear  her sighing in pleasure. The scene cuts away to the drunken Mr September, and we then see Parker unzipping his pants. The Committee is correct in saying that cunnilingus is strongly implied, and further sexual conduct is implied between Parker and Nolitha, a minor. So in effect, sexual conduct is either implied or simulated with a minor. The scene lasts a few minutes and no nudity is portrayed. The cut-away to Mr September reduces the sexual impact of the scene. Had there been a more explicit depiction of the sexual conduct, different considerations might have applied.

The appellants correctly contend that if scenes of implied or simulated sexual conduct between an adult and a minor immediately trigger a finding that a film contains scenes of child pornography, irrespective of context, a number of celebrated films would be denied classification and effectively be banned in South Africa. This would include films such as The Reader, which was nominated for best picture in 2008; American Beauty, which won the best picture award in 1999; and Risky Business, a film shot in 1983 that featured Tom Cruise. It was specifically to deal with the potential overreach of the law that the Constitutional Court in De Reuck required the evaluation to be made in context, and a determination to be made whether scenes, appraised in the context of a film, are intended to stimulate sexual arousal in the target audience. It is this additional requirement that ensures the constitutionality of the definitions of child pornography and sexual conduct contained in the Act. For the reasons stated earlier, this approach has been endorsed by the legislature and by the drafters of the current guidelines.

Other scenes that have to be assessed include the montage depicting implied sexual conduct between Parker Sithole and Nolitha that is interspersed during the tango dance sequence, in which the latter takes the lead. One is unsure whether this is a fantasy or not. In one of the scenes, the viewers see Nolitha’s breast, and it is clearly implied that they are having sexual intercourse. The scenes are almost photographic in that they are fleetingly portrayed during the dance sequence. These ‘snapshot’ scenes, spread across the tango dance sequence, are highly unlikely to stimulate sexual arousal in the target audience.

In the classroom there is a scene of implied sexual conduct, in which fellatio may have occurred. However, this is merely implied, no more. In the scene in the toilet, when Nolitha’s fellow female learners try to get access, it is clear that the protagonists are either about to have sex or have just had sex. However, they are not depicted as having sex. We also see pictures of school girls photographing their breasts and buttocks, and relaying these electronically. There are also some nudity when Nolitha’s body is strung up prior to being dismembered. These are fleeting references to a sexual relationship, and none of these scenes is likely to stimulate sexual arousal in the target audience.

The first scene, together with the scenes of lesser concern, must be assessed in the context of the film as a whole. The intent of this film is to convey serious messages, and is patently not to stimulate sexual arousal in the target audience. The film reflects on the consequences of poverty, the vulnerability of girl children (even within the school environment) to paedophiles ‘of good report’, the ‘sugar daddy’ phenomenon, the challenges facing adolescents as they make unfortunate choices even though they are able to analyse Othello “as a man who hates women”, the naivety of those who make important decisions in our schools, and the fact that some men ‘of good report’ are anything but good in substance and reality. This is a serious film that endeavours to encourage debate about a number of important and pressing issues on which we as a society need to reflect more fully and urgently. The importance of allowing this type of speech to be expressed rather than banned was articulated by three justices of the Constitutional Court[30] in the following terms:

The important right to freedom of expression lies at the heart of democracy. The search for the truth, the ability to take democratic decisions and self-fulfilment have been put forward as reasons why freedom of expression must be protected. It is closely linked to the right to human dignity and helps to realise several other rights and freedoms. Being able to speak out, to educate, to sing and to protest, be it through waving posters or dancing, is an important tool to challenge discrimination, poverty and oppression. This Court has emphasised the importance of freedom of expression as the lifeblood of an open and democratic society.

Our history illustrates the crucial importance of free expression for democracy, even when its regulation and limitation deal with sexual conduct and related matters. Censorship was central in the legal system of the apartheid era. Not only were political activity, books, articles and even songs banned, but the apartheid state also imposed the narrow Calvinist and cultural notions of morality and good taste of the ruling minority on all. For example, the 1974 Publications Act put in place an elaborate system of committees and a “Publications Appeal Board” to classify, prohibit and restrict. Books, magazines, articles and plays were banned or subjected to age and other restrictions. Globally celebrated films were banned, restricted to small venues, or subjected to the severe excising of language, nudity, sexual conduct and scenes depicting relations across the racial divide of that time. Apart from providing for censorship of material deemed to be “prejudicial to the safety of the State”, vague criteria like “indecent”, “obscene”, “offensive” and “harmful to public morals” were central to that Act. The censorship system was a powerful tool to sustain political, cultural and religious dominance. And courts played along, for example, with the banning of books by well known authors on the basis that the description of sexual conduct in them was “indecent, obscene and objectionable.’’

This film is also about the excesses of an obsessive relationship between an adult teacher and a minor learner, about gender violence and lays the tragic and bitter consequences uncompromisingly before the viewer. The supposed seductive appeal of a legally forbidden relationship is totally outweighed by the grim and devastating consequence of such a relationship. Given this, the complexity of the themes considered, and the fleeting scenes of sexual activity, this film cannot reasonably be deemed to be one that stimulates erotic sentiments or stimulates sexual arousal within its target viewers. In the circumstances, the finding that the film contained scenes of child pornography is factually incorrect and is set aside.

We now turn to an appropriate classification for the film. The grandmother figure being suffocated, the beating up of Mr September, the kidnapping and dismembering of Nolitha, and the arresting police officer’s assault on Parker Sithole are scenes of realistic violence, but are justified within context. However, the full impact of the violence is dulled by the film being shot in black and white. As there are scenes of sexual conduct that are not explicit, nudity, and violence, we are unanimously of the view that an appropriate classification is a restrictive classification of 16 (V), (S), (N). This means that children under the age of 16 are not permitted to view this film.

Conclusion

 

  1. The Committee erred in law in not assessing this film in context, and by not having regard to whether the intent of the filmmakers was to stimulate erotic sentiments in the target audience.
  2. The Committee erred in assigning a ‘refused classification’ to this film on the basis that it contained child pornography.

Order:

 

  1. 1.     The decision of the FPB made on the 16th and 17th July 2013, that the film Of Good Report be refused classification, is set aside.
  2. 2.     The film Of Good Report is assigned a classification of 16 (V) (S) (N).
  3. 3.     No person under the age of sixteen is allowed to see this film.

Dated at Durban on the 20th day of August 2013

Concurred by:

  1. Adv. D Bensusan
  2. Ms H Devraj
  3. Ms P Marek
  4. Revd M McCoy
  5. Prof. K Moodaliyar
  6. Prof. A Skelton

 


[1] Section 24A(2) of the FPB Act.

[2] Section 24B(1) of the FPB Act.

[3] http://homeworktips.about.com/od/bookreportprofiles/a/lolita.htm. The site contains a review of Lolita, and was accessed on 3 August 2013.

[4] Section 28(1)(d) of the Constitution.

[5] Section 2(b) of the Act.

[6] De Reuck v Director of Public Prosecution CCT 5/03 paras 63-65 (footnotes omitted).

[7] De Reuck (above) paras  66 and 67.

[8] Derby-Lewis and Another v Honourable Chairman of the Committee on Amnesty of the Truth and Reconciliation Commission (2001) JOL 7871 (C).

[9] Derby-Lewis (above) 35 (references omitted).

[10] Baxter, Administrative Law in South Africa (1984), 262-263.

[11] Baxter (above), 267.

[12]. Hoexter Administrative Law in South Africa (2012), 2nd ed, 67.

 

[13] . Film and Publications Regulations GN R207 in Government Gazette 33026 of 15 March 2010.

[14] Print Media SA and others v Minister of Home Affairs [2012] ZACC 22 para 92.

[15] This is in terms of an amendment to the Act made shortly after De Reuck.

[16] Para 19 of the judgment.

[17] De Reuck (above) para 20.

[18] Report dated 16th and 17 of July 2013.

[19] . Section 2 of the Sexual Offences Act.

[20] http://www.duhaime.org – legal dictionary, accessed on the 5th August 2013.

[21] Sasol Synthetic Fuels v Lambert [2001] ZASCA 133 para 17.

[22] Para 21 of the reasons.

[23] Road Accident Fund v Monjane 2010 (3) 641 (SCA) para 12.

[24] Government Gazette 8 October 2012 No. 35765.

[25] See the definition section of the 2012 Guidelines.

[26] Section 3 (1) of the 2012 Guidelines.

[27] Paragraph 33 of the judgment.

[28] Para 35 of the judgment of XXY.

[29] Section 1 of the Regulations.

[30]. Justice Van der Westhuizen in Print Media SA and Others v Minister of Home Affairs and others [2012] ZACC 22 para 93 and 94.  Justice van der Westhuizen was writing for himself and three other justices in finding that the sections of the FPB Act were overbroad for other reasons than that it amounted to prior restraint. The majority were of the view that the sections were unconstitutional because they imposed a system of prior restraint that was unconstitutional. Footnotes have been omitted.

Transcript: Chief Justice Mogoeng on the Rule of Law in South Africa

Transcript

The Rule of Law in South Africa: Measuring Judicial Performance and Meeting Standards

The Hon. Mogoeng Mogoeng

Chief Justice of South Africa

Chair: Suella Fernandes

Chair of Trustees, Africa Justice Foundation

25 June 2013

Mogoeng Mogoeng

The topic I was asked to address this meeting on is ‘The Rule of Law in South Africa: Measuring Performance and Meeting Standards’. In my view, it essentially boils down to the role of the judiciary in promoting peace, good governance and sustainable economic development. And at the heart of it is the observance of the rule of law, which the Constitutional Court of South Africa explained in these terms:

The exercise of public power must … comply with the constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the constitution. It entails that both the Legislature and the Executive “are constrained by the principle that they may exercise no power and perform no function beyond that conferred on them by the law”. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power.

Even if all others were to be unable to give practical expression to the rule of law, human rights and the constitutional aspirations of the people in any democracy, that constitutional democracy would survive; provided a truly independent body of judges and magistrates, loyal to the oath of office or solemn affirmation, is in place and ready to administer justice to the aggrieved in terms of their oath of office or affirmation.

And that is the oath or affirmation to be faithful to the Republic of South Africa, to uphold and protect the constitution and the human rights entrenched in it and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law. Central to the affirmation or oath of office is the obligation to uphold the foundational values of our constitutional democracy, which include the rule of law, human dignity, equality, freedom, transparency and accountability.

This is the legal philosophy and the vision necessary for the promotion of the rule of law and the economic developmental agenda not only for South Africa and the SADC (Southern African Development Community) region but of the African continent as well. Because African countries face similar challenges albeit to varying degrees, I have decided not to confine my address to South Africa but to deal with the broader African situation.

Africa is a beautiful continent. And Africa is populous, comprises vast tracts of land and is extremely rich in minerals and natural resources. It has what it takes not only to have its people bask in the glory of sustainable economic development and prosperity; but also to enjoy peace and all-round stability in an environment of good governance, facilitated by an independent, efficient and effective court system. And yet reports about Africa are generally negative.

Africa is generally associated with massive corruption, social and political instability, rigged elections, dictatorships, abuse of human rights with near impunity, rampant non-observance of the rule of law, coups d’état, sickness and disease, high mortality rate, abject poverty, economic underdevelopment, dependency and in general, the paucity of accountability, responsiveness and good governance. Yet economists say that the United Kingdom and Switzerland, which do not have the mineral and natural resources we have, with a very small population and a small piece of land, are each richer than all African countries put together. We must therefore play our part to reverse this unacceptable state of affairs.

To avoid dwelling on the predictable lamentations of Africa, generally based on what colonization has done to us, and how some superpowers possibly continue to employ more nuanced and sophisticated ways of prospering with our resources at our expense, we need to identify the challenges that strangle the possibility of African people enjoying the peace and the prosperity that this great continent is pregnant with, which African people can change.

The judiciary is the third branch of government; the third arm of the state. There simply can be no state or government without the judiciary in a genuine constitutional democracy. To breathe life into the African dream that is inspired by the desire to break free from centuries of economic oppression, and to recapture the lost glory of Africa, the judiciary in Africa must be more alive to the enormous responsibilities it bears on its shoulders to contribute to the renaissance of Africa.

When the judiciary enjoys both individual and institutional independence and is faithful to its constitutional mandate, then peace, good governance and sustainable economic development is achievable. It must be for this reason that it is recalled in the preamble to the statute of the Conference of Constitutional Jurisdictions of Africa (CCJA); that the Constitutive Act of the African Union enshrines the commitment of heads of state and government of the Union ‘to promote and protect human and people’s rights, to consolidate institutions and democratic culture, to promote good governance and the rule of law’. The judiciaries of Africa have, through the CCJA, also committed themselves to supplementing the AU mechanisms to consolidate the rule of law, democracy and human rights. Finally, we recognise again in the CCJA statute that the achievement of the above objectives is ‘closely linked to the independence and impartiality of judges’. And it is to this end that the CCJA and the court system in a true democracy were primarily established.

How then can we, as the judiciary, make this African dream and the renaissance of Africa come true? I am one of those who believe that lasting solutions to our problems are simple but certainly not simplistic. We often fail to address problems that beset our systems and countries because we tend to look for complex and highly sophisticated solutions, when simple and practical ones, borne out of the experiences of others, and our own experiences are at hand and best suited to yield the much needed results.

Why do we not witness in France, Singapore and the UK problems that have become familiar in Africa? We have oil, gas, gold, diamonds, platinum, chrome, coal etc. in abundance, and breath-taking tourist attractions. The UK is the size of a game reserve in South Africa known as the Kruger National Park. South Korea is about the size of a province in South Africa known as KwaZulu-Natal – where Durban is – and Singapore was very poor and insignificant in 1965, but is now rightly counted among the big world economies although it has nothing but its people and a tiny piece of land. A closer examination of the operations of their judiciaries would, without ignoring the damage done by our painful history, be quite revealing.

Africa desperately needs a truly independent and efficient judiciary in each of its countries to create peace and stability. When citizens know that there is an effective and efficient court system in their country and that arrest, prosecution, conviction and sentence for the guilty is predictable, then corruption and crime in general will go down.

Those who may wish to take power through unconstitutional means would be deterred from forging ahead with their unconstitutional plans by what an independent judiciary in their country could do to them. I asked colleagues in countries like Germany where people cycle freely with no apparent fear of crime even at night what the secret was. And they said the efficiency of the judicial system and the predictability and probability, as opposed to a remote possibility, of paying for one’s crime is the reason behind the peace and overall stability the people enjoy.

When the other branches of government know that courts as the guardians of the constitution will always do their job without fear, favour or prejudice, they will observe and promote the rule of law.

When it is known that a challenge to the executive’s failure to deliver on a constitutional obligation could result in an executable court order against anybody from the president to a mayor, of their own accord government functionaries and role players in business will obey the law of the land, observe business ethics and good governance will materialize.

Good governance stems from compliance with conventional, legislative and constitutional governance prescripts. The entrenchment of the human rights culture, the observance of the rule of law and giving priority to, among others, the realization of the legitimate aspirations of the citizenry in terms of the law, transparency, accountability, responsiveness, the creation of a truly independent and effective corruption-busting machineries, protection of press freedom and the creation of an investor-friendly climate are some of the key ingredients of good governance. For example, the Constitutional Court of South Africa ruled that the corruption-busting body created in terms of legislation was not sufficiently independent to deal with corruption effectively and the relevant legislation had to be appropriately amended to meet the independence requirement.

All of the above conspire to create an investor-friendly atmosphere. When potential investors know that in Africa you will get justice against any law-breaker when defrauded, and when government, business partners or any entity tries to get an unjust or unlawful advantage of them, they will come in droves to invest, given the huge and diligent labour force, the fertile and productive land, the very rich minerals and abundant natural resources we have to offer.

In this regard, the United Nations observed a few years ago that there was a direct link between the capacity of the judiciary to promote the rule of law and facilitate good governance on the one hand, and the willingness of multinational companies to embark upon massive and sustainable economic development on the other. And a concern was raised about the apparent lack of capacity by African judiciaries and governments to facilitate an investor-friendly environment.

The leadership of the South African judiciary has resolved to make policies, set its own strategic priorities and develop a concomitant implementation matrix, to ensure that South Africa has the fundamentals necessary for the realization of the South African and African dream in place.

Nationally, regionally and continentally, the judiciary in Africa must also be encouraged to embark on a very brutal individual judge – and institutional introspection.

The starting point I think, is identifying key challenges that inhibit judiciaries in Africa from executing their constitutional mandate efficiently and effectively. Do judicial officers in all African countries enjoy both individual and institutional independence which would insulate them from undue influence and corruption? Do they all have real security of tenure? Are they paid fairly well? Do they have the essential tools of trade? Is there proper judicial self-governance in the area of court administration and do they control their own budget? Even if there is no self-governance in the strict sense, is the executive or hybrid court administration system in place compatible with genuine judicial independence? Is the court budget adequate for the execution of key functions? Is there an effective judicial education system in place? Does the judiciary broadly enjoy the confidence of the populace? If not, why, and what should be done to address those perceptions or realities, as the case may?

We must develop in-house capacity to identify challenges that undermine the efficiency and effectiveness of the judiciary in the continent. That task should be narrowed down to our regions and our respective countries so that we can identify measures that should be employed to get courts back to their rightful place, wherever there is a need to do so. South Africa has done this and is always looking for ways to improve on this.

Peer review mechanisms without undue self-imposition on others must be explored, the exchange of best practices, and finding an effective way of having interference with judicial independence exposed by allied institutions like the associations of solicitors and barristers all require urgent attention.

When the judiciary is under unfair attack in any country, it must be a concern of allied national, regional and continental bodies alike. We must be our brothers’ and sisters’ keepers.

There is also a need to develop effective communication strategies to disseminate information about judicial institutions and associations, their role and the challenges and role of the judiciary in Africa.

We must find a legitimate way of influencing decisions about changes necessary to secure judicial independence in all African countries, without interfering unduly in the affairs of any sovereign state, given the sensitivities attendant thereto. The academia should speak and write articles more, the organized profession should also echo sentiments on what needs to be done and how, bodies like the International Commission of Jurists should add their voice and we must also work on our own vocal cords as judges about the fundamental changes needed in the judiciaries of African countries. We must find a way to engage with colleagues in the affected countries on how best to work together towards bringing about the necessary changes by the judiciary.

Another avenue to explore is establishing a link between regional structures of presidents and ministers of justice of our respective countries and those of the judiciary. We should not leave it to the regional executive structures to take decisions about judicial structures and matters without meaningfully involving the relevant leadership of the judiciary. The judiciary must also have a say at AU level about matters that affect them. Our role should not be limited to appointments to regional and continental tribunals or courts which were established without any real engagement with the leadership of the judiciary. We should also be involved in their creation and restructuring.

I believe that that there is peace, good governance and a generally sound economy in countries like Singapore and the UK because the rule of law, human rights and good governance are observed as a matter of course. In those countries courts protect the right of the media to objectively and accurately inform the public; courts are largely efficient and effective; they are not beholden to the executive, parliament, the media, lobby groups or the rich and powerful. Civil disputes are somewhat speedily and justly resolved and investors are apparently happy that the law and those who enforce the law will protect their legitimate business interests if unjustly or unlawfully interfered with. There is good governance, social and political stability largely because courts force the politicians and society to act only in terms of the law.

I am convinced that each African country with a judiciary that operates with the ever-abiding consciousness of its constitutional responsibility to contribute to peace and stability, the observance of the rule of law, good governance and the creation of a climate that is conducive to sustainable economic development and plays its part, will help its country to achieve these noble objectives, and realize the legitimate and constitutional aspirations of the citizens.

If we do so individually and collectively as courts in African countries, then Africa’s lost glory shall be recaptured, and we shall assume our rightful place in the community of nations. We shall shed ourselves and our continent of the stigma, the disrespect, marginalization and suffering that we have had to endure for far too long.

Please don’t misunderstand me. I am not saying that the judiciary alone can turn things around in a country. But I am saying that the judiciary that is left to do its job well without fear, favour or prejudice has the capacity to significantly change the deplorable conditions that the majority of our people have had to live with over the years.

Each judiciary owes its relevance, significance and support not just to the constitution of the country, its laws and impressive institutions. It also owes its credibility and admiration to the strategic priorities it is able to sets for itself; the development of a plan to realize its deliverable objectives with firm time-frames, where practicable; and a credible funding model that would not compromise its independence for projects that require financial resources.

We have, since 13 October 2012, brought together all departments and key institutions under the umbrella of the body chaired by the chief justice. That body is known as the National Efficiency Enhancement Committee. As the name suggests it is designed to ensure that every key role player in the court system carries out its constitutional responsibilities in a way that would ensure that it enhances the observance of the rule of law through efficiency and effectiveness.

We are also running pilot projects on the proper implementation of the case management system known as Judicial Case Management in five High Courts. This system will in due course be rolled out to all the High Courts and the Magistrates Courts to enhance greater efficiency and the speedy delivery of quality justice to all.

We are also in the process of developing norms and standards and our own capacity to harvest statistics to help us identify performance-related challenges in our courts, timeously, so that we can address them without undue delay.

Our judicial education institute for judges and magistrates has since January 2012 been fully operational.

A national department led by the Judiciary has, since 2010, been promulgated into existence. It is a critical stepping stone towards the establishment of a fully-fledged court administration system led by the judiciary and created in terms of legislation as an entity independent of executive control.

The South African judiciary is thus doing everything within its power to promote and enforce the observance of the rule of law by developing performance monitoring and evaluation standards and ensuring that they are met. This is of course an ongoing process. And in its interaction with other African judiciaries, it not only draws lessons from their experiences but also suggests with all modesty that they consider why it has worked for South Africa.

I thank you.

Question and answer session

Question

There has been a transformation of the South African judiciary since 1994, and many competent lawyers have been appointed to the Constitutional Court. However, there is another group of great lawyers who have never been appointed, and they appear to have encountered difficulties during the interview process. Have they been singled out, perhaps due to their political independence?

Mogoeng Mogoeng

Hon. Mogoeng replied that some of the lawyers alluded to applied to the Constitutional Court before his appointment as chief justice, and thus he could not comment on those cases. Some applicants have been singled out for celebration or vicious attack in the media, but the Judicial Service Commission (JSC) does not focus on media reports and will never rubberstamp a candidate into power based on popularity. It is necessary to look at individuals’ track records as judges first.

However, Hon. Mogoeng noted that the executive has more influence over this process than the chief justice. There have been complaints that appointments are decided in advance by members of the ruling party who serve in the JSC. Hon. Mogoeng said it cannot be a case of racial prejudice or gender discrimination, because male and female judges of all backgrounds have been appointed, but rather this indicates collusion between the ruling party and the judiciary, and an attempt to intimidate the JSC.

Hon. Mogoeng stated that without a credible judiciary in place, South Africa’s constitutional democracy will be destroyed. He added that question needs to be asked over what kind of judiciary South Africa is creating.

Questions

You linked the role of the judiciary in the promotion of sustainable development, but could you comment on aspects of the rule of law that don’t link solely to development, such as the protection of children, women’s rights and disabled peoples’ rights?

Could you comment on the tensions over proposals to amalgamate solicitors and barristers in the judiciary: is this part of attempts by the government to control the judiciary?

It is essential to have an independent judiciary, but judicial decisions will not be enforced if the executive body does not uphold decisions. How can we guarantee that other institutional actors act in accordance with judicial decisions?

Mogoeng Mogoeng

Hon. Mogoeng stated that the minister of justice and constitutional democracy is creating more sexual offences courts and lots of training has gone into empowering judicial officers at the regional level, as most of the cases are held there. This has meant that victims can go through the court processes more quickly; video conference facilities are being rolled out so victims of crime do not have to face perpetrators in courts; and there are more social workers and counselling available. Sexual offences have been identified as a priority as part of the National Efficiency Enhancement Committee.

New legislature protecting children has been passed in the last few years, enhancing public knowledge of the rights of children. There is less detainment of youths in adult facilities; instead, appropriate rehabilitation programmes are being set up. Women’s rights and children’s rights are some of the priority areas for the South African justice sector.

Hon. Mogoeng stated that members of the judiciary are not able to comment on the possible amalgamation of solicitors and barristers. The judiciary took the position that the distinction between solicitors and barristers might divide the judiciary unnecessarily, with some identifying as attorneys and others as advocates. It is within the power of the law society of the general council of barristers to do its best to resolve their differences.

Hon. Mogoeng noted that certain judiciaries in Africa are facing serious problems when it comes to the execution of judicial orders. In Kenya, the judiciary had to be dissolved and reappointed from scratch, due to massive corruption; the process is still not finalized. When the judges were asked why they were corrupt, they replied that they were underpaid. Hon. Mogoeng stated that this is why regional structures are needed to investigate threats to the independence of judiciaries and to enable exchange of best practices.

One problem with the judiciaries in Africa is that they sit back, because of the conservative nature of these institutions. Hon. Mogoeng stated that he tells his colleagues to fight to make sure the image of the judiciary in Africa changes. Judiciaries have to speak up otherwise they are part and parcel of the problem. There cannot be rule of law without the carrying out of orders, so Q&A: The Rule of Law in South Africa www.chathamhouse.org 4

it is important for judiciaries to help each other in Africa; allied institutions must speak up when a particular judiciary is not acting independently.

Question

How does customary law, such as the leadership of traditional chiefs, fit into the South African constitutional and legal system?

Mogoeng Mogoeng

Hon. Mogoeng stated that customary law should not necessarily be viewed as backwards or incompatible with South Africa’s progressive constitution and the Bill of Rights. Just as statutory law needed improvement to fit in with constitutional practices, customary law can be developed in the same way to remove elements that could take South Africans backwards.

There has been debate about the implementation of the Traditional Courts Bill between the judiciary and traditional leaders. The courts have to make sure that discrimination against women as practiced in the traditional sector is made a thing of the past.

Hon. Mogoeng noted that traditional leaders still need to be trained; royal academies must be re-established so that leaders are properly qualified in how to run traditional courts. Traditional courts must comply with the constitutional system, in order to improve South Africans’ access to justice.

Questions

Some multinational corporations operating in South Africa are using the law to avoid paying tax. Is there a mechanism that can be used to hold companies accountable, and to stop depriving South Africans of this source of revenue?

Can you say more about domestic benefits and inward investment as related to the connection between the rule of law and economic development?

Mogoeng Mogoeng

Hon. Mogoeng stated that the problem lies in international agreements that members of the executive legislature enter into, or are forced to enter into. For example, a conference was held to develop a legal framework facilitating massive investment by China in Africa. However, this presents a major concern: the creation of a permanent legal structure in China that is Q&A: The Rule of Law in South Africa www.chathamhouse.org 5

favourable to Chinese companies paying minimal or no tax in African countries. This is a one-sided ‘partnership’; Africa needs development, but not at all costs.

Hon. Mogoeng noted that big economies have a way of getting away with these practices. Countries that are desperate for development are forced to comply with laws that are posed in accordance with international agreement; where tax is minimal or simply deferred. African citizens need to speak up; African countries need to employ highly qualified legal advice before signing to ensure that they get the right tax revenue systems set up. The judiciary can do little if it is already a done deal. The courts will not step in; arbitration will be carried out in the investor’s own country, according to their own laws.

Hon. Mogoeng spoke on the influence of the rule of law on the domestic economy, and the implications for those investing from outside the country. If the legal system does not look safe, companies will think twice before investing. Companies want to invest in countries with an independent judiciary; where they can have the confidence to approach a court of law without the possibility of bribery or corruption. Hon. Mogoeng noted that the judiciary is paid well enough in South Africa to render bribery impossible.

Full document: Film and Publications Board reasons for banning Of Good Report

Code of Judicial Conduct for South African Judges

CODE OF JUDICIAL CONDUCT

ADOPTED IN TERMS OF SECTION 12 OF THE JUDICIAL SERVICE COMMISSION ACT, 1994 (Act No 9 OF 1994)

 

PREAMBLE

Whereas─

1)     the supremacy of the Constitution, the rule of law, and the rights and freedoms enshrined in the Bill of Rights are the foundation of the democracy established by the Constitution;

2)     section 165(1) of the Constitution provides that the judicial authority of the Republic vests in the courts;

3)     section 165(2) of the Constitution provides that the courts are independent and subject only to the Constitution and the law, which they must apply without fear, favour or prejudice;

4)     section 174(8) of the Constitution provides that before judicial officers begin to perform their functions, they must take an oath, or affirm, in accordance with paragraph 6(1) of Schedule 2, that they “will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”;

5)     section 180(b) of the Constitution provides that national legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including procedures for dealing with complaints about judicial officers;

6)     the Judicial Service Commission Act, 1994 (Act No 9 of 1994) (hereinafter referred to as the Act), seeks to maintain and promote the independence of the office of judge and judiciary as a whole, while at the same time acknowledging that it is necessary to create an appropriate and effective balance between protecting the independence and dignity of the judiciary when considering complaints about, and the possible removal from office of, judges as defined in section 7(1)(g) of the Act, and the overriding principles of openness, transparency and accountability that permeate the Constitution and that are equally applicable to judicial institutions and officers;

7)     it is necessary for public acceptance of its authority and integrity in order to fulfil its constitutional obligations that the judiciary should conform to ethical standards that are internationally generally accepted, more particularly as set out in the Bangalore Principles of Judicial Conduct (2001) as revised at the Hague (2002);

8)     Part II of Chapter 2 of the Act provides the legal framework for judicial conduct which judicial officers in South Africa must adhere to, and Part III and IV of Chapter 2 of the Act, particularly sections 14, 15, 16, 17, 18, 19 and 20 specify mechanisms, structures and procedures to be applied if a judge acts in a manner unbecoming a judge in respect of any of the five grounds spelt out in section 14(4) of the Act;

9)     section 12 of the Act provides that the Chief Justice, acting in consultation with the Minister, must compile and maintain a Code of Judicial Conduct, which must be tabled by the Minister in Parliament for approval;  and

10)  section 12(5), read with section 14(4)(b) of the Act, specifically provides that the Code of Judicial Conduct shall serve as the prevailing standard judicial conduct, which judges must adhere to and that any wilful or grossly negligent breach of the Code may amount to misconduct which will lead to disciplinary action in terms of section 14 of the Act;

PARLIAMENT of the Republic of South Africa, therefore approves the Code of Judicial Conduct for Judges as follows:-

Article 1:  Definitions

In this Code, unless the context otherwise indicates—

(a)  “the Act” means the Judicial Service Commission Act, 1994 (Act No. 9 of 1994); and

(b)  any word or expression to which a meaning has been assigned in the Act shall bear the meaning so assigned to it.

 Article 2:  Application

(1)   This Code applies to every judge referred to in section 7(1)(g) of the Act who is performing active service and, unless the context indicates otherwise, also to—

(a)   a judge released from active service and who is liable to be called upon to perform              judicial duties; and

(b)   an acting judge.

         (2)   A Judge not on active service is bound by this Code insofar as applicable.

(3) Any wilful or grossly negligent breach of this Code is a ground upon which a complaint against a judge may be lodged in terms of section 14(4)(b) of the Act.

(4) Complaints must be dealt with in accordance with section 14, read with sections 15, 16, or 17 of the Act.

Article 3: Objects and Interpretation

         (1) The object of this Code is to assist every judge in dealing with ethical and professional issues, and to inform the public about the judicial ethos of the Republic.

         (2) This Code must—

(a) be applied consistently with the Constitution and the law as embodied in the common law, statute, and precedent, having due regard to the relevant circumstances;

(b) not be interpreted as impinging on the constitutionally guaranteed independence of the judiciary or any judge or on the separation of powers;

(c) not be interpreted as absolute, precise, or exhaustive. Conduct may therefore be unethical which, on a strict reading of this Code, may appear to be permitted and the converse also applies.

(3) Although international standards and those applied in comparable foreign jurisdictions may not be directly applicable, they do provide a useful source of reference for interpreting, understanding and applying this Code.

(4) Notes to Articles of this Code are for the purpose of elucidation, explanation and guidance with respect to the purpose and meaning of the Articles.

 

Article 4: Judicial Independence

A judge must—

(a)   uphold the independence and integrity of the judiciary and the authority of the courts;

(b)   maintain an independence of mind in the performance of judicial duties;

(c)    take all reasonable steps to ensure that no person or organ of state interferes with the functioning of the courts; and

(d)   not ask for nor accept any special favour or dispensation from the executive or any interest group.

Notes:

Note 4(i): A judge acts fearlessly and according to his or her conscience because a judge is only accountable to the law.

Note 4(ii): Judges do not pay any heed to political parties or pressure groups and perform all professional duties free from outside influence.

Note 4(iii): Judges do not appear at public hearings or otherwise consult with an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice.

Note 4(iv): Judicial independence is not a private right or a principle for the benefit of judges as individuals. It denotes freedom of conscience for judges and non-interference in the performance of their decision-making. It does not justify judicial misbehaviour and does not provide an excuse for failing to perform judicial functions with due diligence or for otherwise acting contrary to this Code.

Note 4(v): Organs of state are constitutionally mandated to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness. The correlative is the right of every judge not to have his or her independence of mind disturbed by any person or organ of state.

 Article 5: To act honourably

(1)   A judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office.

(2)   All activities of a judge must be compatible with the status of judicial office.

Notes:

Note 5(i): A judge behaves in his or her professional and private life in a manner that enhances public trust in, or respect for, the judiciary and the judicial system.

Note 5(ii): A judge avoids impropriety and the appearance of impropriety in all the judge’s activities.

Note 5(iii): A judge does not engage in conduct that is prejudicial to the effective and expeditious administration of the business of the court.

Note 5(iv): Judicial conduct is to be assessed objectively through the eyes of the reasonable person.

Article 6:  Compliance with the law

A judge must at all times, also in relation to extra-judicial conduct, comply with the law of the land.

 Article 7: Equality

A judge must at all times—

(a)   personally avoid and dissociate him- or herself from comments or conduct by persons subject to his or her control that are racist, sexist or otherwise manifest discrimination in violation of the equality guaranteed by the Constitution;

(b)   in court and in chambers act courteously and respect the dignity of others;

(c)    in conducting judicial proceedings, give special attention to the right to equality before the law and the right of equal protection and benefit of the law; and

(d)   in the performance of judicial duties refrain from being biased or prejudiced.

Notes:

Note 7(i):  These provisions are aimed at promoting courtesy and ensuring a degree of decorum.

Note 7(ii): Judges strive to be aware of and understand the many differences between persons and to remain informed about changing social attitudes and values.

Note 7(iii): The multi-cultural nature of South African society calls for special sensitivity for the perceptions and sensibilities of all who are affected by court proceedings.

 Article 8: Transparency

A judge must—

(a)   take reasonable steps to enhance the accessibility of the courts and to improve public understanding of judicial proceedings;  and

(b)   unless special circumstances require otherwise—

                                  (i) conduct judicial proceedings; and

                                  (ii) make known his or her decisions and supporting reasoning,

                 in open court.

Notes:

Note 8(i): The legitimacy of the judiciary depends on the public understanding of and confidence in the judicial process.

Note 8(ii): The function of the judiciary fails if its proceedings are not understood.

Note 8(iii): Judges are conscious of the desirability of complying with the spirit of the requirement that proceedings should take place in open court.

Note 8(iv):  A judge avoids unnecessary discussion in chambers (i.e. with the legal representatives in the absence of the parties) of matters that may be relevant to the merits of the case.

Note 8(v):  If what has happened in chambers has any effect on the proceedings, those facts are to be placed on record in open court.

 Article 9: Fair trial

A judge must—

(a)   resolve disputes by making findings of fact and applying the appropriate law in a fair hearing, which includes the duty to—

(i)              observe the letter and spirit of the audi alteram partem rule;

(ii)            remain manifestly impartial; and

(iii)           give adequate reasons for any decision;

 (b) in conducting judicial proceedings—

 (i)             maintain order;

(ii)            act in accordance with commonly accepted decorum; and

(iii)           remain patient and courteous to legal practitioners, parties and the public,    and require them to act likewise;

(c)  manage legal proceedings in such a way as to—

(i)              expedite their conclusion as cost-effectively as possible; and

(ii)            not shift the responsibility to hear and decide a matter to another judge;

(d)  not exert undue influence in order to promote a settlement or obtain a concession from any party.

Notes:

Note 9(i): The duty to grant a party a fair hearing does not preclude a judge from keeping a firm hand on proceedings.  In general─

(a)   reasonable time limits may be laid down for argument, which may also be cut short when the judge is satisfied that further argument would not be of material assistance;

(b)   the examination and cross-examination of witnesses should be curtailed if it exceeds reasonable bounds;  and

(c)    applications for postponement and the like must be scrutinised for real merit and must be dealt with firmly and fairly.

Note 9(ii): Reasons for decisions must be clear, cogent, complete and succinct. A number of decisions do not necessarily require reasons, e.g. unopposed cases and interlocutory rulings, because the reasons are usually self evident. If reasons in such cases are later reasonably required, they must be given within a reasonable time.

Note 9(iii):  Judgments may be written in a style and manner the judge thinks best.

Note 9(iv):  A judge may have occasion to express critical views about people during the course of argument or in judgments, e.g. by using unflattering adjectives in regard to a recalcitrant or overzealous party, an uncooperative lawyer, a foot-dragging witness and the like. However, harsh language should be avoided if possible and a judge may not, under the guise of performing judicial functions, make defamatory or derogatory statements actuated by personal spite, ill will, or improper, unlawful or ulterior motive.

Note 9(v):  Since judges are fallible and can err in relation to fact or law, such errors are to be dealt with though the normal appeal and review procedures. Such errors, even if made by courts of final instance, cannot give rise to valid complaints. Complaints against judges that are related to the merits of a decision or procedural ruling are to be dismissed at the outset. Disenchantment about a judicial decision does not justify disciplinary proceedings. Section 15(2)(c) of the Act specifically provides that a complaint against a judge must be dismissed if it is solely related to the merits of a judgment or order.

Note 9(vi): A judge may in appropriate instances advise parties to consider settlement of a case; or put a provisional view in the course of argument. Justice may, however, require that a party be afforded the opportunity to deal with such view.

Article 10:  Diligence

         A judge must─

(a)   perform all assigned judicial duties diligently;

(b)   investigate the matter at hand thoroughly;

(c)    dispose of the business of the court promptly and in an efficient and businesslike manner;

(d)   give judgment or any ruling in a case promptly and without undue delay;

(e)   not engage in conduct that is prejudicial to the effective and expeditious administration of justice or the business of the court;

(f)     attend chambers during normal office hours and attend court during normal court hours, unless such attendance is not reasonably required in order to perform any official duties;

(g)    perform all official duties properly, timeously, and in an orderly manner;

(h)   respect and comply with, the administrative requests of the head of court or the relevant senior judge;

(i)     take reasonable steps to maintain the necessary level of professional competence in the law;  and

(j)     upon resignation, discharge from active service, or the expiry of an acting appointment, complete all part-heard cases and deliver all reserved judgments as soon as possible.

                           (2)            A judge must deliver all reserved judgments before the end of the term in which the hearing of a matter was completed, but                  may─

(a)   in respect of a matter that was heard within two weeks of the end of that term;  or

(b)   where a reserved judgment is of a complex nature or for any other cogent and sound reason and with the consent of the head of the court,

deliver that reserved judgment during the course of the next term.

Notes:

Note 10(i): Unnecessary postponements, point-taking, undue formality and the like must be avoided.

Note 10(ii): Litigants are entitled to judgment as soon as reasonably possible.

Note 10(iii):  Criminal proceedings, especially automatic reviews, applications for leave to appeal, and matters where personal liberty is involved, must be dealt with expeditiously.

Note 10(iv):  A judge keeps a record of all outstanding judgments and reports to the head of the particular court thereon if and when requested.

Note 10(v): A pattern of intemperate or intimidating treatment of lawyers and others, or of conduct evidencing arbitrariness and abusiveness is prejudicial to the effective administration of justice and should be avoided.

Article 11:  Restraint

         (1)            A judge must─

(a)   save in the discharge of judicial office, not comment publicly on the merits of any case pending before, or determined by, that judge or any other court;

(b)   not enter into a public debate about a case irrespective of criticism levelled against the judge, the judgment, or any other aspect of the case;

(c)    refrain from any action which may be construed as designed to stifle legitimate criticism of that or any other judge;

(d)   not disclose or use non-public information acquired in a judicial capacity for any purpose unrelated to his or her judicial duties;

(e)   avoid any personality issues with colleagues, lawyers and parties, and seeks to foster collegiality;  and

(f)     unless it is germane to judicial proceedings before the judge concerned, or to scholarly presentation that is made for the purpose of advancing the study of law, refrain from public criticism of another judge or branch of the judiciary.

         (2)            A judge may participate in public debate on matters pertaining to legal subjects, the judiciary, or the administration of justice, but does not express views in a manner which may undermine the standing and integrity of the judiciary.

                           (3)            Formal deliberations as well as private consultations and debates among judges are and must remain confidential.

Notes:

Note 11(i): If it is necessary to comment on a judgment, the head of court must deal with the matter in order to protect the judiciary as a whole. If the head of court does not deal with the matter, the judge concerned may, under special circumstances, issue a statement in a reasoned and dignified manner, preferably in open court or through the registrar, to clarify the issue.  These provisions do not prohibit academic debate of the legal issues that arose in a case.

Note 11(ii):  Private consultations and debates between judges are necessary for the judiciary to perform its functions.  However, these occasions may not be used to influence a judge as to how a particular case should be decided.

Note 11(iii):  Personal criticism must be avoided unless it is necessary during the course of appeal proceedings.

Note 11(iv): Courtesy and collegiality towards colleagues are indispensable attributes of a judge.

 Article 12:  Association

         (1)            A judge must not─

(a)   belong to any political party or secret organization;

(b)   unless it is necessary for the discharge of judicial office, become involved in any political controversy or activity;

(c)    take part in any activities that practice discrimination inconsistent with the Constitution;  and

(d)   use or lend the prestige of the judicial office to advance the private interests of the judge or others.

         (2)            A judge must, upon permanent appointment, immediately sever all professional links and recover speedily all fees and other amounts outstanding and organise his or her personal business affairs to minimise the potential for conflicts of interest.

         (3) A judge previously in private practice must not sit in any case in which he or she, or his or her former firm, is or was involved before the judge’s appointment, and a judge must not sit in any case in which the former firm is involved until all indebtedness between the judge and the firm has been settled.

         (4)            An acting judge who is a practising attorney does not sit in any case in which the acting judge’s firm is or was involved as attorney of record or in any other capacity.

Notes:

Note 12(i): Social associations, including association with members of the legal profession, should be such as not to create the impression of favouritism or to enable the other party to abuse the relationship.

Note 12(ii): A judge does not ask for or receive any special favour or dispensation from potential litigants or members of the legal professions nor does a judge use the office for the attainment of personal benefit.

Article 13:  Recusal

A judge must recuse him- or herself from a case if there is a─

(a)   real or reasonably perceived conflict of interest;  or

(b)   reasonable suspicion of bias based upon objective facts,

and shall not recuse him- or herself on insubstantial grounds.

Notes:

Note 13(i): Recusal is a matter regulated by the constitutional fair trial requirement, the common law and case law.

Note 13(ii): A judge hears and decides cases allocated to him or her, unless disqualified there from.  Sensitivity, distaste for the litigation or annoyance at the suggestion to recuse him- or herself are not grounds for recusal.

Note 13(iii): A judge’s ruling on an application for recusal and the reasons for the ruling must be stated in open court. A judge must, unless there are exceptional circumstances, gives reasons for the decision.

Note 13(iv): If a judge is of the view that there are no grounds for recusal but believes that there are facts which, if known to a party, might result in an application for recusal, such facts must be made known timeously to the parties, either by informing counsel in chambers or in open court, and the parties are to be given adequate time to consider the matter.

Note 13(v): Whether a judge ought to recuse him- or herself is a matter to be decided by the judge concerned and a judge ought not to defer to the opinion of the parties or their legal representatives.

Article 14:  Extra-judicial activities of judges on active service

         (1)            A judge’s judicial duties take precedence over all other duties and activities, statutory or otherwise.

         (2)            A judge may be involved in extra-judicial activities, including those embodied in their rights as citizens, if such activities─

(a)   are not incompatible with the confidence in, or the impartiality or the independence of the judge; or

(b)   do not affect or are not perceived to affect the judge’s availability to deal attentively and within a reasonable time with his or her judicial obligations.

         (3) A judge must not─

(a)   accept any appointment that is inconsistent with or which is likely to be seen to be inconsistent with an independent judiciary, or that could undermine the separation of powers or the status of the judiciary;

(b)   act as an advocate, attorney, or legal adviser but may give informal legal advice to family members, friends, charitable organisations and the like without compensation;

(c)    become involved in any undertaking, business, fundraising or other activity that affects the status, independence or impartiality of the judge or is incompatible with the judicial office;

(d)   engage in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position or are incompatible with the judicial office;

(e)   sit as a private arbitrator.

         (4)            A judge may─

(a)   act as a trustee of a family or public benefit trust but is not entitled to receive any remuneration for such services;

(b)   be a director of a private family company or member of a close corporation but if the company or close corporation conducts business the judge many not perform an executive function;  and

(c)    be a director of a non-profit company.

Notes:

Note 14(i): A judge conducts extra-judicial activities in a manner which minimises the risk of conflict with judicial obligations. These activities may not impinge on the judge’s availability to perform any judicial obligations.

Note 14(ii): While judges should be available to use their judicial skill and impartiality to further the public interest, they must respect the separation of powers and the independence of the judiciary when considering a request to perform non-judicial functions for or on behalf of the State, or when performing such function.

Note 14(iii): Judges who are not on active service but are liable to be called upon to perform judicial duties must arrange their affairs so as to be reasonably available for such duties if called upon.

Note 14(iv): Business or financial dealings with members of the legal professions are to be avoided.

Note 14(v): Serving on university councils or governing bodies or boards of trustees of charitable institutions and the like is acceptable.

Article 15:  Extra-judicial income

         (1)            In terms of section 11(1) of the Act, a judge performing active service may not receive in respect of any service any fees, emoluments, or other remuneration or allowances apart from his or her salary and any other amount which may be payable to him or her in his or her capacity as a judge, except insofar as the position with regard to royalties is regulated in the Act.

         (2)            A judge must not─

(a)   receive any income or compensation that is incompatible with judicial office;

(b)   directly or indirectly negotiate or accept remuneration, gifts, advantages or privileges which are incompatible with judicial office or which can reasonably be perceived as being intended to influence the judge in the performance of his or her judicial duties, or to serve as a reward for them; and

(c)    accept, hold or perform any other office of profit, or receive in respect of any service any fees, emoluments or other remuneration apart from the salary and any allowances payable to the judge in a judicial capacity.

Notes:

Note 15(i): Section 11(1) provides that a judge may, with the written consent of the Minister acting in consultation with the Chief Justice, receive royalties for legal books written or edited by that judge.

Note 15(ii): Judges may deliver public lectures or papers on appropriate subjects or teach at academic institutions.  Judges who had been discharged from active service may receive reasonable honoraria in respect thereof as well as subsistence and travel allowances or payments by way of reimbursement for such expenditure.

Article 16:  Reporting inappropriate conduct

         (1)            A judge with clear and reliable evidence of serious professional misconduct or gross incompetence on the part of a legal practitioner or public prosecutor [informs] must inform the relevant professional body or a Director of Public Prosecutions of such misconduct or professional incompetence.

         (2)            Before commenting adversely on the conduct of a particular practitioner or prosecutor in a judgment, the judge must give that person the opportunity to deal with the allegation.

         (3)            A judge who reasonably believes that a colleague has been acting in a manner which is unbecoming of judicial office must raise the matter with that colleague or with the head of the court concerned.

Notes:

Note 16(i): The judge must usually await the conclusion of the proceedings before informing the relevant professional body or a Director of Public Prosecutions of such misconduct or professional incompetence.

Note 16(ii): The reference to the appropriate authority is to be made in a neutral fashion and may not be judgmental.

Article 17:  Judges discharged from active service

         (1)            In terms of section 11(2) of the Act, a judge who has been discharged from active service may only with the written consent of the Minister, acting after consultation with the Chief Justice, hold or perform any other office of profit or receive in respect of any service any fees, emoluments or other remuneration or allowances apart from his or her salary and any other amount which may be payable to him or her in his or her capacity as judge.

         (2)            A judge who is no longer on active service or liable to be called upon to perform judicial duties (herein referred to as a retired judge) shall always act honourably and in a manner befitting  his or her status.

         (3)            All activities of a judge no longer on active service must be compatible with his or her status as a retired judge.           

         (4)            A judge discharged from active service must not─

(a)   accept any appointment that is likely to affect or be seen to affect the independence of the judiciary, or which could undermine the separation of powers or the status of the judiciary and must not receive any income incompatible with judicial office;

(b)   act as an advocate, attorney or legal adviser; 

(c)    be involved in any undertaking, business, fundraising, or other activity that is incompatible with the status of a judge.

Notes:

Note 17(i): A retired judge may accept an appropriate appointment as a judge, whether as judge in another jurisdiction, or as an arbitrator or mediator, in professional or semi-professional disciplinary matters and the like.

Note 17(ii): A retired judge must not sit as a director of a public company.

Note 17(iii): A retired judge must not become a member of a professional partnership or body corporate.

Note 17(iv): A retired judge must not enter party politics.

Speech by Chief Justice defending the JSC

Advocates for Transformation Annual General Meeting Dinner

6 July 2013

Cape Town

The Duty to Transform

      ( Mogoeng Mogoeng  – Chief Justice of the Republic of South Africa)

Advocate Ntsebeza SC, the leader of Advocates for Transformation, Justice Madlanga, colleagues in the Judiciary , Advocate Semenya SC, the Chairperson  of the GCB, Deputy Chairperson Motimele, esteemed members of the AFT Executive, Professor Z Motala, distinguished guests , fellow South Africans, I greet you.

For the overwhelming majority of black South Africans the wounds and excruciating pain caused by centuries of being subjected to psychological trauma and merciless “beatings” are still fresh and sharp. The poverty, lack of real economic opportunities and the apparent resistance to change by a good number of fellow South Africans, who benefitted tremendously from the excellent educational and economic opportunities reserved exclusively for them by the apartheid system, can only serve as a constant and rude reminder to the victims of poverty and limited opportunities for career and professional advancement. A reminder of what the major cause of their suffering was and who the beneficiaries were.  And when they do remember, the question they are bound to ask themselves is, “has the apartheid system really been dismantled, or has it only changed marginally or has a grouping of its key operators metamorphosed into a movement that masquerades as agents for the enforcement of  constitutional compliance when they are in fact a change resistance force?

Given the pain, the deprivation and the dehumanization that the apartheid system was intended to cause and did in fact bring about, it is of great importance that we do everything within our power as South Africans of all races, to avert the dangers that a disguised protection of white male privilege, at the expense of opening up opportunities for women and black men, is loaded with.

One of the progressive and giant steps taken by both the Attorneys’ Profession and the Advocates’ Profession is the introduction of rotational leadership.  This arrangement had to be made because white male South Africans who, as recent media reports have correctly shown, overwhelmingly dominate both professions and will be in the majority for many years to come, would otherwise almost always be in the leadership of these organisations.

Of concern to me is, knowing that the apartheid system did,  by design, empower white male lawyers  and disadvantage black and women legal practitioners, do these bodies and their individual members have a plan and the willpower to transform the professions, not cosmetically but radically . And by transformation I mean, among other things, destroying whatever hurdles might still be standing in the way of many women and black lawyers joining these professions, by consistently reminding government departments, state-funded institutions and big business of the need to create equal opportunities for all South African lawyers with a favourable disposition towards women and black male practitioners.

In cases involving areas of law which white male senior counsel are believed to be possessed of special skills which women and black lawyers are, rightly or wrongly, believed not to have, black Attorneys and junior Advocates should in the case of state-funded institutions be prioritised for support and in the case of government departments and legislatures, black junior Advocates and women Advocates should be affirmed.  That way women and black Attorneys would stay in the profession.  Big business should help dispel the apartheid myth that black and women practitioners only have the brains for straightforward criminal cases and divorce matters.  This goal will be achieved by entrusting them with complex matters, at least as junior counsel and by giving instructions to women and black Attorneys.  Instructions and brief allocation with particular regard to race and gender must be seriously reconsidered.

You can check from the record of appearances in the Constitutional Court. More than ninety percent of appearances before that Court are white and male. Occasionally a junior would be a white woman. Attorneys, senior and junior counsel seldom appear in that court.  My colleagues in other courts told me that the trend is similar in all other courts in relation to matters of importance.

It should therefore not be surprising that the attrition rate of Attorneys and Advocates who are women and black men is said to be disturbingly high.  Needless to say, you need high quality work to grow and grow faster.  This is neither an encouragement for spoon-feeding or any entitlement syndrome nor is it something to be apologetic about.  It is an historic matter of crucial importance which cries out for urgent attention.

Based on the instructions-giving and briefing patterns before the Constitutional Court, it appears that South Africans are yet to appreciate their duty to help transform the profession and by extension the Judiciary.  No wonder we only hear voices critical of transformation when matters affecting the JSC and its recommendations are discussed.  None of the personalities and NGO’s who speak regularly and passionately about the perceived areas of concern about the JSC processes and even litigate about them, have ever spoken with any , let alone equal passion against the conservative apartheid-style instruction-giving and briefing patterns.  They seem to be more concerned about white men who are not appointed and do not seem to be concerned about the reasons for not recommending them for appointment.

Members of the organised profession ought to lead the charge on the transformation of the profession and the Judiciary.  Sadly, they are conspicuous by their silence.  I followed with much interest the debates about briefing patterns recently.  I expected many women and black lawyers to speak out in support of Advocate Ntsebeza.  To my disappointment, he was literally a lone ranger or a soloist.  It is time for a brutal introspection by this and other lawyers’ associations, if they are to remain relevant to the national constitutional agenda of delivering to posterity, a transformed, reconciled and united rainbow nation.

You are the transformation agents. For this reason, this body, the BLA, NADEL, SAWLA, IAWJ and other truly progressive organisations must work together to defeat the resistance to transformation that is now embarked upon with more vigour and boldness.

When black men and women of all races were appointed to higher courts for the first time, those opposed to change voiced a concern about the so-called lowering of standards.  The same argument has changed tag a bit, lately.  It was initially said that there was no commitment by the JSC to gender representation.  Suddenly, it changed to the alleged bias against white men. Some of the advocates of gender representation even nominated and openly fought for the appointment of a white man and inexplicably jettisoned their campaign for gender representation. When “unwanted” white males were appointed they were labelled executive-friendly.

These developments seem to suggest that war has been declared against transformation.  People are clutching at straws to discredit the JSC.  They seem to want the JSC they can dictate to.  The same people or organisations who are accusing the JSC of being controlled by politicians are beginning to look like they want to control the JSC themselves.

I have come to challenge you and other genuinely progressive bodies to resist all efforts geared at the protection white male dominance in the professions and the Bench and the equation of the appointment of black and women practitioners to the institutionalization of mediocrity. The apparent discomfort with the progress we are making in transforming the Judiciary, as if we are about to encroach into the no go area of privileged interests, and the concomitant boldly declared struggle for “white male” appointment, even if it would result in the perpetuation of their historic over-representation, must be dealt with decisively.  You must no longer allow this voice of resistance to be the only voice in the public domain.  It disseminates toxic inaccuracies which have the potential to cause some reputational damage to our Judiciary nationally and abroad, as I learnt in London last week.

And for the record, many white males have been recommended for appointment by the JSC over the years. It is for them and those who know them better to say whether they are “executive toys” and incompetent as alleged.  The point to be emphasized though is that a deliberate attempt is being made to delegitimize the JSC and through some scare tactics intimidate or mock the JSC into recommending without proper reflection, certain white men and at times certain women, for reasons best known to those who are campaigning for them.

This illegitimate neo-political campaign to have certain people appointed must be strongly opposed. We must all use all available avenues to expose this retrogressive campaign and the danger it poses to nation-building and reconciliation. But be warned, that engagement is not for the faint-hearted. The defence of genuine transformation, as was the case during apartheid, inevitably attracts mockery, being labelled conservative and a tool of the Executive. Be ready for untold attacks from all sorts of people projecting themselves as fiercely independent, impartial, progressive analysts or highly respected professional commentators. Be ready to be trashed by a well coordinated network of individuals and entities often pretending to be working in isolation from each other.

Remember, during apartheid whenever you were a puppet or the powers that-be thought you had the potential to be cajoled into becoming one, you were addressed as ‘’n goeie man” or “good man”. Nowadays those who seem to have arrogated to themselves the role of being masters of our destinies would label or crown you “highly or well respected” or “progressive”. I need not tell you what the innumerable antonyms of these expressions are. Don’t be lured by these anti-transformation schemes. And don’t be selfish. Use your privileged position of influence for the benefit of the rainbow nation and posterity, but not in the furtherance of questionable sectarian interests or agendas .

I THANK YOU. MAY GOD BLESS YOU !