Seminar Room

“THE IMPLICATIONS OF THE OFFICE OF THE CHIEF JUSTICE FOR CONSTITUTIONAL DEMOCRACY IN SOUTH AFRICA”

UNIVERSITY OF STELLENBOSCH, CAPE TOWN (Thursday, 25 April 2013)

(BY MOGOENG WA MOGOENG – CHIEF JUSTICE OF THE REPUBLIC OF SOUTH AFRICA)

Introduction

When all others fail in their obligations to give practical expression to the rule of law, human rights and the constitutional aspirations of all the people in any democracy, that constitutional democracy would be safe, provided a truly independent body of Judges loyal to the oath of office or solemn affirmation, is in place and ready to administer blind justice to the aggrieved.

Government by its very nature is divided into three branches. The Executive, the Legislature and the Judiciary. As you know, the three tiers of the Executive government are led by the President. Each tier enjoys real autonomy beginning with the national and provincial governments to the smallest municipality you can imagine. Their success or failure is entirely or largely in their hands. Similarly, the Legislative branch of government is led by the Speaker and the Chairperson of the National Council of Provinces at national levels, by Speakers at Provincial levels, again by Speakers at local government level. They are also institutionally independent.

These two branches of government have their own vote accounts, they are vested with the power to determine the administrative support they need, to work out job descriptions and salary levels for their personnel and to decide which projects to embark on according to their own order of priority. But the same cannot be said of the South African Judiciary.

The History of Court Administration

The Judiciary in this country has over the years looked very much like a unit within or an extension of the Department of Justice and Constitutional Development. It had no say on any major projects intended to improve the efficiency and effectiveness of the courts, no control over the budget, very little, if any say, on the IT that could best serve its needs, the appointment of the limited support staff the Judiciary has been assigned by the Executive, to mention but some of the challenges. Yet, it is not just a national or provincial department but the third arm of the State. Unlike the NPA and the Chapter 9 institutions, it has not been allowed to run its administrative affairs. And this cries out for urgent and meaningful attention.

The virtual non-existence of institutional independence perceived to be in conflict with the Constitution has also presented a whole range of practical challenges to the Judiciary. Some of the challenges include the determination of court budgets without consultation with the Judiciary, inadequately trained administrative staff, shortage of courtrooms and chambers for Judges and Magistrates and substandard interpretation services. It is for these reasons that the Judiciary has been calling for a radical paradigm shift from the current executive court administration system to one that is led by the Judiciary.

Over the years the role and functions of the Chief Justice as head of the Judiciary and head of the Constitutional Court have steadily escalated. The Chief Justice has, however, not had the benefit of an adequate support structure to provide the capacity and human resources required for this purpose. As a result, the attention of successive Chief Justices have been diverted from their core judicial functions to the need to attend to various administrative tasks, and they have had to rely largely on support from the Executive to enable them to do so.1

This raised important issues concerning the independence of the Judiciary, and led to requests by Chief Justices for the capacitation of their office to facilitate the performance by them of their duties and functions. Important issues were also raised by the Judiciary concerning the system of court administration inherited from the apartheid state, which was driven by the Executive. There have been ongoing discussions between the Judiciary and the Executive in regard to these matters and the establishment of a system of court administration consistent with the Constitution and the evolving system of judicial independence contemplated by section 165.2

When Arthur Chaskalson was the Chief Justice of this great country, he organised the first National Judges’ Conference in Johannesburg, in 2003. He arranged that Justice Sandile Ngcobo delivers a paper on court administration and what needed to be done to enhance the independence and efficiency of the court system.3 Justice Ngcobo said:

“At a conceptual level, one cannot talk about the judiciary as a genuinely independent and autonomous branch of government if it is substantially dependent upon the executive branch not only for its funding but also for many features of its day-to-day functions and operations. The practical dimension flows directly from this. While the judicial officers may be free to operate independently and to hand down fair and impartial decisions according to law, their ability to do this may be constrained in various ways, notably by the financial, human and physical resources available to perform their tasks. A key element of this is the extent to which the judiciary has control over its own resources and thus is able to determine its policy and strategic priorities and how funds are to be allocated to pursue those priorities.”

Following on that paper and conference discussions, the Heads of Court resolved that more capacity be built around the Chief Justice to help him carry out the administrative functions that lay on his shoulders with relative ease. The proposal was that the envisaged administrative structure was to be led by a Director General with a team that would include a media relations officer. In response the Executive approved additional capacity but downgraded the head to the level of a Chief Director added one Director to assist the JSC, but the request for a communications director was declined. These functionaries were appointed and did alleviate the administrative workload of Chief Justices Chaskalson and Langa to some degree.

The bulk of the functions that are at the core of a court system remains in the hands of the Justice Department. The Judiciary asks, and their request may be granted or denied. It virtually has no control over the budget for the courts.4

To help us locate the role of the courts in this great nation, I quote the provisions that highlight the essence of our constitutional democracy and the kind of Judiciary we are promised by our Constitution below.

The Nature of our Constitutional Democracy

Section 1 of our Constitution defines the nature of our constitutional democracy in these terms: 5

“The Republic of South Africa is one, sovereign, democratic State founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the Constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

And section 2 underscores the supremacy of our Constitution as follows:

“This Constitution is the Supreme Law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

Under the chapter on “Courts and Administration of Justice”, section 165 provides for the Judiciary this nation deserves thus:

“(1) The judicial authority of the Republic is vested in the courts.

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of State may interfere with the functioning of the courts.

(4) Organs of State, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5) An order or decision issued by a court binds all persons to whom and organs to which it applies.

(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.”5

These provisions put together, constitute the nerve-centre of our constitutional democracy. Without the essence of these foundational values, our constitutional democracy would cease to exist. For this reason, unlike other constitutional amendments that require two thirds majority to effect,6 section 1 and subsection 1 of section 74 of the Constitution can only be amended by the National Assembly with the support of at least 75 per cent of all its members and a supporting vote of at least six provinces in the NCOP.7 It is important to note that provision is only made for the amendment but not for the repeal of the section that sets out the foundational values at the heart of our constitutional democracy.

Turning to Judicial independence, as Chaskalson and Langa8 said, it is always necessary to stress the centrality of judicial independence to the post-apartheid legal order. Judicial independence is a condition precedent for the existence of a constitutional democracy and for its protection and advancement.9 Section 165 is a crucial provision of our post-apartheid Constitution which entrenches fundamental rights and binds the Legislature, the Executive and all organs of State.

Courts are required to enforce the criminal law, resolve civil disputes in which other branches of government or senior players therein are involved and to enforce legislation enacted by Parliament or initiated by the Executive. In doing so they must, protect the public, enforce entrenched rights, uphold the fundamental values of human dignity, the achievement of equality and the advancement of human rights and freedoms, and on occasions consider the constitutionality of legislation and legality of actions of all organs of government, including the Legislature and the Executive.10

This means that the State in one form or another is frequently party to court proceedings. Hence, the requirement for judicial independence. Judicial independence is for the protection and benefit of the public. It is to ensure that the Judiciary is able to carry out its role as guardian of the Constitution without fear or favour, and to inspire the confidence of the public that it is able to, and will do so.11

At the core of judicial independence is ‘the complete liberty of individual Judges to hear and decide the cases that come before them: no outsider – be it government, pressure group, individual or even another judge – should interfere in fact, or attempt to interfere, with the way in which a Judge conducts his or her case and makes his or her decision.’12 In addition, judicial independence includes security of tenure, financial security and institutional independence.13 Institutional independence concerns the day to day operations of courts and is required to ensure that they are not directly or indirectly controlled or seen to be controlled by other arms of government. It is to this end that the phased transformation of court administration is directed,14 and this underscores the urgency and critical importance of judicial self-governance. 8

The Judiciary must “determine its policy and strategic priority and how funds are to be allocated to pursue those priorities”.15 This entails determining which personnel is best suited to support it in the execution of its constitutional obligations and that those functionaries be answerable to judicial authority. It must identify all the needs that are closely related to the proper functioning of the courts, budget for them, prioritise them and have them carried out under its eye. It must run its own affairs in keeping with the principle of separation of powers and judicial independence.

The placement of court administration in the hands of the Ministry has given rise to an unfortunate public perception that the Minister for Justice and Constitutional Development is the head of the Judiciary. This openly articulated perception, exacerbated by the fact that special and long leave of all Judges including the Chief Justice is authorised by the Minister, has the unintended effect of undermining the authority, dignity, independence and efficiency of the courts, contrary to the thrust of section 165(4) of the Constitution. It underscores the critical importance of the debates that have been going on between the Judiciary and the Executive about judicial self-governance over the years.

The Role of the Chief Justice

The Chief Justice of the Republic of South Africa is the most senior Judge and presides over the Constitutional Court, which is the apex Court of a single Judiciary. In addition to his or her judicial role, the Chief Justice represents the Judiciary nationally and internationally, which entails various coordinating and administrative responsibilities, and is also required to perform a multiplicity of constitutional and statutory duties and functions. The Chief Justice is regarded as the de facto head of the judiciary.16

The Constitution Seventeenth Amendment Act formalises the Chief Justice’s role as head of the Judiciary.17 The Superior Courts Bill makes provision for the rationalisation of the structure of the superior courts and for matters relating to court administration. It vests additional powers and functions in the Chief Justice.18 These draft legislations have been the subject of discussion between the Judiciary, Parliament and the Executive and are on the verge of being signed and promulgated into law.19

In his budget speech on 07 June 2011 Minister Jeff Radebe referred to these pieces of legislation and said of the Constitution Seventeenth Amendment Bill:

“[t]he Constitution Seventeenth Amendment Bill provides a Constitutional framework for the judiciary to take charge of court administration. It affirms the Chief Justice as the head of the judiciary and entrusts the incumbent of the highest office of the judiciary, with the authority to develop norms and standards for all courts. Flowing from the envisaged Constitutional amendments, a court administration framework that is commensurate with the model of separation of powers in our Constitution will be developed. I will seek guidance of Cabinet and this House at the appropriate time once we have come up with firm proposals from both our research and those undertaken by the Chief Justice and his office.”

Consistent with this, the Preamble of the Superior Courts Bill states that rationalisation is an ongoing process that ‘is likely to result in further 10

legislative and other measures in order to establish a judicial system suited to the requirements of the Constitution’. I deal with some of these issues later.

The Establishment of the Office of the Chief Justice

Ultimately, agreement on how to address these issues was reached between Chief Justice Ngcobo and Mister Jeff Radebe in 2010. This led to an exchange of correspondence between Minister Jeff Radebe and the Minister for Public Service and Administration. It was about the establishment of permanent capacity for the Chief Justice to perform his or her functions as head of the Judiciary and head of the Constitutional Court, and the need to establish a judicially based system of court administration.

20 The process agreed to was defined in the following three distinct Phases:

20 For the purpose of this section, I draw very generously from the Chaskalson-Langa CIM Report, para 1.2.3 to 1.2.7.

Phase 1: The establishment of the Office of the Chief Justice as a national department located within the Public Service to support the Chief Justice as head of the Judiciary and Head of the Constitutional Court;

Phase 2: The establishment of the Office of the Chief Justice as an independent entity similar to the Auditor-General; and

Phase 3: The establishment of a structure to provide judicially-based court administration.

Phase I was subsequently initiated by the President who established the Office of the Chief Justice as a government Department. This was done by means of Proclamation 44 of 2010, dated 23 August 2010, which amended 11

Schedule 1 to the Public Service Act 44 of 2010 to make provision for the new Department.

The functions of the OCJ in Phase 1, as determined by the Minister for Public Service and Administration in terms of the Public Service Act 1994, are to:

- provide and coordinate legal and administrative support to the Chief Justice;

- provide communication and relationship management services and inter-governmental and international co-ordination;

- develop courts administration policy, norms and standards;

- support the development of judicial policy, norms and standards;

- support the judicial function of the Constitutional Court; and

- support the Judicial Service Commission in the execution of its mandate.

The ongoing process bolstered by the establishment of the OCJ was reaffirmed by Minister Jeff Radebe during his address at the opening of the “Access to Justice Conference” in July 2011. He said then:

“The constitutionalisation of the judicial leadership powers and functions of the Chief Justice which he or she exercises jointly and collectively with the other senior judicial officers who are heads of the different courts, is not only consistent with the trends in established democracies world-wide, but is a furtherance and enhancement of judicial independence. The enactment of the Constitution Seventeenth Amendment Bill and the Superior Courts Bill will put the judiciary on course for the ultimate goal of administrative autonomy which would enhance judicial independence which is necessary for the rule of law as well as the strengthening of the accountability arrangements. We will be guided by the outcome of the on-going research undertaken by the Department and the judiciary on the appropriate court administration model that will be commensurate with our Constitutional framework.”

This commitment by the Minister, to further and enhance judicial independence is consistent with our Constitution, which entrenches the independence of the courts and requires that independence to be ensured by organs of state through legislative and other measures.21

21 Section 165(4) of the Constitution.

The establishment of the Office of the Chief Justice provides a platform for the implementation of initiatives designed to improve the culture of non-performance that has sneaked into the Judiciary over the years. The Chief Justice in his or her capacity as the head of the Judiciary is responsible for developing policies, norms and standards for case management and monitor and evaluate performance of the courts.

Additionally, he or she is responsible for information technology and knowledge management which have an important role to play in enhancing access to justice. Financial and administrative support to Heads of Court, court budget, and support for SAJEI and allied judicial institutions, are his or her additional responsibilities.

The creation of the capacity necessary to undertake these responsibilities would assist the Judiciary to execute its constitutional mandate more efficiently.

We continue to grapple with issues relating to the achievement of a truly independent Judiciary. The dialogue in July 2011 at the ‘Access to Justice Conference’ and the subsequent ‘Judicial Leadership Retreat’ in August 2012, bear testimony to our endeavors. The resolutions taken constitute a milestone in our quest for unquestionable judicial independence. 13

The over-arching objective of the ‘Judicial Leadership Retreat’ was to afford the leadership of the Judiciary the first opportunity ever to do a brutal self and institutional introspection, identify all performance-related challenges, find solutions to those problems and design the most effective interventions to address them. Ideas were exchanged and strategies discussed on how best to achieve an independent and single Judiciary, which is consistent with our Constitution.

The creation of a judicially based court administration system will not compromise the independence of the Judiciary, at all. Unlike the Auditor General who must personally account to Parliament, the accounting responsibilities for a court administration model led by the Judiciary rests squarely on the shoulders of the Secretary General, as is the case in the USA and the Russian Federation. She will thus have to face to Justice Portfolio Committee all by herself, possibly with an occasional voluntary appearance by the Chief Justice.

Norms and Standards

In anticipation of the coming into operation of the Superior Courts Act and the Constitution Seventeenth Amendment Act, we have started the process of developing norms and standards and working out how their implementation could be properly monitored. We are concerned about the disturbing regularity of delays, the backlogs, absenteeism and sub-standard performance by some Judicial Officers. It is through the envisaged norms and standards, which seek to address realistic case finalisation periods and performance monitoring and evaluation, that these decades-long problems can be effectively addressed. 14

The Office of the Chief Justice, even in its current mode, has helped the Judiciary to build some capacity to look at the best practices in jurisdictions in comparable democracies, so as to work on our own norms and standards, performance monitoring and evaluation mechanism, an effective case management system, determining of Judicial policy and strategic objectives, performance–enhancing Judicial Education programmes and self–governance system commensurate with Judicial independence.

With the coming into operation of the new legislation, we will circulate the drafts among Colleagues for their input to circumvent delays in putting these measures into operation, to serve our democracy better.

Judicial Case Management

The effective management of cases is central to excellent court performance. Within the limited operational space at its disposal, the OCJ has been able to test the efficacy of the case management model that would best help us address our performance challenges, wherever they persists, more importantly to enhance efficiency because there is always room for improvement. We are running a pilot project in the North and South Gauteng High Courts, the KZN High Court and the Western Cape High Court for about one year. The pilot projects commenced in September 2012 and they are running very smoothly. From the lessons drawn from these projects, we will be better prepared for a roll out to all High Courts and later to the Magistrates’ Courts.

This project and the very nature of the judicial case management model has generated so much interest that both the North West and the Eastern Cape High Courts have volunteered to be additional pilot sites. The 15

progress recorded has been humbling. Wherever this case management model was correctly implemented, superior performance has been the result.22

22 In essence, this model takes the control of the pace of litigation from legal representatives and restores it to judicial officers, in both criminal and civil matters. Botswana, Courts in the USA, North West, the Gauteng, Western Cape and KZN High Courts.

23 Permanent staff members of SAJEI have since been appointed and the CEO at the level of Deputy Director General has been recommended for appointment through the collaborative efforts of the SAJEI Council and the OCJ.

The establishment of the OCJ has made it possible to build additional capacity in the pilot sites to facilitate the proper implementation of the system, some predictable resistance notwithstanding.

Judicial Education

The OCJ met the staffing needs of SAJEI while it was without any permanent or acting staff member, except for the Council minute taker.

23 We used our semi-autonomy to have personnel seconded to us by the NPA and Justice Department and that is how we were able to get SAJEI up and running from 2012.

To ensure that those who are appointed to act as High Court Judges and those who are permanently appointed are appropriately equipped for their judicial functions, we commenced with our aspirant Judges training programmes, the orientation of newly appointed Judges and Magistrates and continuing judicial education of Judges and Magistrates from 16 January 2012. SAJEI has since organised many workshops and educational programmes designed to empower Judicial Officers across the board, to discharge their functions more efficiently. 16

Modernisation

One of the major contributors to court efficiency and effectiveness is court modernisation or automation. We have through our Heads of Court IT Committee, duly assisted by the IT Directorate of the OCJ, identified the need for the Judiciary to have a server that is separate from that of Justice Department to eliminate the possibility of inadvertent and premature access to our draft judgments and alleviate the burden of the already over-laden Justice server. Electronic filing and electronic record keeping on- and off-site will, in our view, facilitate the efficient management of cases and their speedy finalisation and ensure that the disappearance of records of proceedings, which often result in grave injustice to the affected parties sometimes even the general public, becomes something of the past. These are some of the projects that the Judiciary, with the support of the OCJ, has identified and is working on.

The Judiciary has through the OCJ, embarked upon the development of the capacity to gather and analyse its own court performance statistics. This will enable us to establish timeously, the court performance challenges that require intervention so that appropriate remedial action is taken without delay. At the moment, only the NPA and the Justice Department has that capacity and we are informed by them, how courts are performing. And this has caused some members of the Judiciary to raise serious concerns about the implications of this kind of monitoring and evaluation of judicial performance by “outsiders” on judicial independence. We have also started a case file audit exercise in all the higher courts to identify dead files or old cases that should have been finalised a long time ago, and to prioritise them for finalisation. Again, the OCJ has provided some capacity to help address this issue. 17

Access to Justice

The leadership of the Judiciary at all levels, has resolved to begin a massive project of overhauling all the Rules of the High Court and Magistrates’ Courts. This is made possible by the willingness of colleagues to sacrifice their time and the support we have from our own Department, the OCJ.

This project will help us do away with archaic Rules, progress- and efficiency-retarding Rules, to inject flexibility, facilitate the full scale implementation of electronic filing and electronic record-keeping, video conferencing, judicial case management harmonisation or streamlining of all Court Rules.

More importantly, this overhauling will facilitate access to justice. When Rules of Court are easy to understand, lay people who can read and write will be able to represent themselves more meaningfully in courts of law. The need to get to this point is underlined by the prohibitively high fees charged by lawyers these days. We believe that the successful accomplishment of this self-imposed responsibility would give meaning to our constitutional democracy by making justice accessible even to the poor, because the budgetary constraints do not allow Legal Aid South Africa to fund every indigent litigant. It is forced to be very selective.

When the spade-work has been done, and comments received from Colleagues, we will pass the draft Rules onto the Rules Board to fulfil its statutory role. The Memorandum of Understanding, to be briefly discussed later, paves the way for more meaningful engagement between the OCJ, the Judiciary and the Rules Board.

The point needs to be made however that ideally, rule-making authority should vest in the Judiciary. Just as the other two branches of government make the rules that are intimately connected to their core business, so should this be with the Judiciary. We resolved at the “Judicial Leadership Retreat” to pursue this objective with more vigour.

Media Relations

As a matter of principle, the Judiciary ought not to borrow a voice from the Executive about its core business. They must speak for themselves. Otherwise, this could create the incorrect and unfortunate impression that the Judiciary is not as independent as it should. To this end, a media relations Director has been appointed by the OCJ, to help us communicate who we are and what we are about to the public and to educate them. Our visibility, particularly during August, when we ran the women Judges’ programme, is a matter of public record.

In collaboration with a Committee of Judges drawn from all courts and representatives of the Magistracy, this Directorate will be developing a more comprehensive communication strategy.

Provincial Leadership

To facilitate better coordination of the functions of the Judiciary in each Province, the Superior Courts Bill seeks to streamline the leadership roles of the Judge President, Regional Court President and Chief Magistrate responsible for the Cluster. The Judge President will play an oversight role and this bodes well for more efficiency and effectiveness in the entire court system.

The capacity required by the Judges President to fulfil these and other duties will be created by the OCJ. The transfer of High Court functions to19 the OCJ would make it the responsibility of the OCJ to provide additional administrative capacity where necessary, obviously if the budget permits.

Role-Player Coordination

The Judiciary, with the financial and personnel support of the OCJ, was able to initiate the establishment of the National Efficiency Enhancement Committee (NEEC), on 13 October 2012. The NEEC comprises all the key role-players in the justice cluster, including the Attorneys and Advocates’ professions. As the name suggests, the primary objective sought to be realised is the efficiency and effectiveness of the justice cluster, and brought closer to home the courts. Together, we identify challenges that undermine efficiency and employ our collective wisdom, behind closed doors, to find solutions, without compromising any principle.

We have established a wide range of committees to identify our common approach to common problems where practicable, we have identified challenges that we must each address in the short, medium and long term. We are confident that this integrated attempt to address issues that undermine our individual and collective performance will benefit our people and strengthen our constitutional democracy.24

We decided to do this because the underperformance of any key role player does not only affect that entity, but also impact negatively on the performance of others as well. Think about it !

Memorandum of Understanding

On 26 January 2012, a Memorandum of Understanding (MOU) was signed by the Justice Department and the OCJ. In terms thereof, the administrative functions of the Constitutional Court, Supreme Court of Appeal, JSC and elements of SAJEI, Rules Board and the Magistrates’ Commission were to be transferred from the Justice Department to the OCJ.

While consultation with the affected structures, including personnel and the trade unions were underway, Treasury proposed that the administrative functions of the High Courts should also be transferred to the OCJ. A breakthrough in finalising this project and in the OCJ acquiring the status of a fully fledged Department with its own vote account, is reportedly imminent. Our Secretary General, Ms Memme Sejosengwe,25 and the DG of Justice are engaged in discussions to translate these plans into reality.

But a departmental mode or phase is not what our constitutional democracy deserves. Like any national or provincial government, it has a political head, the Minister for Justice and Constitutional Development. It is with the Minister that the Secretary General signs her performance contract, not the Chief Justice. Arguably, it is the sole responsibility of the Minister to decide on the content of the contract, and to determine whether her performance is acceptable to him or not.

But, this deficiency cries out for urgent attention. And appropriate intervention will take the form of legislation in terms of which an independent entity will be created, to take over the responsibilities of this new Department. It is evident from Minister Jeff Radebe’s 2011 budget speech and his address to the “Access to Justice Conference” of the same year, that he openly supports Judicial self – governance.

Our Preferred Court Administration Model

The kind of court administration model that is, in our view, compatible with and conducive to judicial independence and the enhancement of dignity and efficiency, is one led by a Judicial Council comprising members of the Judiciary only. We have decided that that Council, to be constituted by Heads of Court, will have to be guided by an Advisory Board whose members will be drawn from a wide range of disciplines for purposes of judicial accountability and transparency. That administration system will have to be created in terms of legislation to facilitate migration from a Department to an independent entity, such as Parliament and the Executive entities have.

Eventually, the entire Court Services Unit of the Justice Department, Regional Offices, Rule-making Authorities, Library Services, IT and facilities components of Justice would have to be transferred to the OCJ or the new entity created by legislation, together with the concomitant budget and personnel.

Just as there is no Cabinet Member responsible for Parliament, there should be none for the court administration structure led by the Judiciary. This augurs well for judicial independence and our constitutional democracy.

And the stage is set for that model. There have been meaningful engagements with other jurisdictions like the USA, the Russian Federation, Singapore, Ghana, Qatar, France, Germany, etc, to establish which of the many models would best serve our kind of constitutional democracy. We are satisfied that the court administration system of the USA,26 the Russian Federation, Singapore, Ghana and Qatar, would serve as a good model for the one our democracy deserves.

Senior officials in the OCJ, duly guided by Justice K.K. Mthiyane, the Deputy President of the SCA, and his Committee of Judges, have embarked on a process of working out this model and drafting a Bill. We hope that their finished product will be ready for circulation among Colleagues some time this year. Thereafter, we will present it to the Executive for consideration and hopefully, approval.

CONCLUSION

My predecessor Chief Justice Ngcobo appointed a Committee on Institutional Models, under the joint-leadership of former Chief Justices Chaskalson and Langa, to propose a court administration system that would best serve the needs of the courts. Its report proposes a self-governance structure created by legislation that would perform functions to be transferred to the OCJ. We changed certain aspects of the report and passed it onto the Executive. A response is awaited. For now we are still operating in a departmental mode led by a Director General who, as I said, bears the title of Secretary General.

The heading of the report on institutional models is particularly revealing, in the way it richly captures the implications of the OCJ for our constitutional democracy. It reads, “Capacitating the Office of the Chief Justice and Laying Foundations for Judicial Independence: The Next Frontier in our Constitutional Democracy: Judicial Independence”. And that is what the OCJ has achieved – to lay a very solid foundation for Judicial self – governance, the only remaining barrier to the attainment of complete Judicial independence.

The implications of the OCJ for the constitutional democracy in this country are self-evident. And so is the role of a court administration system lead by the Judiciary in our constitutional democracy. The courts will be able to determine their policy and strategic priorities and how best to meet them, decide on projects to embark upon to help the courts take their rightful place as guardians of our constitutional democracy, and serve the nation more effectively and efficiently.

Footnotes

1 See para 1.2.1 of the CIM Report.

2 Van Rooyen & Others v S & Others 2002 (4) SA 843 (CC) para 75. See also para 1.2.2 of the CIM Report.

3 “Delivery of Justice: Agenda for Change” (2003) 120 SALJ 688.

4 The budget of the South African Judicial Education Institute was cut this year, and I only got to know why, when I asked.

5 Subsection (6) is provided for in the Constitution Seventeenth Amendment Act.

6 Section 74(2) and (3) of the Constitution.

7 Section 74(1) of the Constitution.

8 See para 1.4.12 of the CIM Report.

9 Ackermann J captured the essence of this definition in De Lange v Smuts NO & Others 1998 (3) SA 785 (CC) para 59 ‘. . . judicial independence which is foundational to and indispensable for the discharge of the judicial function in a constitutional democracy based on the rule of law. This independence, of which structural independence is an indispensable part, is expressly proclaimed, protected and promoted by subsections (2), (3) and (4) of section 165 of the Constitution . . .’

10 See para 1.4.13 of the CIM Report.

11 See para 1.4.14 of the CIM Report. See also section 165(2).

12 Van Rooyen supra at para 70.

13 De Lange supra; Van Rooyen supra.

14 See para 1.4.15 of the CIM Report.

15 See Justice Ngcobo’s article above.

16 Para 1.1.1 of the report of the Committee on Institutional Models. (CIM Report).

17 See also Section 165(6) of the Constitution after the recent Constitution Seventeenth Amendment Act. See also section 166 of the Constitution Seventeenth Amendment Act, which expressly recognises the Constitutional Court as the apex Court.

18 See sections 8, 9(2), 11(1)(c) and 54 of the Superior Courts Bill that is on the verge of being passed into law.

19 In fact the Constitution Seventeenth Amendment Act has already been signed and promulgated by the President.

20 For the purpose of this section, I draw very generously from the Chaskalson-Langa CIM Report, para 1.2.3 to 1.2.7.

21 Section 165(4) of the Constitution.

24 Members of the NEEC are the Chief Justice, President of the SCA, Judge President of the North and South Gauteng High Courts, the Judge President of the Northern Cape High Court, a Judge representing the Judicial Case Management Committee, National Commissioners of SAPS and Correctional Services, DG’s of Public Works, Justice, Health, Social Development, the Regional Court Presidents, the Chair and CEO of Legal Aid South Africa, CEO of RAF, the NDPP, Chief Magistrates, representatives of LSSA and the GCB, etc.

25 Who was appointed with effect from 01 April 2013.

26 In the United States the Chief Justice is the head of the United States Judicial Conference which is composed of the Chief Justice of each judicial circuit, the Chief Justice of the Court of International Trade, and a district judge from each regional circuit. Their primary purpose is to make policy with regards to the administration of US courts and to supervise the Director of the Administrative Office. They also promulgate the rules for the Federal courts.

Review of Con Court and SCA back on table

Apr 14th, 2013

by Pierre De Vos.

1 comment

This is the newly re-issued bid document for a review of the decisions of the Constitutional Court and the Supreme Court of Appeal. The previous bid process was aborted last year “for technical” reasons.

REQUEST FOR BID

RFB 2013 03

THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT WISHES TO INVITE ALL INTERESTED PARTIES TO SUBMIT BIDS FOR ASSESSMENT OF THE IMPACT OF THE DECISIONS OF THE CONSTITUTIONAL COURT AND THE SUPREME COURT OF APPEAL FOR THE PERIOD OF 18 MONTHS

ISSUE DATE:

12 April 2013

CLOSING DATE AND TIME:

30 April 2013 at 11H00

TABLE OF CONTENTS

1 INVITATION TO BID (SBD 1)………………………………………………………………………………………….3

2 TAX CLEARANCE REQUIREMENTS (SBD 2)………………………………………………………………….5

3 PRICING SCHEDULE – PROFESSIONAL SERVICES (SBD 3.3)……………………………………….6

4 DECLARATION OF INTEREST (SBD 4)…………………………………………………………………………..8

5 NATIONAL INDUSTRIAL PARTICIPATION PROGRAMME (SBD 5)….….……………………….11

6 PREFERENCE POINTS CLAIM FORM (SBD 6.1)……………………………………………………………13 – 17

7 DECLARATION OF BIDDER’S PAST SCM PRACTICES (SBD8)………………………………………18 – 19

8 CERTIFICATE OF INDEPENDENT BID DETERMINATION (SBD 9)………………………………….20- 22

9 GENERAL CONDITIONS OF CONTRACT……………………………….…………………….………23 – 34

10 SPECIAL CONDITION OF THE CONTRACT …………………………………………….………….35

11 ACCEPTANCE OF TERMS AND SPECIAL CONDITIONS ……………………………..……..……..36

12 THE MARKING OF BID DOCUMENT.……………………………………………………………..……..37

13 TERMS OF REFERENCE AND EVALUATION CRITERIA ( )…………………………………….. 38- 44

SBD 1

INVITATION TO BID

YOU ARE HEREBY INVITED TO BID FOR REQUIREMENTS OF THE DOJ & CD

BID NUMBER: RFB 2013 03 CLOSING DATE: 30 April 2013 CLOSING TIME: 11:00

DESCRIPTION: APPOINTMENT OF SERVICE PROVIDER TO ASSESSMENT OF THE IMPACT OF THE DECISIONS OF THE CONSTITUTIONAL COURT AND THE SUPREME COURT OF APPEAL FOR A PERIOD OF 18 MONTHS

The successful bidder will be required to fill in and sign a written Contract Form (SBD 7).

BID DOCUMENTS MAY BE POSTED TO: Private Bag x81, Pretoria, 0001

DEPOSITED IN THE BID BOX SITUATED AT (STREET ADDRESS)

329 Pretorius Street,Pretoria,0001 at the Reception, East Tower

Bidders should ensure that bids are delivered timeously to the correct address. If the bid is late, it will not be accepted for consideration.

The bid box is generally open 24 hours a day, 7 days a week.

ALL BIDS MUST BE SUBMITTED ON THE OFFICIAL FORMS – (NOT TO BE RE-TYPED)

THIS BID IS SUBJECT TO THE PREFERENTIAL PROCUREMENT POLICY FRAMEWORK ACT AND THE PREFERENTIAL PROCUREMENT REGULATIONS, 2011, THE GENERAL CONDITIONS OF CONTRACT (GCC) AND, IF APPLICABLE, ANY OTHER SPECIAL CONDITIONS OF CONTRACT

THE FOLLOWING PARTICULARS MUST BE FURNISHED

(FAILURE TO DO SO MAY RESULT IN YOUR BID BEING DISQUALIFIED)

NAME OF BIDDER………………………………………………………………………………………………………………………

POSTAL ADDRESS………………………………………………………………………………………………………………….

STREET ADDRESS…………………………………………………………………………………………………………………

TELEPHONE NUMBER CODE……………NUMBER………………………………………………………………………………..

CELLPHONE NUMBER…………………………………………………………………………………………………………………

FACSIMILE NUMBER CODE ………… . NUMBER…………………………………………………………………………………

E-MAIL ADDRESS………………………………………………………………………………………………………………….

VAT REGISTRATION NUMBER…………………………………………………………………………………………………………………

HAS AN ORIGINAL AND VALID TAX CLEARANCE CERTIFICATE BEEN SUBMITTED? (SBD 2) YES or NO

HAS A B-BBEE STATUS LEVEL VERIFICATION CERTIFICATE BEEN SUBMITTED? (SBD 6.1) YES or NO

IF YES, WHO WAS THE CERTIFICATE ISSUED BY?

AN ACCOUNTING OFICER AS CONTEMPLATED IN THE CLOSE CORPORATION ACT (CCA)…….…………….……………………………………

A VERIFICATION AGENCY ACCREDITED BY THE SOUTH AFRICAN ACCREDITATION SYSTEM (SANAS);OR………………………………….…

A REGISTERED AUDITOR …………………………………………..

[TICK APPLICABLE BOX]

(A B-BBEE STATUS LEVEL VERIFICATION CERTIFICATE MUST BE SUBMITTED IN ORDER TO QUALIFY FOR

PREFERENCE POINTS FOR B-BBEE

ARE YOU THE ACCREDITED REPRESENTATIVE

IN SOUTH AFRICA FOR THE GOODS / SERVICES / WORKS OFFERED? YES or NO

[IF YES ENCLOSE PROOF]

SIGNATURE OF BIDDER ……………………………………………………………………………………………………………….

DATE ……………………………………………………………………………………………………………….

CAPACITY UNDER WHICH THIS BID IS SIGNED ………………………………………………………………………………………………………………

TOTAL BID PRICE…………………………………… TOTAL NUMBER OF ITEMS OFFERED…………………………………

_____________________________________________________________________________________________________________________

ANY ENQUIRIES REGARDING THE BIDDING PROCEDURE MAY BE DIRECTED TO:

Department: Department of Justice and Constitutional Development

Contact Person: Ms T Ngcobo

Tel: 012 315 1905

E-mail address: THNgobo@justice.gov.za

ANY ENQUIRIES REGARDING TECHNICAL INFORMATION MAY BE DIRECTED TO:

Contact Person: Mr JB Skosana

Tel: (012) 315 1434

E-mail address: jbskosana@hjustice.gov.za

SBD 2

TAX CLEARANCE CERTIFICATE REQUIREMENTS

It is a condition of bid that the taxes of the successful bidder must be in order, or that satisfactory arrangements have been made with South African Revenue Service (SARS) to meet the bidder’s tax obligations.

1 In order to meet this requirement bidders are required to complete in full the attached form TCC 001 “Application for a Tax Clearance Certificate” and submit it to any SARS branch office nationally. The Tax Clearance Certificate Requirements are also applicable to foreign bidders / individuals who wish to submit bids.

2 SARS will then furnish the bidder with a Tax Clearance Certificate that will be valid for a period of 1 (one) year from the date of approval.

3 The original Tax Clearance Certificate must be submitted together with the bid. Failure to submit the original and valid Tax Clearance Certificate will result in the invalidation of the bid. Certified copies of the Tax Clearance Certificate will not be acceptable.

4 In bids where Consortia / Joint Ventures / Sub-contractors are involved, each party must submit a separate Tax Clearance Certificate.

5 Copies of the TCC 001 “Application for a Tax Clearance Certificate” form are available from any SARS branch office nationally or on the website www.sars.gov.za.

6 Applications for the Tax Clearance Certificates may also be made via eFiling. In order to use this provision, taxpayers will need to register with SARS as eFilers through the website www.sars.gov.za.

Jeyrel:\Mdk416-SBD2 tax clearance

SBD 3.3

PRICING SCHEDULE

(Professional Services)

NAME OF BIDDER: ………………………………………………………………………………………………BID NO.: RFB 2013 03

CLOSING TIME 11:00 CLOSING DATE 30 April 2013

OFFER TO BE VALID FOR 90 DAYS FROM THE CLOSING DATE OF BID.

ITEM DESCRIPTION BID PRICE IN RSA CURRENCY

NO **(ALL APPLICABLE TAXES INCLUDED)

1. The accompanying information must be used for the formulation

of proposals.

2. Bidders are required to indicate a ceiling price based on the total

estimated time for completion of all phases and including all

expenses inclusive of all applicable taxes for the project. R………..……………………………………………………

3. PERSONS WHO WILL BE INVOLVED IN THE PROJECT AND

RATES APPLICABLE (CERTIFIED INVOICES MUST BE

RENDERED IN TERMS HEREOF)

4. PERSON AND POSITION HOURLY RATE DAILY RATE

————————————————————————————– R—————————— ———————————

5. PHASES ACCORDING TO WHICH THE PROJECT WILL BE

COMPLETED, COST PER PHASE AND MAN-DAYS TO BE

SPENT

——————————————————————————- R—————————— ————————– days

5.1 Travel expenses (specify, for example rate/km and total km, class

of airtravel, etc). Only actual costs are recoverable. Proof of the

expenses incurred must accompany certified invoices.

DESCRIPTION OF EXPENSE TO BE INCURRED RATE QUANTITY AMOUNT

——————————————————————————– ………………. …………….. R………………..

TOTAL: R………………………………………………….

** ”all applicable taxes” includes value- added tax, pay as you earn, income tax, unemployment insurance fund contributions and skills development levies.

5.2 Other expenses, for example accommodation (specify, eg. Three

star hotel, bed and breakfast, telephone cost, reproduction cost,

etc.). On basis of these particulars, certified invoices will be checked

for correctness. Proof of the expenses must accompany invoices.

DESCRIPTION OF EXPENSE TO BE INCURRED RATE QUANTITY AMOUNT

———————————————————————————- ………………. …………….. R………………..

TOTAL: R………………………………………………….

6. Period required for commencement with project after

acceptance of bid ……………………………………………………………….

7. Estimated man-days for completion of project ……………………………………………………………….

8. Are the rates quoted firm for the full period of contract? *YES/NO

9. If not firm for the full period, provide details of the basis on which

adjustments will be applied for, for example consumer price index. ……………………………………………………………….

……………………………………………………………….

SBD 4

DECLARATION OF INTEREST

1. Any legal person, including persons employed by the state¹, or persons having a kinship with persons employed by the state, including a blood relationship, may make an offer or offers in terms of this invitation to bid (includes an advertised competitive bid, a limited bid, a proposal or written price quotation). In view of possible allegations of favouritism, should the resulting bid, or part thereof, be awarded to persons employed by the state, or to persons connected with or related to them, it is required that the bidder or his/her authorised representative declare his/her position in relation to the evaluating/adjudicating authority where-

- the bidder is employed by the state; and/or

- the legal person on whose behalf the bidding document is signed, has a relationship with persons/a person who are/is involved in the evaluation and or adjudication of the bid(s), or where it is known that such a relationship exists between the person or persons for or on whose behalf the declarant acts and persons who are involved with the evaluation and or adjudication of the bid.

2. In order to give effect to the above, the following questionnaire must be completed and submitted with the bid.

2.1 Full Name of bidder or his or her representative: ………………………………………………………….

2.2 Identity Number:……………………………………………………………………………………………

2.3 Position occupied in the Company (director, trustee, shareholder², member): ……………………………………………………………………………………………………………

2.4 Registration number of company, enterprise, close corporation, partnership agreement or trust: ………………………………………………………………………..………….…………………………

2.5 Tax Reference Number:……………………………………………………………………………………

2.6 VAT Registration Number: ………………………………………………………………………………….

2.6.1 The names of all directors / trustees / shareholders / members, their individual identity numbers, tax reference numbers and, if applicable, employee / PERSAL numbers must be indicated in paragraph 3 below.

¹“State” means –

(a) any national or provincial department, national or provincial public entity or constitutional institution within the meaning of the Public Finance Management Act, 1999 (Act No. 1 of 1999);

(b) any municipality or municipal entity;

(d) national Assembly or the national Council of provinces; or

(e) Parliament.

²”Shareholder” means a person who owns shares in the company and is actively involved in the management of the enterprise or business and exercises control over the enterprise.

2.7 Are you or any person connected with the bidder YES / NO

presently employed by the state?

2.7.1 If so, furnish the following particulars:

Name of person / director / trustee / shareholder/ member: ……….………………………………

Name of state institution at which you or the person

connected to the bidder is employed : ………………………………………

Position occupied in the state institution: ………………………………………

Any other particulars:

………………………………………………………………

2.7.2 If you are presently employed by the state, did you obtain YES / NO

the appropriate authority to undertake remunerative

work outside employment in the public sector?

2.7.2.1 If yes, did you attach proof of such authority to the bid YES / NO

document?

(Note: Failure to submit proof of such authority, where

applicable, may result in the disqualification of the bid.

2.7.2.2 If no, furnish reasons for non-submission of such proof:

…………………………………………………………………….

2.8 Did you or your spouse, or any of the company’s directors / YES / NO

trustees / shareholders / members or their spouses conduct

business with the state in the previous twelve months?

2.8.1 If so, furnish particulars:

…………………………………………………………………..

……………………………………………………………………

2.9 Do you, or any person connected with the bidder, have YES / NO

any relationship (family, friend, other) with a person

employed by the state and who may be involved with

the evaluation and or adjudication of this bid?

2.9.1 If so, furnish particulars.

………………………………………………………………

…………………………………………………………..….

………………………………………………………………

2.10 Are you, or any person connected with the bidder, YES/NO

aware of any relationship (family, friend, other) between

any other bidder and any person employed by the state

who may be involved with the evaluation and or adjudication

of this bid?

2.10.1If so, furnish particulars.

………………………………………………………………

2.11Do you or any of the directors / trustees / shareholders / members YES/NO

of the company have any interest in any other related companies

whether or not they are bidding for this contract?

2.11.1 If so, furnish particulars:

…………………………………………………………………………….

3 Full details of directors / trustees / members / shareholders.

Full Name

Identity Number

Personal Income Tax Reference Number

State Employee Number / Persal Number

4 DECLARATION

I, THE UNDERSIGNED (NAME)………………………………………………………………………

CERTIFY THAT THE INFORMATION FURNISHED IN PARAGRAPHS 2 and 3 ABOVE IS CORRECT. I ACCEPT THAT THE STATE MAY REJECT THE BID OR ACT AGAINST ME SHOULD THIS DECLARATION PROVE TO BE FALSE.

………………………………….. ..……………………………………………

Signature Date

…………………………………. ………………………………………………

Position Name of bidder

SBD 5

This document must be signed and submitted together with your bid

THE NATIONAL INDUSTRIAL PARTICIPATION PROGRAMME.

INTRODUCTION.

The National Industrial Participation (NIP) Programme, which is applicable to all government procurement contracts that have an imported content, became effective on the 1 September 1996. The NIP policy and guidelines were fully endorsed by Cabinet on 30 April 1997. In terms of the Cabinet decision, all state and parastatal purchases / lease contracts (for goods, works and services) entered into after this date, are subject to the NIP requirements. NIP is obligatory and therefore must be complied with. The Industrial Participation Secretariat (IPS) of the Department of Trade and Industry (DTI) is charged with the responsibility of administering the programme.

1. PILLARS OF THE PROGRAMME

1.1 The NIP obligation is benchmarked on the imported content of the contract. Any contract having an imported content equal to or exceeding US$ 10 million or other currency equivalent to US$ 10 million will have a NIP obligation. This threshold of US$ 10 million can be reached as follows:

(a) Any single contract with imported content exceeding US$10 million.

(b) Multiple contracts for the same goods, works or services each with imported content exceeding US$3 million awarded to one seller over a 2 year period which in total exceeds US$10 million.

(c) A contract with a renewable option clause, where should the option be exercised the total value of the imported content will exceed US$10 million.

(d) Multiple suppliers of the same goods, works or services under the same contract, where the value of the imported content of each allocation is equal to or exceeds US$ 3 million worth of goods, works or services to the same government institution, which in total over a two (2) year period exceeds US$10 million.

1.2 The NIP obligation applicable to suppliers in respect of sub-paragraphs 1.1 (a) to 1.1 (c) above will amount to 30 % of the imported content whilst suppliers in respect of paragraph 1.1 (d) shall incur 30% of the total NIP obligation on a pro-rata basis.

1.3 To satisfy the NIP obligation, the DTI would negotiate and conclude agreements such as investments, joint ventures, sub-contracting, licensee production, export promotion, sourcing arrangements and research and development (R&D) with partners or suppliers.

1.4 A period of seven years has been identified as the time frame within which to discharge the obligation.

2. REQUIREMENTS OF THE DEPARTMENT OF TRADE AND INDUSTRY.

2.1 In order to ensure effective implementation of the programme, successful bidders (contractors) are required to, immediately after the award of a contract that is in excess of R10 million (ten million Rands), submit details of such a contract to the DTI for reporting purposes.

2.2 The purpose for reporting details of contracts in excess of the amount of R10 million (ten million Rands) is to cater for multiple contracts for the same goods, works or services; renewable contracts and multiple suppliers for the same goods, works or services under the same contract as provided for in paragraphs 1.1. (b) to 1.1. (d) above.

3 BID SUBMISSION AND CONTRACT REPORTING REQUIREMENTS OF BIDDERS AND SUCCESSFUL BIDDERS (CONTRACTORS)

3.1 Bidders are required to sign and submit this Standard Bidding Document (SBD 5) together with the bid on the closing date and time.

3.2 In order to accommodate multiple contracts for the same goods, works or services; renewable contracts and multiple suppliers for the same goods, works or services under the same contract as indicated in sub-paragraphs 1.1 (b) to 1.1 (d) above and to enable the DTI in determining the NIP obligation, successful bidders (contractors) are required, immediately after being officially notified about any successful bid with a value in excess of R10 million (ten million Rands), to contact and furnish the DTI with the following information:

• Bid / contract number.

• Description of the goods, works or services.

• Date on which the contract was accepted.

• Name, address and contact details of the government institution.

• Value of the contract.

• Imported content of the contract, if possible.

3.3 The information required in paragraph 3.2 above must be sent to the Department of Trade and Industry, Private Bag X 84, Pretoria, 0001 for the attention of Mr Elias Malapane within five (5) working days after award of the contract. Mr Malapane may be contacted on telephone (012) 394 1401, facsimile (012) 394 2401 or e-mail at Elias@thedti.gov.za for further details about the programme.

4. PROCESS TO SATISFY THE NIP OBLIGATION.

4.1 Once the successful bidder (contractor) has made contact with and furnished the DTI with the information required, the following steps will be followed:

a. The contractor and the DTI will determine the NIP obligation;

b. The contractor and the DTI will sign the NIP obligation agreement;

c. The contractor will submit a performance guarantee to the DTI;

d. The contractor will submit a business concept for consideration and approval by the DTI;

e. Upon approval of the business concept by the DTI, the contractor will submit detailed business plans outlining the business concepts;

f. The contractor will implement the business plans; and

g. The contractor will submit bi-annual progress reports on approved plans to the DTI.

4.2 The NIP obligation agreement is between the DTI and the successful bidder (contractor) and, therefore, does not involve the purchasing institution.

Bid number : RFB 2013 03 Closing date: 30 April 2013

Name of bidder…………………………………………………………………………………

Postal address ………………………………………………………………………………..

.……………………………………………………………………………….

Signature…………………………………….. Name (in print)……………………………..

Date…………………………………………..

SBD 6.1

PREFERENCE POINTS CLAIM FORM IN TERMS OF THE PREFERENTIAL PROCUREMENT REGULATIONS 2011

This preference form must form part of all bids invited. It contains general information and serves as a claim form for preference points for Broad-Based Black Economic Empowerment (B-BBEE) Status Level of Contribution

NB: BEFORE COMPLETING THIS FORM, BIDDERS MUST STUDY THE GENERAL CONDITIONS, DEFINITIONS AND DIRECTIVES APPLICABLE IN RESPECT OF B-BBEE, AS PRESCRIBED IN THE PREFERENTIAL PROCUREMENT REGULATIONS, 2011.

1. GENERAL CONDITIONS

1.1 The following preference point systems are applicable to all bids:

- the 80/20 system for requirements with a Rand value of up to R1 000 000 (all applicable taxes included); and

- the 90/10 system for requirements with a Rand value above R1 000 000 (all applicable taxes included).

1.2 The value of this bid is estimated to exceed R1 000 000 (all applicable taxes included) and therefore the 90/10 system shall be applicable.

1.3 Preference points for this bid shall be awarded for:

(a) Price; and

(b) B-BBEE Status Level of Contribution.

1.3.1 The maximum points for this bid are allocated as follows:

POINTS

1.3.1.1 PRICE

1.3.1.2 B-BBEE STATUS LEVEL OF CONTRIBUTION 10

Total points for Price and B-BBEE must not exceed 100

1.4 Failure on the part of a bidder to fill in and/or to sign this form and submit a B-BBEE Verification Certificate from a Verification Agency accredited by the South African Accreditation System (SANAS) or a Registered Auditor approved by the Independent Regulatory Board of Auditors (IRBA) or an Accounting Officer as contemplated in the Close Corporation Act (CCA) together with the bid, will be interpreted to mean that preference points for B-BBEE status level of contribution are not claimed.

1.5. The purchaser reserves the right to require of a bidder, either before a bid is adjudicated or at any time subsequently, to substantiate any claim in regard to preferences, in any manner required by the purchaser.

2. DEFINITIONS

2..1 “all applicable taxes” includes value-added tax, pay as you earn, income tax, unemployment insurance

fund contributions and skills development levies;

2.2 “B-BBEE” means broad-based black economic empowerment as defined in section 1 of the Broad

-Based Black Economic Empowerment Act;

2.3 “B-BBEE status level of contributor” means the B-BBEE status received by a measured entity based

on its overall performance using the relevant scorecard contained in the Codes of Good Practice on Black Economic Empowerment, issued in terms of section 9(1) of the Broad-Based Black Economic

Empowerment Act;

2.4 “bid” means a written offer in a prescribed or stipulated form in response to an invitation by an

organ of state for the provision of services, works or goods, through price quotations, advertised

competitive bidding processes or proposals;

2.5 “Broad-Based Black Economic Empowerment Act” means the Broad-Based Black Economic

Empowerment Act, 2003 (Act No. 53 of 2003);

2.6 “comparative price” means the price after the factors of a non-firm price and all unconditional

discounts that can be utilized have been taken into consideration;

2.7 “consortium or joint venture” means an association of persons for the purpose of combining their

expertise, property, capital, efforts, skill and knowledge in an activity for the execution of a contract;

2.8 “contract” means the agreement that results from the acceptance of a bid by an organ of state;

2.9 “EME” means any enterprise with an annual total revenue of R5 million or less .

2.10 “Firm price” means the price that is only subject to adjustments in accordance with the actual increase or decrease resulting from the change, imposition, or abolition of customs or excise duty and any other duty, levy, or tax, which, in terms of the law or regulation, is binding on the contractor and demonstrably has an influence on the price of any supplies, or the rendering costs of any service, for the execution of the contract;

2.11 “functionality” means the measurement according to predetermined norms, as set out in the bid

documents, of a service or commodity that is designed to be practical and useful, working or

operating, taking into account, among other factors, the quality, reliability, viability and durability of a

service and the technical capacity and ability of a bidder;

2.12 “non-firm prices” means all prices other than “firm” prices;

2.13 “person” includes a juristic person;

2.14 “rand value” means the total estimated value of a contract in South African currency, calculated at

the time of bid invitations, and includes all applicable taxes and excise duties;

2.15 “sub-contract” means the primary contractor’s assigning, leasing, making out work to, or employing, another person to support such primary contractor in the execution of part of a project in terms of the contract;

2.16 “total revenue” bears the same meaning assigned to this expression in the Codes of Good

Practice on Black Economic Empowerment, issued in terms of section 9(1) of the Broad-Based

Black Economic Empowerment Act and promulgated in the Government Gazette on 9 February

2007;

2.17 “trust” means the arrangement through which the property of one person is made over or

bequeathed to a trustee to administer such property for the benefit of another person; and

2.18 “trustee” means any person, including the founder of a trust, to whom property is bequeathed in

order for such property to be administered for the benefit of another person.

3. ADJUDICATION USING A POINT SYSTEM

3.1 The bidder obtaining the highest number of total points will be awarded the contract.

3.2 Preference points shall be calculated after prices have been brought to a comparative basis taking into account all factors of non-firm prices and all unconditional discounts;.

3.3 Points scored must be rounded off to the nearest 2 decimal places.

3.4 In the event that two or more bids have scored equal total points, the successful bid

must be the one scoring the highest number of preference points for B-BBEE.

3.5 However, when functionality is part of the evaluation process and two or more bids have

scored equal points including equal preference points for B-BBEE, the successful bid must

be the one scoring the highest score for functionality.

3.6 Should two or more bids be equal in all respects, the award shall be decided by the

drawing of lots.

4. POINTS AWARDED FOR PRICE

4.1 THE 80/20 OR 90/10 PREFERENCE POINT SYSTEMS

A maximum of 80 or 90 points is allocated for price on the following basis:

80/20 or 90/10











 

 

min

80 1

Pt P

Ps or 









 

 

min

90 1

Pt P

Where

Ps = Points scored for comparative price of bid under consideration

Pt = Comparative price of bid under consideration

Pmin = Comparative price of lowest acceptable bid

5. Points awarded for B-BBEE Status Level of Contribution

5.1 In terms of Regulation 5 (2) and 6 (2) of the Preferential Procurement Regulations, preference points must be

awarded to a bidder for attaining the B-BBEE status level of contribution in accordance with the table below:

B-BBEE Status Level of

Contributor

Number of points

(90/10 system)

Number of points

(80/20 system)

1 10 20

2 9 18

3 8 16

4 5 12

5 4 8

6 3 6

7 2 4

8 1 2

Non-compliant

contributor

0 0

5.2 Bidders who qualify as EMEs in terms of the B-BBEE Act must submit a certificate issued by an Accounting

Officer as contemplated in the CCA or a Verification Agency accredited by SANAS or a Registered Auditor.

Registered auditors do not need to meet the prerequisite for IRBA’s approval for the purpose of

conducting verification and issuing EMEs with B-BBEE Status Level Certificates.

5.3 Bidders other than EMEs must submit their original and valid B-BBEE status level verification certificate or a

certified copy thereof, substantiating their B-BBEE rating issued by a Registered Auditor approved by IRBA or a

Verification Agency accredited by SANAS.

5.4 A trust, consortium or joint venture, will qualify for points for their B-BBEE status level as a legal entity,

provided that the entity submits their B-BBEE status level certificate.

5.5 A trust, consortium or joint venture will qualify for points for their B-BBEE status level as an unincorporated

entity, provided that the entity submits their consolidated B-BBEE scorecard as if they were a group

structure and that such a consolidated B-BBEE scorecard is prepared for every separate bid.

5.6 Tertiary institutions and public entities will be required to submit their B-BBEE status level certificates in terms of the specialized scorecard contained in the B-BBEE Codes of Good Practice.

5.7 A person will not be awarded points for B-BBEE status level if it is indicated in the bid documents that

such a bidder intends sub-contracting more than 25% of the value of the contract to any other enterprise

that does not qualify for at least the points that such a bidder qualifies for, unless the intended sub-

contractor is an EME that has the capability and ability to execute the sub-contract.

5.8 A person awarded a contract may not sub-contract more than 25% of the value of the contract to any other

enterprise that does not have an equal or higher B-BBEE status level than the person concerned, unless the

contract is sub-contracted to an EME that has the capability and ability to execute the

sub-contract.

6. BID DECLARATION

6.1 Bidders who claim points in respect of B-BBEE Status Level of Contribution must complete the following:

7. B-BBEE STATUS LEVEL OF CONTRIBUTION CLAIMED IN TERMS OF PARAGRAPHS 1.3.1.2 AND 5.1

7.1 B-BBEE Status Level of Contribution:…………. = ……………(maximum of 10 or 20 points)

(Points claimed in respect of paragraph 7.1 must be in accordance with the table reflected in paragraph 5.1 and must be substantiated by means of a B-BBEE certificate issued by a Verification Agency accredited by SANAS or a Registered Auditor approved by IRBA or an Accounting Officer as contemplated in the CCA).

8 SUB-CONTRACTING

8.1 Will any portion of the contract be sub-contracted? YES / NO (delete which is not applicable)

8.1.1 If yes, indicate:

(i) what percentage of the contract will be subcontracted? ………………………….…%

(ii) the name of the sub-contractor? …………………………………………………………..

(iii) the B-BBEE status level of the sub-contractor? ……………..

(iv) whether the sub-contractor is an EME? YES / NO (delete which is not applicable)

9 DECLARATION WITH REGARD TO COMPANY/FIRM

9.1 Name of company/firm ………………………………………………………………………………… :

9.2 VAT registration number : ………………………………………………………………………………..

9.3 Company registration number ……………………………………………………………………. :

9.4 TYPE OF COMPANY/ FIRM

 Partnership/Joint Venture / Consortium

 One person business/sole propriety

 Close corporation

 Company

 (Pty) Limited

[TICK APPLICABLE BOX]

9.5 DESCRIBE PRINCIPAL BUSINESS ACTIVITIES

………….. ………………………………………………………………………………………………………………………………..

……………… …………………………………………………………………………………………………………………………..

…………….. …………………………………………………………………………………………………………………………….

9.6 COMPANY CLASSIFICATION

 Manufacturer

 Supplier

 Professional service provider

 Other service providers, e.g. transporter, etc.

[TICK APPLICABLE BOX]

9.7 Total number of years the company/firm has been in business? ……………………………………

9.8 I/we, the undersigned, who is / are duly authorised to do so on behalf of the company/firm, certify that the points claimed, based on the B-BBE status level of contribution indicated in paragraph 7 of the foregoing certificate, qualifies the company/ firm for the preference(s) shown and I / we acknowledge that:

(i) The information furnished is true and correct;

(ii) The preference points claimed are in accordance with the General Conditions as indicated in paragraph 1 of this form.

(iii) In the event of a contract being awarded as a result of points claimed as shown in paragraph 7, the contractor may be required to furnish documentary proof to the satisfaction of the purchaser that the claims are correct;

(iv) If the B-BBEE status level of contribution has been claimed or obtained on a fraudulent basis or any of the conditions of contract have not been fulfilled, the purchaser may, in addition to any other remedy it may have –

(a) disqualify the person from the bidding process;

(b) recover costs, losses or damages it has incurred or suffered as a result of that person’s conduct;

(c) cancel the contract and claim any damages which it has suffered as a result of having to make less favourable arrangements due to such cancellation;

(d) restrict the bidder or contractor, its shareholders and directors, or only the shareholders and directors who acted on a fraudulent basis, from obtaining business from any organ of state for a period not exceeding 10 years, after the audi alteram partem (hear the other side) rule has been applied; and

(e) forward the matter for criminal prosecution

WITNESSES:

1. ………………………………………

……………………………………

SIGNATURE(S) OF BIDDER(S)

2. ………………………………………

DATE:………………………………..

ADDRESS:…………………………..

….………………………………

SBD 8

DECLARATION OF BIDDER’S PAST SUPPLY CHAIN MANAGEMENT PRACTICES

1 This Standard Bidding Document must form part of all bids invited.

2 It serves as a declaration to be used by institutions in ensuring that when goods and services are being procured, all reasonable steps are taken to combat the abuse of the supply chain management system.

3 The bid of any bidder may be disregarded if that bidder, or any of its directors have-

a. abused the institution’s supply chain management system;

b. committed fraud or any other improper conduct in relation to such system; or

c. failed to perform on any previous contract.

4 In order to give effect to the above, the following questionnaire must be completed and submitted with the bid.

Item Question Yes No

4.1

Is the bidder or any of its directors listed on the National Treasury’s Database of Restricted Suppliers as companies or persons prohibited from doing business with the public sector?

(Companies or persons who are listed on this Database were informed in writing of this restriction by the Accounting Officer/Authority of the institution that imposed the restriction after the audi alteram partem rule was applied).

The Database of Restricted Suppliers now resides on the National Treasury’s website(www.treasury.gov.za) and can be accessed by clicking on its link at the bottom of the home page.

Yes

4.1.1

If so, furnish particulars:

4.2

Is the bidder or any of its directors listed on the Register for Tender Defaulters in terms of section 29 of the Prevention and Combating of Corrupt Activities Act (No 12 of 2004)?

The Register for Tender Defaulters can be accessed on the National Treasury’s website (www.treasury.gov.za) by clicking on its link at the bottom of the home page.

Yes

4.2.1

If so, furnish particulars:

4.3

Was the bidder or any of its directors convicted by a court of law (including a court outside of the Republic of South Africa) for fraud or corruption during the past five years?

Yes

4.3.1

If so, furnish particulars:

4.4

Was any contract between the bidder and any organ of state terminated during the past five years on account of failure to perform on or comply with the contract?

Yes

4.4.1

If so, furnish particulars:

SBD 8

CERTIFICATION

I, THE UNDERSIGNED (FULL NAME)…………………………………………………

CERTIFY THAT THE INFORMATION FURNISHED ON THIS DECLARATION FORM IS TRUE AND CORRECT.

I ACCEPT THAT, IN ADDITION TO CANCELLATION OF A CONTRACT, ACTION MAY BE TAKEN AGAINST ME SHOULD THIS DECLARATION PROVE TO BE FALSE.

………………………………………… …………………………..

Signature Date

………………………………………. …………………………..

Position Name of Bidder

Js365bW

SBD 9

CERTIFICATE OF INDEPENDENT BID DETERMINATION

1 This Standard Bidding Document (SBD) must form part of all bids¹ invited.

2 Section 4 (1) (b) (iii) of the Competition Act No. 89 of 1998, as amended, prohibits an agreement between, or concerted practice by, firms, or a decision by an association of firms, if it is between parties in a horizontal relationship and if it involves collusive bidding (or bid rigging).² Collusive bidding is a pe se prohibition meaning that it cannot be justified under any grounds.

3 Treasury Regulation 16A9 prescribes that accounting officers and accounting authorities must take all reasonable steps to prevent abuse of the supply chain management system and authorizes accounting officers and accounting authorities to:

a. disregard the bid of any bidder if that bidder, or any of its directors have abused the institution’s supply chain management system and or committed fraud or any other improper conduct in relation to such system.

b. cancel a contract awarded to a supplier of goods and services if the supplier committed any corrupt or fraudulent act during the bidding process or the execution of that contract.

4 This SBD serves as a certificate of declaration that would be used by institutions to ensure that, when bids are considered, reasonable steps are taken to prevent any form of bid-rigging.

5 In order to give effect to the above, the attached Certificate of Bid Determination (SBD 9) must be completed and submitted with the bid:

¹ Includes price quotations, advertised competitive bids, limited bids and proposals.

² Bid rigging (or collusive bidding) occurs when businesses, that would otherwise be expected to compete, secretly conspire to raise prices or lower the quality of goods and / or services for purchasers who wish to acquire goods and / or services through a bidding process. Bid rigging is, therefore, an agreement between competitors not to compete.

SBD 9

CERTIFICATE OF INDEPENDENT BID DETERMINATION

I, the undersigned, in submitting the accompanying bid:

________________________________________________________________________

(Bid Number and Description)

in response to the invitation for the bid made by:

______________________________________________________________________________

(Name of Institution)

do hereby make the following statements that I certify to be true and complete in every respect:

I certify, on behalf of:_______________________________________________________that:

(Name of Bidder)

1. I have read and I understand the contents of this Certificate;

2. I understand that the accompanying bid will be disqualified if this Certificate is found not to be true and complete in every respect;

3. I am authorized by the bidder to sign this Certificate, and to submit the accompanying bid, on behalf of the bidder;

4. Each person whose signature appears on the accompanying bid has been authorized by the bidder to determine the terms of, and to sign the bid, on behalf of the bidder;

5. For the purposes of this Certificate and the accompanying bid, I understand that the word “competitor” shall include any individual or organization, other than the bidder, whether or not affiliated with the bidder, who:

(a) has been requested to submit a bid in response to this bid invitation;

(b) could potentially submit a bid in response to this bid invitation, based on their qualifications, abilities or experience; and

6. The bidder has arrived at the accompanying bid independently from, and without consultation, communication, agreement or arrangement with any competitor. However communication between partners in a joint venture or consortium³ will not be construed as collusive bidding.

7. In particular, without limiting the generality of paragraphs 6 above, there has been no consultation, communication, agreement or arrangement with any competitor regarding:

(a) prices;

(b) geographical area where product or service will be rendered (market allocation)

(d) the intention or decision to submit or not to submit, a bid;

(e) the submission of a bid which does not meet the specifications and conditions of the bid; or

(f) bidding with the intention not to win the bid.

8. In addition, there have been no consultations, communications, agreements or arrangements with any competitor regarding the quality, quantity, specifications and conditions or delivery particulars of the products or services to which this bid invitation relates.

9. The terms of the accompanying bid have not been, and will not be, disclosed by the bidder, directly or indirectly, to any competitor, prior to the date and time of the official bid opening or of the awarding of the contract.

³ Joint venture or Consortium means an association of persons for the purpose of combining their expertise, property, capital, efforts, skill and knowledge in an activity for the execution of a contract.

10. I am aware that, in addition and without prejudice to any other remedy provided to combat any restrictive practices related to bids and contracts, bids that are suspicious will be reported to the Competition Commission for investigation and possible imposition of administrative penalties in terms of section 59 of the Competition Act No 89 of 1998 and or may be reported to the National Prosecuting Authority (NPA) for criminal investigation and or may be restricted from conducting business with the public sector for a period not exceeding ten (10) years in terms of the Prevention and Combating of Corrupt Activities Act No 12 of 2004 or any other applicable legislation.

………………………………………………… …………………………………

Signature Date

…………………………………………………. …………………………………

Position Name of Bidder

Js914w 2

GOVERNMENT PROCUREMENT GENERAL CONDITIONS OF CONTRACT.

NOTES

The purpose of this document is to:

(i) Draw special attention to certain general conditions applicable to government bids, contracts and orders; and

(ii) To ensure that clients be familiar with regard to the rights and obligations of all parties involved in doing business with government.

In this document words in the singular also mean in the plural and vice versa and words in the masculine also mean in the feminine and neuter.

The General Conditions of Contract will form part of all bid documents and may not

be amended.

Special Conditions of Contract (SCC) relevant to a specific bid, should be compiled separately for every bid (if (applicable) and will supplement the General Conditions of Contract. Whenever there is a conflict, the provisions in the SCC shall prevail.

TABLE OF CLAUSES

1. Definitions

2. Application

3. General

4. Standards

5. Use of contract documents and information; inspection

6. Patent rights

7. Performance security

8. Inspections, tests and analysis

9. Packing

10. Delivery and documents

11. Insurance

12. Transportation

13. Incidental services

14. Spare parts

15. Warranty

16. Payment

17. Prices

18. Contract amendments

19. Assignment

20. Subcontracts

21. Delays in the supplier’s performance

22. Penalties

23. Termination for default

24. Dumping and countervailing duties

25. Force Majeure

26. Termination for insolvency

27. Settlement of disputes

28. Limitation of liability

29. Governing language

30. Applicable law

31. Notices

32. Taxes and duties

33. National Industrial Participation Programme (NIPP)

34. Prohibition of restrictive practices

General Conditions of Contract

1. Definitions 1. The following terms shall be interpreted as indicated:

1.1 “Closing time” means the date and hour specified in the bidding documents for the receipt of bids.

1.2 “Contract” means the written agreement entered into between the purchaser and the supplier, as recorded in the contract form signed by the parties, including all attachments and appendices thereto and all documents incorporated by reference therein.

1.3 “Contract price” means the price payable to the supplier under the contract for the full and proper performance of his contractual obligations.

1.4 “Corrupt practice” means the offering, giving, receiving, or soliciting of any thing of value to influence the action of a public official in the procurement process or in contract execution.

1.5 “Countervailing duties” are imposed in cases where an enterprise abroad is subsidized by its government and encouraged to market its products internationally.

1.6 “Country of origin” means the place where the goods were mined, grown or produced or from which the services are supplied. Goods are produced when, through manufacturing, processing or substantial and major assembly of components, a commercially recognized new product results that is substantially different in basic characteristics or in purpose or utility from its components.

1.7 “Day” means calendar day.

1.8 “Delivery” means delivery in compliance of the conditions of the contract or order.

1.9 “Delivery ex stock” means immediate delivery directly from stock actually on hand.

1.10 “Delivery into consignees store or to his site” means delivered and unloaded in the specified store or depot or on the specified site in compliance with the conditions of the contract or order, the supplier bearing all risks and charges involved until the supplies are so delivered and a valid receipt is obtained.

1.11 “Dumping” occurs when a private enterprise abroad market its goods on own initiative in the RSA at lower prices than that of the country of origin and which have the potential to harm the local industries in the RSA.

1.12 ”Force majeure” means an event beyond the control of the supplier and not involving the supplier’s fault or negligence and not foreseeable. Such events may include, but is not restricted to, acts of the purchaser in its sovereign capacity, wars or revolutions, fires, floods, epidemics, quarantine restrictions and freight embargoes.

1.13 “Fraudulent practice” means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of any bidder, and includes collusive practice among bidders prior to or after bid submission) designed to establish bid prices at artificial non-competitive levels and to deprive the bidder of the benefits of free and open competition.

1.14 “GCC” means the General Conditions of Contract.

1.15 “Goods” means all of the equipment, machinery, and/or other materials that the supplier is required to supply to the purchaser under the contract.

1.16 “Imported content” means that portion of the bidding price represented by the cost of components, parts or materials which have been or are still to be imported (whether by the supplier or his subcontractors) and which costs are inclusive of the costs abroad, plus freight and other direct importation costs such as landing costs, dock dues, import duty, sales duty or other similar tax or duty

at the South African place of entry as well as transportation and handling charges to the factory in the Republic where the supplies covered by the bid will be manufactured.

1.17 “Local content” means that portion of the bidding price which is not included in the imported content provided that local manufacture does take place.

1.18 “Manufacture” means the production of products in a factory using labour, materials, components and machinery and includes other related value-adding activities.

1.19 “Order” means an official written order issued for the supply of goods or works or the rendering of a service.

1.20 “Project site,” where applicable, means the place indicated in bidding documents.

1.21 “Purchaser” means the organization purchasing the goods.

1.22 “Republic” means the Republic of South Africa.

1.23 “SCC” means the Special Conditions of Contract.

1.24 “Services” means those functional services ancillary to the supply of the goods, such as transportation and any other incidental services, such as installation, commissioning, provision of technical assistance, training, catering, gardening, security, maintenance and other such obligations of the supplier covered under the contract.

1.25 “Written” or “in writing” means handwritten in ink or any form of electronic or mechanical writing.

2. Application.

2.1 These general conditions are applicable to all bids, contracts and orders including bids for functional and professional services, sales, hiring, letting and the granting or acquiring of rights, but excluding immovable property, unless otherwise indicated in the bidding documents.

2.2 Where applicable, special conditions of contract are also laid down to cover specific supplies, services or works.

2.3 Where such special conditions of contract are in conflict with these general conditions, the special conditions shall apply.

3. General

3.1 Unless otherwise indicated in the bidding documents, the purchaser shall not be liable for any expense incurred in the preparation and submission of a bid. Where applicable a non-refundable fee for documents may be charged.

3.2 With certain exceptions, invitations to bid are only published in the Government Tender Bulletin. The Government Tender Bulletin may be obtained directly from the Government Printer, Private Bag X85, Pretoria 0001, or accessed electronically from www.treasury.gov.za

4. Standards

4.1 The goods supplied shall conform to the standards mentioned in the bidding documents and specifications.

5. Use of contract documents and information; inspection.

5.1 The supplier shall not, without the purchaser’s prior written consent, disclose the contract, or any provision thereof, or any specification, plan, drawing, pattern, sample, or information furnished by or on behalf of the purchaser in connection therewith, to any person other than a person employed by the supplier in the performance of the contract. Disclosure to any such employed person shall be made in confidence and shall extend only so far as may be necessary for purposes of such performance.

5.2 The supplier shall not, without the purchaser’s prior written consent, make use of any document or information mentioned in GCC clause 5.1 except for purposes of performing the contract.

5.3 Any document, other than the contract itself mentioned in GCC clause 5.1 shall remain the property of the purchaser and shall be returned (all copies) to the purchaser on completion of the supplier’s performance under the contract if so required by the purchaser.

5.4 The supplier shall permit the purchaser to inspect the supplier’s records relating to the performance of the supplier and to have them audited by auditors appointed by the purchaser, if so required by the purchaser.

6. Patent rights.

6.1 The supplier shall indemnify the purchaser against all third-party claims of infringement of patent, trademark, or industrial design rights arising from use of the goods or any part thereof by the purchaser.

7. Performance security

7.1 Within thirty (30) days of receipt of the notification of contract award, the successful bidder shall furnish to the purchaser the performance security of the amount specified in SCC.

7.2 The proceeds of the performance security shall be payable to the purchaser as compensation for any loss resulting from the supplier’s failure to complete his obligations under the contract.

7.3 The performance security shall be denominated in the currency of the contract or in a freely convertible currency acceptable to the purchaser and shall be in one of the following forms:

(a) A bank guarantee or an irrevocable letter of credit issued by a reputable bank located in the purchaser’s country or abroad, acceptable to the purchaser, in the form provided in the bidding documents or another form acceptable to the purchaser; or

(b) A cashier’s or certified cheque

7.4 The performance security will be discharged by the purchaser and returned to the supplier not later than thirty (30) days following the date of completion of the supplier’s performance obligations under the contract, including any warranty obligations, unless otherwise specified in SCC.

8. Inspections, tests and analyses

8.1 All pre-bidding testing will be for the account of the bidder 8.2 If it is a bid condition that supplies to be produced or services to be rendered should at any stage during production or execution or on completion be subject to inspection, the premises of the bidder or contractor shall be open, at all reasonable hours, for inspection by a representative of the Department or organization acting on behalf of the Department.

8.2 If it is a bid condition that supplies to be produced or services to be rendered should at any stage during production or execution or on completion be subject to inspection, the premises of the bidder or

contractor shall be open, at all reasonable hours, for inspection by a representative of the Department or an organization acting on behalf of the Department

8.3 If there are no inspection requirements indicated in the bidding documents and no mention is made in the contract, but during the contract period it is decided that inspections shall be carried out, the purchaser shall itself make the necessary arrangements, including payment arrangements with the testing authority concerned.

8.4 If the inspections, tests and analyses referred to in clauses 8.2 and 8.3 show the supplies to be in accordance with the contract requirements, the cost of the inspections, tests and analyses shall be defrayed by the purchaser.

8.5 Where the supplies or services referred to in clauses 8.2 and 8.3 do not comply with the contract requirements, irrespective of whether such supplies or services are accepted or not, the cost in connection with these inspections, tests or analyses shall be defrayed by the supplier.

8.6 Supplies and services which are referred to in clauses 8.2 and 8.3 and which do not comply with the contract requirements may be rejected.

8.7 Any contract supplies may on or after delivery be inspected, tested or 8 analyzed and may be rejected if found not to comply with the requirements of the contract. Such rejected supplies shall be held at the cost and risk of the supplier who shall, when called upon, remove them immediately at his own cost and forthwith substitute them with supplies which do comply with the requirements of the contract .Failing such removal the rejected supplies shall be returned at the suppliers cost and risk. Should the supplier fail to provide the substitute supplies forthwith, the purchaser may, without giving the supplier further opportunity to substitute the rejected supplies, purchase such supplies as may be necessary at the expense of the supplier.

8.8 The provisions of clauses 8.4 to 8.7 shall not prejudice the right of the purchaser to cancel the contract on account of a breach of the conditions thereof, or to act in terms of Clause 23 of GCC.

9. Packing

9.1 The supplier shall provide such packing of the goods as is required to prevent their damage or deterioration during transit to their final destination, as indicated in the contract. The packing shall be sufficient to withstand, without limitation, rough handling during transit and exposure to extreme temperatures, salt and precipitation during transit, and open storage. Packing, case size and weights shall take into consideration, where appropriate, the remoteness of the goods’ final destination and the absence of heavy handling facilities at all points in transit.

9.2 The packing, marking, and documentation within and outside the packages shall comply strictly with such special requirements as shall be expressly provided for in the contract, including additional requirements, if any, specified in SCC, and in any subsequent instructions ordered by the purchaser.

10. Delivery and documents

10.1 Delivery of the goods shall be made by the supplier in accordance with the terms specified in the contract. The details of shipping and/or other documents to be furnished by the supplier are specified in SCC.

10.2 Documents to be submitted by the supplier are specified in SCC.

11. Insurance

11.1 The goods supplied under the contract shall be fully insured in a freely convertible currency against loss or damage incidental to manufacture or acquisition, transportation, storage and delivery in the manner specified in the SCC.

12. Transportation

12.1 Should a price other than an all-inclusive delivered price be required, this shall be specified in the SCC.

13. Incidental services

13.1 The supplier may be required to provide any or all of the following services, including additional services, if any, specified in SCC:

(a) Performance or supervision of on-site assembly and/or commissioning of the supplied goods;

(b) Furnishing of tools required for assembly and/or maintenance of the supplied goods;

(d) Performance or supervision or maintenance and/or repair of the supplied goods, for a period of time agreed by the parties, provided that this service shall not relieve the supplier of any warranty obligations under this contract; and

(e) Training of the purchaser’s personnel, at the supplier’s plant and/or on-site, in assembly, start-up, operation, maintenance, and/or repair of the supplied goods.

13.2 Prices charged by the supplier for incidental services, if not included in the contract price for the goods, shall be agreed upon in advance by the parties and shall not exceed the prevailing rates charged to other parties by the supplier for similar services.

14. Spare parts

14.1 As specified in SCC, the supplier may be required to provide any or all of the following materials, notifications, and information pertaining to spare parts manufactured or distributed by the supplier:

(a) Such spare parts as the purchaser may elect to purchase from the supplier, provided that this election shall not relieve the supplier of any warranty obligations under the contract; and

(b) In the event of termination of production of the spare parts:

(i) Advance notification to the purchaser of the pending termination, in sufficient time to permit the purchaser to procure needed requirements; and

(ii) Following such termination, furnishing at no cost to the purchaser, the blueprints, drawings, and specifications of the spare parts, if requested.

15. Warranty

15.1 The supplier warrants that the goods supplied under the contract are new, unused, of the most recent or current models, and that they incorporate all recent improvements in design and materials unless provided otherwise in the contract. The supplier further warrants that all goods supplied under this contract shall have no defect, arising from design, materials, or workmanship (except when the design and/or material is required by the purchaser’s specifications) or from any act or omission of the supplier, that may develop under normal use of the supplied goods in the conditions prevailing in the country of final destination.

15.2 This warranty shall remain valid for twelve (12) months after the goods, or any portion thereof as the case may be, have been delivered to and accepted at the final destination indicated in the contract, or

for eighteen (18) months after the date of shipment from the port or place of loading in the source country, whichever period concludes earlier, unless specified otherwise in SCC.

15.3 The purchaser shall promptly notify the supplier in writing of any claims arising under this warranty.

15.4 Upon receipt of such notice, the supplier shall, within the period specified in SCC and with all reasonable speed, repair or replace the defective goods or parts thereof, without costs to the purchaser.

15.5 If the supplier, having been notified, fails to remedy the defect(s) within the period specified in SCC, the purchaser may proceed to take 10 such remedial action as may be necessary, at the supplier’s risk and expense and without prejudice to any other rights which the purchaser may have against the supplier under the contract.

16. Payment

16.1 The method and conditions of payment to be made to the supplier under this contract shall be specified in SCC.

16.2 The supplier shall furnish the purchaser with an invoice accompanied by a copy of the delivery note and upon fulfilment of other obligations stipulated in the contract.

16.3 Payments shall be made promptly by the purchaser, but in no case later than thirty (30) days after submission of an invoice or claim by the supplier.

16.4 Payment will be made in Rand unless otherwise stipulated in SCC.

17. Prices

17.1 Prices charged by the supplier for goods delivered and services performed under the contract shall not vary from the prices quoted by the supplier in his bid, with the exception of any price adjustments authorized in SCC or in the purchaser’s request for bid validity extension, as the case may be.

18. Contract amendments

18.1 No variation in or modification of the terms of the contract shall be made except by written amendment signed by the parties concerned.

19. Assignment

19.1 The supplier shall not assign, in whole or in part, its obligations to perform under the contract, except with the purchaser’s prior written consent.

20. Subcontracts

20.1 The supplier shall notify the purchaser in writing of all subcontracts awarded under this contracts if not already specified in the bid. Such notification, in the original bid or later, shall not relieve the supplier from any liability or obligation under the contract.

21. Delays in the supplier’s performance

21.1 Delivery of the goods and performance of services shall be made by the supplier in accordance with the time schedule prescribed by the purchaser in the contract.

21.2 If at any time during performance of the contract, the supplier or its subcontractor(s) should encounter conditions impeding timely delivery of the goods and performance of services, the supplier shall promptly notify the purchaser in writing of the fact of the delay, its likely duration and its cause(s). As soon as practicable after receipt of the supplier’s notice, the purchaser shall evaluate the situation and may at his discretion extend the supplier’s time for performance, with or without the imposition of penalties, in which case the extension shall be ratified by the parties by amendment of contract.

21.3 No provision in a contract shall be deemed to prohibit the obtaining of supplies or services from a national department, provincial department, or a local authority.

21.4 The right is reserved to procure outside of the contract small quantities or to have minor essential services executed if an emergency arises, the supplier’s point of supply is not situated at or near the place where the supplies are required, or the supplier’s services are not readily available.

21.5 Except as provided under GCC Clause 25, a delay by the supplier in the performance of its delivery obligations shall render the supplier liable to the imposition of penalties, pursuant to GCC Clause 22, unless an extension of time is agreed upon pursuant to GCC Clause 21.2 without the application of penalties.

21.6 Upon any delay beyond the delivery period in the case of a supplies contract, the purchaser shall, without cancelling the contract, be entitled to purchase supplies of a similar quality and up to the same quantity in substitution of the goods not supplied in conformity with the contract and to return any goods delivered later at the supplier’s expense and risk, or to cancel the contract and buy such goods as may be required to complete the contract and without prejudice to his other rights, be entitled to claim damages from the supplier.

22. Penalties

22.1 Subject to GCC Clause 25, if the supplier fails to deliver any or all of the goods or to perform the services within the period(s) specified in the contract, the purchaser shall, without prejudice to its other remedies under the contract, deduct from the contract price, as a penalty, a sum calculated on the delivered price of the delayed goods or unperformed services using the current prime interest rate calculated for each day of the delay until actual delivery or performance. The purchaser may also consider termination of the contract pursuant to GCC Clause 23.

23. Termination for default

23.1 The purchaser, without prejudice to any other remedy for breach of contract, by written notice of default sent to the supplier, may terminate this contract in whole or in part:

(a) If the supplier fails to deliver any or all of the goods within the period(s) specified in the contract, or within any extension thereof granted by the purchaser pursuant to GCC Clause 21.2;

(b) If the Supplier fails to perform any other obligation(s) under the contract; or

(c) If the supplier, in the judgment of the purchaser, has engaged in corrupt or fraudulent practices in competing for or in executing the contract.

23.2 In the event the purchaser terminates the contract in whole or in part, the purchaser may procure, upon such terms deems appropriate, goods, works or services similar to those undelivered, and the supplier shall be liable to the purchaser for any excess costs for such similar goods, works or services. However, the supplier shall continue performance of the contract to the extent not terminated.

23.3 Where the purchaser terminates the contract in whole or in part, the purchaser may decide to impose a restriction penalty on the supplier by prohibiting such supplier from doing business with the public sector for a period not exceeding 10 years.

23.5 Any restriction imposed on any person by the Accounting Officer / Authority will, at the discretion of the Accounting Officer / Authority, also be applicable to any other enterprise or any partner, manager, director or other person who wholly or partly exercises or exercised or may exercise control over the enterprise of the first-mentioned person, and with which enterprise or person the first-mentioned person, is or was in the opinion of the Accounting Officer / Authority actively associated.

23.6 If a restriction is imposed, the purchaser must, within five (5) working days of such imposition, furnish the National Treasury, with the following information:

(i) The name and address of the supplier and / or person restricted by the purchaser;

(ii) The date of commencement of the restriction

(iii) The period of restriction; and

(iv) The reasons for the restriction.

These details will be loaded in the National Treasury’s central database of suppliers or persons prohibited from doing business with the public sector.

23.7 If a court of law convicts a person of an offence as contemplated in sections 12 or 13 of the Prevention and Combating of Corrupt Activities Act, No. 12 of 2004, the court may also rule that such person’s name be endorsed on the Register for Tender Defaulters. When a person’s name has been endorsed on the Register, the person will be prohibited from doing business with the public sector for a period not less than five years and not more than 10 years. The National Treasury is empowered to determine the period of restriction and each case will be dealt with on its own merits. According to section 32 of the Act the Register must be open to the public. The Register can be perused on the National Treasury website.

24. Anti-dumping and countervailing duties and rights

24.1 When, after the date of bid, provisional payments are required, or antidumping or countervailing duties are imposed, or the amount of a provisional payment or anti-dumping or countervailing right is increased in respect of any dumped or subsidized import, the State is not liable for any amount so required or imposed, or for the amount of any such increase. When, after the said date, such a provisional payment is no longer required or any such anti-dumping or countervailing right is abolished, or where the amount of such provisional payment or any such right is reduced, any such favourable difference shall on demand be paid forthwith by the contractor to the State or the State may deduct such amounts from moneys (if any) which may otherwise be due to the contractor in regard to supplies or services which he delivered or rendered, or is to deliver or render in terms of the contract or any other contract or any other amount which may be due to him.

25. Force Majeure

25.1 Notwithstanding the provisions of GCC Clauses 22 and 23, the supplier shall not be liable for forfeiture of its performance security, damages, or termination for default if and to the extent that his delay in performance or other failure to perform his obligations under the contract is the result of an event of force majeure.

25.2 If a force majeure situation arises, the supplier shall promptly notify the purchaser in writing of such condition and the cause thereof. Unless otherwise directed by the purchaser in writing, the supplier shall continue to perform its obligations under the contract as far as is reasonably practical, and shall seek all reasonable alternative means for performance not prevented by the force majeure event.

26. Termination for insolvency

26.1 The purchaser may at any time terminate the contract by giving written notice to the supplier if the supplier becomes bankrupt or otherwise insolvent. In this event, termination will be without compensation to the supplier, provided that such termination will not prejudice or affect any right of action or remedy which has accrued or will accrue thereafter to the purchaser.

27. Settlement of Disputes

27.1 If any dispute or difference of any kind whatsoever arises between the purchaser and the supplier in connection with or arising out of the contract, the parties shall make every effort to resolve amicably such dispute or difference by mutual consultation.

27.2 If, after thirty (30) days, the parties have failed to resolve their dispute or difference by such mutual consultation, then either the purchaser or the supplier may give notice to the other party of his intention to commence with mediation. No mediation in respect of this matter may be commenced unless such notice is given to the other party.

27.3 Should it not be possible to settle a dispute by means of mediation, it may be settled in a South African court of law.

27.4 Mediation proceedings shall be conducted in accordance with the rules of procedure specified in the SCC.

27.5 Notwithstanding any reference to mediation and/or court proceedings herein,

(a) The parties shall continue to perform their respective obligations under the contract unless they otherwise agree; and

(b) The purchaser shall pay the supplier any monies due the supplier.

28. Limitation of liability

28.1 Except in cases of criminal negligence or wilful misconduct, and in the case of infringement pursuant to Clause 6;

(a) The supplier shall not be liable to the purchaser, whether in contract, tort, or otherwise, for any indirect or consequential loss or damage, loss of use, loss of production, or loss of profits or interest costs, provided that this exclusion shall not apply to any obligation of the supplier to pay penalties and/or damages to the purchaser; and

(b) The aggregate liability of the supplier to the purchaser, whether under the contract, in tort or otherwise, shall not exceed the total contract price, provided that this limitation shall not apply to the cost of repairing or replacing defective equipment.

29. Governing language

29.1 The contract shall be written in English. All correspondence and other documents pertaining to the contract that exchanged by the parties shall also be written in English.

30. Applicable law

30.1 The contract shall be interpreted in accordance with South African laws, unless otherwise specified in SCC.

31. Notices

31.1 Every written acceptance of a bid shall be posted to the supplier concerned by registered or certified mail and any other notice to him shall be posted by ordinary mail to the address furnished in his bid or to the address notified later by him in writing and such posting shall be deemed to be proper service of such notice.

31.2 The time mentioned in the contract documents for performing any act after such aforesaid notice has been given, shall be reckoned from the date of posting of such notice.

32. Taxes and duties

32.1 A foreign supplier shall be entirely responsible for all taxes, stamp duties, license fees, and other such levies imposed outside the purchaser’s country.

32.2 A local supplier shall be entirely responsible for all taxes, duties, license fees, etc., incurred until delivery of the contracted goods to the purchaser.

32.3 No contract shall be concluded with any bidder whose tax matters are not in order. Prior to the award of a bid the Department must be in possession of a tax clearance certificate, submitted by the bidder. This certificate must be an original issued by the South African Revenue Services.

33. National Industrial Participation (NIP) Programme

33.1 The NIP Programme administered by the Department of Trade and Industry shall be applicable to all contracts that are subject to the NIP obligation

34. Prohibition of Restrictive practices

34.1 In terms of section 4 (1) (b) (iii) of the Competition Act No. 89 of 1998, as amended, an agreement between, or concerted practice by, firms, or a decision by an association of firms, is prohibited if it is between parties in a horizontal relationship and if a bidder (s) is / are or a contractor(s) was / were involved in collusive bidding (or bid rigging).

34.2 If a bidder(s) or contractor(s), based on reasonable grounds or evidence obtained by the purchaser, has / have engaged in the restrictive practice referred to above, the purchaser may refer the matter to the Competition Commission for investigation and possible imposition of administrative penalties as contemplated in the Competition Act No. 89 of 1998.

34.3 If a bidder(s) or contractor(s), has / have been found guilty by the Competition Commission of the restrictive practice referred to above, the purchaser may, in addition and without prejudice to any other remedy provided for, invalidate the bid(s) for such item(s) offered, and / or terminate the contract in whole or part, and / or restrict the bidder(s) or contractor(s) from conducting business with the public sector for a period not exceeding ten (10) years and / or claim damages from the bidder(s) or contractor(s) concerned.

35. SPECIAL CONDITIONS OF CONTRACT

35.1 The State reserves the right to verify and authenticate all the information supplied in this document by the bidder.

35.2 The Bid must be strictly in accordance with the conditions and specifications contained herein.

35.3 If it is found that any information has been tampered with during the evaluation process and/or after the Bid/Contract has been awarded that any false information has been provided, the State reserves the right to take the necessary action as it deems fit, including but not limited to the institution of criminal proceedings.

35.4 Failure to sign all relevant places shall invalidate your bid (SBD1, SBD 4, SBD 5, SBD 6.1, SBD 8 and SBD 9)

35.5 All queries should be sent to the relevant person via email state above. No query will be responded to if sent 3 days before the closing date.

35.6 If you are not a registered supplier with the Department of Justice and Constitutional Development, please complete the supplier registration forms and banking details, supplier registration forms are available at Departmental website, www.justice.gov.za

35.7 Bidders/ Individuals that are directors or members in more than one company bidding for this tender and do not openly declare their interests will be disqualified

35.8 Failure to submit original and valid Tax Clearance Certificate shall invalidate your bid.

35.9 The DOJ and CD reserves the right to not make an award on any of the responses to this RFB.

35.10 The DOJ and CD reserves the right to award only parts of this bid and re-bid for other parts.

35.11 The DOJ and CD reserves the right to enter into negotiations with bidders (who have been

shortlisted) under the conventions embodied in the principles of “Best and Final Offer” (BAFO).

35.12 All bid documents should be hand delivered and deposited in to the Tender Box, if sent via post,

envelope or package, the envelope must be clearly marked to avoid your submission been mixed with normal letters sent to the Department.

35.13 Only signed, original documents will be accepted.

36. ACCEPTANCE OF TERMS AND SPECIAL CONDITIONS

The above terms of the bid and all Annexure have been read, understood and accepted.

For and on behalf of the Bidder:

…………………………………………………………………………….……………………………………………………

____________________ ____________________

Signature of Bidder: Date:

______________________ ____________________

Bidder’s Name & Surname: Designation

_____________________ ____________________

Witness Name & Surname: Date

_____________________ _____________________

Signature: Address (Physical):

The Department of Justice and Constitutional Development wishes to invite all interested parties to submit bids for assessment of the impact of the decisions of the constitutional court and the supreme court of appeal for a period of 18 months.

RFB 2013 03

TRADING NAME:________________________________

CONTACT PERSON:______________________________

CONTACT NUMBER: _____________________________

CLOSING DATE:_________________________________

TERMS OF REFERENCE FOR THE ASSESSMENT OF THE IMPACT OF THE DECISIONS OF THE CONSTITUTIONAL COURT AND THE SUPREME COURT OF APPEAL ON THE SOUTH AFRICAN LAW AND JURISPRUDENCE

1. Purpose

These terms of reference seek to invite proposals from competent institutions to undertake an assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on the transformation of society.

2. Background and objective of the envisaged assessment of the South African constitutional jurisprudence

On 28 February 2011 the Minister of Justice and Constitutional Development Mr Jeff Radebe, MP, released a Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State for comments. The Document gives a summary of the approaches which were approved by Cabinet in November 2011 with regard to the transformation of the Judicial System.

The Constitution enjoins Organs of state, through legislative and other measures to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness (s165(4). The assessment is therefore aimed at enhancing the measures the legislative measures and programmes designed and developed by Government to realise the objectives of this section.

In terms of the Constitution, the Constitutional Court is the highest court on all constitutional matters, while the Supreme Court of Appeal is the highest court of appeal except in constitutional matters. Since the Constitution places the Constitutional Court and the Supreme Court at the pinnacle of South African jurisprudence, it is appropriate that any assessment of the impact of such jurisprudence must be in respect of both the Constitutional Court and the Supreme Court of Appeal.

These terms of reference therefore seek to invite proposals from competent institutions to undertake the assessment as set out below.

3. The scope of the assessment and duration

The Department of Justice and Constitutional Development invites tenders from competent research institution(s) to –

3.1 Undertake a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal, since the advent of democracy, in order to –

(a) establish the extent to which the decisions of the Constitutional Court and the Supreme Court of Appeal have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution;

(b) assess its evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity;

(c) assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and

(d) assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South African as envisaged by the Constitution.

3.2 Conduct a study on the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State with a view to highlighting long term benefits to the broader population, with regard to –

(a) progress made and challenges encountered in the implementation of the these decisions;

(b) legislation, policies and government programmes that have been put in place to give effect to these decisions; and

3.3 Conduct a study on direct access to the Constitutional Court through a desk-top based comparative study of other jurisdictions which are comparable to our model of constitutional democracy, to identify factors that inhibit access to justice in relation to –

(a) the costs of litigation;

(b) legislative frameworks, structures and processes that inhibit access;

(d) whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.

3.4 Assess the costs of litigation at the Constitutional Court and the Supreme Court of Appeal and the extent to which such costs impact on access to justice. A desk-top based comparative study of other jurisdictions relating to costs of litigation must also be undertaken.

3.5 Assess the speed within which cases are finalised in the Constitutional Court and Supreme Court of Appeal in order to identify areas and reasons for delays with regard to legislative frameworks, structures or processes involved in adjudicating civil disputes.

3.6 The Assessment should also consider and have regard to the submissions by interested parties on the Discussion Document referred to in paragraph 2 above.

3.7 The assessment should be completed within 18 months from the date of commencement thereof.

4. Anticipated outcome of the assessment

The following deliverables are envisaged:

4.1 Monthly reports with specific milestones for purposes of progress payments

4.2 Report on the findings of each element of the assessment

4.3 Recommendations on each element of the assessment

4.4 Debates and stimulate views on constitutional rights that advance our democracy

4.5 The outcome of the conference would be structured towards the development of a comprehensive programme of action to enable each branch of the state to overcome the

identified challenges confronting the transformation of society.

5. The general conditions and environment under which the assessment must be undertaken

The following principles, amongst other the principles enshrined in the Constitution, must be observed in the course of conducting the assessment:

(a) Supremacy of the Constitution and the rule of law

(b) Human dignity and equality

(d) Separation of powers as embodied in the Constitution and defined by our courts

(e) Access to justice for all

(f) Transparency and openness

6. Requirements

6.1 The research institution(s) must:

(a) have understanding and thorough knowledge of the South African constitutional and judicial framework and such to be substantiated by publications, research papers and advocacy;

(b) present demonstrable evidence of ability to undertake large-scale research projects;

(c) have a successful record of having done objective, evidence-based research on social and community development projects;

(d) demonstrate the ability to undertake an assessment of this magnitude and nature, including that it has the resources and expertise to execute such a project; and

(e) generally demonstrate the ability or potential to conduct assessments pertaining to the work of the courts and its impact by being able to define areas of empirical assessment, namely the courts’ work load, case cycle times, costs of litigation, impact of South African jurisprudence on the SADC and global jurisprudence and vice versa, public trust and confidence in the judicial system.

6.2 The submission should include the following:

(a) Proposed methodology and approach.

(b) A detailed work plan reflecting project phases, time-frames, costing and outputs.

(c) Prospective bidders must submit contact names and telephone numbers of referees for whom similar services have been conducted.

(d) Profile of institution including a description of similar work undertaken.

(e) Overall price including VAT.

7. General Conditions

The general conditions of contracts as set out by the National Treasury will be applicable in all instances.

8. Special conditions of Contract

8.1 Prospective bidders must submit the following:

(a) Proof of experience and skills of the researchers that will participate in the assessment;

(b) Relevant references of similar projects conducted are required. Prospective bidders must also indicate if they had participated in any form of community service or community development project geared to advance the transformation of society;

(c) Proof of experience, skills and knowledge in co-coordinating and implementing of large scale quantitative research projects on a national scale. The service provider also has to demonstrate the ability to plan, execute and manage survey data effectively. CV’s of potential researchers to accompany the proposal.

(d) Service Providers are invited to clearly describe the methodological approach(es) that they would follow to conduct the desired assessment. Possible obstacles and proposed strategies to overcome these obstacles should be highlighted.

8.2 Prospective bidders may bid for all or part of the work set out under paragraph 3 (the scope of the assessment) and must, for this purpose, submit a detailed costing for each work they tender for.

8.3 Service providers may submit their bids individually or as a consortium/partnership.

9. Evaluation criteria

9.1 Bid proposals will be evaluated in accordance with the 90/10-preference point system, as contemplated in the Preferential Procurement Policy Framework Act (Act 5 of 2000).

9.2 Bid proposals will be evaluated on the following basis:

 Functionality aspect

 90/10 preference point system

9.3 It must be noted that prospective bidders who score less than 60 points out of 100 in respect of functionality will be regarded as having submitted a non-responsive bid and will therefore not be evaluated further

9.4 In order to ensure meaningful participation and effective comparison, Bidders are requested to furnish detailed information in substantiation of compliance to the evaluation criteria.

9.5 Points in respect of price will be calculated on the ceiling price (Travel and Subsistence costs plus Value Added Tax, where applicable, must be included in the ceiling price) (see form SBD.3).

9.6 In respect to evaluation matrix, prospective service bidders will be rated from 1 to 5 in that: 1 = very poor, 2 = poor, 3 = average, 4 = good and 5 = very good.

CRITERIA WEIGHT POINTS SCORED TOTAL 1 2 3 4 5

Detailed plan and methodology proposed by the bidder

20%

Key outputs and milestones proposed by the bidder

10%

Demonstrable experience of the team assigned to this project (submit relevant CV’s)

20%

Knowledge of South African constitutional and judicial framework

20%

Demonstrable experience in conducting similar projects

30%

9.7 Only bids that achieve the minimum qualifying score / percentage for functionality will be evaluated further in accordance with the 90/10 preference point systems as prescribed in the Preferential Procurement Regulations.

9.8 Points awarded for B-BBEE Status Level of Contribution

9.9 In terms of Regulation 5 (2) and 6 (2) of the Preferential Procurement Regulations,

9.10 Preference points will be awarded to a bidder for attaining the B-BBEE status level of contribution in accordance with the table below:

B-BBEE Status Level of Contributor

Number of points

(90/10 system)

Number of points

(80/20 system)

Non-compliant contributor

10. Reporting and Monitoring of the Contract

10.1 The successful service provider must submit monthly reports as prescribed in the Service Level Agreement:

10.2 Monitoring will be made in line with the Service Level Agreement and Supply Chain Management Policy.

10.3 Quarterly/monthly meetings shall be held between the service provider and the Department.

11. Payment

11.1 Payment will be made in line with the government supply chain processes.

11.2 Payment will be effected within thirty (30) days after receipt of a detailed invoice from the successful bidder.

11.3 Payment will be based on submission of a report indicative of the milestones achieved in accordance with the project plan.

11.4 The successful bidder will enter into a contractual agreement with the department of Justice and Constitutional Development.

12. Enquiries

Enquires may be directed in writing to Supply Chain Management for the attention of:

Ms T Ngcobo Tel: 012 315 1905 Email: THNgcobo@justice.gov.za

And / or

Adv JB Skosana Tel 012 315 1649 Email: jskosana@justice.gov.za (if the enquiry relates to the substance of the work)

Full SCA judgment confirming right of President to bestow “senior counsel” (SC’s) honours

Mar 15th, 2013

by Pierre De Vos.

17 comments

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

REPORTABLE

Case No: 417/2012

In the matter between:

GENERAL COUNCIL OF THE BAR FIRST APPELLANT

JOHANNESBURG SOCIETY OF ADVOCATES SECOND APPELLANT

URMILLA ROSHNEE DEVI MANSINGH FIRST RESPONDENT

PRESIDENT OF THE REPUBLIC OF SOUTH

AFRICA SECOND RESPONDENT

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT THIRD RESPONDENT

INDEPENDENT ASSOCIATION OF ADVOCATES

OF SOUTH AFRICA FOURTH RESPONDENT

LAW SOCIETY OF SOUTH AFRICA FIFTH RESPONDENT

Neutral citation: General Council of the Bar v Mansingh (417/12) [2013] ZASCA 9 (15 March 2013).

Coram: Brand, Shongwe, Leach JJA, Southwood and Saldulker AJJA

Heard: 18 February 2013

Delivered: 15 March 2013

Summary: Constitution – s 84(2)(k) – whether President’s power to ‘confer honours’ contemplated in the section includes the authority to appoint senior counsel – held that on the interpretation of the section in its historical perspective it includes that authority and that there is nothing in the broader context which is at odds with that interpretation.

________________________________________________________________

ORDER

________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Phatudi J sitting as court of first instance):

(a) The appeal is upheld.

(b) The order of the court a quo is set aside and replaced with the following:

‘The application is dismissed. First and second respondents are ordered to pay the applicant’s costs.’

________________________________________________________________

JUDGMENT

________________________________________________________________

BRAND JA (SHONGWE, LEACH JJA, SOUTHWOOD and SALDULKER AJJA concurring):

[1] The first respondent, Ms Urmilla Mansingh (Mansingh), is a practising advocate and a member of the Johannesburg Society of Advocates (JSA). Proceedings started when she brought an application in the North Gauteng High Court, Pretoria for a declarator that s 84(2)(k) of the Constitution does not authorise the President of the Republic to confer the status of senior counsel on practising advocates. On the papers reference is often made to the institution of senior counsel as ‘silk’ and to those who hold that status as SCs or silks. The reference to silk, of course, derives from the fabric of the gowns traditionally worn by senior counsel. Though, as the court a quo rightly pointed out, silk has since largely been replaced by ersatz material, I nonetheless propose to follow that nomenclature, because I find it convenient to do so.

[2] As respondents to her application, Mansingh cited six parties. They were:

§ The President of the Republic (the President).
§ The Minister of Justice and Constitutional Development (the Minister).
§ The General Council of the Bar (GCB), which is an affiliation of the ten Societies of Advocates, roughly corresponding to the different High Courts, in South Africa.
- § The JSA, of which Mansingh, as I have said, is a member.
- § The Independent Association of Advocates of South Africa (IAASA), whose members comprise practising advocates who are not members of the Societies of Advocates constituting the GCB.
- § The Law Society of South Africa (the Law Society), which essentially represents the attorneys’ profession in this country.

[3] In the court a quo all the respondents, save for the Law Society, opposed the application. The position taken by the Law Society in its answering affidavit appeared to be somewhat ambivalent. Though it sought to avoid the fray by abiding the decision of the court, it nonetheless stated its view that the title of ‘senior’ should not be conferred on either advocates or attorneys. Eventually Mansingh’s contentions found favour with Phatudi J in the court a quo. Hence he granted the declarator sought. Costs of the application were awarded in favour of Mansingh, but against the President and the Minister only, which corresponded with the costs order for which she asked. The judgment of the court a quo has since been reported as Mansingh v President of the Republic of South Africa and others 2012 (3) SA 192 (GNP). The appeal against that judgment is with the leave of the court a quo. It is by the GCB and the JSA only. Since the arguments presented by the two appellants essentially went along the same lines, I propose to ascribe those arguments to ‘the appellants’. Apart from the Law Society, the other erstwhile respondents in the court a quo, including the President and the Minister, abide the decision of this court on appeal. Whatever the outcome of the appeal, the costs order in the court a quo against the President and the Minister must therefore stand. As to the Law Society, its stance became somewhat bolder on appeal, in that it was no longer content to abide the decision of the court, but actively supported Mansingh’s case by advancing separate arguments of its own.

[4] The issue raised by the appeal is of narrow ambit. They turn exclusively on the interpretation of s 84 of the Constitution. The relevant part of this section provides:

‘Powers and functions of President:

(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for –

(a) . . .

. . .

(k) conferring honours.’

[5] Mansingh’s case, which received the approval of the court a quo, is that s 84(2)(k) of the Constitution does not include the power to confer the status of senior counsel or silk on practising advocates. The appellants’ counter-argument is that it does. An alternative argument raised by the appellants is that even if the conferral of silk cannot be accommodated under the honours power in s 84(2)(k), it is authorised by s 84(1) as an auxiliary power necessary to carry out a function of the President as Head of State. Although this alternative argument was raised on the appellants’ papers and advanced on their behalf at the hearing of the application, it was not considered in the judgment of the court a quo. On appeal the rival cases remained the same.

[6] Before I come to the interpretation of s 84 I find it appropriate, at the outset, to clear the decks, as it were, of matters not pertinent in this case. The question we have to decide, as I have said, turns on whether the President has the power to confer silk. Questions relating to whether the institution of silk is a ‘good thing or a bad thing’ and whether it is an institution that should be abolished or retained, are not on the agenda. I say this because Mansingh made it clear, at a fairly early stage of her founding affidavit that, as a matter of principle and for considerations of policy, she is opposed to the institution of silk; that in consequence, she actively sought its abolition. In support of these contentions, she argued that practising advocates, like herself, who apply for silk, but who are unsuccessful in their applications, suffer real disadvantage in their practices and great distress. In her replying affidavit she pursued this thesis with even greater fervour. In the process she referred to meetings of some members of the JSA who supported the abolition of silk. She also quoted at some length from publications, both locally and abroad, in support of the proposition that the institution of silk is not needed and actually does harm. These publications, by way of illustration, express the view that the institution of silk ‘is an odd system in which a professional person’s career is blighted not by the dissatisfaction of his clients but by the exercise of ministerial patronage’; that ‘[n]o one denies that the refusal of silk has profound economic consequences for the barrister concerned’; and that the institution of silk ‘continues to exemplify the costly and anachronistic rituals of the Bar . . ..’

[7] In view of these deviations from the real issue I emphasize the rather obvious proposition that we should strictly confine the focus of our deliberation to the issue before us and that the issue whether or not the institution of silk is worthy of protection, is not one of those. Neither is the related issue whether or not the President should or ought to have the power to confer the status of silk on practising advocates. At the risk of repetition; the sole issue before us is whether the President has the power to do so under the Constitution. A further debate we do not have to embark upon relates to the essential import of silk. The appellants contend, and it is not disputed by Mansingh or the Law Society, that what lies at the heart of the conferral of silk is the recognition by the President as the head of State, of the esteem in which the recipients of silk are held in their profession by reason of their integrity and of their experience and excellence in advocacy. Or, as it was formulated more than a century ago by Lord Watson in Attorney General for the Dominion of Canada v The Province of Ontario [1898] AC 247 (PC) at 252:

‘The . . . position occupied by Queens’ Counsel is . . . that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred.’

[8] Other matters raised on the papers, albeit rather obliquely, concern the fairness and transparency of the procedures for the appointment of senior counsel. Again; although these matters appear to be the subject of ongoing debate, both here and overseas, they are not germane to this case. For present purposes, I believe we must accept, because it is not in dispute, that while each of the GCB’s constituent Bars have designed its own procedure which ultimately leads to the grant of silk, these procedures have certain elements in common. In all cases the process starts with an application for appointment by the candidate for silk to his or her Bar. The application is then considered by a committee of silks of that Bar. Thereafter the names of the approved candidates are presented to the Judge President of the particular High Court who makes a recommendation to the Minister. The Minister in turn makes a recommendation to the President, who confers the status of silk. Judges President are not bound by the decisions of the Bar to recommend the successful candidates to the Minister. In this way, so the appellants contend, the procedure endeavours to provide for a system of peer review as well as an evaluation by the judges of the High Court in which the applicant for silk usually appears.

[9] Appointments by the President are noted in a presidential minute with the counter-signature of the Minister. Mansingh did not take issue with the procedure. Her contention was that what is borne out by the procedure is that the criteria for the conferral of silk are determined and assessed by the Bar and that the President effectively does no more than to confirm their assessment. The President, she argued, is not in a position to draw the merit-based professional distinctions on which the system is founded. I believe, however, that the objection misses the point. It starts out from the premise that the appointment of silk purports to be a certification of professional quality by the President. This is not so. As I have said, it is common cause that the appointment of silk amounts to a recognition by the President of the esteem in which the recipients are held by their peers. That recognition, so the appellants contended, constitutes an ‘honour’ contemplated by s 84(2)(k). With that rather lengthy prelude I can now revert to the issue in this case which essentially revolves around a proper interpretation of s 84(2)(k) of the Constitution.

[10] The method of interpreting the Constitution has been established in several judgments of the Constitutional Court. In sum, these judgments hold that the language of the constitutional text must be interpreted purposively and in context (see eg Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and another 2011 (1) SA 327 (CC) para 32 fn 34). Though the court must thus seek to give effect to the object and purpose of the provision, it is limited by the language used. The court is not permitted to impose a meaning on the text that it is not capable of bearing (South African Airways (Pty) Ltd v Aviation Union of South Africa and others 2011 (3) SA 148 (SCA) para 29). Another way of stating this limitation is that a purposive interpretation may not be unduly strained (Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others: In re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others 2001 (1) SA 545 (CC) para 24).

[11] On the other hand, constitutional interpretation must avoid ‘excessive peering at the language to be interpreted without sufficient attention to the contextual scene’ (Johannesburg Municipality v Gauteng Development Tribunal and others 2010 (2) SA 554 (SCA) para 39). In this regard it has been accepted in principle that the contextual scene includes the historical context of the provision (see Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and another; Executive Council, KwaZulu-Natal v President of the Republic of South Africa and others 2000 (1) SA 661 (CC) para 44). It has also been accepted that the historical context includes reports of technical committees that assisted the Constitutional Assembly in the actual formulation of the Constitution (see S v Makwanyane and another 1995 (3) SA 391 (CC) para 17).

[12] On application of this approach to the interpretation of s 84(2)(k), the first step is to establish the literal meaning of ‘honours’. According to the Oxford English Dictionary (online), ‘honours’ (that is the plural form of the noun) includes the meaning of ‘something conferred or done as a token of respect or distinction; a mark or manifestation of high regard . . ..’ (See also Shorter Oxford English Dictionary on Historical Principles 5 ed.) If we accept, as we must because it is not in dispute, that the appointment of silk amounts to a public recognition by the President of the professional eminence in which the recipient is held, I believe it follows that on a purely linguistic basis, the concept of honours bears a meaning wide enough to include the conferral of silk. This meaning, so the appellants contended, is also supported by the historical context as well as the reports of the technical committees that informed and advised the Constitutional Assembly in formulating our Constitution.

[13] In view of these contentions I turn first to the historical context. From this perspective, it is clear that the institution of senior counsel is part of our heritage as a former British colony. It is well established that in England the appointment by the monarch of King’s or Queen’s counsel was made by the exercise of the prerogative powers of the Crown. As succinctly stated by Schreiner JA in Sachs v Dönges, NO 1950 (2) SA 265 (A) at 306-307 the term ‘prerogative powers’ is ordinarily used to describe a compendium of residual, non-statutory powers of the Crown. By their nature these powers consisted of a diverse and heterogeneous collection ranging from declaration of war to pardon of prisoners (see eg H R Hahlo and Ellison Kahn The Union of South Africa: The Development of its Laws and Constitution (1960) 171). Yet, as Schreiner JA also explained in Sachs, textbook writers have, for the sake of analytic convenience, classified and labelled these miscellaneous powers under different headings. One of the ranges of powers subsequently classified and labelled was the prerogative power of the monarch to confer honours.

[14] With reference to the background of the appointment of silks, Sir John Baker (J H Baker the Common Law Tradition: Lawyers, Books and the Law at 92 – 96) recounts that the institution started to emerge in the 16^th century. Originally it was an office of which the incumbent was obliged to advise the Crown. But with the passage of time, so Baker says, the status of Queen’s Counsel ‘came to be seen as a bestowal of rank on an individual rather than an engagement to render services to the Crown’. By the middle of the 19^th century, Queen’s Counsel no longer had any connection with Crown business, though they were still disqualified from appearing against the Crown without a licence signed by the monarch. But by 1871, so Baker says, the requirement of a licence was also abolished. In the end, so Baker concludes his historical survey, the rank of Queen’s Counsel had completely lost its character as an office and became a rank of distinction. In the same vein, Joseph Chitty’s A Treatise on the Law of the Prerogatives of the Crown (1820) at 118 said:

‘To the Crown belongs also the prerogative of raising practitioners in the courts of justice to a superior eminence, by constituting them sergeants . . . or by granting letters patent of precedence to such barristers as his Majesty thinks proper to honour with that mark of distinction . . . .’

[15] In Lenoir v Ritchie [1879] 3 SCR 575 the question pertinently arose before the Supreme Court of Canada whether it can be said that the Crown appointed silks in the exercise of the royal prerogative to confer honours. The three judges who pertinently considered this issue answered the question posed in the affirmative. Thus it was held by Taschereau J (para 62):

‘It is trite to say that the Sovereign is the fountain of honors and dignities. “The Crown alone,” says Chitty, “can create and confer dignities and honors. The King is not only the fountain but the parent of them”. . . It must also be admitted that, in the exercise of that prerogative the Crown has the right to appoint King’s or Queen’s Counsel, and to grant Letters of Precedence to . . . such barristers as His Majesty thinks proper to honor with that mark of distinction . . . .’

(See also to the same effect para 52 (per Henry J) and para 85 (per Gwynne J).)

[16] About ten years later the Privy Council had to resolve what amounted to substantially the same issue in Attorney General for Dominion of Canada v Attorney General for the Province of Ontario [1898] AC 247. The question arose in the context of legislation by the province of Ontario which allowed its Lieutenant-Governor to appoint QCs to its provincial courts. While it was common cause that the province had no power to exercise the prerogative of conferring honours – which was reserved to the Governor General of Canada as representative of the Queen – the province contended that the conferral of silk amounted to the appointment to an office which fell within the scope of provincial authority. In the event, the Privy Council held that the appointment of Queen’s Counsel indeed amounted to the conferral of honours, but that it also constituted the appointment to an office. The underlying reasons for this finding appears, for instance, from the following statement by Lord Watson (at 252):

‘The exact position occupied by a Queen’s Counsel duly appointed is a subject which might admit of a great deal of discussion. It is in the nature of an office under the Crown, although any duties which it entails are almost as unsubstantial as its emoluments; and it is also in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred.’

[17] Whatever the position might have been in earlier times, the viewpoint that became generally accepted in England and Canada towards the end of the 19^th century was that silks were appointed by the Queen in the exercise of her prerogative to confer honours. That acceptance happened to coincide with the emergence of the institution of silk in this country. The early history of the institution in South Africa is somewhat obscure, not only by dearth of any judicial pronouncement but also because academic articles on the subject, such as the one by Prof Ellison Kahn (‘Silks’ (1974) 91 SALJ 95) and the one by Prof M T W Arnheim (‘Silk, Stuff and Nonsense’ (1984) 101 SALJ 376) prove to be more narrative in nature than based on real in-depth research. Yet it appears from the article by Prof Kahn (at 96-99) that silks were appointed in the Cape from the 1880s, in Natal from the 1990s and that by Union of the former British colonies in 1910 ‘all four colonies were wedded to the institution of senior counsel’. It is further noted by Prof Kahn (at 96) that from 1910 senior counsel were appointed by the Governor General.

[18] Where the power of the Governor General to do so was derived from is a matter of inference rather than direct authority. In this regard s 8 of the Union of South Africa Act 1909 (also known as the ‘Union Constitution’) provided that the executive authority of the Union vested in the King, and was to be exercised by His Majesty in person or by the Governor General as his representative. This section was repealed by the Status of the Union Act 69 of 1934. Section 4 of the Status Act conferred the executive government of the Union on the King or the Governor General as his representative, acting on the advice of the South African Cabinet. It can be accepted on good authority that the executive powers thus conferred included the prerogative powers of the King (see eg Sachs v Dönges at 308). As to the ambit of these prerogative powers, this court early on adopted the approach that it was determined by English law. The reason for this approach appears from the statement by Innes CJ in Union Government v Tonkin 1918 AD 533 at 539 that:

‘The King’s prerogative, save where duly modified, is the same in every part of the Empire . . . .’

[19] The Governor General’s power to appoint senior counsel plainly did not derive from any South African statute. Hence the irresistible inference is that the Governor General’s authority to do so could only have been derived from an exercise of the royal prerogative (that he inherited from the King) to confer honours which – in accordance with English legal tradition – included the power to appoint senior counsel. I am aware of the contrary view expressed by W P M Kennedy and H J Schlossberg The Law and Custom of the South African Constitution (1935) at 128 that:

‘The appointment [of senior counsel] must not be regarded as one conferring an honour from the crown. It is an executive act concerning the internal government of the country, necessary for certain executive purposes, but what they are is impossible to say.’

I also appreciate that this view was reiterated by the author Schlossberg, after he changed his name to May (H J May The South African Constitution (1955) at 179) and that it was referred to with apparent approval by Prof Kahn (‘Silks’ at 104). Nonetheless, in the light of the conclusion I arrived at earlier by way of deductive reasoning – ie that the Governor General’s power to appoint silks could only have stemmed from the royal prerogative to confer honours – I believe that the view expressed by these authors, which is unsupported by any authority, cannot be sustained.

[20] In 1961 South Africa became a Republic. With that the Union Constitution was repealed and replaced by the Constitution of the Republic of South Africa Act 32 of 1961, s 7 of which explicitly dealt with the prerogative powers of the head of State. In relevant part it provided:

‘7. (1) The Head of the Republic shall be the State President.

(2) . . .

(3) He shall, subject to the provisions of this Act, have the power – . . .

(a) . . .

(b) . . .

(d) . . .

(4) The State President shall in addition as head of the State have such powers and functions as were immediately prior to the commencement of this Act possessed by the Queen by way of prerogative.’

[21] For the first time in our history the 1961 Constitution therefore contained a partial codification of prerogative powers. Partial because of the catch-all phrase in s 7(4) which preserved those prerogative powers that remained uncodified. In 1961 the institution of silk also underwent a change of nomenclature consonant with the change of external status from a self-governing dominion of the British Commonwealth to a Republic. Although the procedure for appointment of silks remained substantially the same, new recipients would henceforth be called senior counsel, abbreviated SC. At the same time, existing silks were allowed to retain the title QC.

[22] In 1983 the 1961 Constitution was repealed and replaced by the Constitution of the Republic of South Africa Act 110 of 1983, which was a decisive move away from the Westminster model. The separation of the offices of head of State and Head of Government, which lies at the heart of the Westminster system, was abandoned in favour of a combination of the two roles in the office of State President. For present purposes, the position regarding the prerogative powers of the executive, however, remained virtually unchanged. Section 6 of the 1983 Constitution adopted the same model as s 7 of its predecessor. While s 6(3) codified some of the former prerogative powers, including the power to confer honours, s 6(4) – which was similarly worded to s 7(4) of the 1961 Constitution – preserved those prerogative powers that were not codified in s 6(3).

[23] On the papers it is common cause that, acting in terms of s 7 of the 1961 Constitution and later in terms of s 6 of the 1983 Constitution, the State President continued to confer silk until the repeal of the latter by the interim Constitution, Act 200 of 1993. What is more, the procedure for the appointment of silk did not change after 1960. Letters patent were still signed by the head of State and counter signed by the Minister of Justice save, of course, that the head of State was no longer the Governor General, but the State President. By the nature of things the question whether, under the 1961 and 1983 Constitutions the State President granted silk by virtue of his power to confer honours or in terms of his residual prerogative powers, did not arise. It simply did not matter. He had the power either way. Yet, I believe that if the question did arise, the answer would have been that the State President acted by virtue of the specifically codified power to confer honours. I say that because the clear intent was to preserve the practice that prevailed before 1961.

[24] The partial codification of prerogative powers which occurred in the 1961 and the 1983 Constitutions was completed in the (1993) interim Constitution. In the same way as s 84(2) of the (1996) Constitution – that I have quoted by way of introduction – s 82(1) of the interim Constitution made no express reference to prerogative powers at all. Yet, along the lines of the 1961 and the 1983 Constitutions, s 82(1) specifically bestowed powers on the head of State which clearly owed their origin to the royal prerogative. These included, for instance, the power to pardon and reprieve offenders and the power to confer honours. The cardinal difference is, however, that unlike its predecessors, s 82(1) of the interim Constitution did not contain a catch-all provision which preserved unlisted prerogative powers. This approach, as we know, has also been adopted in s 84(2) of our Constitution. The effect of the change was summarised thus in President of the Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC) para 8:

‘Two conclusions can be drawn from the foregoing. First, the powers of the President which are contained in s 82(1) of the interim Constitution have their origin in the prerogative powers exercised under former Constitutions by South African heads of State. Second, there are no powers derived from the royal prerogative which are conferred upon the President other than those enumerated in s 82(1).’

[25] These consequences were no doubt intended. That much is borne out by the reports of the panel of experts that informed and advised the Constitutional Assembly in the formulation of the final Constitution. In their report of 4 September 1995 the experts inter alia stated:

‘• In order to give effect to the notion of constitutional supremacy, it should be made clear that the Constitution is the source of all executive powers and that they may all be tested against the Constitution

. . .

It is in this regard that the so-called prerogatives become relevant. . . .
Prerogatives stem from the (English) common law. They form part of the previous dispensation in South Africa, when Parliament was sovereign. They originated in England in a time in which the powers of the monarch were virtually unchecked.
. . .
The most important prerogatives were the power to assent to legislation, dissolve Parliament, dismiss a government, appoint ministers, stop prosecutions, bestow honours, pardon criminals and declare war and peace.
Many of these fitted logically into the English system of government. Over time some of them were laid down in legislation – which excluded reliance on the common law.
. . .
The Constitution (and subsequent legislation) is now the only source of executive power. No extra-constitutional powers exist. The exercise of all executive powers should in future be justiciable because the Constitution is supreme. The term “prerogative” should perhaps be avoided altogether, because it is a legal term which refers to powers “outside” the control of law.
Executive powers should be dealt with in a manner clearly indicating present practice. If the new Constitution contains a formulation which does not correspond with the actual practice . . . “unconstitutionality” may result or previous “conventions” are again invoked. The supremacy of the Constitution may be undermined. Unnecessary grounds for litigation may result.’

[26] The general intent of the drafters of the Constitution therefore seems to be plain. Insofar as executive powers derived from the royal prerogative were not incompatible with the new constitutional order they should be codified and maintained. Conversely stated, the intention was not to abolish prerogative powers or to diminish the function of the head of State previously derived from the royal prerogative, but to codify these powers insofar as they are not inimical to the constitutional state and to render the exercise of these powers subject to the Constitution. In this light the historical perspective therefore seems to support the appellants’ argument that the power ‘to confer honours’ contemplated in s 84(2)(k) of the Constitution must be afforded its traditional content, which included the power to appoint silks.

[27] That brings me to the next inquiry, namely whether there is anything in the broader context that indicates a meaning of s 84(2)(k) which is at odds with the one revealed by the historical perspective. In this regard the court a quo found the historical perspective of lesser – if any – importance because, so it held (in para 20), our Constitution was intended, as appears from its preamble, ‘to sever relations with the past’. In consequence, so the court a quo continued (para 23):

‘I do not agree . . . that the prerogatives of the monarchs and the State Presidents respectively are codified in the Constitution. The drafters’ idea of breaking with the past stems, in my view, from an aversion to adopting concepts in the Constitution which are not based on the will of the people of South Africa.’

And, so the court concluded (para 46):

‘The Lenoir case [therefore] finds no application within our democratic autochthonous Constitution in that “in England, the sovereign . . . uses the prerogatives to confer honours”.’

[28] In my view this line of reasoning departs from the wrong premise, hence it arrives at the wrong conclusion. Although it can be accepted as a general principle that the Constitution intended a break with the unacceptable features of the past, that principle can hardly find application in a case where the very language used indicates an intent to preserve past practices. The fact that s 84(2) confers some of the former royal prerogative powers on the President and that they include the power to confer honours, is beyond debate (see eg also President of the Republic of South Africa v Hugo paras 5-7). The only question relates to the content of that power: does the codified prerogative power to confer honours include the power to appoint silks? The answer to that question does not depend on the court’s abstract perception of ‘the will of the people’ but on the proper interpretation of ‘honours’, inter alia, against its historical background and it is to that historical background that the Lenoir case and other authorities that I have referred to are highly relevant.

[29] A further argument why the power to confer honours no longer includes the appointment of silk, which found favour with the court a quo, refers to the list of honours enumerated in the website of the Presidency under the rubric ‘National Orders’ (see paras 29-39). The list incorporates, for example, the order of Mendi, the order of the Baobab, the order of Luthuli, and so forth, but not the institution of silk. On this basis the court a quo held (para 37) that ‘I am of the view . . . that non-inclusion of the conferment of senior counsel status on the Presidency’s website indicates that it is not one such “honour” as envisaged in terms of s 84(2)(k)’. Moreover, what these national orders have in common, so the court a quo held, is that they are awarded ‘for services distinguished as beyond the ordinary call of duty’. It is an ‘honour awarded for exceptional and distinguished contribution in community service’. The appointment of silk, on the other hand, so the court concluded (paras 29 and 38) does not require services of practising advocates beyond the call of duty or that they must have done something good beyond human expectation. In consequence, the institution of silk cannot be regarded as an honour for purposes of s 84(2)(k).

[30] I do not agree with this line of reasoning. The mere fact that silk is not included in the national orders on the website of the Presidency plainly does not in itself exclude silk from ‘honours’. President Zuma, in his answering affidavit, deposed to the fact that he regards silk as an honour; that the website of the Presidency is created and managed by his administrative personnel; and that his administrative personnel cannot possibly define the contents of his constitutional powers to confer honours. Moreover, I can see no reason in principle why the term ‘honours’ in s 84(2)(k) should be limited to national orders. On the contrary, as the President said in his answering affidavit, the meaning of honours is wide enough to take many forms. Once this is accepted, the enquiry whether silk constitutes honours cannot be answered with reference to the characteristics of national orders. One cannot answer the question whether apples and pears are both fruit by looking at the characteristics of an apple, which is a fruit, and conclude that a pear is not a fruit because it does not share the characteristics of an apple.

[31] Finally, the court a quo appears to have been swayed by the argument that s 84(2)(k) does not propose a system of awarding any professional who has achieved advanced status in his or her profession a status of seniority. If it were so, the argument went, the President would also have to confer honours of seniority on accountants, doctors, attorneys and the like (see para 47). Again I find this argument unpersuasive. While the historical context supports the appointment of senior counsel as being included in the President’s power to confer honours, the same cannot be said of other professions. The reason for this historical distinction is probably that the legal profession and its institutions have traditionally been regarded as integrally related to the administration of justice which in turn is properly the concern of the head of State. I appreciate that our institutions can and must develop in the light of the needs of our own social context. If there is found to be a need of appointment by the President of, say, senior attorneys, it will have to be considered whether that institution can be brought under s 84(2)(k) of the Constitution – despite the fact that it is not historically supported – or whether special legislation will be required.

[32] In this Court counsel for Mansingh introduced a further contention that had not been raised before, neither on her papers nor in argument before the court a quo. It rested on s 9 and s 22 of the Constitution which, respectively, guarantee the right to equality and the right of every citizen to choose his trade, occupation or profession freely. In developing this argument counsel for Mansingh also relied on the decision by the Constitutional Court in Affordable Medicines Trust and others v Minister of Health and others 2006 (3) SA 247 (CC) paras 62-66 to the effect that this guarantee embraces not only the choice of profession but also by necessary implication its practice. According to this argument, s 84(2)(k) must be construed to exclude the power to appoint silk, because the institution of silk itself infringes the rights of non-silks in terms of s 9 and s 22 of the Constitution.

[33] I think these contentions demonstrate confused reasoning. If the institution of silk can be said to infringe either s 9 or s 22 of the Constitution, the whole institution is unconstitutional and that is the end of the matter. The question whether an interpretation of the power contemplated in s 84(2)(k) allows the President to confer silk does not arise. Even if the President has the power to do so, he cannot make an appointment which impacts on the constitutional rights of others. What is more, because these contentions had not been raised earlier, they are devoid of any basis of fact. Consequently it is not clear how the institution of silk in itself can be said to impact on the rights guaranteed by s 9 or s 22. What is it in the institution of silk that offends the non-silks’ right to equality or the way in which they conduct their advocates’ practices? One can only speculate that these objections hark back to Mansingh’s objections to silk as an institution, for example, that in practice silks are afforded certain privileges and that some work is reserved for silks only. I cannot see how these practices can be said to violate the constitutional rights of non-silks. But if they do, the objection, so it seems, should be directed against the practices which are not inherent in the honour of receiving silk – rather than against the institution of silk itself.

[34] It follows that, in my view, there is nothing in the broader context which compels a meaning of ‘honours’ that deviates from the one clearly indicated by the historical background of the provision. I therefore conclude that the power to confer honours bestowed upon the President by s 84(2)(k), includes the authority to confer the status of senior counsel on practising advocates. In the result the appeal must be upheld while the order of the court a quo is to be set aside. With regard to the matter of costs, this is one of those rare occasions where not one of the parties asked for the costs of appeal in its favour. As to the costs in the court a quo, the appellants did not ask for any order against Mansingh. In consequence there will be no order in their favour either in this court or in the court a quo. But, as I have said by way of introduction, costs in the court a quo were awarded in favour of Mansingh against the President and the Minister. Since no appeal had been lodged against that court order, it must stand, despite the fact that all the respondents should, in my view, have succeeded in warding off the declarator sought.

[35] In the result:

(a) The appeal is upheld.

(b) The order of the court a quo is set aside and replaced with the following:

‘The application is dismissed. First and second respondents are ordered to pay the applicant’s costs.’

_________________________

F D J BRAND

JUDGE OF APPEAL

APPEARANCES:

For First Appellant: W van der Linde SC

A D Stein

K McLean

Instructed by: Gildenhuys Lessing Malatji Inc

PRETORIA

Correspondents: Honey Attorneys

BLOEMFONTEIN

For Second Appellant: W H Trengrove SC

F Snyckers SC

I B Currie

S Cowen

M Sikhakhane

Instructed by: Mkhabela Huntley Adekeye Inc

JOHANNESBURG

Correspondents: McIntyre Van der Post

BLOEMFONTEIN

For First Respondent: N A Cassim SC

M J Rhamaepadi

W Mostert

Instructed by: Saders Attorneys

PRETORIA

Correspondents: Phatsoane Henney Inc

BLOEMFONTEIN

For Fifth Respondent: N Matlala

Instructed by: Mothle Jooma & Sabdia Inc

PRETORIA

Correspondents: Matsepe Inc

BLOEMFONTEIN

Judgment: Bheki Cele loses defamation claim against Sowetan

Feb 26th, 2013

by Pierre De Vos.

1 comment

REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

In the matter between:

BHEKI HAMILTON CELE – Plaintiff

and

AVUSA MEDIA LIMITED – Defendant

JUDGMENT

KATHREE-SETILOANE, J:

[1] The plaintiff, Mr Bheki Cele, sues the defendant Avusa Media Ltd[1] for damages in the amount of R200 000 for defamation, and in the alternative infringement of his dignity, arising from the publication of two articles together with a digitally altered photograph of the plaintiff (“the altered photo image”) which were published by the Sowetanon 6 July 2007 and 16 July 2007, respectively.

[2] The defendant is the owner and publisher of the Sowetan. At the time that the articles which form the basis of the claim were published, the plaintiff was a Member of the Executive Council in Kwazulu Natal responsible for Transport, Community Safety and Liaison. He was subsequently appointed National Police Commissioner in July 2009, a position which he held until he was removed from office, by President Jacob Zuma, on 12 June 2012.

Pursuing defamation and dignity in the alternative

[3] Although the plaintiff bases his claim on defamation as well as on an infringement of his dignity, his particulars of claim are largely unclear in relation to which aspects relate to the defamation claim and which to the ‘dignity’ claim. The two claims have also not been pleaded in the alternative. The particulars of claim, furthermore, do not contain a prayer for relief in respect of infringement of dignity. On the contrary, the relief sought appears to be limited to the defamation claim. The defendant raised this at the second pre-trial conference suggesting that the plaintiff amend his particulars of claim. The plaintiff failed to do so. Consequently, on the first day of the trial, the Court directed the parties to prepare a joint statement setting out which aspects of the particulars of claim relate to the defamation claim and which to the dignity claim, as well as the defences raised in respect of each claim. Pursuant to the Court’s direction, the parties prepared a “Statement of Plaintiff’s Claim and Defendant’s Defence” (“the joint statement”), which was handed up to the Court. The joint statement reveals that the plaintiff’s defamation claim is set out at paragraphs 15 to 20 of the particulars of claim, his dignity claim is set out at paragraphs 12 to 14 of the particulars of claim, and that the two claims are pursued in the alternative. The joint statement also makes it clear that the defamation claim is based on the altered photo image read together with the articles of 6 July 2007 and 16 July 2007, respectively and that the dignity claim is based solely on the altered photo image.

[4] The articles of 6 July 2007 and 16 July 2007, which were published in the Sowetan, were written by Mhlaba Memela (“Memela”), a reporter employed by the defendant. The article of 6 July 2007 reads:

“ ‘AIM FOR THE HEAD’

Mhlaba Memela

Black business people in KwaZulu- Natal have been told in no uncertain terms that they should stop “moaning about crime while they fail to wage a war against evil crime in society”

This comment from Bheki Cele, KwaZulu- Natal MEC for transport, community safety and liaison, follows an outcry from black businessmen, who attended the Nafcoc prayer meeting at the Umlazi Cinema, south of Durban yesterday.

Cele also lashed out at criminals, saying police in the province “will shoot to kill”.

His comments came day after crime statistics showed that KwaZulu- Natal is heading for the shameful number one position as the most dangerous province.

Nafcoc members in the province were in Umlazi as part of the project to revamp

businesses that were destroyed by political violence.

The provincial Nafcoc leadership will press ahead with the project despite its national leadership saying the provincial president of the federation was not a senior office bearer of the organisation.

Businessmen in the township complained that they had now become victims of crime in their place of work.

Previously they were victims of political violence.

The businessmen said they had experienced more deaths of fellow businessmen in the past few months than ever before.

“Crime needs a joint effort from government and the community”.

“Anger will always fail to find the path to the right solution. Police need to shoot and kill criminals”.

“Police must aim for the Head”

“What criminals are doing is brutality not crime”, said Cele.

Local Entrepreneur Musa Hlongwane said businessmen in Umlazi were dying in the townships because of increased crime.

“We work hard with the police in the area but everyday businesses are being robbed here. Our owners are killed”.

In his speech, ANC deputy president Jacob Zuma called on local church leaders to help restore humanity within society”

The front page of the 6 July 2007 edition of the Sowetan carried an altered photo image of the plaintiff (which is described later in the judgment) with the caption “POLICE MUST AIM FOR THE HEAD”. The altered photo image was created by Mzi Oliphant, an employee of the defendant.

[5] The article of 16 July 2007 reads:

“ Eight dead in 10 days of crime war

_____________

Mhlaba Memela

____________

Police in KwaZulu- Natal have killed eight people in less than 10 days after Bheki Cele, MEC for transport, community safety and liaison, told them not to hesitate and shoot to kill all criminals.

Less than two weeks after Cele’s call, police have shot dead eight suspects in separate incidents in the province.

Cele lashed out at criminals, saying police in the province would shoot to kill.

“We cannot allow police to be killed by criminals. Once criminals pull their guns, police should aim for the head”, he told a prayer meeting at Umlazi Cinema in Durban two weeks ago.

Barely a week later, four hijackers were shot dead in Effingham. Two ATM bombers were killed last week, a taxi hitman was killed and an alleged murder and robbery kingpin, Rasta Msisi, 43, linked to the St Tropez Restaurant attack, was shot dead.

However, the province’s “crime war” also claimed the lives of four policemen, who were shot dead by criminals while on duty.

An alleged taxi hitman known as “Inkabi” was killed in shoot- out with police near Hammersdale in Durban.

He was travelling with a man wanted in connection with murdering taxi owner Bonginkosi Dladla, 40, his brother Mbeki Ngobese, 24, six- year- old toddler SN, her mother Amanda Ndawonde 26, and grandmother Nokuthula Ndwawonde, 52, in Umlazi south of Durban.

Police spokesman Superintendent Vincent Mdunge said the police’s mandate was to create a safe environment for all citizens.

“It’s not our mandate or vision to kill. But there are situations which force police to use extra power when criminals shoot at us”, he said.

Mdunge confirmed that in the past few weeks police had dealt harshly with criminals, but he denied it was a response to Cele’s call.

He said police had a right to protect themselves against criminals, even if it meant shooting to kill.

Mdunge said police had exchanged fire with taxi hitmen on the N3 near Hammersdale and two suspects had been arrested.

“Police are investigating many cases of taxi killings and we cannot confirm that they are linked to any of the recent killings”, he said.”

The front page of the 16 July 2007 edition of the Sowetan carried the same altered photo image of the plaintiff, which appeared on the front page of the 6 July 2007 edition of the Sowetan, with the caption:

“POLICE PULL THE TRIGGER

…SHOOT AND INJURE EIGHT CRIME SUSPECTS IN 10 DAYS

Thanks to KwaZulu-Natal community safety and liason MEC Bheki Cele’s ‘shoot them’ order”

The plaintiff’s defamation claim

[6] The joint statement indicates that the plaintiff’s defamation claim is set out in paragraphs 15 to 20 of the particulars of claim. The plaintiff does not identify the specific passages from each of the two articles that are alleged to be defamatory. Instead the plaintiff pleads that the entire content of both articles as well as the altered image are defamatory per se; alternatively, were intended and understood by those members of the public who read and saw them, to mean that:

(a) the death and killing of the persons mentioned in the article are as a result of the statements attributable to the plaintiff;

(b) That the plaintiff is “a person with murderous intent”; and

As contended for by the defendant, logically the meanings pleaded by the plaintiff in paragraphs (a) and (c)[2]above can only arise from the article of 16 July 2007 and not from the article of 6 July 2007, which plainly does not make reference to any deaths.

[7] The plaintiff furthermore pleads that the articles and the altered photo image are false, that the falsity was known or ought reasonably to have been known to the defendant, and that the defendant had no reasonable grounds for believing the statements or implications conveyed by the articles and the altered photo image were true. The plaintiff also pleads that the defendant acted unreasonably in publishing the two articles and the altered photo image of the plaintiff. These allegations, in my view, are irrelevant as they do not form part of the essential elements that a plaintiff is required to allege and prove in a defamation claim.[3] I will accordingly disregard them as they are superfluous and meaningless in law for purposes of assessing the plaintiff’s defamation claim.

The defences raised

[8] The defendant denies that the articles of 6 July 2007 and 16 July 2007 and the altered image are per sedefamatory of the plaintiff or harmful to his dignity. In the alternative, and in the event that the Court finds that the articles of 6 July 2007 and 16 July 2007 are defamatory, the defendant pleads fair comment and reasonable publication in relation to the article of 16 July 2007, and reasonable publication in relation to the article of 6 July only[4]. In the event that the Court finds that the altered image is defamatory, the defendant pleads fair comment and reasonable publication, and in the event that the court finds that the altered image harmed the plaintiff’s dignity, the defendant pleads fair comment and reasonable publication.

[9] The law of defamation requires the balancing of two constitutional rights, neither of which can be regarded as being of greater a priori significance: the right to reputation, which forms part of the right to dignity, and the right to freedom of expression.[5] In Khumalo v Holomisa[6], which dealt in some detail with the balance to be struck between the rights to human dignity and freedom of expression, the Constitutional Court posed the question in the following manner:

“The law of defamation seeks to protect the legitimate interest individuals have in their reputation. To this end, therefore, it is one of the aspects of our law which supports the protection of the value of human dignity. When considering the constitutionality of the law of defamation, therefore, we need to ask whether an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.”

As restated by the Constitutional Court in Khumalo v Holomisa[7], the elements of an action for defamation are the wrongful and intentional publication of a defamatory statement concerning the plaintiff. The plaintiff is, however, not required to establish every one of these elements in order to succeed[8]. If the plaintiff is able to prove at the outset that there has been publication of defamatory matter concerning him or her, it is then incumbent upon the defendant to raise a defence that excludes either wrongfulness or intent. The onus on the defendant to rebut these presumptions is a full onus that must be discharged on a preponderance of probabilities.[9]

[10] In a case where the plaintiff pleads that the publication is defamatory per se, as in the present matter, a two-stage enquiry must be followed. This enquiry was set out in Le Roux v Dey as follows:

“Where the plaintiff is content to rely on the proposition that the published statement is defamatory per se, a two-stage enquiry is brought to bear. The first is to establish the ordinary meaning of the statement. The second is whether that meaning is defamatory. In establishing the ordinary meaning, the court is not concerned with the meaning which the maker of the statement intended to convey. Nor is it concerned with the meaning given to it by the persons to whom it was published, whether or not they believed it to be true, or whether or not they then thought less of the plaintiff. The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied.

The reasonable reader or observer is thus a legal construct of an individual utilised by the court to establish meaning. Because the test is objective, a court may not hear evidence of the sense in which the statement was understood by the actual reader or observer of the statement or publication in question.”[10]

[11] Thus, in determining whether a statement is defamatory, the court must first determine the meaning of the words complained of. This is a question of construction and not of evidence. The enquiry is an objective one conducted through the lens of the ordinary reasonable reader of the particular publication. The attributes of an ordinary reader as first enunciated in Basner v Trigger[11] were reiterated in Channing v South African Financial Gazette Ltd[12], as follows:

“From these and other authorities it emerges that the ordinary reader is a ‘reasonable’, ‘right-thinking’ person, of average education and normal intelligence; he is not a man of ‘morbid and suspicious mind’, nor is he ‘super-critical’ or abnormally sensitive; and he must be assumed to have read the articles as articles in newspapers are usually read.”[13]

[12] Once the meaning of the words has been established, the second stage of the test is to determine whether the meaning conveyed is defamatory of the plaintiff. The basic test is an objective one of whether a reasonable person of ordinary intelligence might reasonably understand the words to convey a meaning that tends to lower the plaintiff in the estimation of members of the community. Again, the test to be applied is that of the ordinary reasonable reader.

[13] The context in which the publication occurred is also of critical importance in determining whether the content of the publication is defamatory. In Golding v Torch Printing and Publishing[14] the court held that:

“The circumstances in which the writing was published’ do not seem to me to be capable of exact definition. Each case must be decided on its own facts. The alleged defamatory words must not be considered as it were in vacuo but as part and parcel of the whole. …”

Our courts have accepted that cartoons, caricatures and sketches may be defamatory, and that in assessing whether a cartoon, caricature or sketch is defamatory the same two-stage test set out above is applicable.[15] I am of the view that the same test will also apply to the digitally altered photo image of the plaintiff, in issue, in this matter – which for all intents and purposes is a parodic representation or caricature of the plaintiff.

The 6 July article

[14] The article of 6 July 2007 is a news report published under the headline “Aim for the Head”. The article states that the plaintiff attended a NAFCOC prayer meeting at Umlazi Cinema in Durban at which he addressed black businessmen from Umlazi. The article quotes the plaintiff as having, inter alia, made the following comments during his speech at the meeting:

(a) Black business people in Kwa Zulu Natal have been told in no uncertain terms (by the plaintiff) that they should stop “moaning about crime while they fail to wage a war against evil crime in society.”

(b) “The plaintiff lashed out at criminals saying police in the province ‘will shoot to kill’ “;

(c) “Crime needs a joint effort from government and the community. Anger will always fail to find the path to the right solution. Police need to shoot and kill all criminals. Police must aim for the head. What criminals are doing is brutality not crime”.

It emerged during the testimony of the plaintiff that he takes issue only with the use of the statements “shoot to kill”, and that “police need to shoot and kill all criminals” which the writer of the article had attributed to him. There is therefore a factual dispute between the parties as to whether the said statements quoted in the article are correct. The plaintiff denies that he used the words “shoot to kill”. He has also denied stating that “police need to shoot and kill all criminals”. He, however, accepts having made the following two statements: “aim for the head” and “use deadly force” which were directed at “violent criminals”. He also accepts that the sting in the statements was that it should be the suspect that is buried and not the policeman.

[15] Memela, the reporter who wrote the article, testified that he personally attended the NAFCOC meeting at Umlazi Cinema in Durban and that the plaintiff uttered the statements quoted in the article during his speech. The meeting ended at approximately 15h30 and Memela wrote and submitted the article for publication in the Sowetanon the same day. The defendant argues that the accuracy of the quotation is supported by the fact that Memela took contemporaneous notes during the plaintiff’s speech that were used as a basis for the article, and that the use of these notes renders it more probable than not that the content of the speech was accurately recorded in the article. In addition, it argues that since the article was written on the same day that Memela attended the event, he would have had a reasonably clear recollection of the statements made by the plaintiff.

[16] Memela, however, testified that he was unable to produce a copy of the notes for discovery because his notes were lost and could not be found. The plaintiff contends that Memela’s testimony regarding the notes is untruthful and should be rejected by the Court. The defendant, no doubt, contends that that Memela’s version should be accepted as true as there is no credible reason for him to lie on this issue. It contends, in this regard, that Memela explained the circumstances in which the notes were lost, and there is no admissible evidence on record to gainsay his explanation, save for unavailing attempts by the plaintiff to discredit him under cross-examination.

[17] Memela testified that his notes went missing during an office move that took place in 2010, and that the reason for not making an effort to secure the notes prior to 2010, was that he only consulted with the defendant’s attorneys for the first time in 2010. He said that it was only at this stage that he became aware of the exact nature of the claim, and that his notes were required for purposes of the trial. During cross examination, Memela repeatedly emphasised, and did not deviate from the fact, that he only consulted with the defendant’s attorneys for the first time in 2010. He stated that prior to 2010 he was aware that the plaintiff was suing the Sowetan - a fact that was conveyed to him by the Bureau Chief of the Sowetan in Durban, Mary Pappaya (“Pappaya”) – but he was not informed of the details of the claim. At that stage he was under the impression that the plaintiff’s main complaint related to the altered photo image, which had not been created by him. He also testified that he was not asked by Pappaya, at that stage, to make a copy of his notes available.

[18] Memela’s version that he only consulted with the defendant’s attorneys in 2010, and that it was only at that stage that he was asked to hand over a copy of his notes, is also supported by the fact that the defendant’s discovery affidavit was only deposed to on 1 September 2010. I am of the view that the probabilities, therefore, favour the conclusion that it was only at the stage when the discovery affidavit was being prepared that Memela was asked to provide a copy of his notes. There is again no admissible evidence on record to contradict this. I am accordingly of the view that Memela’s evidence, in this regard, has not been gainsaid by any evidence adduced by the plaintiff. Memela’s testimony that he only consulted with the defendant’s attorneys in 2010, and it was only at that stage that he became aware that his notes were required, is also uncontested. His failure to preserve the notes at an earlier stage when he became aware (without knowing the substance of the allegations) that the plaintiff was taking legal action, does not, in my view, mean that the notes were deliberately concealed or destroyed. At best, this demonstrates a lack of adequate caution in preserving evidence. Accordingly, I am of the view that Memela’s version was truthful and reliable, and I find no reason to reject his evidence.

[19] The plaintiff has admitted to making numerous other statements that are the equivalent of “shoot to kill” or which were reasonably understood by reporters to mean “shoot to kill”. He has also admitted to making numerous statements in support of the police using “deadly force” when confronting criminals. These admissions appear from “Plaintiff’s Reply to Defendant’s Request for Admissions”:

(a) he is correctly quoted in the article as having stated “We cannot allow police to be killed by criminals. Once criminals pull their guns police must aim for the head” (He also admitted saying this under cross examination);

(b) he said that “you have to defend yourself you cannot die with a gun in your hand”;

(c) he said that “if someone who is carrying a camera wants to shoot a picture of you, respond with a smile. But if he is carrying a gun and threatens to shoot you then you must respond in a similar manner”;

(d) he said that “when a criminal points a gun at a police officer and then cocks it there is only one thing he will do next and that is to fire it”;

(e) he said that Police must “not die with guns in their pockets”;

(f) he said that “you can’t be soft and you can’t be moving around kissing crime. You need to be tough, because you are dealing with tough guys”;

(g) he said that “criminals are comfortable with R5s and when they pull the trigger it does not produce photos”…”The only choice that police have is to answer with the same thing that criminals are using. The only thing that an R5 understands is R5″;

(h) he said that “if police see a suspect with a gun in his hand, they

must not shout”;

(i) that he said that “no policeman must smile on a thug that has a gun in his hand”;

(j) he said that “if you are facing a criminal with a gun and he is threatening your life, someone has to survive. Saying ‘I have a gun put yours down does not work’”;

(k) he said that “my instruction to my officers is that they should not die with their guns in their hands”;

(l) he said that “anybody who has a gun in hand and is threatening you with a gun, you must use yours”;

(m) he used words to the effect that people who rape and kill innocent people should not be granted any human rights;

(n) he said that “it has been said that I say ‘shoot to kill’. I have never used that term. But I have told the police they must use deadly force”;

(o) he said that “no police officer must die with a gun in their hand. The police should not be trigger happy but any criminal with a gun in the hand should not shoot at the police. We are not training you to open new graves but do not let criminals prevail over you”;

(p) he said that “we must show them that they cannot just take money that they did not work for. No one here will die in the hands of thugs anymore because of you. You are here for a reason – quick and decisive response – and we will show them that either dead or alive, it is the end of the road for them.”

[20] It is clear from the abovementioned statements that the plaintiff has admitted to making other statements, inter alia ”aim for the head” and “use deadly force” which are the equivalent of “shoot to kill”, meaning that the police must use deadly force when dealing with criminals. This certainly makes it more probable than not that the plaintiff made the statement “shoot to kill”. Indeed, the plaintiff conceded under cross-examination, when questioned about his use of the term “deadly force” that “deadly means dead”. Although the plaintiff sought to distinguish the occasions on which he had used similar language and to justify the use of such language, his explanation was a mere exercise in semantics. Whether one uses the terms “aim for the head”, “use deadly force” or “shoot to kill” their meaning and import is the same. The uncontested evidence demonstrates that the plaintiff had, on numerous occasions including during the same speech on 5 July 2007, used language with the same import as “shoot to kill”. Having regard to these admissions, the plaintiff’s denial that he used the words “shoot to kill”, or words reasonably understood in this way, is implausible.

[21] The plaintiff, furthermore, relies solely on his memory of a speech that was given off the cuff more than five years before the trial. During cross-examination, he admitted that he did not have any record of his speech from which to refresh his memory. The plaintiff has sought to rely on the fact that other newspapers that were present at the meeting on 5 July 2007, i.e. the Daily News and The Citizen, did not report the statements made by him as support for his contention that he did not make those statements. This argument, in my view, is ill-conceived. Firstly, neither the Daily News nor The Citizen published articles on 6 July 2007 regarding the NAFCOC meeting. Their failure to do so could be based on a whole host of reasons. It is mere speculation to suggest that they did not report on the meeting because the plaintiff had not made any controversial statements that were worth reporting. Secondly, as pointed out by the defendant, the Daily News articles relied upon by the plaintiff are not reports of the events that took place on 5 July 2007 at the NAFOC meeting at Umlazi cinema. On the contrary, the article published by the Daily News on 5 July 2007 was a report of a different event, i.e. the provincial police awards in Amanzimtoti. In addition, the follow-up article, published by the Daily News on 23 July 2007, also referred to the provincial police awards in Amanzimtoti. Thirdly, aside from the article published by the defendant, the only other article that reported on the the NAFCOC meeting, which was held at Umlazi on 5 July 2007, was the article published by The Citizen on 23 July 2007. Significantly, the article reads in relevant part as follows:

“A shoot to kill call by a top South African law enforcement officer has fuelled a debate on how far police can go to defend themselves”[16].

[22] It is, therefore, apparent that the only other newspaper, namely The Citizen, that reported on the meeting at Umlazi on 5 July 2007 also reports that the plaintiff made a call for the police to “shoot to kill”. It is improbable thatThe Citizen would have made the same ‘mistake’ that Memela is alleged to have made – thus signifying that Memela was not mistaken. The plaintiff has, however, not taken any action against The Citizen for reporting this statement and attributing it to him. His explanation that he did not pursue newspapers that, in his view, reported on him in a balanced way is yet again implausible. In the circumstances, I find on a balance of probabilities that the plaintiff made the statements “shoot to kill” and “police must shoot and kill all criminals” during his speech on 5 July 2007, referring to “violent criminals”.

The meaning of the 6 July article and the altered photo image

[23] The plaintiff’s defamation claim regarding the article of 6 July 2007 relies “on the cumulative import” of the altered image and the content of the article. The plaintiff contends that the altered image portrays the plaintiff as a “gun touting man”. This contention is, however, inconsistent with the plaintiff’s evidence which demonstrates that being portrayed as a “gun touting” law enforcement officer (or official) was not the essence of the plaintiff’s complaint. His actual complaint was that the altered photo image “mixes” him or manipulated a likeness of him. What hurt him, he complains, is “to mix me”- and it portrayed him as a “movie star” or actor. It is, however, abundantly clear from the plaintiff’s testimony that he had no objection to being portrayed carrying guns or armed, depending on the context. Ultimately, the plaintiff complains that the altered photo image is attired differently from how he would normally present himself; and is carrying a type of gun he would not carry. I am of the view that this is not a complaint that deserves the protection of the law, especially in the case of a public figure who courted public attention and controversy as consistently as the plaintiff did on an important public interest issue such as violent crime, and what the police’s appropriate response should be. The law requires of such public figures, politicians and public officers (by virtue of their chosen professions) to be robust and thick-skinned in relation to comments made against them.

[24] It is well established in our law that public figures, including politicians, are required to withstand greater scrutiny and criticism. In Delange v Costa[17] the Court observed that:

“[b]usinessmen who engage in competition (like politicians who take part in public life) expose themselves to, and must expect, a greater degree of criticism than the average private individual.”

Similarly, in Argus Printing and Publishing Co Ltd v Inkatha Freedom Party[18] the Court held that:

“the law’s reluctance to regard political utterances as defamatory no doubt stems in part from the recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him…”

Although politicians are not expected to endure every infringement of their personality rights, they must expect to be criticised[19] and “they do have to be more resilient to slings and arrows than non-political, private mortals.”[20]In Pienaar v Argus Printing and Publishing Co Ltd[21], the Court held that:

“I think that the Courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters, are aware of this. How soon the audiences of political speakers would dwindle if the speakers were to use the tones, terms and expressions that one could expect from a lecturer at a meeting of the ladies’ agricultural union on the subject of pruning roses! Some support for this view is to be found in a passage in Gatley on Libel and Slander, 3rd ed. p. 468. It reads:

‘In cases of comment on a matter of public interest the limits of comment are very wide indeed. This is especially so in the case of public men. Those who fill public positions must not be too thin-skinned in reference to comments made upon them.’“

[25] Since the plaintiff relies specifically on the altered photo image read together with the content of the article, it is necessary to determine the meaning of the altered photo image, the meaning of the words in the article read as a whole, and the meaning of the altered photo image read with the article. It is common cause that the altered photo image is a composite image, which consists of a photograph of the plaintiff’s head superimposed onto the body of another person. The identity of the person to whom the body belonged is not known. The photograph of the plaintiff’s head depicts him wearing a wide brimmed hat. The body is that of a man dressed in clothing that is reminiscent of a sheriff wearing a shirt, tie, waistcoat, long overcoat, trousers, boots, a belt with a large buckle and a gun holster attached to the belt. The figure is also carrying a gun. The altered photo image is a parodic representation or caricature (using elements of satire) of the plaintiff as a law enforcement officer or sheriff, playfully, perhaps, from the Wild West. It must not, therefore, be interpreted to be a portrayal or representation of real life.

[26] When it was put to the plaintiff, during cross examination by counsel for the defendant, that the altered image of the plaintiff depicted a law enforcement officer or official taking a tough stance against violent crime, he responded by stating that it was not the way he viewed the altered photo image, nor the way that the people who first alerted him to the altered photo image viewed it. It is important to bear in mind that for purposes of a defamation claim, it is irrelevant how the plaintiff subjectively viewed the altered image or how people, who spoke to him, viewed it subjectively.

[27] As contended for by the defendant, a reasonable person would understand the altered image in the context of the statements made in the articles in which the altered image was carried – to portray officialdom represented by the plaintiff taking a no nonsense stance on violent crime – consistent with the statements attributed to him on this issue. I agree. It would have been clear to readers that the altered photo image was not a real photograph of the plaintiff because the clothing, as well as the gun holster worn on the belt, are clearly not modern and in keeping with current trends. It is not the style of clothing that people (especially the plaintiff on his own evidence) would wear in the modern context. It is important to recognise, in this regard, that the plaintiff was a public figure at the time, and the press was replete with images of him. The attire in which the plaintiff regularly presented himself, in public, did not at all resemble the ensemble worn by the figure in the altered photo image. In my view, the altered photo image would certainly have been understood by reasonable readers in the context of the caption that appears beneath it, which reads “police must aim for the head”, as well as the article which followed on page 6 of the Sowetan, which reports on the statements made by the plaintiff concerning the use of force by the police.

[28] A further element of context, which the Court must give consideration to, is the political position held by the plaintiff as well as his history of involvement in law enforcement. At the time that the article was published, the plaintiff was the MEC for Community Safety and Liaison in KwaZulu-Natal, which made him the highest political office bearer dealing with safety and security in the province. The plaintiff testified that prior to the 1994 elections he was involved in attempts to solve the problems relating to political violence in KwaZulu-Natal and that, in this context, he worked with the police and communities. After the 1994 elections he was appointed as member of the provincial parliament in KwaZulu-Natal and held the portfolio of Safety and Security. These facts, in my view, would have been known to the average readers of the Sowetan at the time, and would have formed part of the context in which they interpreted the altered photo image. The altered image, in my view, is a depiction of the plaintiff as a law enforcer or sheriff from the Wild West, and it would have been understood as such by reasonable readers ofSowetan. The altered photo image taken together with the caption and the contents of the article would have been understood to mean that the plaintiff was taking a tough stance on crime and that, like a sheriff from the Wild West, he wanted criminals to be harshly dealt with by the police and brought to justice, either dead or alive.

[29] In Golding[22] the Court made it is clear that with respect to the meaning to be derived from the content of the article, such meaning must be ascertained having full regard to the context of the article. Accordingly, the article must be read as a whole and individual words such as “shoot to kill” must not be singled out and interpreted out of context. With respect to context, the article is a news report regarding a meeting of businessmen at which the main topic of discussion was revamping businesses that had been destroyed by political violence. One of the topics under discussion was the concern expressed by the businessmen that they were under attack by violent criminals. Memela testified that the businessmen were angry due to the perceived failure of the police to address the crime situation in Umlazi, and that the plaintiff accordingly addressed them on this issue. The article also states that, at the time that the comments were made, KwaZulu-Natal was headed for the position of most dangerous province in the country. A reasonable reader would have read the plaintiff’s statements and given meaning to them within this context, which appears from the article. As alluded to above, reasonable readers of the Sowetan would also have been aware of the plaintiff’s political position at the time, and his history of involvement in matters relating to safety and security.

[30] I am therefore of the view that a reasonable reader of the article would have understood the article to mean that the plaintiff was taking a tough stance on crime and that he was strongly advocating the use of deadly force by the police against criminals. There is no suggestion in the article that the plaintiff advocated indiscriminate use of force against members of the public by the police. On the contrary, the context is very clear – the plaintiff was talking about the need for police to take action against violent criminals. The plaintiff conceded this under cross-examination.

The 6 July article and the altered photo image are not defamatory

[31] I therefore remain of the view that the meaning of the 6 July article and the altered image are not defamatory of the plaintiff. A reasonable reader of the Sowetan, taking into account the context mentioned above, would know that the plaintiff was a high ranking politician charged with ensuring safety and security of the public in the province of KwaZulu-Natal; that he had a well-known history of involvement in matters relating to safety and security; and that the statements attributed to him, as well as the altered photo image were reported in the context of a meeting at which one of the primary topics of discussion was violent criminal activity which was affecting businesses in Umlazi township – where crime was reportedly on the increase. The reasonable reader would not “think less” of the plaintiff for taking a tough stance on crime; for calling on the police to deal harshly with criminals; and for encouraging them to use deadly force when dealing with criminals. As is apparent from the numerous articles contained in the trial bundle, there were varied responses to the stance that the plaintiff took on violent crime and criminals. Some even lauded his stance. I am accordingly of the view that the plaintiff’s claim, based on the article of 6 July 2007 read together with the altered photo image, is without merit because neither the content of the article nor the altered photo image published is defamatory of the plaintiff.

The meaning of the 16 July article and the altered photo image

[32] The plaintiff contends that the contents of the article of 16 July 2007 read with the altered photo image are per se defamatory, alternatively, would have been understood to bear the following meanings which are defamatory:

(a) That the death and killing of the individuals mentioned in the article are as a result of the statements attributable to the plaintiff;

(b) That the plaintiff is “a person with murderous intent”;

[33] I discussed in detail the meaning which, in my view, the reasonable reader would attribute to the altered photo image which was published together with the article of 6 July 2007. I am of the view that the same meaning is conveyed by the altered photo image that was published with the article of 16 July 2007 – which is that the plaintiff took a tough, no nonsense, stance against violent crime. In relation to the headline, ordinary reasonable readers of newspapers understand that headlines, by their very nature, draw attention to an article by paraphrasing and highlighting its contents through the use of a few well-chosen words or phrases. The headline does not, and is not meant to, reflect the full content or context of the article. It would, therefore, have been clear to reasonable readers of the Sowetan that the plaintiff did not give a specific ‘order’ to the police to shoot criminals as alluded to in the front page headline. The headline was merely a paraphrase of the plaintiff’s statements, which were then elaborated upon in the text of the article.

[34] The plaintiff interprets the article to mean that he specifically ordered the killing of the eight suspects. This interpretation, in my view, is contrived and unreasonable, and does not accord with how the reasonable reader would have understood the article. I accordingly reject the plaintiff’s interpretation of the article. The plaintiff’s subjective understanding of the article is, in any event, irrelevant to the determination of whether the article is defamatory of the plaintiff. What the Court must give consideration to, in determining whether the article is defamatory of the plaintiff, is whether a reasonable reader of ordinary intelligence might reasonably understand the words of the article to convey a meaning that tends to lower the plaintiff in the estimation of the members of the community.[23]

[35] As indicated, in my view the article would have been understood by reasonable readers to mean that the “use of deadly force” by the police was to be understood in the context of the tough stance which the plaintiff took against violent crime. This much is apparent from the article and, in particular, the calls which the plaintiff made to the police to, amongst other things, “aim for the head” and/or “use deadly force”. The article would, in all certainly, not have been understood by reasonable readers to mean that the plaintiff had specifically ordered the killing of the eight suspects in question or that he was in any way culpable for the deaths of these suspected criminals. Reasonable readers would furthermore not have understood this to be a statement of fact but rather an expression of opinion by the defendant, in similar vein to the opinions which other newspapers and commentators expressed in consequence of the police killings of suspects, during this period in the province of KwaZulu Natal, which the plaintiff took no objection to. As contended for by the defendant, it would have been clear to readers that, without conducting interviews with the police-officers involved in the incidents, the defendant could not have been in a position to assess the state of mind of each police officer, in the province, for purposes of concluding whether their actions were motivated by the plaintiff’s statements. Consequently, the conclusions drawn by the plaintiff in this regard are speculative and without foundation.

[36] The article could also not have been understood by the ordinary reasonable reader to mean that the plaintiff had “murderous intent”. Murder is the unlawful killing of another human being. It is clear from the article that the plaintiff’s statements were made in the context of the police response to violent criminals and did not seek to encourage indiscriminate killing. The article includes the plaintiff’s statement that the “police must not be killed by criminals” and that “once criminals pull out their guns the police must aim for the head”. Given the context of the article, reasonable readers would not jump to the conclusion that the plaintiff wanted the police to indiscriminately commit murder or kill the particular eight suspects mentioned in the article and the headline. Predictably, the plaintiff conceded that his statements were understood as directed at “violent criminals” only.

The article is not defamatory

[37] The article is not defamatory of the plaintiff as reasonable readers would not “think less” of the plaintiff for encouraging the police to take a tough stance against criminals. The articles in the trial bundle show that certain members of the media and the community applauded his tough stance and calls to the police. The article would have been read and understood in its full context. In this regard, it is notable that the article reports that the plaintiff stated, at the meeting, that he did not want the police to be killed by criminals and that the individuals who were killed by the police were alleged to be hijackers, ATM bombers, a taxi hit man and a murder and robbery kingpin – all violent criminals. It would, therefore, have been reasonable to conclude that they probably resisted arrest thus resulting in their deaths. The article also includes a statement that the province of KwaZulu Natal was engaged in a “crime war” which had also resulted in the deaths of four police officers while on duty and includes a comment from police spokesperson Vincent Mdunge in which he explains that:

“It is not our mandate or vision to kill. But there are situations which force police to use extra powers when criminals shoot at us,” he said

Mdunge confirmed that in the past few weeks police had dealt harshly with police but he denied that it was a response to Cele’s call.

He said police had a right to protect themselves against criminals even if it meant shooting to kill.”

[38] Having regard to this context, the ordinary reader of the Sowetan would not have thought less of the plaintiff even if they accepted that his comments had led or contributed to the deaths of the individuals mentioned in the article. Views may differ on whether the plaintiff’s call for the police to use deadly force was a courageous and necessary stance against crime or whether it was an imprudent position to adopt. Having regard to the content and meaning of the article, both these views are equally probable. It is settled law, in this regard, that where words or conduct are capable of more than one meaning, the courts apply the normal standard of proof in civil cases i.e. a balance of probabilities. Where an allegedly defamatory statement is equally capable of bearing more than one meaning, one that is innocent and another that is defamatory, the court must adopt the non-defamatory meaning. This principle was highlighted in Channing where the Court held that:

“Counsel for the defendants, relying, inter alia, upon Conroy v Nicol, 1951 (1) SA 653 (AD), and S.A. Associated Newspapers v. Schoeman, 1962 (2) SA 613 (AD), urged upon me the proposition that a Court dealing with a defamation case is not entitled, where the matter complained of is capable of more than one reading, to adopt a defamatory interpretation in preference to a non-defamatory one. If a newspaper article is equally capable of both types of interpretation, he argued, the plaintiff must fail. That proposition is, in my judgment, a sound one, provided that this qualification or clarification is borne in mind: the test is not whether, to the Court itself, after it has had the benefit of a careful analysis of the article, the article seems to bear one meaning rather than another, or seems equally capable of bearing both meanings. The enquiry relates to the manner in which the article would have been understood by those readers of it whose reactions are relevant to the action, and who are sometimes referred to as the ‘ordinary readers’.”[24]

In these circumstances, I am compelled to accept the non-defamatory meaning of the article. Accordingly, the plaintiff’s claim in relation to the defamatory nature of the article of 16 July 2007 must fail because the content of the article published is not defamatory of the plaintiff

The plaintiff’s dignity claim

[39] As per the joint statement, the plaintiff’s dignity claim is set out in paragraphs 12 to 14 of the particulars of claim and is limited to the altered image that was published by the defendant on 6 July 2007 and 16 July 2007, respectively. It does not include the content of the articles published on 6 July 2007 and 16 July 2007. The exact nature of the plaintiff’s dignity claim is unclear. The particulars of claim make no specific reference to an infringement of plaintiff’s dignity. The claim appears to be based on “public falsification of the personality image of the plaintiff” and “portrayal of the plaintiff’s image or likeness in a false light”. The plaintiff does, however, allege that he was humiliated and degraded by the image.

[40] The confusion regarding the plaintiff’s cause of action became even more apparent during argument, when the plaintiff failed to rely on any case authority relating to infringement of his right to dignity by way of humiliation or degradation, despite the fact that degrading behaviour, particularly where it evidences contempt for a person, may infringe a person’s dignity.[25] On the contrary, the case law relied upon by the plaintiff related solely to the unlawful use of an individual’s image in a context different from the present. The plaintiff appears, in my view, to have conflated two claims that are, in law, separate and distinct – one founded on an infringement of dignity per seand the other on the publication of the plaintiff’s image without his consent.

[41] The plaintiff contends that the altered photo image infringes upon his right to dignity. Since dignity embraces a person’s subjective feelings of dignity or self-respect, an infringement of one’s right to dignity would involve insulting that person. Thus when enquiring into whether a person’s right to dignity has been infringed, an important consideration is that it is the person’s opinion of himself, and not the opinion of others, with which the court is concerned. A claim based on an infringement of dignity is for this reason distinguishable from a defamation claim. In order to succeed in a claim based on an infringement of the right to dignity, the plaintiff must prove that the conduct concerned is wrongful. However, for the conduct to be regarded as a wrongful infringement of dignity, it must not only infringe the subjective feelings of dignity, but also be objectively unreasonable, and in conflict with the legal convictions of the community.[26] In other words, the conduct complained of must be tested against the prevailing norms of society. In Delange v Costa the Court articulated the test as follows:

“Because proof that the subjective feelings of an individual have been wounded, and his dignitas thereby impaired, is necessary before an action for injuria can succeed, the concept of dignitas is a subjective one. But before that stage is reached it is necessary to establish that there was a wrongful act… In determining whether or not the act complained of is wrongful the court applies the criterion of reasonableness – the “algemene redelikheids maatstaf”… This is an objective test. It requires the conduct complained of to be tested against the prevailing norms of society (i.e. the current values and thinking of the community) in order to determine whether such conduct can be classified as wrongful. To address the words to another which might wound his self-esteem but which are not, objectively determined, insulting (and therefore wrongful) cannot give rise to an action for injuria.[27]“

[42] It follows that although it is the subjective feelings of the plaintiff in a claim for infringement of dignity that must be considered, the court must also undertake an objective test of reasonableness. While the subjective element requires that the plaintiff must feel insulted or hurt, the objective element requires that a reasonable person would feel insulted or hurt by the same conduct and in the same circumstances. With regards to the violation of a norm that is required for wrongfulness, the “notional understanding and reaction of a person of ordinary intelligence and sensibilities” is also very important. Due to the importance of the right to freedom of expression in the South African context, it is essential to ensure that the correct balance is struck between the right to freedom of expression and the right to human dignity, with neither one being given greater importance as a general rule. Each case must depend upon its own circumstances and courts must ensure that they effect the appropriate balance between these two rights.[28] If the plaintiff is successful in establishing that he or she was hurt, a presumption of wrongfulness arises, which the defendant may rebut by way of a ground of justification[29].

[43] In line with this approach, I am of the view that the appropriate test in this case is whether a reasonable politician holding high public office would be hurt by the publication of the altered image. The plaintiff testified as follows in respect of his dignity claim: The altered image was brought to his attention by a number of people (he does not say how many) who phoned him while he was travelling overseas and informed him that they had seen a photograph of him in the newspaper carrying a firearm. He was hurt by the publication because it made him look like a “movie star” or actor. The altered image interfered with his work because, at the time, he was involved in a campaign to reduce the use of firearms amongst the youth and after the publication of the altered image, some of the youth, with whom he was working, told him that they had seen him carrying a firearm and that they too would start to carry firearms. He felt that his dignity had been lowered because “I was not depicted as the way in which I operated, but it was the opposite“. He stated that certain people told him that the body used to create the altered photo image was the body of a famous actor, and that they could no longer take him seriously. He said that this made him feel that although he was trying to do a serious job, it was being “degenerated” as playful.

[44] The plaintiff’s testimony that the altered photo image harmed his subjective feelings of dignity, because it “mixed” him, is open to serious doubt. Firstly, the reasons that the plaintiff provides to substantiate this claim are questionable at best. It is unclear why any person would feel insulted by being depicted as a movie star or as someone who is ‘playful’. The plaintiff’s claim, that the altered photo image interfered with his work and resulted in him not being taken seriously, is equally baseless, as it is highly unlikely that the mere publication of the altered image could have this effect.

[45] Secondly, when counsel for the defendant, in cross examination, drew the plaintiff’s attention to the numerous cartoons and caricatures published in other newspapers, which depict him armed, and which are accompanied by the words “shoot to kill” and other similar statements, the plaintiff categorically remarked that he had “no problem” with those cartoons. In the face of this concession, his insistence that the altered image was hurtful is disingenuous. The plaintiff, nevertheless, sought to distinguish the altered photo image from the cartoons on the basis that the altered image purports to be a photograph of him or “mixes me”. This distinction, in my view, is without merit as it would have been clear to any normal reasonable person, including the plaintiff, that the altered photo image was a manipulated image or caricature and not a real photograph of the plaintiff. In my view, an altered photo image or caricature that relies on a combination of real images is no different from a cartoon that might even combine one real feature and the others fanciful; the objective behind both types of visual depictions are essentially the same – only the medium used is different.

[46] Accordingly, it is senseless for the plaintiff to find inoffensive the numerous cartoons that convey the same message as the altered photo image, while simultaneously insisting that the altered photo image offended him. It is notable that some of the cartons published in other newspapers conveyed a more damaging message than the altered photo image, yet the plaintiff did not deem it necessary to sue the owners of those publications. In the circumstances, I find it hard to believe that the plaintiff, a seasoned public figure and politician, who was trained as a MK soldier and plainly of strong character, was subjectively hurt by the publication of the altered photo image. In the circumstances, the correct enquiry is whether a reasonable politician with many years of experience and a long history of involvement in law enforcement would have felt hurt by the publication of the altered photo image. I am of the view that a reasonable person, in the position of the plaintiff, would not have been similarly offended, particularly as the evidence shows that he had not been offended by the portrayal of him or his likeness as a “macho” law enforcement officer or sheriff, in the form of a cartoon, brandishing a gun. It makes little difference, in my view, whether he was portrayed in this way by a cartoon or an altered photographic image (caricature), as in this case. The same test applies.

[47] As discussed, the altered photo image is a parodic representation or caricature of the plaintiff using satirical elements. Satire is a form of artistic expression and social commentary. Therefore, in assessing whether the plaintiff’s dignity has been infringed by the publication of the altered photo image the court must also give consideration to the protection that our Constitution affords to artistic expression in the form of cartoons, caricatures and the like, which contribute to the exchange of ideas and opinions, and which is essential for a democracy such as ours. The right to freedom of expression in s 16 of the Constitution expressly includes the freedom of artistic creativity[30], which is generally regarded as worthy of special protection because it is a means of individual self-fulfilment and self-expression, and it generates ideas and information that contributes to the ascertainment of truth for the individual and society[31]. The altered photo image of the plaintiff was created by Mzi Oliphant, an employee of the Sowetan. It is a form of satire that would, in my view, be considered to be artistic expression as recognised by our law. It is therefore deserving of protection. In Müller v Switzerland[32], the European Court of Human Rights observed that:

“Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence, the obligation on the state not to encroach unduly on their freedom of expression.”

[48] Similarly, the United States Supreme Court emphasised the value of the visual arts as a medium of political and social commentary in Hustler Magazine and Another v Falwell[33], when it stated as follows:

“[F]rom the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate…From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.”

Closer to home, in Laugh it Off Promotions,[34] Sachs J observed that:

”parodic illustrations in satirical columns, or editorial cartoons in newspapers or magazines, or a satirical programme on TV, are likely in any open society to enjoy a large measure of protection.”

[49] Balanced against these important socio-political considerations which a caricature, such as the one in issue, serves in a democracy such as ours, plaintiff’s dignity claim in relation to the publication of the altered photo image in the Sowetan pales in significance, more particularly because the plaintiff has failed to demonstrate that he was hurt or insulted in the sense contemplated by the law. Accordingly, the plaintiff’s dignity claim falls to be dismissed.

The unlawful publication of the plaintiff’s image

[50] This then brings me to the remaining question of the publication of the plaintiff’s image without his consent or permission. The defendant accepts that the superimposed image of the plaintiff was published without his consent. In appropriate circumstances, the publication of a person’s photograph without permission is capable of constituting an infringement of the right to dignity, and actionable under the actio injuriarum. The essential elements of an iniuria are that the act complained of must be wrongful; it must be intentional; and it must violate one or other of those real rights related to personality.[35] This requires the Court to make a value judgment taking into account public policy considerations. In O’Keeffe v Argus Printing and Publishing Co Ltd and Another[36], which was an action for damages based upon a violation of the plaintiff’s dignitas where the defendants (an owner of a newspaper, and a company respectively) had used the plaintiff’s name and photograph without her consent, the Court observed that:

“Whether an act is to be placed amongst those that involve an insult, indignity, humiliation or vexation depends to a great extent upon the modes of thought prevalent amongst any particular community or at any period of time, or upon those of different classes or grades of society, and the question must therefore to a great extent be left to the discretion of the Court where an action on account of the alleged injury is brought. It will be seen that some acts which were considered injurious amongst the Romans were peculiar to their manners and modes of thought, and would hardly be considered as such at the present day.”

[51] I am of the view that the mere unauthorised publication of plaintiff’s image or likeness in the circumstances under consideration, i.e. where a politician’s image has been used to create a caricature for purposes of commenting on his or her public statements on issues that are in the public interest, and not for commercial purposes, would not be considered wrongful. Having regard to the importance of striking the correct balance between the right to freedom of expression and the right to dignity, public policy dictates that in these circumstances the defendant should not be held liable for publishing the photographic image (albeit altered) of the plaintiff.

[52] At the time that the picture was published, plaintiff was a well-known public figure and politician, who was regularly photographed by the press. As indicated earlier, the media was replete with images of the plaintiff. Public figures, politicians and celebrities, such as the plaintiff, knowingly lay themselves open to public scrutiny and forthright criticism by journalists and the public at large. They must consequently display a greater degree of tolerance to criticism than ordinary individuals. Where a picture of a public figure, such as the plaintiff, accompanies an article that is of public interest as it relates to the use of “deadly force” in curbing violent crime in the province of KwaZulu Natal, it can hardly be argued that the publication of the photograph without the consent of the public figure is unlawful. It is important, in this regard, to bear in mind the difference between the publication of a photographic image, such as in this matter, and the publication of the photographic image, in issue, inO’Keeffe[37], which is relied upon by the plaintiff. In O’Keeffe, the plaintiff complained that her photograph had been used in an advert without her consent. Whilst the court held that this was an aggression against the plaintiff’sdignitas, it made this finding in the specific context of the photograph being used for advertising purposes. The plaintiff’s reliance upon O’Keefe is accordingly misplaced. So too is its reliance on the decision of Wells v Atoll Media (Pty) Limited and Another[38], which concerned the publication of a photograph of a 12-year-old girl wearing a bikini with the caption “only 100% pure filth” written over the picture. The image of the 12-year-old girl was described as being a “pinup photo” which was “provocatively taken and used apparently ‘to spice up’ the magazine.“[39] Although the court commented obiter that “the appropriation of a person’s image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned“[40], the matter was in fact decided under the law of defamation, and it was not necessary to consider whether any other personality right had been infringed.[41] Significantly, the photograph was used for commercial purposes, which is distinguishable from the current matter.

[53] O’Keeffe and Wells required there to be a commercial interest at play, which is not so in the present matter. Moreover, neither O’ Keefe nor Wells dealt with a situation where a photographic image was altered before publication. Furthermore, neither of these cases considered the way in which the position may be affected in instances where the subject is a public figure and politician, such as the plaintiff. In this regard, the dictum inO’Keeffe is apposite:

“[N]ot necessary for me in the present case to hold, and I do not hold, that this is always so. Much must depend upon the circumstances of each particular case, the nature of the photograph, the personality of the plaintiff, his station in life, his previous habits with reference to publicity and the like.[42]“

Viewed against the background that the plaintiff was a seasoned politician and public figure who regularly courted public attention and controversy on important public interest issues such as violent crime and the appropriate response of the police to such crime, and that he has failed to prove that any of his personality rights have been violated, the publication by the defendant of the plaintiff’s image (albeit altered) in the Sowetan without his consent was not unlawful.

Conclusion

[54] For the reasons stated above, the plaintiff’s defamation claim falls to be dismissed. The altered photo image and the articles published on 6 July 2007 and 16 July 2007 are not defamatory of the plaintiff. Similarly, the plaintiff’s alternative claim based on dignity falls to be dismissed. The plaintiff has failed to make out a case that his right to dignity has been infringed by the publication of the altered photo image of himself.

[55] In the result, I make the following order:

(1) The plaintiff’s claim is dismissed.

(2) The plaintiff is ordered to pay the defendant’s costs.

F KATHREE-SETILOANE

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

Counsel for the Plaintiff: Mr TG Madonsela

Attorneys for the Plaintiff: Strauss Daily Inc

Counsel for the Defendant: Mr H. Maenetje SC

Attorneys for the Defendant: Webber Wentzel

Dates of hearing: 1, 3, 6 and 10 February 2012 and 10 October 2012

Date of Judgment 14 February 2013

Footnotes:

[1] The plaintiff originally sued New Africa Publications Ltd, the erstwhile owner and publisher of the Sowetannewspaper. Subsequent to the issuing of the summons, New Africa Publications had been wound up and theSowetan is currently owned and published by Avusa Media Limited. There has been a substitution of New Africa Publication by Avusa Media Limited. (notice of substitution, dated 21 August 2012)

[2] Paragraphs 16(a) and 16(c) of the plaintiff’s particulars of claim

[3] Neethling, Potgieter and Visser, Neethling’s Law of Personality 2^nd ed, 2005 at 131

[4]The defendant withdrew its defence of jest at the hearing of argument, as well as the defence of fair comment in relation to the 6 July 2007 article.

[5] Milo et al Freedom of Expression in Woolman et al Constitutional Law of South Africa at OS 06 08,Chapter 42 at 85

[6] 2002(8) BCLR 771 (CC) at para 28

[7] Khumalo v Holomisa at para 18

[8] Le Roux and Others v Dey 2011 (6) BCLR 577 (CC)

[9] Hardaker v Philips 2005(4) SA 515 (SCA) at 14

[10] Le Roux at para 89-91

[11] 1945 AD 22

[12] 1996 (3) SA 470 (W)

[13] Channing at 474A-C. Quoted with approval in Mthembi-Mahanyela at para 26

[14] 1949 (4) SA 150 (C) at 159

[15] Le Roux v Dey at para 104

[16] Own emphasis

[17] 1989(2) SA 857 (A) at 861-862

[18] 1992(3) SA 579(A) at 588F

[19] Crawford v Albu 1917 AD 102 at 105

[20] Mthembi v Mahanyele 2004 (6) SA 329 (SCA) at para 67

[21] Pienaar v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (T) at 322

[22] Golding v Torch Printing and Publishing Co (Pty) Ltd and Others 1949 (4) SA 150 (C) at 167

[23] Channing at 476A-C

[24] Channing at 473C-E

[25] See Innes v Visser 1936 WLD 44; Tiffen v Cilliers 1925 OPD 23 at 31; Jacobs v Waks 1992 (1) SA 521 (A) at 541-542; Ramsay v Minister van Polisie 1981 (4) SA 802 (A)

[26] Neethling, Potgieter and Visser, Law of Personality, 2^nd edition, Durban, at 195

[27] Delange at 862

[28] Khumalo v Holomisa at para 27-28

[29] Neethling, Potgieter & Visser (2010) Law of Delict 6^th edition, Durban, at 347

[30] S 16(1)(c) of the Constitution

[31] P Kearns ‘The Neglected Minority: The Penurious Human Rights of Artists’ in R Banaker (ed), Rights in Context: Law and Justice in Late Modern Society (UK: Ashgate, 2010) 83 at 95

[32] Müller and Others v Switzerland (1991) 13 E.H.R.R. 212 at para 33. See also Vereinigung Bildende Kunstler v Austria, ECHR (Application number 68354/01, 25 January 2007) at para 26 and 33

[33] 485 U.S. 46, 108 S.Ct. 876 at para 16

[34] Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of

Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) at para 87

[35] R v Umfaan 1908 TS 62 at 66

[36] 1954 (3) SA 244 (C) at 248

[37] O’Keeffe v Argus Printing and Publishing Co Ltd and Another 1954(3) SA 244 (C) at 247F and 249A

[38] 2010 JDR 0041 (WCC); [2010] 4 All SA 548 (WCC)

[39] Wells at para 47

[40] Wells at para 49

[41] Wells at para 46

[42] O’Keeffe at 249D

What do we really mean when we say “never again”?

Feb 13th, 2013

by Pierre De Vos.

1 comment

The Holocaust Centre in Cape Town is hosting an exhibition entitled In whom can I trust? It depicts the persecution of homosexuals in Nazi Germany in all its many facets. This is a slightly edited version of the talk I gave at the opening of this exhibition on Tuesday 12 February 2013. – Pierre de Vos

The South African Constitution is in many ways a historic and inspirational document. As you all know, it was the first justiciable Constitution in the world to include an explicit textual prohibition against sexual orientation discrimination in its Bill of Rights. Because of the progressive way in which our Constitutional Court has interpreted this specific provision, South Africa’s anti-discrimination and pro dignity constitutional jurisprudence affecting those of us who are gay, lesbians, intersex or transgender is held up around the world as an example to be admired and followed. This guarantee holds immense promise. On paper, it affirms – both as a practical matter and on a symbolical level – our equal status, our moral citizenship and our sense of self-worth. In the Constitutional Court judgment declaring invalid the criminal prohibition on voluntary same-sex sodomy Justice Albie Sachs provided an expansive definition of what this promise of equality should entail especially for members of the LGBTI community:

(Incidentally, I suspect his judgment is probably the first and only court judgment in the world which opens with these words: “Only in the most technical sense is this a case about who may penetrate whom where.”) That’s Albie for you! In any case, what Albie Sachs wrote in that judgment as that:

equality should not be confused with uniformity; in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

This is the promise made by our Constitution: the establishment of a society in which difference is celebrated; a society in which none of us ever have to pretend to be what we are not, merely to fit in and to avoid stigmatisation, discrimination, abuse and physical violence; a society that allows us to live our lives as we please; a society that allows us to interpret and continuously to re-interpret what our sexual orientation (and the many other aspects of our identities) mean for us and for how we wish to live our lives with dignity and respect.

That is quite a promise, I would say?

I suspect that some of us present in this room are lucky enough to go about living our daily lives almost feeling as if this promise has already been fulfilled. I know I do. Our race, our class our gender our education, the support of family and friends, a healthy self-image, a steady job in a friendly environment, and many other factors help to insulate us from some – if not always all – the realities faced by fellow LGBTI South Africans.

But even those of us who are privileged in so many ways must surely know that the reality is quite a bit different for most South Africans and that we are far from achieving the society promised by our Constitution. As this exhibition (and recently also the media, who seems to finally have discovered that there is a rape epidemic in South Africa), as they remind us: it is not safe to be a women in this country; it is not safe to be a lesbian women in this country; in fact, it is often not safe to be any kind of Other in our society in which respect for difference is at best professed by politicians and others shouting empty slogans, but in which respect for difference is seldom lived. There are often so many words, but so few actions to back up the words.

As I said, for many the gap between the soaring Constitutional Promise highlighted above and the lived reality of everyday life is vast. There are many complex and often interlinking reasons for this and it is beyond the scope of these brief remarks to try and highlight all these reasons. One obvious reason is that the Constitution is based on a set of normative commitments (or values, if you will) that do not yet live in the hearts of a majority of South Africans. One of the major tasks faced by our society is to begin to address this gap between the values enshrined in the Constitution and what people believe and how their beliefs influence the way they act. This needs to be done by first challenging and then changing toxic attitudes and beliefs (as well as the structures which create and perpetuate these toxic attitudes and beliefs) that cannot be squared with the promise of the Constitution.

I happen to think that one of the many ways in which we can begin to do this work is by revisiting our past and by coming to a better understand of, and then promoting, a more nuanced and multifaceted understanding of what made our past so horrific. South Africa’s Constitutional Court often invokes our apartheid past when it interprets the provisions of the Constitution. In many judgment the Court has argued that one way to view this Constitution is to see it as a document that acts as a prophylactic – a condom of sorts – to protect us against repeating the mistakes of the past and to ensure that we never again – through our active participation or our passive acquiescence – allow any sector of society to be dehumanised and oppressed. We can only understand what the Constitutional provisions mean if we understand what past horrors these provisions are trying to prevent from reoccurring.

This is a powerful and important narrative. Given the strong hold that the apartheid narrative has on our imaginations, the narrative of “never again” has the potential to speak to people and to their own lived experience. But never again, what? Never again a form of racial oppression in which white supremacists dehumanised, discriminated and oppressed the black majority, yes. This is a horrible memory we still live with and, I fear, that many white South Africans too easily dismiss as something of the past that should be forgotten. Instead of forgetting the past we should remember it, should insist that it never be forgotten. Because if the Constitutional Court is correct that our Constitution is ultimately a document that – interpreted and understood with the correct kind of historical self-consciousness – protects us all from repeating the unspeakable errors of the past, this kind of continuous remembering is an important weapon against tyranny and evil.

It seems to me what this exhibition reminds us of is that when we remember the past injustices, we run the risk of doing so selectively. How is it possible that I only discovered during my Phd studies that homosexuals were also persecuted in Nazi Germany? Some forms of injustice are difficult to identify because they reflect the attitudes of a time or assert the beliefs of the powerful or the dominant. In current day South Africa those who wish to justify the continued sexism homophobia, prejudice against people living with HIV, and xenophobia in society (to name but a few), would have a tendency to forget – a kind of wilful forgetting – yes, forget the way in which women and gay men and lesbians and HIV positive people and foreigners have been marginalised, dehumanised and oppressed in the past.

Conversely, those of us – comfortable in our middle class gay and lesbian existence – might find it difficult to make common cause with oppressed people who do not share our class or race or gender background, and run the danger of forgetting that the oppression and sometimes persecution of gay men and lesbians during the apartheid era was not the only form of oppression that we should ensure never re-occurs. I am often shocked when a gay man says sexist things or when a white homosexual turn out to be a racist. Shocked but not surprised.

The challenge, so it seems to me, is really to try and remember a different kind of past. Or perhaps to discover a different kind of past that we never really knew existed, an uncomfortable past, a past in which we might have been both oppressor and oppressed. I love quoting Evita Bezuidenhout who said, speaking about the Truth and Reconciliation commission and the moral amnesia of many white South Africans: “The future is certain, it’s the past that is unpredictable.” We will not begin to narrow the gap between the promise of the Constitution and the lived reality of people if we are not prepared – all of us – to confront our own unpredictable past. And once we have confronted this past, instead of retreating in shame into silence, to make common cause with others and to act, to the best of our abilities and in whatever way we believe is strategically wise, in order to challenge and fight the many different kinds of prejudices and forms of oppression in society.

Smuts SC: Submission to Parliament on Legal Practice Bill

Feb 13th, 2013

by Pierre De Vos.

1 comment

Izak Smuts SC, Submission to the Parliamentary Portfolio Committee Regarding the Legal Practice Bill, Cape Town, February 11 2013

The constitutional context of the Legal Practice Bill

1. As with all post-democracy legislation, the Legal Practice Bill (LPB) must comply with the principles, prescripts and spirit of the Constitution. Section 1(c) of the Constitution provides that the Republic of South Africa is founded inter alia on the values of supremacy of the Constitution and the rule of law. Section 165(1) of the Constitution, which lays the foundation for an independent judiciary, provides that the courts are independent and subject only to the Constitution and the law.

The independence of the legal profession in the context of the rule of law

2. The International Bar Association (IBA), in its resolution on the rule of law adopted in September 2005[1], recorded inter alia, the following:

“An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportional approach to punishment, a strong and independent legal profession, strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law” (my emphasis).

3. In his 2009 commentary on the resolution, Francis Neate, co-chair of the IBA Rule of Law Action Group[2], stated the following regarding the separation of powers:

“The Rule of Law does not seek to diminish the power of the State. It seeks merely to assure its proper exercise. This is achieved by separating those who make the law (the Legislature), those who interpret and apply the law (the Judiciary) and those who have the power to enforce it (the Executive), each from the other. No-one has yet come up with a better formula. The three branches of government are not inherently hostile to each other. They work together under the Constitution and the Rule of Law, and at times their functions overlap. But the separation of their essentially different constitutional tasks must be jealously guarded.

The independence of both the Legislature and the Judiciary is, therefore, a fundamental requirement of the Rule of Law. …

In addition, an independent Judiciary requires an efficient, functioning court system and a strong, independent, properly qualified legal profession to support it. An independent legal profession is also fundamental to the maintenance of citizens’ rights and freedoms under the Rule of Law, so that they are guaranteed access to independent, skilled, confidential and objective legal advice. Similar principles are required to protect the independence of the legal profession as for the Judiciary.” (my emphasis).

4. This commentary is consonant with the views contained in the preamble to the IBA Standards for the Independence of the Legal Profession adopted in 1990[3], which records the following:

“An equitable system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restrictions, pressures or interference, direct or indirect is imperative for the establishment and maintenance of the rule of law.”

5. The link between the independence of the legal profession and the independence of the judiciary is appropriately reflected in the Commonwealth (Latimer House) Principles on the Three Branches of Government agreed by the Commonwealth Law Ministers and endorsed by the Commonwealth Heads of Government Meeting at Abuja, Nigeria in 2003[4]. South Africa was a party to the adoption of the principles. Under Objective IV of the principles, relating to the independence of the judiciary, the principles record the following:

“An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.”

6. Given the constitutional values of the supremacy of the Constitution and the rule of law, and the constitutional requirement of an independent judiciary, it is necessary to consider the provisions of the LPB to determine whether those provisions pose any threat to or restriction of the independence of the legal profession.

To the extent that the LPB does so, it will, in consequence of the concomitant undermining of the rule of law and independence of the judiciary, not meet constitutional scrutiny. This consideration is quite apart from a potential violation of the rights guaranteed in section 18 of the Constitution to freedom of association, in section 22 freely to choose one’s trade, occupation or profession, and in section 25 to be protected against the arbitrary deprivation of property, all of which are contemplated in the LPB.

The existence of two legal professions in South Africa

7. It is not a prerequisite for the operation of a legal system under the rule of law that there be two legal professions, as there are in South Africa. Through a combination of fate and history, that is, however, the prevailing state of affairs in this country. The common law recognises that fact. Existing statute law recognises that fact. And the Constitutional Assembly, which must be taken to have been aware of that common law and statute law position, recognised that fact when drafting and approving the Constitution.

In consequence, in determining the component elements of the Judicial Service Commission, the Constitutional Assembly recognised and provided representation for the two professions of advocates and attorneys in the provisions of section 178(1)(e) and(f) of the Constitution when it required the Judicial Services Commission to include two practising advocates nominated from within the advocates’ profession to represent the profession, and two practising attorneys nominated from within the attorneys’ profession to represent that profession.. In this country, accordingly, there are two legal professions.

Historical development of the bill

8. It is important to note that, over the more-than-a-decade-long evolution of the LPB, a document has emerged which originated in a quest for a “united” legal profession, and which originally envisaged the fusion of the constitutionally-recognised separate and independent professions of advocates and attorneys, under the control of a single regulatory authority. That authority was to exercise the control vested in it by a single act of parliament, over all persons and bodies working in the legal arena, including advocates, attorneys and paralegals.

9. As discussions and negotiations took place over many years, a new approach has developed. The current draft of the LPB recognises the separation of the professions of advocates and attorneys set out above, and has excluded from its ambit the operation of paralegals. Yet it clings to the idea of the “unity” of “the legal profession”, under a single regulatory authority, and the LPB accordingly retains the ghost of fusion of the two professions in itsstructure, while purporting to recognise two professions in practice. There remains no philosophical or rational underpinning of this quest for the imagined “unity” of one legal profession in this country while recognising the legitimate and indeed constitutional existence of two professions.

10. In the light of the more recent and inevitable recognition of the need for, and right of the advocates’ profession to continue to operate as a separate profession, I suggest that the authors of the LPB may legitimately be required to justify the contention inherent in the framework of the LPB that a single regulatory authority, which was postulated as the vehicle designed to merge the advocates, attorneys and paralegals into one body, remains an appropriate institution now that the LPB has developed to the extent that the it recognises the need for the retention of the two separate professions.

11. There is a further compelling reason to question the promotion of this over-arching single regulatory body which the LPB promotes to take charge of the separate professions operating within the South African legal framework. The proposed structure in the bill echoes that which emerged in consequence of the Clementi report in the United Kingdom, which led to the establishment of an over-arching regulatory authority in the form of the Legal Services Board (“LSB”). In that model, the Legal Service Act provides for two subordinate specialised regulators – the Bar Standards Board and the Solicitors Regulation Authority, which are the first-tier regulators of the two professions. In that respect at least, the English Act constitutes a better arrangement than the proposed South African model, which makes no provision for separate regulatory bodies for the two professions at any level.

12. The model in the United Kingdom has been in operation for just over half a decade. It has proven itself to be a failure. No wonder then that Baroness Deech, the chair of the Bar Standards Board, cautioned authoritatively at the World Bar Conference in London in June 2012, which I attended, against such an over-arching authority.

At the Middle Temple conference in Franschoek in September 2012, which I attended, she issued a simple warning to“those of you contemplating establishing a super-regulator – don’t”. I would strongly recommend that the portfolio committee seek an interview with Baroness Deech so as to ascertain the reasons for her opposition to the “super-regulator”. It appears logical and sensible to ascertain the pitfalls of the proposed model from practical experience before the administration of justice in this country is subjected to the proposed model.

13. No wonder either that Michael Todd QC, the retiring chair of the Bar Council of England and Wales, at the end of his term of office, in November last year stated “I think there is a very good case for disbanding the overarching regulator”, and criticised the “burdensome costs” it was creating for barristers, their clients and the public purse[5].

14. One may ask why, when a model has been tested and has failed elsewhere, we should seek to repeat that experience and condemn a generation of South Africans to a local experiment in pre-destined failure before we try to claw back what we have lost. In the area of legal practice, what is proposed is, as I shall argue hereunder, a decimation of our profession on a scale which is unlikely to permit of any clawing back.

The independence of the legal professions, and in particular, the advocates’ profession

15. At the eighth United Nations Conference on the Prevention of Crime and the Treatment of Offenders held in 1990, a document entitled
“Basic Principles on the Role of Lawyers” [6] was adopted, which recorded in its preamble that the principles set out in the document:

“which have been formulated to assist Member States in their task of promoting and assuring the proper role of lawyers, should be taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers, as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general.”

I commend these principles to the portfolio committee.

16. Under the marginal heading “Professional associations of lawyers”, the following principles appear at paragraphs 24 and 25:

“24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training, and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized international standards and norms.”

17. In a policy document adopted by the IBA in 1990, entitled the “IBA Standards for the Independence of the Legal Profession” (the standards document)[7], the IBA recognised that the independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights, and that professional associations of lawyers have a vital role to uphold professional standards and ethics, to protect their members from improper restrictions and infringements, to provide legal services to all in need of them, and to co-operate with governmental and other institutions in furthering the ends of justice.

18. Clause 17 of the standards document records the following:

“There shall be established in each jurisdiction one or more independent self-governing associations of lawyers recognised in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.” (my emphasis).

19. The LPB proposes the disestablishment of existing law societies and Bar associations, and imposes an obligation on the professions to negotiate the transfer of the assets, liabilities and staff of the professions to a transitional legal practice council.

Even if it were to be contended that these proposals in theory permit of the establishment of new professional associations to bring us in line with previously cited international norms, the reality is that, once the existing voluntary societies of advocates have been disbanded and their assets and staff removed, the prospect that new voluntary associations will be brought into being are remote, particularly in the light of the fact that the governance functions which are currently performed by the existing bodies will have been transferred to involuntary, statutory bodies.

Because it fails to distinguish between regulation of the legal professions and their governance, the LPB proposes to empower the Minister to issue regulations on a host of issues which will constitute precisely the kind of interference in the independence of the professions deprecated in the international instruments cited above.

20. In addition to the threat posed by the LPB to the independent practice of law in general, the independence of the advocates’ profession is further compromised by the proposal – also made in earlier versions of the LPB – that it should be regulated by a body composed of a majority of attorneys (the other profession) and three representatives of the Minister of Justice and Constitutional Development.

I was reminded at the World Bar Conference in London last year by a former leader of the General Council of the Bar of South Africa (GCB) that, at a time when he had served on the council of the IBA, an application for membership of the IBA by an Eastern Bar which was required in terms of its constitution to report annually to its government was rejected on the basis that it did not represent an independent profession.

21. What awaits us when we are governed by a council of 21 of whom 15 are not our members, five are not required to be practising lawyers, three directly represent the executive authority in the country, and when the Minister is empowered to dissolve that council if he sees fit?

It must be remembered that there is a cardinal difference between the approach adopted in the current GCB proposals and that prevailing in the UK situation – the Bar Council of England and Wales was not deprived of its independence and replaced by a statutory body. To do so as the LPB proposes, would remove us from the ranks of independent legal professions in the world, and would undermine the rule of law and the independence of the judiciary. It is unconstitutional and cannot not be permitted.

22. A further threat to the independence of the professions lies in another recurring feature, the proposed office of the Ombud as contemplated in Chapter 5 of the LPB, not because such an office cannot play a constructive role, but because there are grave questions behind the independence of that office in the form in which it is proposed.

The Ombud is afforded extensive powers, including disciplinary appeal powers, from which it appears there would be no further appeal. The Ombud is appointed by the President for a period determined by the President, may be suspended from office by the President, is required to report to the Minister, and is reliant upon the executive for her/his salary and funding. While conceptually a potentially positive innovation, the current proposal for the office of the Ombud would not establish an independent arm of regulation of the professions.

23. In an address delivered to the Cape Law Society on 9 November 2012 b the late former Chief Justice Arthur Chaskalson, under the title “The rule of law: The importance of independent courts and legal professions”[8], the following cautionary words are recorded:

“The legal profession has a duty to itself and to the people of our country to do all that it can to protect its independence. That involves ensuring that its rules and practices are in the public interest and facilitiate access to courts by the public and in particular by those whose need is the greatest, by promoting the culture of independence and professionalism in practitioners, by explaining to the general public the role of an independent legal profession in protecting democracy, and by raising its voice against measures calculated to erode that independence. The Legal Practice Bill in its present form is such a measure.”

24. Although a portion of this quotation appears in the submission of the GCB, the representatives of that organisation have, regrettably, not taken heed of the the charge conveyed to them by the late Chief Justice to protect the independence of the advocates’ profession. It is for that reason that this submission has been prepared.

The cost implications of the LPB

25. From the outset of the LPB project, through various draft bills all intent on controlling the legal professions, the issue of a lack of reflection on the cost of the proposals has repeatedly been raised. If the LPB were a policy proposal in any business venture, the first question would, very responsibly, have been – what will it cost? We have no idea.

There has not been any published attempt to cost the LPB. What we do know is that the legal professions are to be regulated in terms of this proposal, and that there will be a national legal practice council and regional legal practice councils beneath it. They will require staff, office accommodation and equipment, and running expenses. The responsibilities envisaged for these councils are extensive. Many of those responsibilities that affect the advocates’ profession are currently discharged on a voluntary basis by our members, at their own expense and in their own time, in an effort to promote the profession we value and seek to develop.

26. It is absolutely essential that a proper costing of the structures envisaged in the bill be done before its adoption is even contemplated. The experience in the UK has been that, even where some attempt was made to cost the operation of the new bureaucracy, it was hopelessly under-estimated. It is one of the complaints raised by the Bar of England and Wales which, there is little doubt, will inevitably be repeated here. There is no provision contemplated that the fiscus will foot the bill for the proposed bureaucracy.

Advocates and attorneys will have to bear that cost. Inevitably, given the disparity in numbers, advocates, who are significantly in the minority amongst the legal practitioners in the professions, will be subsidising attorneys, and the bureaucratic administration of aspects of attorneys’ practice which have no bearing on the practice of advocates. The cost will have to be passed on to litigants. The professed intention in the LPB to address the cost of litigation, and thereby access to justice, will be defeated, as counsel will have to increase their fees to be able to afford to subsidise the bureaucracy. I deal with the other consequential effects on the advocates’ profession hereunder.

The ‘marketing’ of this version of the LPB

27. I am advised that the public announcement of the current version of the bill was motivated substantially on the premise that the bill in its current form was essential to facilitate control over the cost of litigation. Some may suggest that this is an anti-competitive practice. But not in South Africa. When the then newly elected executive committee of the GCB met with the Minister of Justice and Constitutional Development in August 2009, a meeting that I attended, the Minister raised with us his concern about legal fees.

The then deputy chair of the GCB, who is now a judge of the High Court, advised the Minister that, whereas the constituent Bars had, in past years, published recommended fees guidelines for various categories of our members, the Competition Commission had indicated that, in terms of government policy, this was regarded as an anti-competitive practice, and the Bars were required to desist from this practice. This, recorded the deputy chair, bound our hands in seeking to regulate what fees were being charged by counsel within our ranks.

28. When the Minister queried this state of affairs with the then head of his department, Mr Menzi Simelane, who had recently served with the Competition Commission, he was adamant that our guidelines on reasonable fees constituted anti-competitive practice. The Minister instructed Mr Simelane to take the matter up with the Competition Commission.

The matter was not raised again with the GCB until legal fees were mentioned at the announcement of the current version of the bill as a motivation for its necessity. If government policy does not allow the advocates’ profession to regulate the fees of our members, because such regulation is anti-competitive, it is disingenuous to say that government policy requires this bill to regulate those fees, particularly when the bill then empowers the consumers of our services – the attorneys – to determine those fees. What happened to anti-competitive practice?

What is to be done?

29. The Constitution provides for professions to be regulated. And so they should be. The advocates’ profession has been tarnished by the fact that, contrary to previous experience, increasing numbers have seen fit to commence practice as advocates outside of the ambit of the GCB and its affiliate bars because there is no legal prohibition on their doing so, and increasingly with an inferior qualification.

30. But we, as a profession the members of which have participated actively and committed many hours to the preparation of draft proposals concerning the LPB, are entitled to know why the Department of Justice and Constitutional Development has withdrawn from the consensus previously reached with it whereby such regulating authority as was to be established would accredit professional associations such as ours, that would train and qualify, and thereafter govern their members, in accordance with internationally established and recognised practice.

31. We have been given no reason why that previously agreed approach has become unacceptable. There is no explanation why that approach, which is applied very successfully in the auditors’ profession in terms of new order legislation (the Independent Regulatory Board for Auditors has the power under section 5 of the Auditing Profession Act No 26 of 2005 to accredit professional bodies, and has accredited the South African Institute of Chartered Accountants), has now been rejected. That proposed structure is logical and constructive.

32. Furthermore, there is no rational justification, once the existence of two legal professions is inevitably recognised, as it now is, why a one-size-fits-all model of regulation should be introduced for the two professions. I propose the adoption of a Legal Practice Act that recognises appropriately the independence of the advocates’profession, as the Constitution does, and establishes a regulatory body for that profession, which may accredit professional bodies that meet the regulatory requirements determined by the Act and the regulatory body, permitting such accredited bodies the right of self-governance within the ambit of the Act.

If there is believed to be a need for individuals from outside the ranks of advocates to serve on such regulatory body, why not retired judges, who have insight into the functioning of the profession, rather than what a former leader of the bar from the ranks of Advocates for Transformation has described as “the Minister’s spies”? Under such circumstances, there would be far less scope for the prospect of improper interference in the profession. Whatever body is established should assist in the regulation of the profession, but should not be charged with governing it. That is the prerogative of the voluntary professional associations.

What may happen if the LPB is implemented in its current form? (the law of unintended consequences)

33. The LPB aims to dissolve our voluntary associations as they currently exist, and seeks to expropriate our assets, and transfer the responsibility of training members of the advocates’ profession and the governance of that profession to a body in which we are in the minority. I suspect that I will not be alone in being reluctant to render voluntary service in training new members for admission to a profession which is state-controlled, especially when I will be required to commit a significant portion of my income to subventing state-serving bureaucracy.

It is not apparent where the Legal Practice Council will find advocacy trainers, pupil mentors and lecturers in such a dispensation, unless they offer competitive remuneration. All of this will cost the LPC a great deal of money, which it will have to source, at least partially, from advocates. The cost of practice, and inevitably, the cost of litigation, will increase. The LPB will accordingly not promote access to justice, but impede it.

34. The advocates’ profession is constantly criticised for slow progress in the transformation of its demography. The nature of an advocate’s practice is financially burdensome – we practice as individuals, and there are no partners to share expenses. In addition, after an extended period at university, pupillage for a period of one year comes without remuneration, and it is only thereafter that advocates may hope to earn fees. Many new practitioners with talent and commitment find the early years of practice a financial burden too hard to bear, and leave the profession in consequence. Those who come from financially challenged backgrounds face an uphill struggle. The proposed structures will impose a greater burden on all practitioners. Inevitably, a greater proportion will fail. Transformation will not only be further retarded, but will probably regress.

35. Advocates who are required to bear the additional and as yet unquantified burden of financing the new bureaucracy will be compelled to increase their fees to survive. That is the empirical evidence to be drawn from the failed UK experience. How will the expressed purpose of improving access to justice as contemplated in the bill be achieved, when the cost of legal services will necessarily be increased?

36. There is a very real risk that, given the increased financial burden that implementation of the bill in its current form must inevitably occasion, the current practice of voluntary subsidy by more senior advocates of the rental and other practice expenses of junior members of the profession in the early phase of their careers will be reduced or disappear in a profession which would now to be governed by a statutory authority, rather than by a voluntary association in which professional values have been developed and nurtured over many decades.

There is no reason to believe that, compelled to focus on increasing income to facilitate the functioning of the bureaucracy, the current practice of investing in the development of the advocates’ profession because it is something in which we believe, will not be undermined, and replaced in no insignificant measure by the drive to maximise income. This is likely to lead to the formation of a few super groups of already established and successful counsel seeking to attract as much as possible of the lucrative work remaining at the Bar, and necessarily undermining the opportunities and support currently available to beginner members of the Bar. The potential threat to meaningful transformation of the Bar is clearly apparent. The LPB will accordingly not promote access to the advocates’ profession, but impede it.

37. The LPB in its current form poses a threat to a number of its own expressed objectives. It will destroy the bar as we know it, which would be a great disservice to our new democracy, and a violation of the Constitution.

38. Unstated in the promotion of the current bill is the underlying Thatcherite/Blairite philosophy that consumerism is everything, and that there is no difference between the rendering of professional services and the selling of a hamburger. That is the message contained inter alia in the marketing drive that the bill is a mechanism for controlling legal costs. As articulated above, it is government policy that refused our profession the right to regulate fees.

The purported motivation for promoting the LPB on the basis of a need to control legal fees is thus an excuse, and not a reason for seeking to control our profession. The consumerist approach to professional regulation ignores the fact that there may be, and in this instance, certainly is a distinction between consumer interest and the public interest – the cheapest legal services are worth nothing in a state-controlled advocates’ profession where members of a Bar that is not independent may be called upon to protect the public against invasions of their rights by organs of state.

39. We may learn from the message of Dame Helena Kennedy, recently appointed co-chair of the Human Rights Institute of the IBA, in her analysis of this trend in the UK[9].

“There are some areas of our lives – including the justice system – where a reliance on economic drivers or populist desires creates distortions, injustice and outcomes that take no account of the common good. Justice is not a commodity.”

40. The introduction of a regulatory statute provides an opportunity to improve the administration of justice by creating a model for constructive regulation of the legal professions. In its current format, however, it is likely to do incalculable harm to those professions, and certainly to the advocates’ profession.

Status of the author of these submissions

41. I am an advocate in private practice in Grahamstown, Province of the Eastern Cape, where I have practised as such since July 1982. I have, over various periods, served on the Bar Council of the Eastern Cape Society of Advocates, serving as its chair in 2008. I served on the executive committee of the General Council of the Bar of South Africa (GCB) from July 2010 until this morning, and represented the GCB at the meetings of the Council of the International Bar Association (“IBA”) at the annual general meetings of that association in Dubai in 2011 and Dublin in 2012. I have been involved in the advocacy training initiatives of the GCB since 1996, serving as chairman of the Eastern Cape advocacy training committee from 1999 – 2006, and teaching at advocacy training courses in the Eastern Cape, Johannesburg, KwaZulu-Natal and Stellenbosch. In addition, in consequence of the interaction between international Bars on the advocacy training front, I have taught on advocacy training courses in Oxford, Northampton and Hong Kong.

42. I set out the above summary merely to illustrate that I have some experience of the advocates’ profession both in South Africa and abroad. I wish to stress that I make these submissions in my personal capacity only. In my then capacity as deputy chairman of the GCB, I attended a meeting of the executive committee of the GCB held in Centurion over the weekend of 2/3 February 2013, which was convened to finalise a submission to be made on behalf of the GCB.

By the end of that meeting it had become clear that the proposal to be submitted on behalf of the GCB would result, as a necessary consequence, in the termination of the existence of the GCB and its constituent Bars as voluntary associations. It was further made clear to me that I could not make alternative submissions in support of the independence of the advocates’ profession and the continued existence of the voluntary associations of advocates while I occupied the position of deputy chairman of the GCB. I have consequently resigned from that position this morning, in anticipation of my presentation of this submission.

43. It must accordingly be understood that these submissions are my own, but premised on the experience and insight I have gained into the advocates’ profession over more than three decades of practice and administrative commitment. I am grateful to experienced and concerned colleagues for the time they have taken to provide comment on the text of this submission. The responsibility for the content thereof remains exclusively mine.

Izak Smuts SC

Equity House Chambers,

GRAHAMSTOWN

11 February 2013.

Footnotes:

[1] Available at www.ibanet.org/Document/Default.aspx?DocumentUid…a0d7…

[2] Available at www.ibanet.org/Document/Default.aspx?DocumentUid…BD4A…

[3] Available at www.ibanet.org/Document/Default.aspx?DocumentUid…fd1f…

[4] Available atwww.cmja.org/downloads/latimerhouse/commprinthreearms.pdf

[5] Published in The Law Gazette of 12 November 2012, accessible at www.lawgazette.co.uk/news/lsb-must-be-go-now-says-bar-council-chief

[6] Accessible at www2.ohchr.org/english/law/lawyers.htm

[7] Available atwww.ibanet.org/About_the_IBA/IBA_resolutions.aspx

[8] Published inter alia in “Advocate” Volume 25, number 3, December 2012 at pages 51 – 55

[9] Article entitled “For Blair there is no such thing as legal principle” published in The Guardian, Saturday 27 November 2004.

Complete judgment of Dennis Davis in vote of no confidence case

Nov 27th, 2012

by Pierre De Vos.

7 comments

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 21990/2012

DATE: 22 NOVEMBER 2012

In the matter between:

LINDIWE MAZIBUKO, LEADER OF THE

OPPOSITION IN THE NATIONAL ASSEMBLY Applicant

and

MAXWELL VUYISILE SISULU, MP SPEAKER

FOR THE NATIONAL ASSEMBLY 1^st Respondent

DR MATHOLE SEROFO MOTSHEKGA, MP 2^nd Respondent

THE CHIEF WHIP, NATIONAL ASSEMBLY 3^rd Respondent

J U D G M E N T

DAVIS, J:

The applicant seeks an order, on an urgent basis, directing first respondent to take whatever steps are necessary to ensure that a motion of no confidence in the President of the Republic of South Africa, which motion appears to have been dated 8 November 2012, should be scheduled for debate and a vote before the National Assembly on or before 22 November 2012.

The core question which has been raised, is in effect whether the Republic of South Africa Constitution Act 108 of 1996 (‘the Constitution’) recognises that a motion of no confidence is of such importance that the relief being sought must, in the circumstances of this case, be granted.

The brief description of the dispute indicates the considerable constitutional weight which is involved in the determination thereof . I had hoped that a full bench of this Court would hear the matter, which would have been more appropriate, but the matter was launched as a matter of urgency, given the timetable, as I understand it, of the National Assembly. Therefore, it was not possible to compose such a Bench within the time limits which followed from the relief sought . Accordingly I was constrained to hear the matter as a single judge presiding over the urgent court.

Significant constitutional issues are involved in this case. I received no heads of argument from the second respondent. I received heads of argument from the first respondent, but, for reasons that will become apparent, many of the issues which are canvassed therein, are irrelevant to the disposition of this case. I received heads of argument from the applicant, which were of assistance and I am indebted to counsel. I raise this problem , not in order to be difficult nor in order to cast any aspersions on counsel who ably presented oral argument to this court on Tuesday. I do this in order to explain the difficulty which a duly judge has to determine a case of this importance with so little assistance and in so short a period of time. It is, in short, an undesirable situation. Be that as it made, this court is obliged to determine this dispute.

The motion was initiated by the applicant, as the leader of the opposition. According to the papers she gave notice of her intention to move a motion of no confidence on the President on 8 November 2012 on behalf of eight opposition parties in the National Assembly, who represent approximately one-third of the South African electorate.

According to first respondent’s version, which was not placed in issue, the National Assembly did not sit on Friday, 9 November 2012 nor on 12 November 2012. The motion was then published in the Order Paper on Tuesday, 13 November 2012 According to first respondent, that having happened, the motion was ready for consideration by the National Assembly, subject to scheduling by the Programme Committee, of which more presently. In accordance with National Assembly practice and Rules , first respondent avers that the matter was first discussed in the Chief Whip’s forum, established in terms of Rule 217 of the Rules of the National Assembly. This forum is responsible for political consultation amongst parties in the National Assembly, including whether and when a motion should be scheduled for consideration.

First respondent informed the court that in the ordinary course, motions proceed to the Programme Committee for scheduling after the Whip’s forum has arrived at an agreement in this regard. It appears that the Whip’s forum was unable to reach an agreement at its meeting on Wednesday, 14 November 2012. Accordingly, the matter was referred to the Programme Committee for consideration at a meeting on 15 November 2012 without any recommendation as to whether and when it should be put on the Order Paper. First respondent then states in his answering affidavit:

“I concluded that, in the absence of a decision by the Programme Committee in this regard, the matter could not be scheduled for debate by the Programme Committee since it had not made a determination as to when it should be so scheduled. However, since the Programme Committee is a mere structure of the National Assembly, the latter can still decide to debate the motion of no confidence and vote upon.”

These were the key facts which confronted this court when the issue was argued on Tuesday, 20 November 2012. I was informed by applicant that the last possible opportunity for the motion, which had been tabled on behalf of the applicant, to be debated and voted upon, was 22 November 2012. Applicant contended that there was every indication that the majority party, The African National Congress ,together first and second respondents, were intent on frustrating the conducting of this debate. According to applicant as the motion lapses on 22 November 2012, which is the last sitting day of the 2012 annual sitting of the National Assembly. Respondents have set up, what amounts, in her view, to a series of insurmountable hurdles to a debate on a motion of no confidence in the President, which is contemplated by section 102(2) of the Constitution.

Applicant’s case can, therefore, be summarised thus: the use of procedural machinations to frustrate an important means of Parliament, holding the President to account, is inconsistent with the Constitution and is invalid in terms of section 2 thereof. When opposition parties, in this case representing a third of those who voted in the last general election, propose a motion in the light of the gravity which is inherent in such a motion, the National Assembly must debate and decide the motion as a matter of urgency. Applicant contends that this case concerns fundamental values of democracy, transparency, accountability and openness. In particular, it implicates the principle of protecting minority parties and individual members of minority parties in the National Assembly.

In the light of these weighty averments, it is important to emphasise with what this application is concerned and not concerned:

1. This case raises the question of whether the National Assembly has an constitutional obligation to ensure that a motion of no confidence be debated in the House when so tabled, and in this particular case where it is initiated by a minority party or parties.

2. If there is an obligation, is the debate to be treated as a matter of sufficient urgency so that it cannot be postponed for an unreasonably lengthy period.

3. If so, do the Rules of the National Assembly provide for the vindication of this right enjoined by the party proposing the motion?

4. If not, does the first respondent have a residual power to schedule the debate, no matter the views of the majority party?

By contrast, this dispute does not concern the merits of the motion ; that is whether the President has violated the Constitution or any law, committed any serious misconduct or has an inability to perform the functions of office. or is guilty of any of the assertions contained in the motion.

The motion of no confidence tabled by the applicant reads thus:

“(1) That the House, one notes, that under the leadership of President Jacob G Zuma:

(a) The justice system has been politicised and weakened.

(b) Corruption has spiralled out of control.

(d) The economy is weakening.

(e) The right of access to quality education has been violated and, therefore;

(ii) in terms of section 102(2) of the Constitution of The Republic of South Africa 1996, pass a motion of no confidence in President Zuma.

1. None of these issues can possibly be considered by this court, nor are they relevant to the present dispute. These are matters which must be debated in the National Assembly, not in courts of law.

2. The prospects of success of a motion of no confidence in the President is irrelevant to the present dispute.

3. Whether, in the view of the majority party or any other member of the National Assembly, this motion of no confidence in the President is frivolous or vexatious, is irrelevant to the determination of the case, for reasons that will become apparent later in the judgment.

Constitutional Framework

I turn to deal with the constitutional issues which are involved. Section 102 of the Constitution is entitled ‘motions of no confidence’:

“(i) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the cabinet, excluding the President, the President must reconstitute the cabinet.

(ii) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the cabinet and any deputy ministers, must resign.”

This provision presupposes that a motion of no confidence may be brought in the National Assembly. Only in this way, could either of the two consequences as set out in the provision, come to fruition, that is either the President reconstitutes the cabinet (subsection (1)) or the President, and together with the cabinet, resigns( subsection (2)). It follows that the Constitution envisages that this motion could be brought, not only by a majority party, but also by a minority party, which seeks to garner support for the motion from members across the floor of the House. For reasons that will become presently apparent, this is the very stuff of deliberative democracy. For this reason alone, this is not a case about the merits of the debate , but about the principle of holding such a debate.

In this context, it is necessary to examine, in some detail, the approach which was adopted by the Constitutional Court in the case of Ambrosini v Sisulu [2012] ZACC 27 (CC). The applicant, who was a member of the National Assembly, had voiced, on numerous occasions, concerns about the procedures of the National Assembly, and in particular the requirement that a member required the Assembly’s permission before he or she could introduce a bill into the House. The applicant contended that any rule that stipulated permission as a requirement in this regard, was constitutionally invalid.

The central issue of the case was whether it was open to the National Assembly, pursuant to powers granted in terms of section 57 of the Constitution, to impose a requirement that permission be granted, which could prevent a member of the National Assembly from exercising his or her power to introduce a bill in terms of section 73(2) of the Constitution.

To the extent that it is relevant to this dispute, section 55(1) of the Constitution provides:

“In exercising its legislative power, the National Assembly may:

(a) consider pass, amend or reject any legislation before the Assembly, and;

(b) initiate or prepare legislation except money bills.”

The respondent contended that members of the National Assembly are entitled to introduce a Bill in the Assembly pursuant to section 73(2) of the Constitution. However, in his view, a member was not entitled to initiate or prepare legislation, either in terms of section 55(1)(b) or section 73(2), because, in his view, a collective power vested in the Assembly and not in individual members.

Respondent, contended that it was open to the Assembly to impose a requirement of permission on members who wish to exercise the power of the Assembly to initiate or prepare legislation, because only the Assembly, as the sole repository of the power, could delegate it. He further contended that a majority decision making procedure by the National Assembly was a recognised constitutional principle consistent with our constitutional system. The key question for determination, insofar as the present dispute is concerned was whether section 55 bore the weight of first respondent’s contentions, namely that a majoritarian principle applied to the initiation of Bills to be placed before parliament.

The Court was required to interpret section 55 . Mogoeng. CJ, in a seminal judgment, said the following at para 45:

“The purpose and ambit of section 55(1)(b) should thus be considered, bearing in mind the need to breathe life into the foregoing constitutional vision. Preliminary work needs to be done before a bill could be ready for introduction in the Assembly. As will be seen later in this judgment, section 73(2) is silent on how a Bill, comes into being and who has the power to engineer and mould a legislative proposal into a Bill. Section 55(1)(b) however provides that the National Assembly has the legislative power to initiate and prepare legislation. The question is whether it accords with the purpose of section 55(1)(b) to confine the exercise of this power to the collective membership of the Assembly, or its duly authorised structures or functions.

A construction that also recognises individual competence to initiate or prepare legislation, not only accords with the textural meaning of the section, but also with the principles of multi party democracy, representative and participatory democracy, responsiveness, accountability and openness. The very nature and composition in the National Assembly renders it pre-eminently suited to fulfil the role of a national forum, at which even individual members may initiate, prepare and present legislative proposals to be considered publicly by all the representatives of the people presented in the House.” (paras 45-46)

The Chief Justice, then continues:

“The rights of all to be heard, and have their rights considered within the context of the legislative process, dictate that individual members ought to have the power to initiate or prepare legislation. In this way, an opportunity will be available to them to promote their legislative proposals so that they could be considered properly. It is a collective responsibility of both the majority and minority parties, and their individual members, to deliberate critically and seriously on legislative proposals and other matters of national importance. And this should also apply to legislative proposals initiated or prepared by individual members. This approach would give meaning to and enrich our representative and participatory democracy and will probably yield results that are in the best interests of all our people…Section 55(1)(b) thus empowers an individual member, even from a minority party, to sponsor or pilot a legislative proposal as her own. It is always open to her, though, to seek the National Assembly’s adoption of her initiatives as its own. This meaning of section 55(1)(b) finds support in its textual and purposive of interpretation, the nature of the power conferred by section 55(1)(b) and the manner in which the National Assembly operates.” (paras 48 & 51)

There is one further passage which merits consideration. At para 57, the Chief Justice said:

“The power of an individual member of the Assembly to introduce a bill, particularly those from the ranks of opposition parties, is more than ceremonial in its significance. It gives them the opportunity to go beyond merely opposing, to proposing constructively in a national forum, another way of doing things. It serves as an avenue for articulating positions through public debate and consideration of alternative proposals on how a particular issue can be addressed, or regulated differently and arguably better.”

The implications of this judgment by the Chief Justice, are both clear and powerful . In 1994 South Africa boldly began its journey from a society based on authority to one predicated upon justification, from diktat to deliberation, arbitrary assertion to rational consideration. While this journey was never expected to be easy, given our fraught and divided past, the ambition of the Constitution was to exercise guidance to the nation, so that it be kept on the indicated path, when intolerance or the temptation to abuse power to suppress the dignity of even a single voice expressing a different perspective, prompted movement from the constitutionally indicated journey.

Within the express context of this dispute, the right of an elected representative to bring a motion, whether in the form of a Bill or of a motion of no confidence in the President is envisaged in section 102 of the Constitution captures the animating spirit of our democracy which is not to be reduced to the view of a transient majority, and perhaps even more important, where the temporary majority may appear to be relatively permanent.

This represents , in my view, a majestic ambition, one that was fought for by generations of people in this country through 300 years of racist rule. As a nation we need to remind ourselves that this is our national vision which applies to any dispute, including this one.

Professor Roux captures this model of democracy as follows in Stu Woolman et al, Constitutional Law in South Africa, Volume 1 at page 10-68:

“(1) Government in South Africa must be so arranged that the people, through the medium of political parties and regular elections in which adult people are entitled to participate, exert sufficient control over their elected representatives to ensure that:

(a) representatives are held to account for their actions;

(b) government listens and responds to the needs of the people in appropriate cases directly;

(2) The rights necessary to maintain such a form of government, must be enshrined in a supreme law or Bill of Rights, enforced by an independent judiciary, which task it shall be to ensure that whenever the will of the majority expressed in the form of law of general application, runs counter to a right in the Bill of Rights, the resolution of that tension promotes the values of human dignity, equality and freedom.”

Applied directly to the present dispute, there is manifestly a constitutional right to move a motion of no confidence in the President. That right is to be enjoyed by both majority and minority parties sit in the Assembly. That much is clear, not only from the vision of the Constitution as I have set it out, but from the judgment of the Chief Justice in Ambrosini, supra, which is, as I have already suggested, is now critical to his area of our jurisprudence.

Section 102 cannot be read to discriminate against a minority party. Significantly it appears that the approach finally adopted by respondents in oral argument, was to accept this position, even though second respondent had initially taken the view that the motion tabled by applicant, was frivolous and hence not worthy of debate. In the papers as presented to me, a minute of the Programme Committee reflects this view:

“The Chief Whip of the majority party argued that the motion was not new and substantively the same as the motion of impeachment, tabled by Mr Lekota and contravention of rules and procedures. Mr Lekota could not provide the evidence he needed and, therefore, turned to the DA, who then invoked another section of the Constitution. He argued that the motion is frivolous and not supported by facts. By way of example, he suggested that opposition parties would not be able to produce evidence on the Marikana tragedy, because of a judicial commission of inquiry into the matter. In terms of the economy, South Africa was like other nations, confronted with economic problems. The country was in fact doing well under the guidance of the President, who had produced a national development plan. The government had also produced a credible plan to address employment.”

As I have indicated, second respondent is entitled to this view. It may well be correct. It may also be the view held by the majority of South Africans, but that is scarcely the point that I have been seeking to make in trying to assess the importance and scope of section 102. It seems to me, after a careful analysis of the relevant jurisprudence, and in fairness the latest arguments of respondents, and in particular a further letter that was made available to me by the second respondent, which accepts these considerations and to which I shall make reference later, that the dispute turned upon the remaining three points that I have outlined, namely the urgency in which to hold the debate, the position as set out in the Rules of the National Assembly and finally, the powers of the Speaker.

I turn then to deal with the question of the Rules:

Rules of The National Assembly:

Rule 2(1) of the Rules provides that the Speaker may give a ruling, or frame a rule, in respect of any eventuality for which the rules do not provide. The list of committees of the National Assembly is set out in Rule 1(2)(i) and includes the Programme Committee, which is established in terms of Rule 187. Rule 188 determines the composition of the Programme Committee in terms of which the minority parties appear to enjoy a majority. Rule 190 provides that the functions and powers of the Programme Committee include that it must prepare and, from time to time, adjust the annual programme of the Assembly, it must monitor and oversee the implementation of Parliament’s annual programme and must implement the Rules regarding the scheduling or programming of the business of the Assembly and the functioning of Assembly committees and subcommittees.

Rule 217 establishes the Chief Whip’s forum, to which reference has been made. The National Assembly Guide to Procedure, provides that the Chief Whip “arranges business on the Order Paper, subject to the rules and directives of the Programme Committee”.

In this case the Programme Committee, as I have already indicated, reached a deadlock and first respondent assessed that a reference back to the Chief Whip’s forum would not take the matter any further. Accordingly, in his view, the matter had to be referred to the National Assembly. Ruling 115B in the Digest of Rulings provides:

“As have been stated previously in this House, presiding officers do not make up the orders of the day or what comes before us. We merely go by what appears before us and what is decided by the chief whips and the Programme Committee (Debates: The National Assembly 1988, COL 6598).”

Mr Heunis, who appeared together with Ms Smit on behalf of first respondent, contended that no lacuna arose from these Rules, as they clearly made provision for the Speaker to report the deadlock of the Programme Committee to the National Assembly, which was exactly what he did in this case, as he sets out in his answering affidavit:

“I was advised that on Wednesday, 20 November, the day after the court hearing, the National Assembly would deal with the referral by the Speaker.”

Much of Mr Heunis’ argument, which turned on ripeness, appeared to be predicated, as was Mr Cassiem’s, that the National Assembly would deliberate on the matter on Wednesday, 20 November, and accordingly no decision should be taken by this Court, because the matter was not yet ripe for hearing. It was for this reason that I deferred judgment to today in order to give the National Assembly an opportunity to consider the matter as urged upon me by respondents.

I then received the following letter from attorneys acting for the first respondent:

“We are instructed that the motion appeared on item 5 of the Order Paper for today’s meeting of the National Assembly, we attached a copy of the Order Paper, together with the announcements, tabling’s and committee’s report, dated 20 November 2012, where in the Speaker’s report to the National Assembly appears. Our instructions are that the Speaker’s report would not be discussed in the National Assembly in light of the above pending litigation. Our further instructions are that the motion was tabled under further business, however, was not scheduled for debate during the sitting of the National Assembly today. Our instructions are to enable to the motion to be scheduled for debate, the Chief Whip of the majority party would have to move for it to be debated (sic). The Speaker has received the attached letter from the Chief Whip (second respondent) dated 21 November 2012, in which the Chief Whip has undertaken to impress upon parliament to have the motion scheduled for debate in the National Assembly during the week of 26 February 2013.”

This letter is relevant to these proceedings and, given the initial approach which had been adopted by the second respondent, assumes considerable importance. The letter reads, insofar as it is relevant to these proceedings:

“Consistent with our longstanding view, which also forms part of our argument in the Western Cape High Court, we have no misgivings about debating motions in the House, including a motion of no confidence in the President, which is a matter that is provided for in the Constitution. There is no question as to whether or not this matter has to be scheduled. However, it should be scheduled in conjunction with other important items that the National Assembly has to deal with. The parliamentary programme of 26 November to 7 December, entails committee meetings, oversight visits across South Africa and international study tours by MP’s. Cancelling these commitments or summoning back all MP’s for a special sitting, would place a significant administrative, logistical and financial burden on the institution. This type of motion is also serious in nature, and could have far reaching implications for Parliament, this country and our democracy and, therefore, cannot be arranged hastily or impulsively. Members also need to adequately prepare to enable them to meaningful engage in this matter. In this regard, we will impress upon parliament that this motion be scheduled for debate by the National Assembly on the week of 26 February 2013. We believe this is a reasonable timeframe for which a motion of such magnitude should be considered by parliament.”

The principle of the exhaustion of domestic remedies and/or ripeness( both argued by first respondent), no longer is of relevance to this particular case, in the light of the way in which matters have now unfolded. In short, for reasons that I now set out, there is now no internal remedy left to the applicant to vindicate her constitutional rights in terms of section 102(2), save to wait until 22 February 2013.

I turn to deal with the mechanism set out in the rules for dealing with such a motion which reveals the lack of such a remedy. The mechanism for introducing a motion of no confidence is to be found in Rule 94, which enables a member to give notice of a draft resolution for approval of the resolution. In terms of Rule 98:

“(1) When giving notice of a motion, a member shall:

(a) read it aloud and deliver at the table a signed copy of the notice; or

(b) deliver to the secretary a signed copy of the notice on any parliamentary working day for placing on the Order Paper.

(2) Written notices of motion delivered to the secretary after 12:00 on any parliamentary working day, may be placed on the Order Paper of the second sitting day thereafter, not earlier, unless in a particular case the Speaker determines otherwise.

(3) Except with the unanimous concurrence of all the members present, no motion shall be moved in the day on which notice thereof is given.”

In terms of this Rule, on 8 November 2012, the applicant launched her motion of no confidence. Rule 100 provides:

“Any notice of motion which offends against the practice of these rules, may be amended or otherwise dealt with as the Speaker may decide.”

Clearly first respondent can make some formal adjustments to a request and screen out frivolous or vexatious motions. In this case, however, this did not happen , as indeed it could not , given its nature . The motion appeared on the Order Paper on 13 November 2012, as I have mentioned, in terms of Rule 37(1):

“A committee must report to the Assembly on a matter referred to the committee;

(a) when the Assembly is to decide the matter in terms of these rules, the joint rules, the resolution of the Assembly or legislation.

(b) if the committee has taken a decision on the matter, whether or not the Assembly is to decide the matter as contemplated in paragraph (a); or

In terms of Rule 188(1), the Programme Committee, as I have already indicated, plays the central role in these proceedings. That committee consists of the Speaker, the deputy Speaker, the leader of government business, the house chairpersons, the chief whip, the deputy chief whip for the majority party in the assembly, the whip of the majority party responsible for programming, another two whips of the majority party designated by that party, one whip and two additional representatives of the largest minority party in the assembly, designated by that party, one whip and another additional representative of the second largest minority party in the assembly, designated by that party and one whip of each of the other minority parties in the assembly, designated by the party concerned.

Rule 189 provides that:

“The Speaker is the chairperson of the Programme Committee, but if the speaker is not available, the deputy speaker then presides.”

In terms of Rule 190E:

“The committee may take decisions and issue directives and guidelines to prioritise or postpone any business in the assembly, but when the committee prioritises or postpones any government business in assembly, it must act with the concurrence with the leader of government business.”

Rule 129(2) is also of relevance. It provides that:

“The chairperson of the committee, subject to the other provisions of these rules and directions of the committee, presides at meetings of the committee and in terms of;

(b) In the event of an equality of votes on any question before the committee, must exercise a casting vote in addition to the chairperson’s vote as a member.”

I am informed that the Programme Committee approaches its business on the basis of consensus. This claim requires further interrogation which I shall undertake later in this judgment

Suffice at this stage to say: according to the parties ,unless a motion, on the basis of consensus, is tabled and supported by the majority party, in practice, as matters stand, it cannot be debated. For the reasons outlined in relation to our Constitution, this position is incompatible with the Constitution, in that the majority cannot subvert the right of the majority to have a debate as envisaged in terms of section 102 of the Constitution.

It appears, in fairness to the position of second respondent, that this latter position is now accepted by him. However, the passage in the letter of the second respondent which suggests that the majority party “will impress” upon Parliament that the debate be scheduled in the week of 22 February 2013, proceeds from an incorrect premise. It cannot be within the gift of the majority party to decide upon the issue of the timing of this kind of motion, yet this appears to be the position adopted given the way in which the letter was couched.

This leads to the next point ,namely the question of urgency and the Rules.

In my view, a motion of no confidence in the President of the Republic of South Africa must contain the idea of inherent urgency. I have already referred to the present resolution. It raises matters of profound national interest and importance. Members of the majority party may well consider that all of these claims are unjustified, indeed outrageous or frivolous.

Mr Cassiem, on behalf of the second respondent, argued that all of these allegations have been known for a very long time and that any attempt by the applicant to introduce this motion at the proverbial eleventh hour in the annual programme of the National Assembly, was a politically opportunistic move. That, sentiment , of course, is the right of the majority to so articulate. In a deliberative democracy ,anyone can articulate their views including their attitude to a minority position.

But when political parties, who represent approximately a third of the electorate decide to initiate a motion, and to seek wider support for the motion on matters of such importance, that too is their right. The public are entitled to hear the debate. The public, in effect, own the national forum, Parliament. It is the body of the citizens of South Africa in that it is comprised of the peoples representatives , and the people are entitled, as citizens of South Africa, to hear what our national representatives have to say about a matter of such pressing importance. Of course, once the debate takes place and reasoned voices across the floor are heard, the majority may well vote the matter down and that would be the end of it. But what cannot be justified is that the debate should not be allowed to take place. If a third of the National Assembly claim to have lost confidence in the President, the initiation surely cannot be kicked into political touch for a time which is unreasonable, because the time does not suit the calculation of the majority party. Again the Rules do not provide for a determination of what constitutes ‘urgency’.

That raises the next issue, which directly concerns the relief sought by the applicants: the power of first respondent. The notice of motion requires this court to direct that the first respondent take whatever steps are necessary to ensure that a notice of motion by the applicant, dated 8 November 2012, in the President of the Republic of South Africa in terms of section 102(2) of the Constitution of the Republic of South Africa 1996, be scheduled for debate and a vote in the National Assembly on or before Thursday 22 November 2012.

It is clear that the Rules, as I have outlined them, do not provide the necessary deadlock breaking mechanism to ensure what should occur when an impasse occurs in this regard. That is presumably the reason why the applicant suggested that it is the first respondent who should make the determination.

Applicant’s argument is, notwithstanding the Rules of the National Assembly, as I have set them out, the first respondent has a residual power to break the deadlock and order the scheduling of the debate. In the first place, the debate can obviously not take place on Thursday 22 November, which is today when judgment is being delivered. It was surely the height of forensic optimism to have launched tis application to be heard on 20 November 2012, ask for a postponement until after lunch on that day before being heard and then expect an order to be given which would ensure that the Speaker conducts the debate on Thursday.

That observation connects to another aspect, namely the remedy. In Ambrosini’s case, the Chief Justice said the following about a remedy:

“A declaration of invalidity in respect of those Rules that impede the exercise of the applicant’s power to initiate, prepare or introduce legislation, is sufficient to address the consequences of the barriers imposed by the permission requirement. In any event, a mandamus would not be appropriate. The power to determine what processes ought to be followed, falls within the constitutional domain of the National Assembly. It is not for this court to dictate to the Assembly how to go about regulating its own business.” (para 84)

It is necessary to say something in this regard about this particular application. Courts do not run the country, nor were they intended to govern the country. Courts exists to police the constitutional boundaries, as I have sketched them. Where the constitutional boundaries are breached or transgressed, courts have a clear and express role. And must then act without fear or favour. There is a danger in South Africa however of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy , or disputes which clearly carry polycentric consequences beyond the scope of adjudication .In the context of this dispute , judges cannot be expected to dictate to Parliament when and how they should arrange its precise order of business. matters. What courts can do, however, is to say to Parliament: you must operate within a constitutionally compatible framework; you must give content to section 102 of the Constitution; you cannot subvert this expressly formulated idea of a motion of no confidence . However, how you allow that right to be vindicated, is for you to do, not for the courts to so determine.

I regret the need to emphasise this point, but it appears to me to be vital to the future integrity of the judicial institution. An overreach of the powers of judges, their intrusion into issues which are beyond their competence or intended jurisdiction or which have been deliberately and carefully constructed legally so as to ensure that the other arms of the state to deal with these matters, can only result in jeopardy for our constitutional democracy. In this dispute I am not prepared to create a juristocracy and thus do more than that which I am mandated to do in terms of our constitutional model.

I now return to whether first respondent has a residual power to make the requested decision in this case. That leads to the final question, the role of the Speaker. The problem, which now must be resolved, in the light of my analysis of the Rules of the National Assembly, which clearly, appear ,at least on these papers, save for comments I shall make presently, to make it very difficult, at the least, and at the highest, impossible to enjoy the rights under section 102of the Constitution, remains whether the first respondent has a discretion to order the scheduling of this debate within a reasonable time period, notwithstanding the views of the majority party.

The Speaker’s Authority:

Mr Katz, who appeared together with Mr Osborne, on behalf of the applicants, referred to Rule 2(1), to which I have already made reference which provides that the first respondent may give a ruling or frame a rule in respect of any eventuality for which these rules do not provide. In Mr Katz’ view, this provision invests first respondent with a residual power, consistent with inherent power of the Speaker in common law. In this connection he cited the judgment of Van Zyl, AJP in Leon v Sanders 1972 (4) SA 637 (C) at 644F:

“The power to rule upon the irregularity of regularity of the business before an assembly, is inherent to the officer presiding over the assembly, and this accounts probably for the lack of any reference to this function, the standing orders of the House of Assembly.”

He also referred to Gauteng Provincial Legislation v Kilian & Others 2001 (2) SA 68 (SCA). Here the court held that the Speaker was empowered to give an undertaking to a third party, that Parliament cover his legal costs. In this regard the court referred as follows:

“Kilpin Parliamentary Procedure in South Africa, 3^rd Ed (1955) 153, refers to Sir Erskine May’s, 9^th Edition of his treatise: The Law of Privileges, Procedures and Uses of Parliament, where the point is made that the duties of a Speaker of the House of Commons “are as various as they are important”. Kilpin concludes his discussion of the Speaker’s duties by referring to a letter of 6 December 1905 by a Mr Speaker Lowther, in which it stated that the speaker is interpreter and custodian of the rights and privileges of the House. Kilpin then states that “the plain fact is that Mr Speaker’s duties are too numerous to set out in detail. In the Union of South Africa they are specifically referred to in the South Africa Act, the Powers and Privileges of Parliament Act, the Electorate Act and Standing Rules and Orders of the House of Assembly, but they depend so much on a tradition, that no better summary could be given to that which May originally wrote.” (para 78)

Mr Katz also referred to the India, in which the Indian Speaker enjoys a residual authority, which is well established in the Lower House of the Indian Parliament:

“The Speaker … has certain residual powers under the rules of procedures. All matters which are not specifically provided under the rules and all questions relating to the working of the rules, are regulated by her. In exercise of this power and under inherent powers, the Speaker issues, from time to time, directions which are generally treated as sacrosanct as rules of procedure.” (Office of the Speaker Lok Sabha accessed on internet webpage of Speaker Lok Sabha)

In the present case, the Speaker’s powers appear to have been set out in some detail the Rules of the National Assembly. I was not referred to any authority which suggests that beyond these Rules , which now run into a 7^th edition and which have been approved by Parliament , lies a series of residual powers which I can divine from some convention that was never presented to this court.

Given the specific rules dealing with programming, it cannot be said that Rule 2 applies in this case, in that there is a provision dealing with the setting and scheduling of debates in the National Assembly, namely the Rules concerning the Programme Committee. Rule 2 deals with rulings which must cover matters never contemplated in the Rules.

That in turn raises a final issue, never debated before me. It is suggested that Rule 190 read with Rule 148 applies in this case , which on its own renders Rule 2 inapplicable . If there is no consensus under Rule 148, the matter is reported to the parent committee. I am informed that the parent committee is the National Assembly, but that cannot beso in this case, because the Rules apply to both subcommittees and committees. The Programme Committee is a committee, not a subcommittee; hence Rule 148 appears to be applicable soley to subcommittees.

It is possible that the Programme Committee could have taken a vote and the principle of consensus did not apply thereto. I have not been told as to whether a convention exists which trumps my reading of Rule 148 provision , the express wording of the Rule notwithstanding. I also do not know whether the Programme Committee voted in this case .From the papers all I have been told is that there was deadlock.

My reading of the Rule is that a majority vote prevails in such situations, because the Programme Committee is not a subcommittee and accordingly Rule 148 does not apply. That leaves this court in a quandary and returns me to my earlier problem about having to decide a matter of enormous constitutional weight without the benefit of arguments or evidence on all relevant issues.

If the consensus formula does apply to the Programme Committee, then that position appears still to be incompatible with section 102 of the Constitution, because consensus could mean a subversion of the rights of a minority. If voting takes place in the Programme Committee, it may also be incompatible with s102 of the Constitution, because if one party or two parties seek to have a motion of no confidence, but not the balance, this may pose a problem for the exercise by the minority party of its s102 right.

In short, I cannot say on these papers that the first respondent enjoys a residual power to trump either the lack of consensus or a vote.

Rule 129, which provides for the powers of the chair, in this case first respondent, provides expressly that, in the event of equality of votes, he may exercise a casting vote. That itself is indicative that the Speaker does not have a trump, otherwise why would there be provision for a casting vote in such a situation? It also appears to support the idea that a vote is possible in the Programme Committee. All in all these problems illustrate the difficulty of trying to parse these Rules in the context of this dispute.

Let me seek to summarise my findings: There is a constitutional right to hold a motion of no confidence. It follows, from my reading of section 102, buttressed by the approach adopted by the Chief Justice in the Ambrosini case, and further by the equal majestic judgment of Ngcobo, J, (as he then was) in the Doctors For Live International v Speaker of the National Assembly 2006 (6) SA 416 (CC), that minority parties have such a right. It follows that a debate should take place, and it is an inherently urgent matter because it is in the national interest. It follows that a majority party cannot subvert this right and that any attempt to so do, would be incompatible with section 102. See in general on the constitutional model in adopted in this judgment, S Choudhry 2009 (2) Constitutional Court Review 1.

However, the question which must be asked is the following : under the present system of Rules what provision allows for a vindication of a right to take place or the precise date when such a motion of no confidence should take place?

I have, consistently through this judgment, employed the notion that a motion of no confidence must take place within a reasonable period. I have come to this conclusion because I agree with the approach which Mr Katz urged upon me, namely that a motion of no confidence is a matter of urgency. In this connection, it is instructive at least to refer to Harris et al, House of Representatives Practice, which attempts to deal with the situation in Australia, where the following is stated at page 312:

“Perhaps the most crucial motions considered by the House of Representatives are those which express a want of confidence in or censure of a Government, as it is an essential tenet of the Westminster system that the government possess the confidence of the lower (representative) House. By convention, loss of confidence of the House normally requires the government to resign in favour of an alternative government or to advise a dissolution of the House of Representatives. The importance of such motions or amendments is recognised by the rule that any motion of which notice has been given, or an amendment which expresses a censure of or want of confidence in the government and is accepted by a Minister as a want of confidence or censure motion or amendment, takes precedence of all other business until disposed of.”

This is an approach which commends itself. A motion of no confidence finds express provision in the Constitution. It raises matters of vital importance. It must take place, but it is not for this Court to dictate when exactly it should be held. Rules should deal with this problem, probably a specific rule to deal with a specific provision in the Constitution .

In this case, I am faced with the following problem: the Rules as I read them, provide no deadlock breaking mechanism, save for the possible interpretation that a majority vote may determine the issue in the Programme Committee. Even then, this may create problems for the vindication of the right under section 102. Absent an express provision, the only possibility is to have recourse to the first respondent. For reasons that I have already mentioned, there is no authority that I can find, particularly after a careful reading of the Rules, which suggested that first respondent can come to the aid of applicant in terms of residual powers so granted to him.

What then to do? The court is faced with the following difficulty: It has found:

1. That applicant had a right to bring a motion of no confidence.

2. That a motion of no confidence should be treated as a matter of urgency.

3. That time should have been found to ensure it takes place expeditiously.

4. Rules should be provided to ensure that the National Assembly rather than the courts, make the determination as to when this occurs.

5. A Rule is important in this regard, as a result of the express provision in the Constitution for such a motion to take place.

The question, therefore arises, and which flows directly from this difficulty, as to the powers of this court in these circumstances. There was a debate between counsel and the Bench with regard to the question of section 167(4)(e) of the Constitution, which provides that only the Constitutional Court can decide whether Parliament has failed a constitutional obligation. In Women’s Legal Centre Trust v President of the Republic of South Africa 2009 (6) SA 94 (CC), this section was carefully examined by Cameron, J. Paragraphs 20 and 23 are instructive:

“By contrast with this broad assemblage of duty bearing organs and institutions, section 167(4)(e) is precise in delineating the actors on whom it imposes obligations. They are the President or Parliament. ‘The State’ is not included. Constitutional duties, the State and its organs must perform collaboratively or jointly do not fall within its purview. The provision envisages only constitutional obligations imposed specifically and exclusively on the President or Parliament, and on them alone. It does not embrace the President, when he or she acts as part of the National Executive, nor Parliament when it is required to act not alone, but as part of other constituent elements of the state. Were it to be otherwise, it would undermine the jurisdiction of the High Court … The fact that the obligation on which the Women’s Legal Centre relies, may encompass the President and parliament, amongst other state actors, (a matter which we do not decide now) is not sufficient to bring it within exclusive jurisdiction of this court. It must fall on the President and Parliament alone. Resisting the applicant’s attempt to engage the court through section 167(4)(e), respondents pointed out correctly that in terms of section 85 of the Constitution, the President exercises executive authority in collaboration with other members of the National Executive. The responsibility for preparing and initiating legislation, falls on the National Executive as a whole and not exclusively on the President acting as a head of state.”

In this case, on whom may one ask rhetorically is the obligation to vindicate the right which follows upon section 102 other than on the National Assembly itself? It follows, from this analysis, that given the lack of an adequate mechanism for a minority party to vindicate its right to table and have a debate of a motion of no confidence as envisaged in terms of section 102 of the Constitution, Parliament may well have failed its constitutional obligation by omitting to provide a Rule which is compatible with the analysis as I have set it out, which specifically deals with this express constitutional provision.

As Bishop and Raboshakga in Woolman et al, at para 17-97, have noted:

“There are two explicit constraints in the House of individual rule making power in the Constitution. First, it has to be exercised with due regard to representative and participatory democracy, accountability and transparency and public involvement. This limitation has not been tested, but it seems likely that a court will give Parliament a great deal of deference in deciding whether a rule runs contrary to these principles. The principles are vague, so there will always be some doubt whether the rule fails to respect transparency or public participation. In addition, the Constitution does not require that the rules promote or comply with the listed principles, merely that they are adopted with due regard to those principles. Even rules that may seem to inhibit, for example transparency, would pass constitutional muster if it was adopted with an attempt to limit the impact on transparency for some or other justifiable reason. Finally, as the rule making power concerns the inner working of the legislature, the judiciary will rightly be hesitant to intervene.”

The Constitutional Court might decide that my analysis of the Constitution is correct, that the right to have a motion of no confidence cannot be subverted either by a refusal or by a delay which manifestly does not grasp the important cardinal principle of urgency and that the first respondent does not have a residual power. No authority has been given to suggest that the relief which is sought could be granted. Hence the core issue, which has been raised by the present proceedings, is one of significant constitutional importance and which should be decided promptly, because in my view, a lacuna in the rules is an important deterrent against the exercise of the model of deliberative democracy as I have outlined it and subverts that which is envisaged by s102 of the Constitution: the conducting of a debate on a motion of no confidence in the President.

I come to this conclusion with some regret, manifestly as I have found that applicant has a right. My difficulty is that I do not consider on the basis as the law is set out by the applicant, the relief couched in the notice of motion is justifiable. I consider that the Constitutional Court has sole jurisdiction to determine whether the Rules do not meet the kind of constitutional compatibility as I have outlined it( more particularly that there is no Rule which caters for the deadlock) and furthermore, whether the matter should not be sent back to Parliament for a reconsideration of a Rule which would ensure that the difficulties that I have encountered in this case should never occur.

I express the hope that a rule be so crafted , because, in my view, there is a problem, although not one that this court can fix by gerrymandering the law which would be unjustified , to find powers possessed by first respondent, which, in my view, cannot be so found and hence grant the relief as prayed.

I do not consider that this is a case where it would be appropriate to make any costs order, because in some significant way, the applicant was correct to bring this application, and has asserted a right which is now accepted by all, given the letter of second respondent which I set out. However, for the reasons that I have already set out, the application is dismissed.

_______________

DAVIS J

Details of Request to Public Protector to investigate alleged breaches by Jacob Zuma of the Executive Members Ethics Code

Nov 21st, 2012

by Pierre De Vos.

30 comments

Details of Request to Public Protector to investigate alleged breaches to the Executive Members Ethics Code by President Jacob Zuma

Pierre de Vos

1. Introduction

1.1 In terms of section 6 of the Public Protector Act no 23 of 1994 the Public Protector has the jurisdiction to investigate any complaint by any member of the public in respect of any matter which the Public Protector has jurisdiction over. The Public Protector has the jurisdiction to investigate alleged breaches of the Executive Ethics Code (Proc. No. 41 of 28 July 2000: Government Gazette No. 21399), passed in terms of the Executive Members’ Ethics Act, 1998 (Act No. 82 of 1998). Section 3, read with section 4 of the Executive Members Ethics Act, confirm that not only members of the legislature are entitled to lodge complaints about alleged breaches of the Code as section 4(3) states that: “Nothing in this section may prevent the Public Protector from investigating any complaint by a member of the public in accordance with the Public Protector Act, 1994 (Act No. 23 of 1994).”

1.2 I therefore submit this request to the Public Protector to investigate alleged breaches of the Executive Members Ethics Code. I do so as a private citizen as well as a Constitutional Law Professor with 18 years standing with a keen interest in preserving the integrity of the National Assembly as well as the Office of the President, both constitutional institutions of vital importance for the functioning of our democracy. I set out the relevant facts below before indicating which aspects of the Code might be implicated and which questions I require the Public Protector to answer.

2. The Factual background

2.1 On 15 November 2012 President Jacob Zuma told the National Assembly (Source: Hansard, Unrevised transcript — see also “Full transcript of Parliamentary exchange with President Zuma on Nkandla scandal” at http://constitutionallyspeaking.co.za/full-transcript-of-parliamentary-exchange-with-president-zuma-on-nkandla-scandal),amongst other things that:

”My residence in Nkandla has been paid for by the Zuma family. [Interjections.] All the buildings and every room we use in that residence were built by ourselves as a family and not by government. [Applause.] I have never asked government to build a home for me, and it has not done so. The government has not built a home for me.”…

“We, as the Zuma family have built our home. [Interjections.] Let me give you the background. What, for example, has been shown on television — which has caused a lot of hullaballoo for many people — are my houses, built by me and my family.”…

“I engaged the banks and I am still paying a bond on the first phase of my home. [Applause.] Even at that time, there were many allegations. If hon members remember, it is not the first time that my home has been paraded on television. Those rondavels were paraded accompanied by lots of allegations. Yet, I am still paying a bond to this day.”…

“A wrong impression has been created in the country, that the government has built a home for me. That is not true. People are speaking without knowing, saying I have spent so much of the government’s money. I have never done so. [Applause.] It is unfair, but I do not want to use harsher words, because you believe that people like me cannot build a home.”…

“What has government done? There are two different things: my homes that are built by me and my family, and the security features that the government wanted to attach to satisfy their own requirements. These are basically in my home, in the main, fencing, bullet-proofing windows — not all the windows, specific ones — and the bunker.”…

“What is shown is my house that I have paid for and it is a lie that it has been built by the government. It has not been built by the government.”…

“The Zuma family has built its own home for its own comfort. They have not asked anyone.”…

“I paid for my five additional houses to the rondavels I talked about.”…

In other words the President assured the National Assembly that the Zuma family had built his private home, which the Zuma family inhabit at Nkandla, using its own funds as well as a bond obtained from a bank and which is still being paid off. Neither the state nor anyone else (except the bank via a bond) contributed to the financing of the non-security related building at the President’s Nkandla homestead.

2.2 However, on 18 November 2012, the City Press newspaper reported that (see “Zuma has no bond” accessed at http://www.citypress.co.za/Politics/News/Zuma-has-no-bond-20121117): “There is no bond on President Jacob Zuma’s Nkandla homestead, as the president claimed in Parliament this week.  City Press can reveal that no bond is registered against the Zuma family’s property, titled portion 27 of reserve 19 of farm number 15 839, Nkandla.”

2.3 On 20 November 2012 the Presidency issued the following statement (see “President Zuma does have a home loan”, accessed at http://www.thepresidency.gov.za/pebble.asp?relid=7263): “The Presidency has noted weekend newspaper reports implying that President Jacob Zuma may have misled the National Assembly when he said he had a mortgage bond on his residence in Nkandla. We reaffirm that President Zuma does indeed have a bond on the residence with one of the national banks and he is still paying it off monthly. We urge the media to respect the agencies that are investigating the various aspects of the security enhancements at the residence as speculations and rumour-mongering will not assist the process.”

2.4 The Presidency soon followed this statement up with another statement later on the same day, after requests for proof of the bond was requested by several members of the media. In the follow-followup statement the Presidency stated that (see “Proof will be provided”, accessed at http://www.thepresidency.gov.za/pebble.asp?relid=7268): “We have noted requests for proof of the evidence of a mortgage bond for the first phase of the Nkandla residence as mentioned by President Zuma in the National Assembly last week. The evidence will be readily made available to an authorised agency or institution empowered by the law of the land. It is not being released to media to respect the privacy of the President as well as customer-institution confidentiality.”

2.5 After these statements were issued, several newspapers speculated that the bond in question was the one mentioned in the Schabir Shaik fraud and corruption trial. In May 2005 Judge Hillary Squires found that businessman Schabir Shaik was involved in making corrupt payments to Zuma. Buried towards the end of the long document were a couple of phrases that is of importance for the request: “ … [I]t is common cause, or amply proved, that it was [Vivian] Reddy who eventually arranged for the payment of the bulk of the cost of Zuma’s Nkandla home for it was Reddy who arranged the bond … by the time Reddy applied for the bond on Zuma’s behalf … The first application for the Zuma bond was for R650 000 … “ The high court finding, which has never been overturned, does not name First National Bank (FNB), but the indictment it is based on does. Zuma was granted a “bank loan obtained from First National Bank”, the National Prosecuting Authority said, later referring to it as “a home loan bond” and “the FNB bond”. But this week FNB said that could not be true. “FNB does not grant home loans to individual applicants for housing developments that are carried out on tribal land, as the properties are not held under separate title. FNB cannot register a bond over the individual homes,” said Jan Kleynhans, chief executive of FNB Home Loans, in a written response to questions. “Legally, people who currently live on land owned by a tribal authority have no claim to ownership of the land.”

2.6 This means that there is no clarity on whether the non-security related building work at President Zuma’s Nkandla home was indeed financed by President Zuma and his family as President Zuma told the National Assembly or whether any other benefactor or benefactors might have contributed to the financing of any of the non-security related upgrades at Nkandla. Neither is there clarity on whether a bond was ever registered over the Nkandla home and whether President Zuma is indeed still paying off that bond as President Zuma told the National Assembly. The Presidency has said that it would readily make available the proof of the bond “to an authorised agency or institution empowered by the law”. Such an agency is the Public Protector. It is therefore imperative that the Public Protector investigate these matters in order to clear up any possible misconceptions or confusion to confirm that the President did not mislead the National Assembly in contravention of the Executive Members Ethics Code. Such an investigation will also allow the Presidency to provide details of any bond registered over Nkandla to the Public Protector as suggested by Mac Maharaj in his statement declining to provide such details to the media, thus striking the correct balance between the need to respect the privacy of the President with the need for accountability and transparency.

3 Relevant Provisions of the Code

3.1 Section 3(1) of the Executive Members Ethics Act 82 of 1998 requires the Public Protector to investigate any alleged breach of the code of ethics on receipt of a complaint. Section 3(2) of the Act requires the Public Protector to submit a report on the alleged breach of the code of ethics within 30 days after receipt of a complaint. Section 4 of the Act states that the Public Protector must investigate, in accordance with section 3, an alleged breach of the code of ethics on receipt of a complaint by (a) the President, a member of the National Assembly or a permanent delegate to the National Council of Provinces, if the complaint is against a Cabinet member or Deputy Minister. Section 4 confirms that the Public Protector may also consider complaints about such breaches from ordinary members of the public.

3.2 Section 2.3 of the Code of Ethics states that Members of the Executive may not:

(a) wilfully mislead the legislature to which they are accountable;

(b) wilfully mislead the President or Premier, as the case may be;

(c) act in a way that is inconsistent with their position;

(d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person;

(e) use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;

( f ) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;

(g) receive remuneration for any work or service other than for the performance of their functions as members of the Executive; or

(h) make improper use of any allowance or payment properly made to them, or disregard the administrative rules which apply to such allowances or payments.

3.3 Section 3.1 of the Executive Members Ethics Code states that a member must declare any personal or private financial or business interest that the member may have in a matter:

(a) that is before the Cabinet or an Executive Council;

(b) that is before a Cabinet Committee or Executive Council, on which the member serves; or

(c) in relation to which the member is required to take a decision as a member of the Executive.

3.3 Section 4.1 of the Executive Members Ethics Code further states that a member may not solicit or accept a gift or benefit which:

(a) is in return for any benefit received from the member in the member’s official capacity;

(b) constitutes improper influence on the member, or

(c) constitutes an attempt to influence the member in the performance of the member’s duties.

3.4 Section 5.1 of the Executive Members Ethics Code further requires every member of the Executive – including the President – to disclose to the Secretary particulars of all the financial interests, of the member; and the member’s spouse, permanent companion or dependent children, to the extent that the member is aware of those interests. Section 6 of the Code sets out the various interests that must be declared, and these include, inter alia, shares and other financial interests in companies and other corporate entities; sponsorships, including a description of direct financial sponsorship or assistance from any source other than the member’s party which benefits the member in his or her personal and private capacity and the amount or value of the sponsorship or assistance; gifts and hospitality other than that received from a spouse or permanent companion or family member, including a description, including the value and source of any gift with a value of more than R350; gifts received from a single source which cumulatively exceed the value of R350 in any calendar year; hospitality intended as a personal gift and with a value of more than R350; and hospitality intended as a gift and received from a single source, and which cumulatively exceeds the value of R350 in any calendar year; benefits, the nature and source of any other benefit of a material nature; and the value of that benefit; land and immovable property, including land or property outside South Africa, a description of and the extent of the land or property; area in which it is situated; and nature and value of interest in the land or property.

4 Request to investigate alleged breaches of the Executive Members Ethics Code

4.1 Given these facts and the legal framework set out above, I request the Public Protector to investigate the following possible breaches of the Executive Members Ethics Code with a view to provide clarity to the South African public, to confirm and protect the dignity of the National Assembly as well as the Office of the President.

4.1.1 To confirm that President Zuma did not breach section 2.3(a) of the Code of Ethics and did not wilfully mislead the National Assembly when he told the National Assembly that he and his family built all the non-security related features at Nkandla and that neither the State or any other individual, company or group was involved in this matter.

4.1.2 To confirm that President Zuma did not breach section 2.3(a) of the Code of Ethics when he told the National Assembly that President Zuma and his family paid for all the non-security related building work undertaken at Nkandla in 2000 as well as in 2012. In order to establish this the Public Protector will be required to confirm that no other person or entity contributed to the cost incurred with the building of the original Nkandla homestead as well as all the non-security related Nkandla building work conducted over the past year.

4.1.3 In the event that it transpires that President Zuma and his family did not pay for all the non-security upgrades at Nkandla themselves and if it emerges that other parties contributed to the cost of these upgrades, to confirm that President Zuma is not in breach of sections 3.1, 4.1 or 5 of the Executive Members Ethics Code in that there is a conflict of interest that might have arisen as a result of benefits received from private entities or that any gifts or other financial benefits were not declared as required by the Executive Members Ethics Code.

4.1.4 To confirm that President Zuma has indeed registered a bond with a bank over the Nkandla home and that he is still paying off the bond,as he told the National Assembly.

5 Conclusion

5.1 In the light of the controversy over the funding of building work at Nkandla, the uncertainty about who paid for the non-security sections of the building work at Nkandla and whether a bond covered the cost of these upgrades, and given the fact that it would not be in the interest of the President, the National Assembly and South Africa as a whole for uncertainty to remain about these issues, I contend that an investigation would be appropriate and indeed in the interests of all parties concerned. As the Presidency declined to provide details of the bond but indicated its willingness to provide details to the appropriate legal authority such as the Public Protector, as the Public Protector is already investigating the alleged use of public funds for security upgrades at the Nkandla home, but as the existing investigation is not focusing on that part of the cost not carried by the state, such an investigation is appropriate. In the event of the Public Protector finding that the President did not wilfully mislead Parliament when he stated that the cost of have all non-security upgrades are being paid by the President as his family and that a bond is indeed registered over Nkandla to help pay for the upgrades, the President’s integrity and the office that he holds) would be preserved and protected while assurances to this effect will also help to protect the integrity of the National Assembly in the eyes of voters who need to have confidence that the National Assembly is respected by members of the Executive and that it is not being misled. In the event of the report finding that other sources of funding contributed to the Nkandla upgrade, the Public Protector will then also be in a position to determine whether these sources were declared as gifts or other financial benefits, strengthening the regime which requires members of the Executive to declare their financial interests.

5.2 It must be pointed out that this request differs from the ongoing investigation into the alleged use of public funds to upgrade security at the Nkandla homestead. This request deals with the use of private funds and whether these private funds came from the President and his family, from a bond, from other sources or from a combination of the above and if it came from other sources whether this was declared by the President as required by the Code. The President has a legal duty not to mislead the National Assembly. There can be no objection to an investigation that once and for all will confirm that the President did indeed not mislead the National Assembly as suggested by some.

Nov 21st, 2012

by Pierre De Vos.

No comments yet

Details of Request to Public Protector to investigate alleged breaches to the Executive Members Ethics Code by President Jacob Zuma

Pierre de Vos

1. Introduction

2. The Factual background

2.1 On 15 November 2012 President Jacob Zuma told the National Assembly (Source: Hansard, Unrevised transcript – see also “Full transcript of Parliamentary exchange with President Zuma on Nkandla scandal” at http://constitutionallyspeaking.co.za/full-transcript-of-parliamentary-exchange-with-president-zuma-on-nkandla-scandal),amongst other things that:

“My residence in Nkandla has been paid for by the Zuma family. [Interjections.] All the buildings and every room we use in that residence were built by ourselves as a family and not by government. [Applause.] I have never asked government to build a home for me, and it has not done so. The government has not built a home for me.”…

“We, as the Zuma family have built our home. [Interjections.] Let me give you the background. What, for example, has been shown on television – which has caused a lot of hullaballoo for many people – are my houses, built by me and my family.”…

“What has government done? There are two different things: my homes that are built by me and my family, and the security features that the government wanted to attach to satisfy their own requirements. These are basically in my home, in the main, fencing, bullet-proofing windows – not all the windows, specific ones – and the bunker.”…

“What is shown is my house that I have paid for and it is a lie that it has been built by the government. It has not been built by the government.”…

“The Zuma family has built its own home for its own comfort. They have not asked anyone.”…

“I paid for my five additional houses to the rondavels I talked about.”…

2.4 The Presidency soon followed this statement up with another statement later on the same day, after requests for proof of the bond was requested by several members of the media. In the follow up statement the Presidency stated that (see “Proof will be provided”, accessed at http://www.thepresidency.gov.za/pebble.asp?relid=7268): “We have noted requests for proof of the evidence of a mortgage bond for the first phase of the Nkandla residence as mentioned by President Zuma in the National Assembly last week. The evidence will be readily made available to an authorised agency or institution empowered by the law of the land. It is not being released to media to respect the privacy of the President as well as customer-institution confidentiality.”

2.6 This means that there is no clarity on whether the non-security related building work at President Zuma’s Nkandla home was indeed financed by President Zuma and his family as President Zuma told the National Assembly or whether any other benefactor or benefactors might have contributed to the financing of any of the non-security related upgrades at Nkandla. Neither is there clarity on whether a bond was ever registered over the Nkandla home and whether President Zuma is indeed still paying off that bond as President Zuma told the National Assembly. The Presidency has said that it would readily make available the proof of the bond “to an authorised agency or institution empowered by the law”. Such an agency is the Public protector. It is therefore imperative that the Public Protector investigate these matters in order to clear up any misconceptions aopr confusion to confirm that the President did not mislead the National Assembly in contravention of the Executive Members Ethics Code.

3 Relevant Provisions of the Code

3.2 Section 2.3 of the Code of Ethics state that Members of the Executive may not: