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Zuma affidavit in the willygate case

Pierre De Vos — Mon, 21 May 2012 07:58:05 +0000

N THE SOUTH GAUTENG HIGH COURT JOHANNESBURG (REPUBLIC OF SOUTH AFRICA)

CASE NUMBER: 17978/2012

In the matter between:

JACOB GEDLEYIHLEKISA ZUMA – First Applicant

AFRICAN NATIONAL. CONGRESS – Second Applicant

and

GOODMAN GALLERY – First Respondent

CITY PRESS – Second Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

JACOB GEDLEYIHLEKISA ZUMA

hereby state under oath:

‘1. I am an adult male of full legal capacity and President of the African National Congress (‘the ANC’). I am also the President of the Republic of South Africa since 2009. I depose to this affidavit in my personal capacity and in my capacity as President of both the ANC and the Republic of South Africa.

2. The facts contained in this affidavit are both true and correct and unless the context indicates otherwise, within my personal knowledge. Where I rake legal submissions, I do so on the advice of my legal advisors.

I. PURPOSE AND OVERVIEW OF APPLICATION

3. This is an urgent application for an order directing the First and Second Respondents to remove the continuing display of a portrait, depicting me In a manner that impugns my constitutionally enshrined right to dignity as contained in section 10 and the right to privacy as contained in section 14 of the Constitution. Accordingly, this urgent application seeks the following:

3.1 An order declaring that the portrait Is an unlawful violation of section 10 of the Constitution;

3.2 An order directing the First and Second Respondents to remove all displays of the portrait from their gallery and/or electronic displays in the on-line publications, arid all other forms of publication, of both the First and the Second Respondents.

4. The continued display of the portrait Is a grave violation of my right to dignity as it depicts me with my private parts showing.

5. I respect, as I should, the right to freedom of expression and artistic creativity as constitutionally enshrined rights, but submit that the portrait has overstepped the mark and acceptable levels of section 16 of the Constitution.

6. I set out in some detail below, how I came to know about the display of the portrait in the Goodman Art Gallery as well as its publication in the City Press.

7. I submit that the initial and continued display of the portrait by the First and Second Respondents is in breach of the following:

7.1 The right to dignity as guaranteed by section 10 of the Constitution; and

7.2 The right to privacy as guaranteed by section 14 of the Constitution;

8. I accordingly bring this application on an urgent basis for the immediate removal from display of the portrait and the declaration that such a display is in breach of my right to dignity and privacy as contained in sections 10 and 14 respectively.

9. The structure of this affidavit is as follows:

9.1 First, I describe the parties to this application;

9.2 Second, I set out my contentions as to why this matter should be heard on an urgent basis;

9.3 Third, I then deal with my standing to bring this application end my attempts to resolve this matter without approaching the court;

9.4 Fourth and lastly, I provide some explanation as to how the portrait violates my constitutionally enshrined right to dignity and equality.

II. PARTIES

I0 The first applicant is Jacob Gedleyihlekisa Zuma. I am an adult male and President of the ANC and State President of the republic of South Africa. My address is West Wing, Union Buildings, Government Avenue, Arcadia, Pretoria, but I together with the Second Applicant have appointed a firm of legal representatives to whom any process of court may be directed.

11. The Second Applicant is the African National Congress (the ANC), a political organisation duly registered in terms of the laws of South Africa, with its address at Luthuli House, 54 Sauer Street, Johannesburg. Any legal process in respect of the ANC may be directed to its chosen legal representatives.

12. The first respondent Is the Goodman Art Gallery situated at 163 Jan Smuts Avenue, Parkwood, Rosebank. According to its website it is owned by Liza Essers vho is also its director, An extract of the website page is annexed hereto marked GJZ1″.

13. The Second Respondent is the City Press whose further particulars are to the Applicants unknown.

14. I am advised that on 10 May 2012 and until now the First Respondent caused the portrait to be displayed in their public Gallery. I am also advised that the Second Respondent on 13 May 2012 published the same portrait in their pages, which are distributed nationally and on their on-line pages available around the world.

III. URGENCY

15. This application has been brought on an urgent basis. I contend that the continued display of the portrait constitutes a continued violation of my rights to dignity. As President of the ANC the continued display of the portrait constitutes a continued violation at the ANC’s right to dignity.

16. The continued display at the portrait is manifestly serious and has the effect of impugning my dignity in the eyes of all who see it, in particular the portrait depicts me in a manner that suggests that I am a philanderer, a womanizer and one with no respect. It is an undignified depiction of my personality and seeks to create doubt about my personality in the eyes of my fellow citizens, family and children.

17. I accordingly submit that the continued display of the portrait is a continuing violation of my rights. The more days it stays displayed, the more my right to dignity and that of the ANC are impugned.

18. As will be stated below, although the portrait was first published from or about 10 May 2012 by the First Respondent and published on 13 May 2012 by the Second Respondent, neither I nor the Second Applicant became immediately aware thereof until the cause of the complaint was brought to our attention in the middle of the week beginning 14 May 2012.

19, After our legal representatives were instructed to seek and obtain undertakings from the First and Second Respondents to cease the exhibition and display of the portrait on 17 May 2012, which undertakings were refused, this application was prepaid and brought on the next day 18 May2012.

20. Although I consider such violation of my dignity as requiring an immediate cessation thereof, I have been advised by my legal representatives that in practice such an application may be brought on an urgent basis only after giving the respondents sufficient time to answer. I submit that it was fair and reasonable to give them until Monday to so answer so that this application may be heard on Tuesday 22May 2012, which is the normal day on which applications of this nature may be heard

21. I submit that this is a matter that warrants to be heard on an urgent bass in terms of the rules,

IV. STANDING

22. I bring this application primarily in my personal capacity as it is clear from the portrait that It depicts me. It is clear in the eyes of those viewirg the portrait that it seeks to depict me in a bad, undignified and degrading manner. Furthermore, in terms of the theme of the exhibition my portrait is meant to convey a message that I am an abuser of power, corrupt and suffer political ineptness.

23. I also bring this application in my capacity as the President of the ANC whose image as a liberation movement and governing party which is seriously tarnished by the portrait in question.

24. In addition, I also bring this application in my capacity as the President of the Republic of South Africa. This portrait is not only damaging but it is also making a mockery of the office of the Presidency,

V BACKGROUND TO THIS APPLICATION

25. During the course of the week, the ANC’s spokesperson, Mr. Jackson Mthembu (‘Mr. Mthembu’), was alerted to the fact that a portrait depicting me with my private parts fully exposed was being displayed at the First Respondent’s premises.

26. Mr. Mthembu then investigated the allegations and found that the portrait was indeed in display and also in the website of the First Respondent.

27. Further Investigations were made and it was also found that the Second Respondent had also published the portrait both in its 13 May 2012 edition and its website.

28. A copy of the portrait referred to in paragraphs 21 to 23 is annexed hereto marked “GJZ 2″,

29. On Thursday, 17 May 2012, Mr. Mthembu informed my office about the investigations and the existence of this portrait. A copy of the portrait was also sent to my office. Upon receiving and viewing the portrait I was shocked and felt personally offended and violated. I felt and still continue to feel that my constitutional rights have been and are being violated for as long as this portrait continues to be in display at First Respondents gallery, the First and Second Respondents websites and any other media. I will deal with the specific rights which are violated below.

30. The portrait will continue to be In display until the end of the exhibition which runs until 16 June 2012. In this regard, I annex marked “GJZ 3″ a copy of the article by SAPA dated 18 May 2012 which states so.

31. Mr. Mthembu’s confirmatory affidavit is annexed hereto marked “GJZ 4″.

32. The ANC takes exception to the symbolism that the portrait uses in order to portray the ANC through its President as responsible for “abuses of power, corruption, and political dumbness” as the exhibition of the artist is described as its theme on the First Respondents website. An extract from the website describing the artist’s exhibition is annexed hereto marked “GJZ5″.

33. To this end, I and the ANC sought an undertaking by the First and Second Respondents that they would stop the continuing exhibition or display of the portrait from all media. In this regard, I refer to the respective letters from our legal representatives to the First and Second Respondents, annexed hereto marked “GJZ 6″ and “GJZ 7″ respectively.

34. The First and Second Respondents’ legal representatives responded to our legal representatives on behalf of their respective clients. In essence they informed our legal representatives that their respective clients were not willing to give such undertakings. In this regard, I annex copies of the First and Second Respondents legal representatives’ letters marked “GJZ 8″ and “GJZ 9″ respectively.

35. The director of the First Respondent is quoted in the Mail & Guardian online dated 17 May 2012 as saying that the First Respondent will not remove the portrait. A copy of the relevant extract is annexed hereto marked ‘GJZ 10″.

36. I am therefore forced to seek the intervention and protection of this Court against the infringement of my constitutional rights and those of the ANC.

VI IMPACT OF THE PORTRAIT ON MY RIGHTS

37. Section 10 (Human Dignity) provides that that “everyone has inherent dignity and the right to have their dignity respected and protected.”

38. As a citizen of this country, I have a constitutional right to dignity. This right entails that my dignity must be respected and when necessary protected. Further argument in this regard will be filed in Court during the hearing of this matter.

VII REQUIREMENTS FOR AN INTERDICT

39. We seek an Interdict to secure a permanent cessation of an unlawful cause of conduct as set out above.

CLEAR RIGHT

40. I submit that I have a clear constitutional right to dignity. I need not elaborate more on this. Again, Further argument In this regard will be led in Court during the hearing of this matter.

HARM OR INJURY

41. My clear right to dignity as aforesaid has undouted1y been violated by the respondents and this violation is of a continuous nature. I say so because even if the portrait is removed from exhibition by the First Respondent on 16 June 2012, the image will continue to exist on the respondents’ and other media such as websites.

42. I must point to the Court that the portrait has been displayed or beer accessible to millions within and outside the country. In addition, despite its removal, it will continue to exist in the minds of those people who have seen it or had access to it. However, the removal of the portrait will ensure that the harm caused by its continuous publication and accessibility is limited to only those that have seen it or had access to it. In other words it will limit the harm already caused by the portrait.

NO OTHER REMEDY

43. I believe that in the circumstances, the is no other satisfactory remedy available to me and/or the Second Applicant.

44. This being the case of violation of my dignity, reputation and integrity, there can be no monetary value attached that I may vindicate and attain damages for their violations through the ordinary process of court.

45. In addition, as stated above, this violation or injury to my rights Is of a continuing nature.

46. I therefore submit that there is no other sufficient remedy that will vindicate my rights other than what is prayed for.

47, Wherefore I pray for the order as prayed in the Notice of Motion to which this affidavit is annexed.

Signed

DEPONENT

SIGNED AND SWORN BEFORE ME AT IRENE ON TNIS THE 18TH DAY OF MAY 2012, THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENT OF THIS AFFIDAVIT THAT HE HAS NO OBJECTION TO TAKING THE OATH AND THAT HE CONSIDERS THE SAME AS BINDING ON HIS CONSCIENCE.

Signed
COMMISSIONER OF OATHS

FUL’s founding affidavit on Mdluli case

Pierre De Vos — Tue, 15 May 2012 17:23:39 +0000

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

CASE NO.

In the matter between:

Freedom Under Law Applicant

and

The National Director of Public Prosecutions First Respondent

The National Commissioner: South African

Police Service Second Respondent

The Head: Specialised Commercial Crime Unit Third Respondent

The Inspector-General of Intelligence Fourth Respondent

Richard Naggie Mdluli Fifth Respondent

Minister of Safety and Security Sixth Respondent

Founding Affidavit

I, the undersigned,

Dr Mamphela Aletta Ramphele

do hereby make oath and state the following:

A. Introduction

1.1. I am a member of the International Advisory Board of Trustees of Freedom Under Law (“FUL”). I am a chairman and director of companies, previously a Vice-President of the World Bank in Washington and Vice-Chancellor of the University of Cape Town. I qualified and worked as a medical practitioner in community health. As a Black Consciousness leader I was detained, subjected to banning orders and banished to a remote area of the then Transvaal.

1.2. Throughout my life I have been committed to the advancement of democracy and social justice (inter alia I co-authored the Second Carnegie Report on Poverty in South Africa), and more latterly to constitutionalism and the rule of law. I am a member of the International Advisory Board of the applicant. I have been authorised by the Board of Trustees of FUL to bring this application on behalf of FUL and to make this affidavit on its behalf.

1.3. The facts I describe herein fall within my personal knowledge, unless I state otherwise or the context of what I say makes it clear that they do not. I confirm that those facts are, to the best of my knowledge and belief, true and correct.

1.4. Where relevant and necessary, I shall make legal submissions, based on the legal advice I have received from FUL’s legal representatives in the course of the preparation of this affidavit. I verily believe that the legal advice concerned is correct and rely on it in support of this application.

I make this affidavit on the strength of information gathered by and on behalf of the applicant relating to the decisions that are sought to be reviewed, and a report as well as affidavits made by members of the investigating team, Colonel Kobus Demeyer Roelofse and Lieutenant-Colonel Peter Janse Viljoen, who investigated criminal charges against General Mdluli. I shall also refer (in the urgent circumstances in which this application is brought, more fully described below) to media reports on the decisions to withdraw criminal and disciplinary charges against General Mdluli and thereafter to reinstate him as the head of crime intelligence of SAPS. Where relevant, I refer to these source materials in support of my averments. Where I refer to certain public statements or media reports, I do so on the basis of my understanding that none of these have been repudiated by any of the respondents. I accordingly believe them to be true.
I have been advised that some of the evidence to which I refer is, by its nature, hearsay. I have approached individuals who have personal knowledge of the facts to confirm hearsay statements to which I refer. These persons include Advocate Breytenbach’s attorney, Mr Gerhard Wagenaar, Colonel Roelofse. I was informed by Mr Wagenaar that Advocate Breytenbach is unable to depose to a confirmatory affidavit because she has been advised by him that she is bound by a confidentiality agreement. I was informed by Colonel Roelofse that he is unable to depose to a confirmatory affidavit because he has been advised that it constitutes a conflict of interest in respect of his employer.
I have been advised that not only is the material on which I rely admissible in the circumstances of an urgent application, for reasons which I understand are further a matter for legal argument, but that in any event it would be in the interests of justice for the hearsay statements I make to be admitted, despite their hearsay character, because:

4.1. First, in review proceedings such as the present, relevant evidence and source documents relating to the decisions to be reviewed is in the hands of the respondents or persons under their control. The applicant has not yet obtained access to documents which form part of the review record.

4.2. Second, the hearsay statements relate to matters which have been reported widely in the media and none of the respondents have repudiated those statements or provided a version contrary to those statements.

4.3. Third, the respondents have made the impugned decisions without any public explanation of those decisions, despite their far-reaching implications of those. As I indicate below, the respondents’ lack of explanation for their decisions violate their fundamental constitutional obligation of transparency, openness and accountability, set out in section 1(d) of the Constitution.

4.4. Fourth, the review both deals with subject matter of significant public interest, and is itself in the public interest. The evidence, primarily having been gleaned from the media, is in the public domain, and is under the control of the respondents. No member of the public would be able to bring an application to court based on matters of public importance reported in the media, unchallenged as to veracity by the respondents to date, without reliance on such material.

4.5. Fifth, there is no material prejudice which the respondents would suffer, if the hearsay statements are admitted. Any prejudice that may be suffered is slight weighed against the public interest arising from the need to justify the constitutional legality, validity and rationality of the impugned decisions.

4.6. Sixth, the present application includes the relief sought in Part A of the notice of motion on an urgent basis, and there is a compelling need for this honourable Court to adjudicate that relief as soon as possible.

The applicant furthermore will in due course also seek leave to expedite the hearing of the final relief sought in Part B of the notice of motion. The grounds on which the applicant seeks the necessary leave are the following:

5.1. The way in which General Mdluli has been dealt with by the respondents reflects an extraordinary degree of lack of accountability and a breach of the culture of justification under the Constitution which our courts have sought to impress on those who exercise public power.

5.2. The reinstatement of General Mdluli into office, without prosecution of criminal and disciplinary charges against him, has caused serious controversy, material lack of trust within and outside the ranks of SAPS, as well instability in SAPS, more particularly at its leadership level. After his reinstatement, General Mduli has made public statements which have added to the mistrust and instability. For instance, he claims that certain senior members of SAPS, including the Provincial Commissioner of Police in Gauteng, General Mzwandile Petrus, and the head of the Hawks, General Anwa Dramat, are part of a conspiracy to remove him from SAPS.

5.3. Although the claim of conspiracy has been denied by senior members of SAPS who are accused of conspiracy, particularly General Petrus, the claim itself has generated further mistrust and instability in the SAPS, to such a degree that the sixth respondent has himself had to intervene, by making an unexpected announcement in Parliament on Thursday, 10 May 2012.

5.4. In his public announcement, the sixth respondent has described the accusations at the senior level of SAPS as unfortunate, and serious enough to warrant investigation by a task team he has established for the purpose. He also indicated that pending the conclusion of the task team’s mandate, General Mdluli will be ‘redeployed’ from his current position, with immediate effect, to another post, not yet determined, but which would be identified by the second respondent. A copy of the sixth respondent’s statement is annexed hereto and marked “FA 1.1”.

5.5. The ‘redeployment’ of General Mdluli, as announced by the sixth respondent in these vague terms, patently does not resolve the problem caused by his reinstatement, and his far-reaching claims of conspiracy. By his conduct, the sixth respondent accepted that there was a need to act, but has not initiated suspension proceedings, or any other measure which would remove General Mdluli from active daily service in SAPS as a high-ranking officer. He remains vested with the authority of his rank, and he remains on active service, able to exercise the powers vested in a police lieutenant-general under the Police Act and related legislation.

5.6. I am aware that (apart from the nearly 600 more junior officers of SAPS currently suspended pending determination of serious allegations of criminality related to them) there is a striking recent instance where a senior member of SAPS was ultimately suspended by the President, pending the outcome of a inquiry into allegations of improper behaviour made against him. I refer in this regard to the suspension of the Commissioner himself, General Bheki Cele. A similar suspension applied to his predecessor, General Jackie Selebi. As far as I am aware no reason has been given why a similar course was not followed in the present case.

5.7. The claim of conspiracy made by General Mdluli is itself sufficient cause to suspend him from office, pending the investigation of that claim. The decision to redeploy General Mdluli shows that his treatment is partial and selective. In the light of the criminal and disciplinary charges which had been instituted against General Mdluli but were withdrawn, the decision to not to suspend him is arbitrary and irrational.

In the light of the above considerations, this application is brought in two parts:

6.1. In Part A the applicant seeks urgent interim relief whose purpose is ensure that General Mdluli does not perform any official functions and duties either as head of Crime Intelligence in SAPS or in connection with or arising from the redeployment foreshadowed by the sixth respondent in annexure “FA1.1” hereto. The grounds on which the urgent interim relief is sought are set out in section D of this affidavit.

6.2. In Part B of the notice of motion the applicant seeks the review and setting aside of the decisions set out in section E of this affidavit. The grounds on which these decisions are sought to be reviewed are described in both sections C and H of this affidavit.

In addition to the above relief the applicant seeks the mandatory orders described in the notice of motion. The purpose of these orders is to remedy all the unlawful and unconstitutional decisions and conduct of the respondents, arising from the impugned decisions. Once granted, the mandatory orders will ensure that the respondents properly fulfill their functions and duties in a manner that is consistent with the Constitution, and gives effect to the rule of law and principle of legality. In section I of this affidavit I deal with the basis on which the applicant pursues the mandatory orders.

B. The parties

The applicant is Freedom Under Law, a non-profit company incorporated and registered in the Republic of South Africa (“the Republic”) in accordance with the then provisions of section 21 of the Companies Act, 61 of 1973, now section 10 of the Companies Act, 71 of 2008, as amended.
The applicant was established in January 2009 and has offices of record in the Republic and in Switzerland. Its registered offices in the Republic are at PWC, 19 Oewer Park, Rokewood Avenue, Stellenbosch.
The first respondent is Advocate Nomgcobo Jiba, the acting National Director of Public Prosecutions, who was appointed as such by the President of the Republic, on 28 December 2011, after the suspension from office of the incumbent, Mr Menzi Simelane, as a result of the judgment of the Supreme Court of Appeal in Democratic Alliance v The President of the RSA & others 2012 (1) SA 417 (SCA), delivered on 1 December 2011.
The address for service of the first respondent within the area of jurisdiction of this court is care of the State Attorney, SALU Building, 316 Andries Street (corner Andries and Schoeman Streets), Pretoria.
By virtue of the provisions of section 179(2) of the Constitution, as well as Chapter 4 of the National Prosecuting Authority Act, 32 of 1998, as amended (“the NPA Act”), the first respondent has the powers, functions and duties to institute criminal proceedings on behalf of the State, and to carry out any necessary function and duty which is incidental thereto.
The first respondent is joined in these proceedings by virtue of the fact that she, or employees of the National Prosecuting Authority purporting to act on her behalf, or on the authority of her office, took a decision to withdraw criminal proceedings against General Mdluli. As I shall indicate more fully below, the decision to withdraw those criminal proceedings is unconstitutional, unlawful and invalid and should be reviewed, on the grounds more fully set out herein.
The second respondent is Lieutenant-General Nhlanhla Mkhwanazi, the acting National Commissioner of South African Police Service. He was appointed as such by the President of the Republic, when General Bheki Cele was suspended from office as the National Commissioner on or about 24 October 2011.
The address for service of the second respondent within the area of jurisdiction of this court is also that of the State Attorney, Pretoria.
By virtue of the provisions of section 207(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), read with section 205(3) thereof, as well as the relevant provisions of Chapter 5 of the South African Police Service Act, 68 of 1995, as amended (“the SAPS Act”), and the Regulations made in terms thereof, the second respondent is the head of the South African National Police Service (“SAPS”) and is required, amongst other things, to:

16.1. ensure that he and other members of SAPS diligently fulfil their constitutional and statutory functions and duties to prevent, combat and investigate crimes, maintain public order, protect and secure the inhabitants of the Republic, and uphold and enforce the law of the land;

16.2. institute disciplinary action and prosecute disciplinary proceedings against any member of SAPS who is accused of and charged with misconduct, and to suspend from office, with or without payment of employment benefits, such a member, pending the outcome of disciplinary proceedings.

The second respondent is joined in these proceedings by virtue of the fact that on 27 March 2012, he and/or other members of SAPS acting under his control or direction, took a decision to terminate disciplinary proceedings which had been instituted against General Mdluli and to withdraw charges of misconduct that had been brought against General Mdluli, and thereafter to immediately reinstate him in office as the National Divisional Commissioner for Crime Intelligence within SAPS.
As I shall show more fully below, the decision to terminate disciplinary proceedings, and to withdraw charges of misconduct, against General Mdluli, and also to reinstate him as the National Divisional Commissioner for Crime Intelligence is unconstitutional, unlawful and invalid, and is subject to review on the grounds more fully set out below.
The second respondent is also joined herein by virtue of the fact that the urgent interim relief sought in the notice of motion affects him. Should that relief be granted he will be required to give effect to it.
The third respondent is Advocate Lawrence Mrwebi who is the head of the Specialised Commercial Crime Unit within the National Prosecuting Authority, appointed as such on 25 November 2011.
The address of service of the third respondent within the area of jurisdiction of this court is also that of the State Attorney, Pretoria.
The third respondent is joined in these proceedings by virtue of the fact that he has been reported in the media, and has not denied the media reports, as having taken the decision to withdraw charges of murder and related offences against General Mdluli, and as having instructed the members of the National Prosecuting Authority in charge of the prosecution of General Mdluli to withdraw those charges.
For the reasons I shall advance below, the decision made by or attributed to the third respondent is unconstitutional, unlawful and invalid and is liable to be reviewed and set aside by this court.
The fourth respondent is Advocate Faith Radebe, the Inspector General of Intelligence, appointed in terms of section 7 of the Intelligence Services Oversight Act, 40 of 1994, on 7 April 2010.
The address for service of the fourth respondent within the area of jurisdiction of this court is also that of the State Attorney, Pretoria.
The fourth respondent is joined in these proceedings by virtue of the fact that she investigated circumstances relating to the purported withdrawal of criminal charges against General Mdluli, issued a report and recommended that the criminal charges against General Mdluli should be reinstated and that he should be prosecuted forthwith.
The fourth respondent is joined in these proceedings by virtue of any interest she may have. No order is sought against her, unless she opposes the relief sought herein, in which event, an order as to costs will be sought against her.
The fifth respondent is Lieutenant-General Richard Naggie Mdluli, the National Divisional Commissioner: Crime Intelligence in the South African Police Service, appointed as such on 1 July 2009. His place of residence within the area of jurisdiction of this court known to the applicant is 24 Kudu Street, Dawn Park, Boksburg, Gauteng Province.
General Mdluli has been the subject of a number of allegations and investigations as detailed in this affidavit. He was suspended, pending a disciplinary process, on 8 May 2011 and his suspension was lifted on 27 March 2012, when he was immediately reinstated in his employment as the head of Crime Intelligence in SAPS.
In addition, General Mdluli was the subject of criminal charges as detailed later in this affidavit, including charges of fraud and murder. The fraud charges were withdrawn on 14 December 2011, while it was announced on 2 February 2012 that the murder charges would be withdrawn on 10 April 2012.
The compliance with law of the lifting of General Mdluli’s suspension, of the withdrawal of both criminal and disciplinary charges against him, and of his reinstatement as the head of Crime Intelligence in SAPS is the subject of this application.
General Mdluli is cited for his interest in the matter. In the event that he opposes the relief sought herein, an order as to costs will be sought against him.
The sixth respondent is the Minister of Safety and Security, the member of Cabinet responsible for SAPS. He is joined in these proceedings by virtue of the fact that the urgent interim relief sought in the notice of motion affects him, and he will be required to give effect to it, in the event it is granted.
In respect of the relief sought in Part B of the notice of motion no order is sought against the sixth respondent, unless he opposes that relief, in which event a costs order will be sought against him.
The address for service of the sixth respondent within the area of jurisdiction of this court is also that of the State Attorney, Pretoria.

C. Decisions sought to be reviewed

There are four decisions sought to be reviewed in these proceedings. I describe those decisions in this section of the affidavit.
The first is the decision made on 6 December 2011 by the third respondent in terms whereof the charges brought against of, inter alia, fraud and corruption, were withdrawn. I shall refer to that decision as “the first impugned decision”.
Immediately after he made the first impugned decision the third respondent instructed the Public Prosecutor responsible for the prosecution of the fraud and corruption charges, Advocate C Smith, and Advocate Smith’s superior, Advocate Glynnis Breytenbach, to withdraw the charges.
The latter had advised the third respondent that there was no basis to withdraw the charges, as there was strong evidence to support them. Instead of accepting that advice, the third respondent persisted in his instruction that the charges against General Mduli be withdrawn.
General Mdluli had already been informed of the third respondent’s decision, prior to Advocates Smith and Breytenbach having being informed. This is apparent from a report dated 2 March 2012 prepared by Colonel Roelofse and addressed to the Commander of the Anti-Corruption Task Team, annexure “FA1” to this affidavit.
The report suggests at paragraph 61 that the third respondent took the view that only the fourth respondent could investigate the matter, and that the evidence in the matter was irrelevant to his decision.
In consequence the charges were formally withdrawn in the Specialized Commercial Crimes Court in Pretoria on 14 December 2011.
In summary, the first impugned decision is open to review on the following grounds:

43.1. The person empowered to review a decision to prosecute or not to prosecute is the first respondent, in terms of section 179(5)(d) of the Constitution.

43.2. The third respondent unlawfully purported to exercise the power, which power he did not have, acting inconsistently with the Constitution, and in violation of the principle of legality and the rule of law.

43.3. Even if the third respondent were clothed with the power to review the decision to prosecute General Mdluli, the decision was taken in the face of overwhelming evidence against General Mdluli, and against the strong recommendation of Advocate Breytenbach. It was, in the circumstances, arbitrary, irrational and taken for no proper purpose.

43.4. A decision in terms of section 179(5)(d) must be taken after consulting the relevant Director of Public Prosecutions, and taking representations from relevant parties. The decision taken by the third respondent appears to be based solely on representations made by General Mdluli to the third respondent. The views of the relevant prosecutors were ignored. The decision is thus inconsistent with the requirements of section 179(5)(d).

43.5. By taking the decision that General Mdluli would not be prosecuted, in the face of overwhelming evidence, and in contradiction of the advice of Advocate Breytenbach, the third respondent also acted irrationally, arbitrarily, for no proper purpose and in conflict with section 179(2) of the Constitution read with section 179(4) and section 1(c) thereof.

43.6. Finally, if the decision was indeed taken on the basis that the evidence was irrelevant and that only the fourth respondent had jurisdiction to investigate the matter, the decision was based on an error of law.

The second decision sought to be reviewed was made on 29 February 2012 by the second respondent or other members of SAPS, acting on his authority, in terms whereof the disciplinary charges he had instituted against General Mdluli were withdrawn and disciplinary proceedings initiated to investigate and determine those charges were terminated. I shall refer to this decision as the “the second impugned decision”.
In summary, the second impugned decision is open to review on the following grounds:

45.1. The second respondent has publicly stated that he was instructed by authorities “beyond” him to withdraw disciplinary charges against, and reinstate, General Mdluli.

45.2. By acting on the instructions of authorities “beyond” him, the second respondent failed to act independently, without fear, favour or prejudice, and himself to discharge the function which vests in his own office. He therefore acted inconsistently with the provisions of section 207(1) of the Constitution which impose the constitutional obligation on him to exercise control over and manage SAPS. He accordingly made the second impugned decision also in violation of the rule of law and the principle of legality.

45.3. Additionally, the second respondent is always obliged, in terms of section 205(3) of the Constitution to protect and promote the constitutional objects of SAPS, which include the obligation to uphold and enforce the law.

45.4. The disciplinary charges against General Mdluli were instituted in accordance with the relevant provisions of the SAPS Act and the Regulations made in terms thereof.

45.5. By withdrawing the disciplinary charges against General Mdluli, the second respondent failed to uphold and enforce the SAPS Act and the Regulations, and therefore acted in breach of the rule of law and the principle of legality.

45.6. Finally, the second respondent is responsible for maintaining an impartial, accountable, transparent and efficient police service, in terms of section 11 of the SAPS Act read with section 218(1) of the Constitution of the Republic of South Africa, Act 200 of 1998 (“the Interim Constitution”).

45.7. The withdrawal of the charges against General Mdluli in the context outlined in this affidavit is patently inimical to an impartial, accountable, transparent and efficient police service. Not only do the offences in which General Mdluli is implicated adversely affect these factors, but where a senior officer in SAPS is not investigated and disciplined there is no incentive for other members of the Service to behave in a manner which is impartial, accountable, transparent or efficient.

45.8. The failure to investigate these charges is therefore a dereliction of the second respondent’s constitutional and legislative duties.

The third impugned decision is the decision by the first respondent, or persons under her authority, on 2 February 2012, to withdraw the murder charges against General Mdluli, and instead to refer the matter to a formal inquest.
In summary, the third impugned decision is open to review on the following grounds:

47.1. In terms of the relevant provisions of section 179(5)(d) of the Constitution, the first respondent may decide whether to withdraw a criminal charge or charges against an accused person.

47.2. In making such a decision, she is required to act in accordance with the express provisions of section 179(5)(d)(i) to (iii) of the Constitution, which require her to make the decision after she had considered representations from the accused person, the complainant, and any other relevant third party.

47.3. In this case, the third impugned decision was taken after only representations made by or on behalf of General Mdluli had been considered. Representations from complainants and other victims of the criminal charges brought against General Mdluli were neither called for nor considered.

47.4. There is a constitutional obligation upon the first respondent to call for and consider representations from these categories of affected persons, before she may lawfully make the decision to withdraw charges against General Mdluli. She therefore acted inconsistently with the provisions of section 179(5)(d)(ii) and (iii) of the Constitution, and also the rule of law and the principle of legality.

47.5. The third impugned decision was taken despite compelling evidence to prosecute the criminal charges against General Mdluli, of which the first respondent ought to have been aware. The decision in the circumstances was arbitrary, irrational and taken for no proper purpose authorised by law.

47.6. I believe that the first respondent, or an official under her authority, also requested and obtained a legal opinion from Senior Counsel which advised that the charges of murder and related offences should be persisted with, and not withdrawn.

47.7. She therefore acted arbitrarily and irrationally, and in a manner inconsistent with the provisions of section 179(2), which requires her to institute and prosecute criminal proceedings on behalf of the State. By failing to comply with that constitutional obligation, the first respondent also acted in a manner inconsistent with the rule of law, and the principle of legality.

The fourth decision sought to be reviewed is the decision made on 31 March 2012 by the second respondent or members of SAPS, acting on his authority, in terms whereof General Mdluli was reinstated in office as the National Divisional Commissioner: Crime Intelligence of SAPS. I shall refer to this decision as “the fourth impugned decision”.
The fourth impugned decision is subject to review upon the same grounds as the second impugned decision. It is also open to review on the following additional grounds:

49.1. In terms of section 205(2) of the Constitution, SAPS is required to discharge its constitutional and statutory responsibilities effectively. It is therefore required, amongst others, to inspire and engender public trust, faith and confidence in its ability to fulfil its responsibilities effectively.

49.2. SAPS is also required to be “impartial, accountable, transparent and efficient”, in terms of section 218(1) of the Interim Constitution.

49.3. Part of that responsibility is to ensure that SAPS does not tolerate, and deals effectively with, allegations of corruption and other unlawful behaviour by individuals within its ranks. That responsibility is heightened, and becomes acute, where allegations of corruption and other criminal conduct are levelled against a senior member of SAPS who occupies an important leadership role, such as General Mdluli.

49.4. Where, as here, General Mdluli is implicated in serious criminal conduct, which includes violent crimes against persons, and corruption involving state resources, it goes without saying that the withdrawal of criminal and disciplinary charges against him, and his reinstatement to a position of leadership in SAPS, will not only weaken the faith and confidence which the public is required to have in SAPS, but also destroys the trust which the public reposes in it.

49.5. By way of example, I refer to the telling remarks made by the Chairperson of the Portfolio Committee on Police, reported in the Mail & Guardian article of 17 April 2012, a copy whereof is annexed hereto and marked “FA2”, in which she expressed his distrust as follows –

“[Chikunga] earlier referred to controversial cases involving senior police members, including that of recently reinstated crime intelligence head Richard Mdluli, as well as suspended KwaZulu-Natal Hawks boss Major General Johan Booysen.

‘The head of crime intelligence — our hope in fighting crime in this country — is alleged [to be involved in] serious misconduct … What is the feeling … when the most senior people in [the police] are suspected of being involved in criminal conduct such as this?

“What is this supposed to mean? Who is sitting in front of this portfolio committee? Who must we trust? Who are you? Can you define yourself to this portfolio committee so that we know?” Chikunga asked.

She said some of the serious allegations levelled against some senior members of the police service “manifest a flagrant violation of the moral integrity expected of police members or conduct unbecoming that of a police member”.

…

Chikunga noted that many of the facts coming to light in cases against senior members were being exposed by the media.

‘I’m worried about what this means about the senior managers in this department, who are not able on their own to pick up these matters and correct them,’ she said.

Chikunga called on Mkhwanazi to provide clarity on the cases she had highlighted.

‘The head of the Hawks in KZN is … suspected of being involved in serious misconduct.

‘And for … God’s sake, this is the head of the Hawks, a specialised unit we’re talking about. Not just any SAPS member, [but] the head of the Hawks, our hope… in the fight against organised crime.’

She then said: ‘Who is sitting in front of us here? Who must we trust? Who must we not trust?’”

I therefore submit that the fourth impugned decision is also open to review on the ground that it is inconsistent with section 205(2) of the Constitution, in breach of the rule of law and violates the principle of legality.
In section H of this affidavit I describe, in detail, the grounds on which the impugned decisions are open to review, both in terms of the Constitution and the relevant provisions of the Promotion of Administrative Justice Act, 3 of 2000, as amended (“PAJA”).
I conclude this part of the affidavit by pointing out that there has been widespread media speculation and public concern about the lack of reasons and justification by the first to third respondents, concerning the making of the impugned decisions. None of these respondents has publicly sought to explain the reasons for and justification of the impugned decisions. Their silence manifests a failure to act in accordance with the fundamental values of openness, transparency and accountability. This, on its own, also renders the conduct of the respondents unconstitutional, as it violates section 1(d) of the Constitution.

D. Urgent interim relief

In annexure “FA1.1” the sixth respondent made it clear that General Mdluli will remain in office as a member of SAPS and will fulfil functions and duties arising from a post which will assigned to him as a result of his redeployment. That office is yet to be identified by the second respondent.
On the sixth respondent’s approach, General Mdluli will remain in office and perform functions and duties as SAPS member notwithstanding not only the serious allegations against him, but also despite the fact that a task team has been established to investigate the claims of conspiracy which he has now made about his colleagues.
I submit that it is intolerable that General Mdluli should remain in office in the face of serious allegations of criminal conduct against him, and when he himself has alleged a conspiracy by ranking officers in SAPS. I say so for the following reasons:

55.1. The primary constitutional and statutory function and duty of General Mdluli is to combat criminal conduct, and ensure that crimes are investigated prosecuted by the NPA.

55.2. The allegations against General Mdluli affect the very foundation of his constitutional functions and duties. He is now the subject of the very conduct he is required to combat and ensure that it is investigated and prosecuted.

55.3. For as long as he remains in office the public will lose trust, faith and confidence in him specifically as a member of SAPS, and generally in SAPS as an organisation to which he belongs. I refer in this regard to annexure “FA2” hereto.

55.4. Secondly, SAPS must always act, and do so decisively, against any member who becomes the subject of serious allegations of criminality of the kind levelled against General Mdluli. Decisive action in this case required that General Mdluli should not remain in office, until those allegations are determined in appropriate forums.

55.5. For as long as General Mdluli remains in office the image of SAPS as an institution which tolerates criminal conducts in its ranks will continue. I emphasize that SAPS is dependant upon the legitimacy of its image to combat crime and earn the respect and support of the public, which it requires to fulfil that function.

55.6. Thirdly, the second and sixth respondents have not suggested that SAPS will not be able to perform its constitutional and statutory functions and duties effectively and efficiently should General Mdluli not be required to fulfil any functions and duties as a member of SAPS pending the finalisation of disciplinary and criminal charges against him. The fact that the second and sixth respondents took the decision to remove General Mdluli from office as head of Crime Intelligence in SAPS shows that there would be no such prejudice in the event interim relief is granted.

55.7. Fourthly, the sixth respondent has now instituted a task team to investigate allegations of conspiracy made by General Mdluli.

55.8. The allegation of conspiracy fundamentally affects the integrity and stature of those accused of conspiracy. It implies abuse of power on their part, at the highest leadership in SAPS. It also suggests abuse of state resources to settle personal scores.

55.9. Should General Mdluli remain in office, pending the outcome of the investigation, it is inevitable that General Mdluli will be required to engage with persons he has accused of conspiracy: he will be required to report to them, or they will be required to report to him.

55.10. It is intolerable that SAPS officials he has accused of conspiracy should be required to engage with General Mdluli whilst the investigation into the claim of conspiracy is not completed. The ability of SAPS senior members to make vital decisions relating to their functions and duties will be compromised.

55.11. From what I describe in sections E and H of this affidavit the applicant has shown a prima facie right to the review and setting aside of the impugned decisions.

55.12. The primary purpose of the present application is to vindicate the rule of law, and enforce compliance with the Constitution. The applicant seeks to achieve that purpose in circumstances where a vitally important law enforcement institution is affected and its ability to carry out its constitutional and statutory functions and duties are at stake. It also seeks to do so in circumstances where the obligation of SAPS to undertake and prosecute disciplinary proceedings against its own member is at necessary.

55.13. Should the interim relief not be granted, the applicant will suffer irreparable harm, as its attempts to uphold the rule of law will be compromised.

55.14. From what I have described in paragraphs 5, and 53 to 55, the balance of convenience favours the grant of the interim relief.

55.15. The applicant has no other adequate remedy. By the time the relief sought in Part B is heard and determined, the damage to the legitimacy and image of SAPS will have been done. This is a case where there is a continuing adverse impact on an important law enforcement institution, by reason of continuing public controversy, because neither the second nor sixth respondents are prepared to take an obvious and necessary step against General Mdluli. By failing to act as they should, they have moreover generated a justifiable public perception of bias towards him.

The applicants have afforded any respondents who choose to oppose the relief sought in Part A sufficient opportunity to file their opposing affidavits and to present their case on the date described in the notice of motion, for the hearing of Part A.

E. FUL’s legal standing

FUL brings this application acting in its own interest. It also makes the application acting on behalf of persons who are unable to act in their own names. These include complainants and victims in the criminal charges of kidnapping, assault and intimidation, and family members of the deceased person (Mr Tefo Abel Ramogibe) in the murder charge, all of which were brought against General Mdluli. For reasons I shall shortly describe, these persons are not able to act for themselves in challenging the decisions sought to be reviewed, which evidently adversely affect them.
The applicant also brings the application acting in the interest of the public. The circumstances in which the impugned decisions were taken, the palpable violation of the Constitution, the rule of law and principle of legality, the grave consequences arising from these violations, and the understandable public outcry arising therefrom, manifestly justify the applicant’s approach to this court, acting in the interest of the public in order to vindicate compliance with the Constitution and upholding of the rule of law. The manifest institutional failure on the part of the respondents who took the impugned decisions, and their unexplained silence and lack of justification for their conduct require the court to remedy the improper exercise of public power immediately, and without further delay.
I proceed to describe the facts and circumstances which justify the applicant’s standing on each of the above three bases.

Acting in own interest

The applicant is actively involved in the promotion of democracy and law, the advancement of and respect for the rule of law and the principle of legality as the foundation for constitutional democracy in the Southern African region, more particularly in the Republic. Its board of directors comprises respected lawyers from South Africa, Botswana, Namibia and Zimbabwe, namely, retired Justice Johann Kriegler, Ms Elize Angula, Adv George Bizos SC; Mr Ezra Davids, Ms Beatrice Mthetwa, Mr Abdool Rahim Khan, Professor Hugh Corder, Advocate Jeremy Gauntlett SC and Dr Frederick Mostert.
The applicant also enjoys the support of an international advisory board whose members comprise the Right Honourable Lord Steyn, Professor Shami Chakrabarti, Judge Nathaniel R Jones, Mr Vernon E Jordan, Jnr, Professor Jeffrey Jowell QC, Sir Sidney Kentridge QC, the Honourable Soli Sorabjee SC, Archbishop Emeritus Desmond Mpilo Tutu and me.
The applicant’s mission is to:

62.1. promote democracy under law and to advance the understanding and respect of the rule of law and the principle of legality;

62.2. secure and strengthen the independence of the judiciary, and to that end, to promote selection, training and advancement of a judiciary appropriate to the needs of constitutional democracy;

62.3. advance the independence and skill of the legal profession in serving the courts and to enhance communication and understanding between the judiciary, the legal profession, academic lawyers, the media and society at large. It also wishes to promote legal education appropriate to the needs of constitutional democracy and to protect, promote and advance freedom of speech and freedom of the media in relation to the administration of justice and in courts.

The applicant has been admitted as an amicus in the following cases:

63.1. Constitutional Court case CCT 53/09 of the Minister of Justice and Constitutional Development v Nyathi (regarding the unconstitutionality of the State Liability Act 20 of 1957);[1] and

63.2. North Gauteng High Court case 8550/09 of Pikoli v The President & Others (regarding the unconstitutionality of the dismissal of the National Director of Public Prosecutions).[2]

The applicant has also instituted review proceedings, acting in its own interest, on behalf of other persons who could not act in their own name, and also in the public interest, in terms of the relevant provisions of sections 38(a), (b) and (c) of the Constitution. The legal standing of the applicant to act in that capacity, in order to challenge decisions which violated the rule of law and principle of legality has been acknowledged and upheld by the Supreme Court of Appeal.[3] The applicant’s standing in the constitutional challenge to the purported executive extension of the term of office of the previous chief justice was also ultimately conceded by the President and Minister of Justice and accepted by the Constitutional Court.
The applicant has also observed the case of Jestina Mukoko v Attorney General in the Zimbabwe Supreme Court (regarding the barring of prosecution by reason of egregious breaches by the state of the accused person’s fundamental rights).
I have already indicated, in section C above, the extent to which the impugned decisions are inconsistent with the Constitution and in violation of the rule of law and the principle of legality. These violations directly engage the mission of the applicant to promote democracy under law, and to advance the understanding and respect of the rule of law and the principle of legality.
The applicant has a direct interest in ensuring that the impugned decisions are reviewed, and that the respondents who took those decisions are directed to comply with the relevant provisions of the Constitution, the rule of law and the principle of legality.
Thus far, no one has sought to initiate review or other legal proceedings to enforce compliance with the Constitution or the rule of the law by the respondents who took the impugned decisions in regard to those decisions. This is despite the widespread public outcry and condemnation of those decisions. By virtue of its primary mission, the resources it has and its past experience in litigating and participating in cases that involved the promotion and upholding of the rule of law, the applicant is well-suited to bring the present review, acting in its own interest and to approach this honourable Court for an appropriate remedy.

Acting on behalf of others who cannot act for themselves

In respect of the criminal charges of kidnapping, assault and intimidation, there are complainants, victims and family members of the deceased who are known to the first to third respondents and whose rights and interests were ignored by the respondents when they took the impugned decisions.
It is clear that the family members of the deceased have been drastically affected by the murder of the deceased. They have a right to human dignity which entitles them to expect that justice will not only be done but will also be seen to be done in respect of the murder charges brought against General Mdluli and his co-accused. The same fundamental considerations apply in respect of the complainants and victims in the criminal charges of kidnapping, assault and intimidation brought against General Mdluli and his co-accused.
In this case the right to dignity of the complainants, victims and family members, protected by of section 10 of the Constitution, and their right to be heard, protected by section 33 of the Constitution, have been effectively ignored by the respondents when they took the impugned decisions. And yet, General Mdluli was heard and afforded an opportunity to make representations.
Such unequal treatment of the affected persons violate the rights of the complainants, victims and family members to equal protection and benefit of the law, in a manner which is inconsistent with section 9(1) of the Constitution.
The affected complainants, victims and family members are persons from historically disadvantaged backgrounds. They do not have the knowledge, means and resources to assert their constitutional rights and ventilate the breaches of the Constitution and the rule of law arising from the decisions that are sought to be reviewed, as well as the conduct of the respondents in taking those decisions.
Furthermore, the affected complainants, victims and family members do not have the financial means and the legal expertise to institute and prosecute review or other legal proceedings to bring to the attention of the Court the unconstitutional and unlawful decisions and conduct of the first to third respondents, and to seek appropriate remedy.
Having regard to the above circumstances, the applicant is entitled to act on behalf of the affected complainants, victims and family members to bring the present review application. It has the necessary resources and expertise to do so.

Acting in the public interest

One of the criminal charges brought against General Mdluli relates to corruption, involving the abuse of financial resources of the State, namely the Secret Service Account, for private gain. This criminal charge is pre-eminently serious in itself. Its gravity cannot be called into question where that charge of corruption is directed against one of the most senior members of SAPS who is part and parcel of law enforcement.
Where a criminal charge of corruption against a senior law enforcement agent, in this case General Mdluli, and disciplinary charges arising therefrom, are withdrawn in a manner that violates the Constitution and the rule of law, there is a public interest to ensure that such unconstitutional and unlawful decisions are set aside. The public interest is fortified by the additional consideration that General Mdluli has been reinstated in his office as the head of crime intelligence of SAPS, notwithstanding the unconstitutional and unlawful decisions.
The government of the Republic has set its face against the scourge of corruption. It is also a state party to an international convention which imposes obligations on it to take effective measures to fight corruption in the public service. It follows, therefore, that allegations of corruption levelled against General Mdluli, a senior law enforcement agent, must not only be investigated and be prosecuted, but also that he should not be allowed to resume office and remain in charge of the very unit of crime intelligence which controls the Secret Service Account whose funds form the subject-matter of the charge of corruption.
That General Mdluli’s position allows him to access and influence the investigation of the offences in which he is implicated is also relevant to how allegations of internal corruption are dealt with by SAPS.
In all of the public statements they have made, neither General Mdluli nor the first to third respondents have claimed that there is any prejudice that General Mdluli or the respondents concerned will or might suffer, in the event that General Mdluli is not reinstated as the head of crime intelligence in the absence of proper investigation and determination of the allegations against him.
In any event, any prejudice there may be, the existence of which I deny, cannot outweigh the public interest in ensuring that criminal and disciplinary charges against General Mdluli are prosecuted diligently and without delay, and that he should not be reinstated as the head of crime intelligence of SAPS, until the finalisation of those charges in appropriate forums.
I have been advised and respectfully submit that the Constitution and the judgments of the Courts engender a culture of transparency and justification by organs of State entrusted with the exercise of public power. The first to third respondents are required to comply with and promote this culture of justification, and yet they have failed to do so by their silence and failure to publicly provide justification for their decisions, in the face of widespread public condemnation of those decisions.
Moreover, the fourth respondent has called upon the first and third respondents to reinstate the criminal charges against General Mdluli and his co-accused. They have failed to give effect to the recommendations of the fourth respondent, and have done so without providing any reasons for their failure.
From the media reports it is apparent that the first respondent or other members of the NPA acting on his behalf had requested a legal opinion from senior counsel on whether the murder and related charges against General Mdluli should be withdrawn, and that the legal opinion obtained indicated that there was no justifiable basis on which to withdraw those charges. That too, adds to the lack of justification, accountability and openness on the part of the first respondent and/or her office.
I therefore submit that the applicant is entitled to act in the public interest to bring the present review.
In the light of the fact that the first to third respondents have withdrawn the criminal and disciplinary charges against General Mdluli, without any justification and explanation for their conduct, particularly the decision to reinstate him in office in the face of these charges remaining undetermined, the applicant is compelled to approach this court to review and set aside the impugned decisions and to direct the respondents concerned to fulfil their constitutional functions and duties in accordance with the mandatory orders described in the notice of motion.

F. Background facts

I deal next with background facts which set out the context and scene of the present application. For convenience, I deal with the factual background under different headings which identify the relevant subject-matter.

The employment of General Mdluli in SAPS

General Mdluli joined SAPS on 27 August 1979. After completion of basic training he was initially stationed at Evander police station, and thereafter transferred to Vosloorus SAPS Detective Branch on 31 January 1981.
In December 1992 General Mdluli was promoted to the rank of Lieutenant. He was thereafter appointed Branch Commander of the Vosloorus Detective Branch. In April 1995 General Mdluli was promoted to the rank of Captain. He was further promoted to the rank of Colonel in March 1996. On 1 July 1999 General Mdluli became a senior superintendent.
I pause to note that General Mdluli was, the time of the commission of the murder and related offences, Branch Commander of the Detective Branch of the very police station in the jurisdiction of which these offences occurred.
He was transferred to the Southern Cape on 1 August 2000, and promoted to director. On 1 August 2003 he was promoted to the rank of Deputy Provincial Commissioner in the North West Province. He was then transferred to Gauteng Province on or about 4 November 2005, when he became the Deputy Provincial Commissioner. On 1 July 2009 General Mdluli became the National Divisional Commissioner: Crime Intelligence in SAPS. He is thus the head of the Crime Intelligence division of SAPS as contemplated in the SAPS Act, and the head of the intelligence division of the SAPS as contemplated in the National Strategic Intelligence Act, 39 of 1994 (“the NSIA”). The position is colloquially referred to in the media as head of Crime Intelligence.
There have been undenied media reports that, since his reinstatement as head of Crime Intelligence in SAPS after the criminal and disciplinary charges against him were withdrawn, General Mdluli’s responsibilities in SAPS were expanded. In addition to his responsibilities as the head of Crime Intelligence, he now controls the unit which provides VIP protection to members of the National Executive of the Republic, including Ministers and Deputy Ministers, as well as members of the Provincial Executives, including the Premier and the MECs of various Provinces. As a consequence he is apprised of the movements of all such persons. He also exercises complete control over all surveillance that any division of SAPS wishes to carry out in the investigation of any matter.
Whilst this affidavit was being prepared, the sixth respondent announced that General Mdluli was being “shifted” out of Crime Intelligence. It had not yet been determined where he was being shifted to. However, General Mdluli remains a senior officer in SAPS, with all that that entails, despite having become one without a portfolio.
I have drawn attention to the above brief background, without diminishing the career development of General Mdluli in SAPS, in order to show that he occupies one of the most senior positions of leadership in SAPS. The person who holds that position must enjoy public faith, trust and confidence concerning his ability to properly fulfil the responsibilities that are required by that office.
He must similarly enjoy the respect and confidence of his colleagues and of junior members of SAPS, for purposes of morale.
I have also drawn attention to the above brief background in order to indicate that whenever there are allegations of corruption and improper behaviour against the holder of a position of leadership in SAPS such as the one General Mdluli occupies, there is a compelling public interest to ensure that those allegations are properly investigated, and if there is the necessary evidence to support them, then criminal and disciplinary charges flowing therefrom must be prosecuted diligently. It is not in the interest of General Mdluli or the public that the charges brought against him be swept aside without being ventilated and determined in open court.

Criminal charges against General Mdluli

There are two sets of criminal charges that have been brought against General Mdluli, those relating to murder, and related offences, and those relating to fraud and corruption, and related offences.
General Mdluli was arrested on 31 March 2011 on a charge of murder, it being alleged that he was party to the unlawful and intentional killing of Mr Tefo Abel Ramogibe (“the deceased”), who, at the time, was married to Ms Consolation Tshidi Buthelezi, alleged to have had a love relationship with General Mdluli.
Upon his arrest, a docket under case number CAS 340/02/1999 for a charge of murder was opened against General Mdluli and his co-accused. The affidavit prepared by Colonel Roelofse annexed hereto and marked “FA3” describes in detail the investigation which was conducted by him concerning the murder charge.
General Mdluli was also charged with intimidation, kidnapping, assault with intent to commit grievous bodily harm and defeating the ends of justice. I refer to annexure “FA3” hereto which details the complainants in respect of each of these charges and the extent of investigation relating to them, conducted by Colonel Roelofse.
On 20 September 2011 General Mdluli was arrested and charged with fraud, theft and corruption, as well as money laundering. The charges arise from the unlawful utilization of the funds held in the Secret Service Account for the private benefit of General Mdluli and his spouse, Ms Theresa Lyons. I refer to the affidavit made by Lieutenant-Colonel Viljoen in support of the application for the warrant of arrest of General Mdluli and his co-accused for these charges, annexed hereto and marked “FA4”.
A docket under case number CAS 155/07/2011 was opened in respect of these charges. General Mdluli was then brought before the Specialized Commercial Crimes Court in Pretoria, and was granted bail. The case was postponed to 14 December 2011.
I refer again to the report from Colonel Roelofse to the Commander of the Anti-Corruption Task Team, annexure “FA1” referred to above, which describes the nature and extent of the charges of fraud, corruption and money laundering, and how those charges were ultimately withdrawn, upon the instruction of the third respondent.
Advocate C Smith was appointed to lead the prosecution of General Mdluli in respect of the charges brought against him for fraud and corruption. He was supervised by Advocate G Breytenbach. They were instructed by the third respondent to withdraw the charges against General Mdluli. They advised the third respondent against the instruction to withdraw the charges. As appears from paragraph 66 of annexure “FA1” hereto, the charges were eventually withdrawn in the Specialized Commercial Crimes Court in Pretoria on or about 14 December 2011, as a result of the instruction of the third respondent.
It is important to direct the attention of the court to the recent article which appeared on page 4 of the Sunday Times, 6 May 2012, which indicates that Advocate Breytenbach addressed a 200-page memorandum to the first respondent requesting her to reconsider the decision to withdraw the charges against General Mdluli. The first respondent has not denied the correctness or otherwise of that article. A copy of the relevant article is annexed, marked “FA5”.
I have drawn attention to the above facts in order to show that the investigation of the charges brought against General Mdluli and his prosecution on those charges is a product of fearless and commendable hard work by law enforcement agents from both SAPS and the NPA. They are not solely a product of political conspiracy be other senior members of SAPS against General Mdluli, as he has asserted in order to deflect a logical prosecution of the charges to finality. A letter from General Mdluli to the second respondent, amongst others, making such assertions, is annexure “FA6” hereto.

The withdrawal of the criminal charges

The circumstances relating to the withdrawal of criminal charges against General Mdluli are shrouded by secrecy, primarily because neither the first nor third respondents took it upon themselves to explain to the public those circumstances and the reasons for the withdrawal of the charges. This is surprising, and at odds with the prosecution policy adopted by the office of the National Director of Public Prosecutions which requires that the first and third respondents should not only act transparently but also give reasons for their decisions.
A copy of the relevant prosecution policy is annexed, marked “FA7”. I draw attention to Part 6 of the prosecution policy which makes it clear that the conduct of a member of the NPA who considers a withdrawal of charges against an accused must be transparent, and his decision to withdraw a charge or charges against an accused must be accompanied by reasons.
Neither the first nor third respondent acted transparently in respect of the decisions to withdraw the charges against General Mdluli. They have not provided reasons for those decisions. They have acted contrary to the legal yardstick that they have set for themselves, in addition to acting inconsistent with the Constitution and the rule of law.
I hasten to add that it is not a matter of practical difficulty for the first and third respondents to have acted transparently and to provide reasons. There is precedent for a transparent process and the giving of justifiable reasons in respect of a decision to withdraw charges. It will be recalled that when Advocate Mokotedi Mpshe SC decided to withdraw criminal charges against President J G Zuma he called a press conference and gave a full account of the circumstances, considerations and reasons which, he said, had led him to make that decision.
The circumstances of the present case are not dissimilar, and are, in fact, more compelling, in as much as they involved the institution and withdrawal of serious criminal charges against a senior ranking public official, on a matter which has generated widespread and continuing public controversy.
From the contents of annexure “FA1” hereto, it is clear that the third respondent took the decision to withdraw the criminal charges of corruption and fraud against General Mdluli by taking into account representations made to him on behalf of General Mdluli.
He did not call for and has not received representations from interested persons or groups. Persons who have an interest in the prosecution of these offences, include the Anti-Corruption Task Team, the second respondent, the head of the Directorate of Priority Crime Investigation (the Hawks), and the fourth respondent. It is not clear why representations from these individuals were not called for.
It is similarly clear that representations from the complainants, victims and family members of the deceased in respect of the charges of murder, intimidation, kidnapping, assault with intent to do grievous bodily harm were not sought when the third impugned decision was taken.
From the media reports, particularly the article which appears in City Press, 25 March 2012, a copy whereof is annexed, marked “FA8”, the fourth respondent appears to have investigated circumstances which led to the withdrawal of the fraud and corruption charges against General Mdluli and recommended that those charges should be re-enrolled.
To date, the request of the fourth respondent has not been positively received and acted upon by the first and/or third respondents. No reasons have been furnished for their refusal to accept the recommendation of the fourth respondent for the re-enrolment of the criminal charges.
I have already indicated that a legal opinion from senior counsel was requested and obtained at the instance of the office of the first respondent, concerning the withdrawal of charges. Again, it is not clear and reasons have not been furnished why the first respondent has not acted in accordance with the legal opinion he obtained, not to withdraw but to proceed with the prosecution of the charges against General Mdluli.
All of the above factors show that the withdrawal of the charges against General Mdluli is not only unconstitutional but also reviewable. I deal with the grounds of review in section H of this affidavit.

The institution and withdrawal of disciplinary proceedings against General Mdluli

I am not aware precisely when the disciplinary proceedings were instituted against General Mdluli. It is clear, however, from the contents of annexures “FA1” and “FA3” hereto that those charges were instituted by the second respondent against General Mdluli. I invite the second respondent to indicate when those charges were instituted, what those charges are and the status thereof by the time they were withdrawn.
The second respondent is reported to have stated that he took the decision to withdraw charges as a result of instructions from authorities “beyond” him. I invite the second respondent to explain to the Court who instructed him to take the decision to withdrawn the disciplinary charges against General Mdluli.
I also add that annexure “FA8” hereto indicates that the fourth respondent recommended that the second respondent reinstate disciplinary charges against General Mdluli. Thus far, the second respondent has not positively acted upon the request. He has also not given reasons for his failure or refusal to act in accordance with the recommendation of the fourth respondent.

The reinstatement of General Mdluli

After the withdrawal of the criminal charges and disciplinary charges against him, General Mdluli resumed office as the head of Crime Intelligence of SAPS, with effect from 31 March 2012. I refer to a copy of the article which appears on page 5 of the Sunday Times, 6 May 2012 which indicates that General Mdluli confirmed that he has now resumed his official duties as the head of Crime Intelligence in SAPS. A copy of that article is annexed hereto and marked “FA9”.
As I have already indicated General Mdluli’s official responsibilities were extended to include control of the SAPS unit which provides VIP protection services to members of the National and Provincial Executive Authority of the Republic.
There has been a recent announcement in Parliament by the sixth respondent, stating that General Mdluli will be “shifted” from his post, but it is not clear where he would be shifted to. General Mdluli remains a senior official in SAPS, albeit without portfolio.

G. The constitutional and statutory powers, functions and duties of the affected public functionaries

The applicant seeks to review the impugned decisions in the context of the following constitutional and statutory matrix relating to the powers, functions and duties of the first to fifth respondents. I describe this constitutional and statutory matrix in order to show how the first to third respondents failed to properly fulfil their functions and duties. The powers, functions and duties of the fifth respondent are relevant because they highlight the importance of the impugned decisions to the constitutional project and the rule of law.

The National Director of Public Prosecutions (the First Respondent) and the National Prosecuting Authority

Section 179(1) of the Constitution establishes the National Prosecuting Authority (“the NPA”) which is headed by the National Director of Public Prosecutions (“the NDPP”) who is appointed by the President. This is the office of the first respondent, which is currently occupied by an “acting” appointment.
Section 179(2) of the Constitution makes it clear that the NPA is the only organ of State which is authorized to institute and prosecute criminal offences. It does so not in its own interest, but in the public interest, acting on behalf of the State. I emphasize that the State in this context implies the representative of the people of the Republic.
In terms of section 179(4) of the Constitution, the NDPP and other members of the NPA are required to fulfil their functions without fear, favour or prejudice. That provision of the Constitution requires that national legislation must be implemented in order to give effect to this constitutional requirement. I shall deal with the provisions of the NPA Act, which is the national legislation contemplated in section 179(4) of the Constitution.
Section 179(5)(d) of the Constitution empowers the NDPP to review a decision to prosecute or not to prosecute a criminal charge or charges against a person, after considering representations within a time period specified by the NDPP from an accused person, the complainant or any person or party whom the NDPP considers to be relevant, in connection with the making of the representations.
I draw attention to the provisions of section 179(5)(d) of the Constitution because the third respondent made the decision to withdraw the fraud and corruption charges after he obtained representations made by or on behalf of General Mdluli, on 17 November 2011. Similarly, the murder charges were withdrawn without compliance with section 179(5)(d).
I also draw attention to the provisions of section 179(5)(d) of the Constitution because it is relevant to the prosecution policy referred to earlier in this affidavit, annexure “FA7”, which also contains guidelines that must be followed whenever the first respondent or any other person authorized by him is called upon to consider a request for withdrawal of criminal charges against that person.
The first respondent’s powers, functions and duties as set out in the Constitution are reflected and expanded upon in sections 20 – 22 of the NPA Act.
The powers, functions and duties of the first respondent are integral to the democratic and open society envisaged in the Preamble to the Constitution, and to the functioning of the State envisaged by the Constitution. It has been noted by the Supreme Court of Appeal in the Democratic Alliance judgment mentioned earlier in this affidavit that the powers to investigate and prosecute are central to the preservation of the rule of law. The manner in which these powers are exercised is, therefore, also central to the preservation of the rule of law.

The National Commissioner: South African Police Service (the Second Respondent)

In terms of section 205(3) of the Constitution, the objects of SAPS are “to prevent, combat and investigate crime, to maintain public order, to protect and secure inhabitants of the Republic and their property, and to uphold and enforce the law.”
The second respondent is appointed in terms of section 207 of the Constitution to “control and manage the police service” in accordance with the national policing policy and the directions of the responsible Minister.
The SAPS Act provides in section 11 that the second respondent has the powers, functions and duties set out in section 218(1) of the Interim Constitution, which remains in force by virtue of section 24 of Schedule 6 to the Constitution.
Thus, in addition to the responsibilities outlined earlier in this affidavit, the second respondent is responsible for, inter alia,

137.1. maintaining “an impartial, accountable, transparent and efficient police service”;

137.2. preserving the Republic’s internal security;

137.3. investigating and preventing organized crime and crime requires “national investigation and prevention or specialized skills”, and

137.4. keeping and providing crime intelligence data.

Once again, the powers, functions and duties of the second respondent, like those of the first respondent, are integral to the open and democratic society sought to be established by the Constitution, and to the rule of law. The manner in which these functions are carried out would, similarly, be central to the rule of law.

The Head: Specialised Commercial Crime Unit (the Third Respondent)

The third respondent is the head of the Specialised Commercial Crime Unit, a “business unit” within the NPA.
As a member of the NPA, the third respondent has the obligation to carry out his responsibilities without fear, favour or prejudice, and to do so in accordance with the rule of law.

The Inspector General of Intelligence (the Fourth Respondent)

The fourth respondent’s functions, in terms of section 7(7) of the Intelligence Services Control Act, 40 of 1994 (also known as the Intelligence Services Oversight Act), and in relation to SAPS, are, inter alia:

141.1. to monitor compliance with the Constitution, law and applicable policies;

141.2. to review intelligence and counter-intelligence services;

141.3. to receive and investigate complains about

141.3.1. maladministration;

141.3.2. abuse of power;

141.3.3. non-compliance with the Constitution, law and applicable policies;

141.3.4. offences in terms of the Prevention and Combating of Corrupt Activities Act, 2004, and

141.3.5. improper enrichment of any person as a result of an act or omission of a member of SAPS, and

141.4. to perform any functions designated to the office by the President or relevant Minister.

The fourth respondent therefore performs a key function in ensuring that SAPS and its members exercise their powers, perform their functions and carry out their duties in accordance with the Constitution and the rule of law.
143. The fourth respondent does not have the power to enforce her decisions or recommendations.

The Divisional Commissioner: Crime Intelligence (the Fifth Respondent)

General Mdluli is the head of the Crime Intelligence Division of SAPS. The crime intelligence functions of SAPS are dealt with in the NSIA.
Crime intelligence is defined in the NSIA as “intelligence used in the prevention of crime or to conduct criminal investigations and to prepare evidence for the purpose of law enforcement and the prosecution of offenders”.
The Crime Intelligence Division of SAPS has the following functions, in terms of section 2(3) of the NSIA:

“(a) to gather, correlate, evaluate, co-ordinate and use crime intelligence in support of the objects of the South African Police Service as contemplated in section 205 (3) of the Constitution;

(b) to institute counter-intelligence measures within the South African Police Service; and

(c) to supply crime intelligence relating to national strategic intelligence to Nicoc.”

The Division also has the duty to support the Directorate for Priority Crime Investigation.
Functions of the head of Crime Intelligence, in terms of the SAPS Act read with the NSIA, include:

148.1. sitting as a member of the National Intelligence Co-ordinating Committee (“Nicoc”), which co-ordinates all intelligence gathered by National Intelligence Structures and interprets it for use of the State and Cabinet.

148.2. issuing security clearances for persons to be appointed to the Directorate for Priority Crime Investigation.

General Mdluli’s responsibilities therefore extended, as head of crime intelligence, to all intelligence gathered by all intelligence services, in addition to crime intelligence.
In the position he occupied, General Mdluli had access to all intelligence and intelligence gathering processes. In addition, he was able to decide what intelligence is used and what is discarded, and to focus the manner and direction of intelligence gathering.
As a part of SAPS, General Mdluli has a duty to exercise his powers, carry out his functions and fulfil his duties in accordance with the Constitutional objects set out at section 205(3) of the Constitution.

H. Grounds of review

In this section of the affidavit I describe the grounds on which the impugned decisions are susceptible to review. I deal with the grounds of review separately in respect of each of the impugned decisions.

The first impugned decision

As I have already indicated, the first impugned decision, in terms whereof the criminal charges of fraud, corruption and money laundering instituted against General Mdluli were withdrawn on the instruction of the third respondent, was taken on 6 December 2011.
The first impugned decision is reviewable on the following grounds:

154.1. It was made by the third respondent when, in law, he did not have the power to make that decision. In terms of section 179(5)(d) of the Constitution, the power to review, reconsider or withdraw criminal charges against an accused person are vested in the first respondent and not the third respondent.

154.2. The provisions of section 22(2)(c) of the NPA Act are to the same effect. They vest the power to review, reconsider or withdraw criminal charges against an accused person in the first respondent, but merely require her to, amongst others, consult with the relevant Director of Public Prosecutions.

154.3. The legal representatives of FUL have also considered the provisions of sections 23 and 24 of the NPA Act which deal with the powers, functions and duties vested upon a Deputy Director and a Director in the NPA. None of the provisions of those sections of the NPA Act expressly confer the power to review, reconsider or withdraw charges against an accused person to a Deputy Director or Director of the NPA. Moreover, those provisions make it clear that they are subject to the overriding provisions of section 179 of the Constitution. I therefore submit that the third respondent cannot rely on the provisions of sections 23 or 24 of the NPA Act in order to justify the power he unlawfully exercised.

154.4. I therefore submit that the third respondent acted inconsistently with section 179(5)(d) of the Constitution and section 22(2)(c) of the NPA Act, when he usurped and exercised powers he did not have. He therefore acted unconstitutionally and in violation of the rule of law and the principle of legality.

The second ground of review is that the first impugned decision was made in a manner which is inconsistent with the requirements of section 179(5)(d)(iii) of the Constitution, as well as section 22(2)(c) of the NPA Act.
It will be recalled that one of the requirements for the lawful exercise of the power to withdraw a charge or charges against an accused person is that the first respondent must consider representations from, amongst others, a complainant and any other person the first respondent considers relevant.
In this case, the third respondent failed to comply with that constitutional requirement. He did not call for or consider representations from any person that he considered relevant. There were relevant persons from whom the third respondent should have considered representations, before he issued instructions to withdraw the charges of fraud, corruption and money laundering. These persons include:

157.1. The investigating officers who investigated the offences, gathered the necessary evidence and compiled a report on the weight of the evidence against General Mdluli. I refer, in this regard, to Colonel Roelofse and Lieutenant-Colonel Viljoen.

157.2. The head of the Hawks, General A Dramat, whose unit is primarily responsible for investigation of corruption in the public service, and was tasked with the investigation into General Mdluli’s conduct.

157.3. The second respondent, who had taken the decision to suspend General Mdluli from office and instituted disciplinary charges of misconduct, as a result of the criminal charges of fraud, corruption and money laundering.

All of the above persons were known to the third respondent and their interests in the decision he made was known to him. He could not lawfully make the decision to withdraw charges without regard to those interests and without regard to considering representations based on those interests.
I therefore submit that the first impugned decision is reviewable, as it is inconsistent with the relevant provisions of section 179(5)(d)(iii) of the Constitution, and also section 22(2)(c) of the NPA Act.
The third ground of review is that the first impugned decision is irrational as it was made against the advice given to the third respondent by Advocate Breytenbach who was responsible for the prosecution of the charges of fraud, corruption and money laundering. It was also made against the opinion of senior counsel that the charges should not be withdrawn.
The irrationality becomes more profound in the light of the recommendation by the fourth respondent that the charges be reinstated. This recommendation of reinstatement of the charges is justifiable in the light of the weight of the evidence gathered by the investigating officers to support the charges.
I therefore submit that the first impugned decision is subject to rationality review and is inconsistent with the rule of law and the principle of legality.
In addition to the above grounds of review, the first impugned decision is open to review in terms of the following provisions of PAJA:

163.1. section 6(2)(a)(i), on the ground that it was made by the administrator when it was not authorized by the empowering provision to make that decision, namely, section 179(5)(d) of the Constitution and section 22(2)(c) of the NPA Act;

163.2. section 6(2)(b), on the ground that it was made without complying with the material conditions prescribed by the empowering provision, namely, section 179(5)(d)(iii) of the Constitution and section 22(2)(c) of the NPA Act;

163.3. section 6(2)(e)(vi), on the ground that it was taken arbitrarily and capriciously, as the third respondent only considered representations from General Mdluli and did not consider it necessary to call for and consider representations from other relevant parties who were known to him and whose interests were directly affected by the first impugned decision;

163.4. section 6(2)(f)(ii)(cc), on the ground that it was not rationally connected to the information that was placed before the third respondent. That information includes the advice by Advocate Breytenbach;

163.5. section 6(2)(h), on the ground that it was so unreasonable that no reasonable decision-maker could have made it. Having regard to the weight of the evidence gathered in support of the charges, the advice and opinion at the disposal of the third respondent, no reasonable decision-maker would have arrived at a decision to withdraw those charges.

I am aware that, on a previous occasion, the first respondent contended that a decision to withdraw charges against an accused person is not open to review because it does constitute an administrative action. Should the first and/or third respondent repeat that contention in these proceedings, I submit that the contention is wrong. I have been advised that the decision to withdraw charges constitutes an administrative action that is open to review in terms of PAJA.

The second impugned decision

The second impugned decision relates to the withdrawal of disciplinary charges against General Mdluli, on or about 29 February 2012, that was made by the second respondent or other members of SAPS acting on his authority.
I submit that the second impugned decision is open to legality review on the following grounds:

166.1. First, it was made by the second respondent, apparently acting upon the dictation or instruction of authorities “beyond” him. He therefore acted inconsistently with the provisions of section 207(1) of the Constitution, which impose the constitutional obligation upon him, and no other authority “beyond” him, to control and manage SAPS. His obligation in that regard excludes a dictation or instruction from authorities “beyond” him.

166.2. Secondly, the disciplinary charges were instituted against General Mdluli in terms of the Regulations made under the SAPS Act. The second respondent had the obligation to give effect to those Regulations, as he had the constitutional object of upholding and enforcing the law, in terms of section 205(3) of the Constitution.

166.3. By acting upon the dictation or instruction from authorities “beyond” him, the second respondent acted inconsistently with the provisions of section 205(3) of the Constitution.

166.4. Thirdly, the second respondent acted inconsistently with the preserved provisions of section 218(1) of the Interim Constitution read with section 11 of SAPS Act, in that he did not act in a manner which was impartial, accountable, transparent and likely to maintain the efficiency of SAPS when he withdrew the disciplinary charges against General Mdluli.

166.5. Moreover, the withdrawal of the disciplinary charges will have the effect of undermining, within SAPS, the values of impartiality, accountability, transparency and efficiency, which must be maintained in accordance with section 11 of the SAPS Act read with section 218(1) of the Interim Constitution.

I therefore submit that the second impugned decision is open to a legality review and violates the rule of law and the principle of legality.

The third impugned decision

The third impugned decision relates to the withdrawal of the charges of murder, kidnapping, intimidation and assault with the intent to do grievous bodily harm, and defeating the ends of justice, which decision was made on or about 2 February 2012 by the first respondent or officials acting on her behalf.
The third impugned decision is open to legality review on the following grounds:

169.1. It was made in a manner inconsistent with the express requirement of section 179(5) of the Constitution, in that no representations from the complainants, victims and family members affected by the criminal charges were called for and considered before the third impugned decision was made.

169.2. Secondly, it was made in violation of section 10 of the Constitution which guarantees a right of dignity to the complainants, victims and family members affected by the second impugned decision.

169.3. The affected complainants, victims and family members are entitled to justice, and to see that justice is being done by the prosecution of General Mdluli for the charges brought against him. They have been deprived of the right to receive justice and the opportunity to realize a sense of justice as a result of the withdrawal of the charges.

169.4. Thirdly, it was made in violation of section 33 of the Constitution which confers upon the affected complainants, victims and family members a right to procedurally fair administrative action. The third impugned decision was made without calling for and receiving representations from the affected complainants, victims and family members, and thus deprived them of the right to administrative action which is procedurally fair.

In addition, the third impugned decision is open to rationality review in that the criminal charges were withdrawn when there was compelling evidence to support them. I have already referred to the affidavits made by the investigating officers, particularly Colonel Roelofse, which indicate the extent of the investigations he conducted and the evidence obtained to support those charges. That evidence justifies the prosecution rather than the withdrawal of the charges.
Furthermore, the third impugned decision is subject to review in terms of the following provisions of PAJA:

171.1. section 6(2)(b), on the ground that the first respondent failed to comply with the material requirement of the empowering provision, namely, section 179(5)(d)(ii) and (iii) of the Constitution;

171.2. section 6(2)(f)(ii)(cc), on the ground that it was not rationally connected to the information placed before the first respondent;

171.3. section 6(2)(h), on the ground that it is so unreasonable that no reasonable decision-maker would make. In the light of the evidence that was gathered in support of the charges, the decision to withdraw those charges was so unreasonable that no reasonable decision-maker would make it, and

171.4. section 6(2)(i), on the ground that it is unconstitutional, as it is inconsistent with sections 10, 33 and 179 of the Constitution.

The fourth impugned decision

The fourth impugned decision relates to the reinstatement of General Mdluli on or about 31 March 2012, after the withdrawal of criminal charges against him. As a result of the decision to reinstate him, General Mdluli resumed his functions and duties as the head of Crime Intelligence at SAPS.
I submit that the fourth impugned decision is subject to review for its legality on the following grounds:

173.1. It violates section 218(1) of the Interim Constitution in that it imperils the values of impartiality, accountability, transparency and efficiency within SAPS. By reinstating General Mdluli in the face of criminal charges against him, SAPS is sending a public message that it tolerates, or is unable to deal with, allegations of corruption and other criminal conduct of a serious nature within its ranks. That is at odds with the prescribed values.

173.2. It also violates section 205(2) of the Constitution, in that SAPS will not be able to discharge its responsibilities effectively, when it has in its midst a head of Crime Intelligence (or a senior officer with an as yet unknown portfolio) who faces allegations of corruption and other serious criminal offences which have not been properly ventilated and concluded in a court of law.

The fourth impugned decision is also subject to rationality review in that there was no legitimate governmental purpose to justify the decision to reinstate General Mdluli. As I have already indicated, none of the respondents have claimed that General Mdluli or SAPS will be prejudiced if he is not reinstated until the finalization of the charges against him. In any event, any prejudice he or the respondent may demonstrate, would not outweigh the need to maintain the values which SAPS is required to maintain, and the obligation to ensure that it operates effectively and efficiently.
I therefore request the honourable Court to review the impugned decisions on the grounds set out above.

I. Mandatory orders

I have already shown that the impugned decisions reflect clear and widespread violations of the relevant provisions of the Constitution. Should they be reviewed and set aside, then, the first to third respondents will be obliged to comply with the constitutional obligations I have already identified.
I stress that in terms of section 237 of the Constitution, all organs of State, including the first to third respondents, are obliged to fulfil duties imposed upon them under the Constitution diligently and without delay. In the light of this constitutional imperative, there is a well-established basis for the grant of the mandatory orders described in the notice of motion.

J. Rule 16A notice

The issues raised in this application are of fundamental constitutional importance. The applicant therefore has been advised to issue a notice in accordance with the requirements of Rule 16A, in order to inform interested parties of the constitutional issues that are raised in this application. A copy of that notice accompanies the notice of motion.

K. Conclusion

I respectfully submit that the present matter requires to be heard on an urgent basis as regards Part A of the Notice of Motion, and on an expedited basis as regards Part B. As indicated, General Mdluli has not been suspended from office, but continues to exercise the authority of his high rank. It is not in the public interest, nor in any bona fide interest of General Mdluli, or the other respondents, for the very serious issues raised by this application to be heard in the ordinary course. Inherent urgency attaches to the issues. As regards Part B, although the grant of Part A will ensure that does not continue to exercise any daily authority as a senior police officer, it is clearly vital that a final determination regarding the four impugned decisions be made as soon as possible, in the public interest and in the interests of the respondents themselves. I accordingly understand that the Deputy Judge President will be asked to issue directions regarding the conduct of Part B of the matter, and particularly as regards an expedited date of hearing for the final relief.
In the light of the facts and submissions set out above, I ask the court to grant an order as set out in the notice of motion.

_________________________________

DEPONENT

I CERTIFY that the deponent has acknowledged that she knows and understands the contents of this affidavit has no objection to taking the prescribed oath. Thus done, signed and sworn to before me, at on this the day of MAY 2012, in terms of the Regulations contained in Government Notice No. R.1258 dated 21 July 1972 (as amended) and Government Notice No. R.1648 dated 19 August 1977 (as amended), which have been complied with.

________________________________________

COMMISSIONER OF OATHS

[1] Now reported – Minister for Justice and Constitutional Development v Nyathi and Others 2010 (4) SA 567 (CC).

[2] Now reported – Pikoli v President of the Republic of South Africa and Others 2010 (1) SA 400 (GNP).

[3] Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others 2011 (3) SA 549 (SCA).

Pierre de Vos: Taking risks, taking responsibility: on whiteness and full citizenship under the South African Constitution

Pierre De Vos — Sun, 22 Apr 2012 11:37:13 +0000

Taking risks, taking responsibility: on whiteness and full citizenship under the South African Constitution

Talk delivered at Gipca, 19 April 2012

Pierre de Vos§

Prelude

Writing under the penname of Hannelore F. Bekokstower, in Die Burger of 18 February 2012,[1] a rather famous Afrikaans novelist[2] published a satirical essay/short story about a South African glamour photographer called Petronella Mak-Van der Wee, who for the past four years has exclusively taken pictures of her own left hand. All the houses in Oranjezicht, Hannelore remarks tartly, including the waiting rooms of all the plastic surgeons and psychiatrists, are said to be adorned with these pictures of Petronella’s left hand. When asked by Hannelore why she only photographs her own left hand Petronella replies:

“This is all I …. can live with as an artist in South Africa while retaining a clear conscience…. It is my own, inalienable and unique hand; it says something, but only about myself; it is a white hand, I show it clearly and brightly; it is clean and soft and reveals its privilege through the good manicure and the sleeve from which it peaks; I have nothing more to say. I do not make any pronouncements about anything which I have not seen with my own eyes literally on my body within reaching distance. […] One cannot be pure in this country if one is white and privileged, but one can keep one’s art pure, one’s heart, pure from the gods.”

Hannelore then begins to protest: “You will die of…” But her voice trails off. She has no talent, she thinks, to conjure up euphemisms for rottenness (beskimmeldheid), vanity (ydelheid), selfdenial (selfontsegging), or esthetic frigidity (estetiese frigiditeit). What she does say is the following: “But what about responsibility? We live in a kind of scandal of violence and injustice against the poor in this country, do you not read the newspapers?” Look at what Steven Cohen is doing; with his huge toothbrush and artificial diamond stuck up his arse he went to brush and clean the squares in Berlin in memory of the suffering of the Jews during the Second World War. The Police arrested him immediately. If you… did something similar on the steps of the Union Building…..” Hannelore trailed off.

At the end of the story, as she walks home, Hannelore, close to tears, is steaming with anger and launches into a monologue: “… May you, just once, in your soul, be occupied by the horrors of your time; may you one day be unsettled or surprised by a lucky mistake of double exposure and through that be brought to something else than your overcooked opinions; may you be seduced to take risks and to fall into conflict; may your right hand once forget what the left is doing, and the other way around, may the chaos of the universe ever vibrate into your body and your stupid resolutions, like in the tormented human flesh of a figure in a Francis Bacon painting. Until that begins to happen one day, you will be known in my book as: “Petronella-help-yourself”.

Introduction: on whiteliness, shame and retreat

I was reminded of this essay by “Hannelore Bekokstower” when I re-read Rhodes philosopher, Samantha Vice’s, now famous (or is it infamous) article entitled, “’How Do I Live in This Strange Place?’”[3], published in 2010 in the Journal of Social Philosophy. In that carefully constructed, thoughtful and – in my opinion – brave article, Vice reflects on what it is to be “white” in a country like South Africa.

I pause here to note that, like Samantha Vice, I do not believe in the amnesia-induced fairy tale that we can somehow undo 350 years of colonialism and apartheid through sheer willpower and a declared commitment to non-racialism – whatever that term may mean. We cannot suddenly turn ourselves into race-less beings, whose race is utterly irrelevant to who we are, how we are perceived, how we experience our world and the extent to which we succeed in the world and are able to flourish in our world. Race may be constructed and therefore more of an ideological creation than a biological fact, but it is experienced as real by all of us who live in this country. Our selves, says Vice – quite correctly in my view – is saturated by histories of oppression or privilege.

When I hear arguments about the need to be blind to race, I imagine a Monty Python skit – one that has never been written, but might capture some of the absurd and frenetic humour of that classic comedy quartet. (And I am aware that I am taking a risk by making fun of such an emotional and laden topic as race and racial classification and identity, but as this talk argues in favour of taking risks I will dive right in.) In the skit, the slightly manic and extremely awkward John Cleese will star as a policeman chasing a young, limping, man with a huge and unsightly hump on his back through the streets of London. After losing sight of the suspect, the Cleese character will encounter a clueless bystander, perhaps played by Terry Gilliam. I imagine the Cleese character asking the clueless man whether he had spotted the suspect. The absurd, Monty Pythonesque humour will be produced by the fact that the Cleese character wishes to be polite and politically correct so as not to draw attention to those aspects of the suspects appearance which society (now more aware of prejudices in this regard) requires us to be blind to – even as these characteristics are blindingly obvious and although assumptions are made about an individual based on these characteristics.

Cleese: “Have you perhaps spotted a gentleman running by?”

Gilliam: “Can’t say I have.”

Cleese: “You sure?”(Cleese looking confused.)

Glliam: “Well it depends.”

Cleese: (Exasperated) “It depends?!! What do you mean it depends?!”

Glliam: “Yes, it depends. What does he look like?”

Cleese: (Stammering and sounding a bit hysterical and desperate and acting in the manic Cleese fashion.) “Well, he is, well, you know….. “(Cleese starting to gesture above his head as if wanting to indicate a large hump on his back, but then quickly bringing his hands down to his sides like a naughty child just caught out.)

Gilliam: “Tall? Is he tall?”

Cleese: (Almost embarrassed….) “Well, not exactly.” (Cleese trying discreetly to point to his legs but of course not being discreet at all and jumping around like a mad man from one foot to the other.) “You know… The man, shall we say, is not a sprinter.”

Gilliam: “An old man?”

Cleese: “No, no. Youngish, but, you know…..(Cleese desperately gesturing towards himself.)

Gilliam: “Yes? Good god fellow, out with it.”

Cleese: (Manically jumping around from one foot to the other.) “Eh… well, you know, he does not really look like, like…. us.”

Gilliam: “Oh …. you mean the Hunchback fellow with the limp? Why did you not say so before old chap.”

In her carefully argued piece, Vice – identifying herself as a white English speaking South African, a product of the apartheid system and undeniably still benefiting from it – asks what the morally appropriate reaction would be to her own situation of white privilege.[4] She engages with the problem of what she calls “whiteliness”, the often unacknowledged and unnoticed commitment of those who are identified as “white” to the centrality of white people and their perspective and the supposed unquestioning superiority of this perspective.[5] Because the habits of “white” privilege are deeply embedded in our society, Vice argues that few “white” people, however well-meaning and morally conscientious, will be able to escape the habits of “white” privilege: their characters and modes of interaction with the world just will be constituted in ways that are morally damaging.[6] Under these morally dubious conditions, whiteness becomes a problem and those of us who are “white” therefore need to reflect seriously and critically about how we ought to live “in this strange place”. “Life for conscientious “white” South Africans is at any rate richly infused with moral emotions”[7]

Up to this point, I associate myself with Vice’s analysis. Those of us who identify ourselves as “white” South Africans or are identified by others as such would do well to remind ourselves of the economic privilege and cultural capital that continues to flow from our whiteness – whether we directly benefited from apartheid or not. I would contend that the mere fact that I stand here tonight, that I might be listened to, perhaps even respectfully, and that my words might be viewed by at least some as being imbued with some authority and plausibility, is (at least partly) based on my “white” skin and everything that is associated with it. It is the result of the privileged education I received because of my “white” skin and on the continued privilege that oozes from me because I happen to be a “white”, male, a supposed “expert”, a Constitutional Law professor at a relatively good University like UCT. It is surely no co-incidence that most of us who are asked to comment on constitutional matters in the media happen to be “white” and male. Being aware of the pitfalls associated with this position is for me the starting point of this discussion.

But this is not really the focus of this talk. What I wish to focus on today, is the question of how one should respond to this problem of one’s whiteness, given the unspeakable injustices that Hannelore Bekokstower speaks about in the essay I prefaced my talk with; the injustices we are confronted with every day in this strange place called South Africa; indeed, in this strange place called Cape Town. My interest in this question is, of course, more than academic. As the writer of a widely read Blog on constitutional and political matters and as someone who is often asked by the media to comment on highly controversial legal and political issues, I cannot but grapple with this issue. And this is where I part ways with Vice. Vice makes two claims and both, it seems, are problematic because, so it seems to me, it is predicated on the assumption that one can deal with one’s complicity in injustice by turning away from the world, by avoiding taking too many risk and making too many mistakes that will inevitably be made because of our habits of whiteliness.

First, she argues that it is appropriate for “white” South Africans to feel shame. She distinguishes shame from guilt, arguing that shame is essentially directed toward the self, rather than outwards toward a harm one brought about. Shame is a response to having fallen below the standards one sets for oneself, whether moral or not.[8] Shame is the recognition that one ought not to be as one is: it does not depend on the claim that one could be different to how one is. Shame is an appropriate feeling to feel, Vice contends,

For “white” privilege does not attach merely to what one does or how one benefits, but, more fundamentally, to who one is. And one does not wish to be a person whose welfare is dependent upon harm to others. One does not wish to be a person with vicious traits that are helping, however passively, to sustain privilege and oppression. … And how can one ever be a good person in South Africa if one’s best moral response is to recognize and feel one’s ongoing complicity with wrong? Being embedded in “white” privilege means that there is not going to come a time when one escapes the necessity of, at least, shame and regret.[9]

Second, while Vice admits that our selves can be changed through our actions, she does not think this can be enough if the theses of moral damage and “white” habit are correct – direct work on the self is also required. She argues that we need to seek an appropriate way of living with “white” shame that is nonetheless private and does not assume that every person ought to respond only as a political animal, and that every response need be an outward action. Because every aspect of life in South Africa is so politicized, we should allow space for forms of penance and self-improvement that do not demand a public gesture or political activity. This is not cowardly or disengaged, she argues. Rather, the care stems from the recognition of the moral complexities and potential for mistakes, which would entrench the very habits from which one is trying to become disentangled. We would, instead, express our attachment to justice through a commitment to a private project of self-improvement.

Making pronouncements about a situation in which one is so deeply implicated seems a moral mistake – it assumes one matters politically and morally beyond the ways in which everyone matters equally. One needs to learn that one does not. One would live as quietly and decently as possible, refraining from airing one’s view on the political situation in the public realm, realizing that it is not one’s place to offer diagnoses and analyses, that blacks must be left to remake the country in their own way. Whites have too long had influence and a public voice; now they should in humility step back from expressing their thoughts or managing others[10].

Should we feel shame?

Shame is, in the end, a virtuous and therefore not altogether difficult feeling to embrace. Admitting to feeling shame could be seen as an admission that one is, indeed, capable of being virtuous and perhaps, also, that one is a moral notch or two above others who do not feel shame. That is why I feel uncomfortable with the notion of embracing shame as a way of dealing with the problem of whiteliness.

I am not sure this was Samantha Vice’s explicit intention, but I fear that this focus on an avoidance of making mistakes and taking risks, and the focus on working on oneself, might well constitute an attempt to deal with the injustices – also racial injustice – of our country by trying to avoid the inevitable and by doing the impossible, namely to live well, to live a life that may be morally pure (or, to be fair, a life that is at least morally less tainted) in this strange place despite our whiteness, despite being the beneficiaries of privilege and despite the sea of injustice in which we swim. Is the problem not perhaps that the moral view taken by Samantha Vice is too narrow. Can anyone who reads the newspapers every day about our political life; who reads government reports about failures in service delivery; reports by the Public Protector about corruption and venal nepotism, who reads law reports about the flouting of human rights and the systemic neglect of the poor and marginalised; who engages honestly and expansively with people from all walks of life, of different races and classes and genders and languages; who visit or work in state hospitals and township schools; who has nursed someone dying of HIV related illness; who must decide every day whether to give food or money to the beggar who comes around to your house (something a minister in a R1 million car is not confronted with) or whether one should make a donation to the man selling trinkets at the traffic light, would such a person be able to maintain that the most important moral impulse for a “white” person is to feel shame and to turn inwards and retreat from the public space?

Because of her advocating a turning away from the world we live in, she might have misdiagnosed the problem or might have diagnosed the myriad of ethical dilemmas that we face and have to live with, that we will continue to have to live with and that no work on the self will allow us to escape from confronting day after day, hour after hour.

As I see it, because Samantha focuses on the self, on a project of remaking oneself with an awareness of the structural privilege one embodies because of one’s race and an awareness of the habits of “white” privilege that ineluctably forms part of who one is, because she asks how we – as “white” South Africans – can live (and perhaps can even dare to hope to live well) in what she calls this strange place, given the structural privilege that we enjoy, that we live every minute of every day because we are “white” , she misses or ignores the broader context in which each of us live here in South Africa. This South Africa, I contend, is a strange place but perhaps not only or exactly in the way envisaged by Samantha.

If we want to engage with the question of how we can live in this strange place, I contend, we need to look at South Africa not only and exclusively as a place haunted by racism, racial discrimination and the admittedly pervasive problem of whiteness. Yes, our lives and our selves are haunted by race – how can it not be, given our history – but it is also haunted by many other profoundly important ethical concerns. These concerns may be affected by race but not exclusively so. I mention a few examples.

In South Africa more than 5 million people are HIV positive and despite important gains, many South Africans still die because they do not get tested or do not or cannot get access to life saving anti-retroviral drugs. Because of stigma, superstition and hate in our society there are huge disparities in the way in which those of us who are HIV positive experience this disease. Some of us go through life relatively well-protected by family networks and wealth. Others live in fear of being exposed to the ridicule and rejection of colleagues and family members. Some of us access private health care and are well looked after, others do not access health care at all and die or access sub-standard health care in the public sector.

South African schools are in crisis. If one happens to be the child of an upper middle class Law Professor living in Rondebosch, one may send one’s children to one of the many private schools in the vicinity or to an establishment like Westeford High School where they will receive an excellent education. But if one lives in Kayelitsha one may well have to send ones children to a school with no library, no computer facilities and teachers who do not have the skills or the will to educate their children. Those children are likely to either drop out of school before they reach matric or to achieve mediocre results that will not prepare them for gainful employment (and the dignity and financial rewards associated with it).

If one happens to be middle class and heterosexual and male, one is far less likely to experience sexual violence and one will probably not be attacked or even killed because of one’s gender or sexual orientation. But if one happens to be a black unemployed lesbian one’s bodily integrity and indeed one’s life is in constant danger because of the prejudices and hatred that many South Africans harbor towards gay men and lesbians (and also, towards women). How do heterosexuals life in world in which heterosexuality is seen as normative and where hetronormativity – like whiteliness – continues to oppress and marginalize some of the most vulnerable members of society in a systemic manner?

And of course, according to statistics a sizable percentage of children in South Africa sometimes go hungry. Although this figure has been decreasing, this nevertheless means that in a country in which some can afford to drive in R1 million cars – even if they are not Cabinet Ministers – others regularly go to bed without food to eat.

In the light of the larger injustice we are daily confronted with – yes, all haunted by the ghosts of our racialised past but not exclusively and uniquely following the logic of race – is this project of working on the self, of, in essence trying to work on oneself to do less harm to others, a person that feels appropriate shame for being “white” and being part of a system that has benefited one and continues to benefit one materially and also in non-material ways by bestowing on one a certain social status and power because of the perceived co our of one’s skin, is this not essentially – despite Samantha’s pointed protestations – an essentially narcissistic and slightly self-indulgent one? A bit like Petronella’s photographing of her left hand?

The shame, agent regret and retreat from the public sphere advocated by Vice seem rather hopelessly inadequate responses to the very real and serious larger ethical challenges faced by any middle class person (of any race) living in South Africa – even when the ethical call is more acutely and insistently addressed at “white” South Africans? For that reason it is my contention that this project of turning inward, retreating form the public sphere, and of working on the self is ethically deeply problematic. Our habits of “white” privilege, the social capital we embody because of our “white” skins, and the consequences this has for our fellow South Africans is just part of the larger ethical landscape within which we (and here I mean all of us regardless of our race) have to operate. A more nuanced understanding of the problem of trying to live an ethical life in this strange place is required.

Moreover, I worry that this turning inward, this essentially self-centred project will focus too much on the self, on the “WHITE” self, rather than focusing on the system that produced whiteness and the racial hierarchy that is continually being perpetuated by all of us. Can one really, by turning inward, escape from the very system that produces the racial hierarchy and can one really escape from being complicity in it’s perpetuation? By turning inwards and focusing so obsessively on ones shame and ones whiteness, is one not affirming the racial hierarchy and the very structures that produce “white” privilege which one needs to undermine and subvert in order to begin to address the structures that produce whiteness and blackness and continues to do so in a hierarchical manner? This is not only a personal problem but also a structural problem. How does one address whiteness without perpetuating the racial hierarchy?

I wonder if this project does not assume or take for granted the impossibility of being anything else but the sum total of ones racial identity? Does it not reinforce the logic of the apartheid constructed racial hierarchy, assuming that one is only and always exclusively “white” or “black” and never anything else and that this is the sum total of our identity and our place in the world? Can one really say that our race says everything that needs to be said about how we need to respond to the ethical problems we are confronted with? Surely not? We are not only ever “white” or black. Some of us are cabinet ministers in government; others Police Commissioners or the Head of Crime Intelligence, others are mining magnates or one of those who had received corrupt payments from mining magnates; others are teachers who turn up drunk at school and sleep with pupils; others are church ministers, rugby soccer players; musicians, poets, academics too. Many of us benefit from the capitalist system on which we rely to make a living – often at the expense of others. All of us are also someone’s neighbour – literally and figuratively – called on to show the kind of radical hospitality that it is impossible to extend to one person, let alone everyone one interacts with. Personally, I am also a boyfriend, a lover, a gay man, a brother of four sisters, an orphan, a lecturer, a HIV positive middle class academic, an Afrikaans speaking, poetry loving, person with a passion for our Constitution, somebody who feel it is morally imperative to take risks and make mistakes because without taking risks and making mistakes I can hardly imagine being fully alive and hardly imagine living a life invested with any meaning at all. Should men all feel ashamed for living in a world that oppresses woman? Should heterosexuals feel shame because of the systemic marginalisation of gay men and lesbians? Should Christians feel shame because of the powerful and sometimes overbearing shackles of conformity which organized religion often seem to have the effect of imprison us in? Should we feel shame for benefiting from the economic exploitation of others because we take part in the capitalist system? Is the avocation of shame not a paralyzing moral cop out in response to the injustice around us, injustice in which we are steeped whether we are “white” or “black”?

Should we retreat into silence?

When the 84 year old granny, Ntombentsha Phama, welcomed a TV news camera crew into her home and spoke about her plight, in the hope that a Good Samaritan would come to help her fix her house, which was damaged by hail in 2010, this resident of Seshego village in Dutywa did not realize that she would earn herself a visit from a delegation of ruling party councilors.  The drama started last Wednesday, the day after the bulletin containing Phama’s story was aired nationwide on SABC. Local Ward 2 councilor Nosakhele Nkqwiliso, acting on Mfecane’s orders, visited Phama and verbally attacked her to such an extent that she fainted. Bystanders alleged the ANC councilor arrived in a 15-car convoy with supporters to grill Phama for alerting media to her situation. During a second visit, this time with Mfecane in tow, Phama was again scolded, given two blankets and a business card, and told to call the mayor – not the media – when she had problems.

This story troubles me deeply. The mayor and his cronies never stopped to think that Phama had a RIGHT to invite the TV cameras into her home and that instead of berating her, they might have done something about her plight. They never thought that the embarrassment to the ANC city council came not from the granny, but from the way in which the council had behaved. At the heart of this story, so it seems to me, is a deeply undemocratic attitude towards the “masses of our people”, to democratic debate and contestation and to any forms of criticism. It reflects a view of citizens as passive voting fodder who must be galvanized every five years to vote for the movement and otherwise must remain silent. This represents an impoverished view of democracy and of citizenship, one in which individuals are denied any form of effective agency. Individuals are not possessed of an inherent human dignity which allows them to play some role in deciding for themselves who they are, how they wish to behave and how they want to give meaning to their lives. It turns citizens into subjects, little more than automatons or pawns in the power games of politicians. It is not the kind of democracy that our Constitution has established.

In Doctors for Life International v Speaker of the National Assembly and Others[11] former Chief Justice Sandile Ngcobo provided a detailed discussion of the nature of South Africa’s democracy. Pointing out that our Constitution was inspired by a particular vision of a non-racial and democratic society in which government is based on the will of the people, “a society based on democratic values, social justice and fundamental human rights” Ngcobo argued that ours is a democracy with both representative and participatory aspects. This means that not only do we all have the right, and would contend a duty, to vote in regular elections for the political party of our choice, we also have a right and, I would contend, a duty, to participate freely and robustly in political life to help ensure an open, accountable and responsive government responds appropriately to our needs. The nature of our democracy must be understood in the context of our history. During the struggle against apartheid, a system that denied the majority of the people a say in the making of the laws which governed them, the people developed the concept of the people’s power as an alternative to the undemocratic system of apartheid. This concept ensured that the people took part in community structures that were set up to fight the system of apartheid. In order to ensure that we never again repeat the mistakes of the past, our Constitutions bestows on every South African the right to participate in political and public life.

“In the overall scheme of our Constitution, the representative and participatory elements of our democracy should not be seen as being in tension with each other. They must be seen as mutually supportive. General elections, the foundation of representative democracy, would be meaningless without massive participation by the voters. The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.”[12]

This means that all citizens (also “white” citizens) have a right to have their say and to participate in public life. The argument put forward by Vice regarding the need for “white” people to remain silent and to turn inward, is therefore at odds with the notion of being full citizens in a constitutional democracy. The argument plays out against the background of events such as the harassment of 84 year old granny, Ntombentsha Phama. And it is against this background that I advance three arguments to counter Vice’s plea for silence on the part of “white” citizens.

First, I would contend that as democrats we have a duty to speak up, to participate in public affairs, to praise when needed and to criticize and take action when needed – regardless of whether we are “white” or “black”, male or female, gay or straight, Christian, Jewish, Muslim or atheist. This will always be risky – especially when we speak from a position of power which we are cloaked in because of our race, our sex, our class, our sexual orientation, our level of education our proximity to power For is it not a bit precious – showing perhaps inadvertently too much concern for ones own ethical purity and ones status as a not so bad person – by not wanting to take risks and not wanting to make mistakes? Is this not a move to avoid exposing oneself to ridicule, hatred, criticism, accusations of racism and arrogance, of sexism and homophobia, which might well be leveled against us by others who, surely, one would not wish to construct as utterly powerless victims of whiteness and of what “white” people do and say? Surely, despite the structural inequalities and the effects of past and ongoing racism and racial discrimination, it would be highly problematic to hold that “white” people should be silent because this will be somehow respectful of black people and the powerlessness they experience in the face of “white” privilege? I do not experience black South Africans as powerless or being in need of my silence. If I make a mistake, if I talk and my words are seeped in whiteness or the arrogance that is associated with “white” structural privilege, I know that I will be told so in no uncertain terms – and rightly so. And is this not a better, more democratic way for citizens to work on the self? By engaging with the world, with fellow South Africans, by doing so in a manner that is fully aware of ones privilege, by taking the risks, by getting it wrong and reflecting on why one got it wrong and trying again and by demonstrating in word and deed that one is not the font of all wisdom, does one not being to address the problems of whiteliness itself? Is this not how we even begin to embark on a journey of becoming full and equal citizens in this country? Will the silence, then, not be a whitely silence? Silence can appear like a cop out, like and avoidance of the burden of having to take decisions and taking risks, and for taking responsibility for one’s whiteness and for inevitably getting it wrong and taking responsibility for the effects of structural privilege and for doing something about it?

Second, is silence not – whether one intends it to be seen in that way or not – already an attempt at achieving a kind of inappropriate moral purity, a moral purity that a “white” person cannot achieve but that our whiteness and the ideology of whiteness has ingrained in us as being our due, as the natural state of being a “white” person? By being silent, does one nor rather narcissistically hold oneself up as, once again, somehow morally superior. As someone who deserves special consideration or applause because of this noble attempt at goodness?

Third, this silence says Vice should go hand in hand with private acts of justice. But injustice is not only or even primarily about personal relationships and the injustices that result from our inability to interact with others in an responsible and ethically appropriate way. It is about structural problems, about the way in which the world and our society and government is organized and how it operates and the failure of all of us – including our politicians – to take the steps that would begin to dismantle these structures that produce and perpetuate inequality, poverty, marginalization and oppression.

Not remaining silent is not always going to be risk free and it is not always going to be easy or morally pure. It will require us to engage with what Hannlore Bekokstower calls the “horrors of your time”, to take risks and to fall into conflict with our fellow citizens. It will require us to face the full horrors of our existence in this strange place. It will expose us to the chaos of the universe which may vibrate into your bodies – and we might well, from time to time, feel and look like the tormented human flesh of a figure in a Francis Bacon painting. But that is what is required of us as full citizens in this democracy continuously coming into existence. Do we really have the luxury not to dirty our hands?

§ Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law, University of Cape Town.

[1] Hanelore F. Bekokstower “Wat die ander hand nie weet nie” Die Burger 18 February 2012.

[2] Judging from the style of the writing, the inclusion of Dutch sounding words, the use of food metaphors and the somewhat baroque style, I assume the author of this piece is Marlene van Niekerk, author of two magisterial novels (both translated into English): Triomf and Agaat.

[3] Journal of Social Philosophy Volume 41, Issue 3 at 323-342.

[4] Ibid at 323.

[5] Ibid at 324.

[6] Ibid at 326.

[7] Ibid at 326.

[8] Ibid at 328-329.

[9] Ibid at 333.

[10] Ibid at 335.

[11] 2006 (12) BCLR 1399 (CC).

[12] Ibid par 115.

Pierre de Vos: memo on SA Police Service Amendment Bill

Pierre De Vos — Mon, 26 Mar 2012 13:13:55 +0000

The South African Police Service Amendment Bill: compliance with Glenister v President of the Republic of South Africa

Pierre de Vos°

1. Introduction

1.1 In Glenister v President of the Republic of South Africa and Others[1] a majority of members of the Constitutional Court[2] found the national legislation that brought into being the Directorate for Priority Crime Investigation (DPCI,[3] popularly known as the Hawks) and disbanded the Directorate of Special Operations ((DSO,[4] popularly known as the Scorpions) unconstitutional. The majority declared the Chapter 6A of the South African Police Service Act 68 of 1995 inconsistent with Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation. The declaration of constitutional invalidity was suspended for 18 months in order to give Parliament the opportunity to remedy the defects.[5] This memorandum evaluates the South African Police Service Amendment Bill[6] in order to establish whether it complies with the Glenister judgment.

1.2 It is important to note at the outset what the judgment did and did not find. It did not find that section 179 of the Constitution obliges Parliament to locate a specialised corruption-fighting unit within the National Prosecuting Authority (NPA) and nowhere else (as was the case with the Scorpions). The creation of a separate corruption-fighting unit within the South African Police Service (SAPS) was also not in itself found to be unconstitutional and thus the DPCI legislation was not invalidated “on that ground alone”. The judgment did not ask or answer the question whether, given the provisions of the Public Finance Management Act which requires the National Commissioner of Police to remain the accounting officer of any unit situated within the Police, whether it was indeed possible to situate an independent corruption fighting unit within the Police Service. The judgment failed to consider the import of the problems which emerged regarding the safeguarding of the constitutionally guaranteed independence of the National Prosecuting Authority (which arose during the GInwala Enquiry into whether Adv Vusi Pikoli was a fit and proper person able to continue serving as National Director of Public Prosecutions), which arose from the fac that the Director General believed that he remained the Chief Financial Officer responsible for the finances of the NPA in terms of the Public Finances Management Act. Similarly, the legislative choice to abolish the DSO and to create the DPCI was not in itself found to have offended the Constitution.[7] The majority in the Glenister case did find that the Constitution imposed a positive obligation on the state to establish and maintain a sufficiently independent body to combat corruption and organised crime. Second it did find that the specialised unit (the Hawks) did not meet the requirement of independence imposed by the Constitution.[8]

1.3 In this memorandum I will first set out the reasons for the majority judgment, distilling the legal requirements that the proposed legislation has to meet to comply with the Glenister judgment. I will then discuss the provisions of the draft Bill – first looking at the document as a comprehensive “package” and then focusing on the individual clauses – before concluding whether the proposed Bill comply with the requirements set out in the majority Constitutional Court judgment. I will then provide some suggestions for improvements to the Bill.

2. The obligations imposed by the Glenister judgment

2.1 The operational aspects of the Glenister judgment can be divided into two distinct parts. First, the judgment sets out general requirements or principles that must be used to judge whether the body is indeed a sufficiently independent corruption fighting body that complies with the Constitution (read with South Africa’s International Law obligations). Second, relying on the broad requirements set out in the first part of the judgment, it then proceeds to set our specific reasons why aspects of Chapter 6A of the South African Police Service Act are unconstitutional, and in the process sets out specific requirements that must be met for a sufficiently independent corruption fighting body to comply with the Constitution (read with South Africa’s International law obligations). Any legislation purporting to give effect to the Glenister judgment needs to comply with both the broad requirements for sufficient independence and with the specific requirements highlighted in the second part of the judgment. The two sections are interrelated and the second part amplifies and deals with particular components relating to the general principles set out in the first part, but this second part of the judgment does not circumscribe those general requirements set out in the first part, which must be met in its totality. It is therefore not possible to meet the requirements set in the Glenister judgment merely by focusing on the specific problems with the existing legislation highlighted in the second part of the majority judgment.

2.2 General Principles

2.2.1 Although the Constitution does not explicitly require it, its scheme taken as a whole imposes a duty on the state to set up a concrete and effective mechanism to prevent and root out corruption and cognate corrupt practices. This is because corruption has deleterious effects on the foundations of our constitutional democracy and on the full enjoyment of fundamental rights and freedoms.[9] At the heart of the inquiry is whether the body will be free from political influence[10] and interference[11] so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions.[12] To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence. Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent – in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations[13] – to enable it to carry out its functions effectively and free from any undue political influence or undue intervention

2.2.2 First it needs to be structurally independent. This relates to the appointment of its members, the conditions under which its members operate and its funding, which must all be regulated in such a manner as to ensure it is independent in fact and is also perceived to be independent by the public. To prevent undue political intervention the proper appointment and recruiting mechanisms that guarantee the designation of persons of high professional quality and integrity is required and the body must be free to initiate and conduct investigations.[14] The conditions of service that pertain to its members and in particular its head is pivotal to insulate the body from political interference or influence.[15] This kind of independence is assessed on the basis of factors such as security of tenure and remuneration, and mechanisms for accountability and oversight.[16] Because the international instruments require independence within the South African legal conceptions, it is necessary to look at how South Africa’s own constitutionally-created institutions manifest independence. In this regard the arrangements regarding the National Prosecuting Authority, the Public Protector and the Auditor General will be of assistance. All these institutions adequately embody the degree of independence appropriate to their constitutional role and functioning.[17] The necessary material resources and specialized staff, as well as the training that such staff is required to carry out their functions.[18]

2.2.3 Second it needs to be operationally independent. This relates to the body’s relationship with the legislature and executive, oversight over the body, and accountability to the two political branches of government. Where a body is placed within existing police structures special care must be taken to safeguard its operational independence. The judgment quoted approvingly from a report prepared by the Organisation for Economic Co-operation and Development (OECD): Specialised Anti-corruption Institutions: Review of Models (OECD Report)[19] which noted that the question of independence of the law enforcement bodies that are institutionally placed within existing structures in the form of specialised departments or units within the Police requires special attention because police and other investigative bodies are in most countries highly centralised, hierarchical structures reporting at the final level to the Minister of Interior or Justice.

“In such systems the risks of undue interference is substantially higher when an individual investigator or prosecutor lacks autonomous decision-making powers in handling cases, and where the law grants his/her superior or the chief prosecutor substantive discretion to interfere in a particular case. Accordingly, the independence of such bodies requires careful consideration in order to limit the possibility of individuals’ abusing the chain of command and hierarchical structure, either to discredit the confidentiality of investigations or to interfere in the crucial operational decisions such as commencement, continuation and termination of criminal investigations and prosecutions. There are many ways to address this risk. For instance, special anti-corruption departments or units within the police or the prosecution service can be subject to separate hierarchical rules and appointment procedures; police officers working on corruption cases, though institutionally placed within the police, should in individual cases report only and directly to the competent prosecutor.

2.2.4 A range of possible measures can be adopted to achieve the goal of establishing an independent body and the legislature did have some leeway in this regard. What was required was for the measures taken to be reasonable. But in deciding whether the measures fall within this range, the courts’ obligation to consider international law when interpreting the Bill of Rights is of pivotal importance. And international law, through the inter-locking grid of conventions, agreements and protocols discussed in the judgment (and whose main features were set out above) “unequivocally obliges South Africa to establish an anti-corruption entity with the necessary independence”.[20] Moreover, it would be difficult to rely on section 36 (the limitation clause) to justify legislation that does not create a sufficiently independent corruption fighting unit. “The need for a sufficiently independent anti-corruption unit is so patent, and the beneficent potential of its operation so incontestable, and the disadvantages of its creation so hard to conceive, that justification would be hard to muster.”[21]

2.2.5 An important additional general principle holds that it is not only the actual arrangements that guarantees structural and operational independence that must be met before such a body would comply with the requirements of the Constitution. Additionally, a court will focus on whether “the appearance or perception of independence” is present in evaluating whether independence in fact exists. Public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is therefore important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.[22]

2.3 Specific requirements for independence relating to the existing DPCI (Hawks)

2.3.1 As the draft Bill attempts to fix the exisiting problems with the Hawks not by creating a new body but by proposing amendments to the exisiting legislation, the specific reasons advanaced by the Glenister judgment for declaring parts of Chapter 6A unconstitutional, must be instructive in evaluating the proposed amendments as these will provide some guidelines (over and above the general principles set out above) to measure the proposed amanedments against. It is thus important to note that against the background of the general principles set out above, the Constitutional Court found that the existing provisions in Chapter 6A of the South African Police Service Amendment Bill were inadequate. The thrust of the reasoning was that the Hawks was insufficiently insulated from political influence.[23] There were primarily two reasons advanced for this conclusion. First, there is an absence of security of tenure protecting the employment of the members of the Hawks and hence its conditions of service were flawed. Second, it found that the structure and functioning of the Hawks allowed for direct political oversight of the entity’s functioning in a manner incompatible with independence.[24]

2.3.2 Security of tenure and institutional safeguards

2.3.2.1 On the first point, it was pointed out that currently the head of the DPCI is appointed by the political head of the Police, namely the Minister and that after appointment neither the head or other persons appointed to the DPCI enjoy any special job security.[25] The DPCI is a Deputy National Commissioner of the SAPS, and is “appointed by the Minister in concurrence with the Cabinet”. In addition to the head, the Directorate comprises persons appointed by the National Commissioner of the SAPS “on the recommendation” of the head, plus “an adequate number of legal officers” and seconded officials. The Minister is required to report to Parliament on the appointment of the head of the DPCI.[26]The Commissioner is empowered to discharge a member of the service if, for reasons other than objective criteria like unfitness or incapacity, as long as the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. The reach of this provision appears to include the head of the Directorate.[27] Their dismissal is therefore subject to no special inhibitions, and the grounds for dismissal under the SAPS Act are broad and can occur at a threshold lower than dismissal on an objectively verifiable ground like misconduct or continued ill-health.[28] These provisions fail the minimum requirements for the creation of a suitably independent unit that is insulated from political influence or interference. What is required is specially entrenched employment security.[29]. This is exacerbated by the fact that the appointment of the National Commissioner of the SAPS is itself renewable. By contrast, the appointment of the National Director Public Prosecutions (NDPP) – who selected the head of the DSO from amongst the Deputy NDPPs – is not. A renewable term of office, in contradistinction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures.[30]

2.3.2.2 The majority judgment suggested that the current arrangement in section 179 of the Constitution and the repealed provisions of the National Prosecuting Authority Act relating to the Scorpions, would be s suitable one for the head of a corruption fighting unit. The NPA Act provided that a deputy NDPP (which included the head of the Scorpions) may be removed from office only by the President, on objective grounds of misconduct, continued ill-health or incapacity, or if he or she is no longer a fit and proper person to hold the office. And Parliament held a veto over the removal of a deputy NDPP. The reason for the removal, and the representations of the deputy NDPP, had to be communicated to Parliament, which was allowed to resolve to restore the deputy NDPP to office.[31]

“These protections applied also to investigating directors within the DSO. The special protection afforded the members of the DSO served to reduce the possibility that an individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution.”[32]

2.3.2.3 Further institutional safeguards required is “statutorily secured remuneration levels”, the absence of which “gives rise to problems similar to those occasioned by a lack of secure employment tenure”.[33] Such safeguards are not currently in place. Not only do the members not benefit from any special provisions securing their emoluments, but the absence of secured remuneration levels is indicative of the lower status of the new entity compared to the DSO (Scorpions).[34] The head of the DSO, as a deputy NDPP, enjoyed a minimum rate of remuneration, which was determined by reference to the salary of a judge of the High Court.[35] By contrast, the new provisions stipulate that the conditions of service for all members (including the grading of posts, remuneration and dismissal) are governed by regulations,[36] which the Minister for Police determines. This is not compatible with security of tenure for members of the unit.

2.3.3 Insulation from political interference and influence versus accountability

2.3.3.1 The Constitution requires that a member of Cabinet “must be responsible for policing”.[37] This requirement must be squared with the requirement that a policing body responsible for investigating corruption with the aim of securing successful criminal prosecution must be insulated from political influence or interference. The majority in the Glenister judgment emphasized that this constitutional injunction does not require “that the anti-corruption unit must itself function under political oversight”. To this end, the particular political oversight arrangements in the impugned legislation were found to be incompatible with adequate independence.[38] However, adequate independence does not require insulation from political accountability (as opposed to political oversight). What was required was not total “insulation from political accountability, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.[39]

2.3.3.2 Given these general principles, the following arrangements regarding the powers of the unit to choose which crimes to investigate would not be compatible with the carefully constructed balance between operational independence on the one hand and political accountability on the other. Where Cabinet (or a member of Cabinet) is empowered to coordinate the unit’s activities, this will raise constitutional problems. Co-ordination can be direct or indirect. Direct co-ordination will occur where a member of Cabinet can influence the selection of the crimes to be investigated by the unit. Indirect co-ordination will occur where a member of the Cabinet can issue policy guidelines in respect of the functioning of the unit as well as for the selection of national priority offences.Both issues were found to be problematic in the impugned legislation. First, section 17D(1)(a) determined that the DPCI could investigate “priority crimes” which in the opinion of the DPCI needs to be investigated. This section did not explicitly state that the DPCI could investigate corruption). Furthermore, this discretion was made subject to the policy guidelines issued by a Ministerial Committee. This power of the Ministerial Committee to issue policy guidelines for the functioning of the DPCI (which could in theory direct that only some kinds of crimes should be investigated) created a “plain risk of executive and political influence on investigations and on the entity’s functioning” and was therefore unconstitutional.[40] Second, in terms of section 17D(1)(b), the National Police Commissioner can also refer matters to the DPCI for investigation, but once again subject to any policy guidelines issued by the Ministerial Committee. This raised the same concerns as above. Indirect influence or interference can occur where the political principles or their politically accountable underlings can influence the operation of the unit. This occurs in two ways in the impugned legislation. First, the head of the DPCI, as a Deputy National Commissioner and a member of the SAPS,²¹⁸ is accountable to the National Commissioner, whose post lacks sufficient security of tenure,²¹⁹ thus inevitably creating vulnerability to political pressure. (This means that the National Commissioner of the SAPS is not suitably independent and cannot play any direct role in the supervision of the work of a truly independent corruption-fighting unit.) Second, in terms of section 17I(2)(a) and (d) a Ministerial Committee is allowed to issue policy guidelines in respect of the functioning of the DPCI and may determine procedures to coordinate the activities of the Directorate and other relevant departments or institutions. This power of the Ministerial Committee to issue policy guidelines for the functioning of the DPCI creates a plain risk of executive and political influence on investigations and on the entity’s functioning.[41] Nothing in the statute requires the said policy guidelines to be broad and harmless and the power of the Ministerial Committee to determine guidelines appears to be untrammelled. “The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI to investigate – or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.”[42] This, found the majority, is plainly at odds with a structure designed to secure effective independence. It underscores the conclusion that the legislation does too little to secure the DPCI from interference.[43] In this regard the majority stated:

The competence vested in the Ministerial Committee to issue policy guidelines puts significant power in the hands of senior political executives. It cannot be disputed that those very political executives could themselves, were the circumstances to require, be the subject of anti-corruption investigations. They “oversee” an anti-corruption entity when of necessity they are themselves part of the operational field within which it is supposed to function. Their power over it is unavoidably inhibitory.[44]

The majority points out that because senior politicians are given competence to determine the limits, outlines and contents of the new entity’s work, these provisions are “inimical to independence”.[45]

2.3.3.3 But the new provisions go further than providing the Ministerial Committee with the competence to determine guidelines. They also make provision for hands-on supervision in section 17I(3) which states that: “(a) The Ministerial Committee shall oversee the functioning of the Directorate and shall meet as regularly as necessary, but not less than four times annually. (b) The National Commissioner and the Head of the Directorate shall, upon request of the Ministerial Committee, provide performance and implementation reports to the Ministerial Committee.”

Once again this is found to be constitutionally problematic:

These provisions afford the political executive the power directly to manage the decision-making and policy-making of the DPCI. As with the power to formulate policy guidelines, the statute places no limit on the power of the Ministerial Committee in overseeing the functioning of the DPCI. On the contrary – the requirement that the Ministerial Committee must meet regularly, and that on request performance and implementation reports must be provided to it, in our view creates the possibility of hands-on management, hands-on supervision, and hands-on interference. We find this impossible to square with the requirement of independence. We accept that financial and political accountability of executive and administrative functions requires ultimate oversight by the executive. But the power given to senior political executives to determine policy guidelines, and to oversee the functioning of the DPCI, goes far further than ultimate oversight. It lays the ground for an almost inevitable intrusion into the core function of the new entity by senior politicians, when that intrusion is itself inimical to independence.[46]

Although the South African legal system requires some level of executive involvement in any area of executive functioning, the extent of the involvement here is far reaching and not compliant with the Constitution. .

2.3.3.4 Section 17L does create a safeguard to protect members of the DPCI from undue influence or interference as it allows a retired judge to consider complaints about such influence or interference,[47] but this safeguard is inadequate to save the new entity from a significant risk of political influence and interference.[48] The retired judge has the power to refer a complaint for prosecution,[49]but this mechanism is insufficient as it “operates after the fact”. This does not constitute an effective hedge against interference as it only deals with the past and does not provide for a mechanism that pre-emptively protect inbvestigators against political influence or interference. Moreover the powers of the retired judge is limited. Although section 17L(7) allows the retired judge in the course of this investigation to request information from the NDPP in so far as it may be necessary, but the NDPP may on “reasonable grounds” refuse to accede to such request. That may place a considerable hurdle in the way of the retired judge’s investigation.

In short, an ex post facto review, rather than insisting on a structure that ab initio prevents interference, has in our view serious and obvious limitations. In some cases, irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. Only adequate mechanisms designed to prevent interference in the first place would ensure that these never happen. These are signally lacking.

What was therefore required was a mechanism that protected members of the corruption-fighting unit not only after the fact but could also be used to pre-empt political influence and interference. For such a mechanism to be effective the person or body empowered to deal with compliants of prospective or after the fact incidences of influence or interference had to be provided with succifient power and authority to do the job effectively.

3. Proposed amendments to the South African Police Service Act and compliance with the Glenister judgment

3.1 Overall assessment of the draft Bill

3.1.1 The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

3.1.2 As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

3.1.3 The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

3.1.3.1 In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members discussed in the judgment and raised in section 2.3.2 above. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence. Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment and as discussed in section 2.3.2 above.

3.1.3.2 Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

3.1.3.3 The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and then may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine. Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination. The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence. Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above. No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate. These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

3.1.4 Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate. No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions (as discussed in 2.2.5 above). The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”. There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

3.1.5 A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee). The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. As was pointed out in 2.3.3.2, such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

3.1.6 As was discussed in 2.3.3.5 above, the judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns. Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

3.2 Specific questions and issues with the proposed amendments

3.2.1 In terms of a proposed section 17CA, the Head of the Directorate, the Deputy Head and the Provincial Heads are to be appointed by the Minister for a non-renewable fixed term for a period “not exceeding seven years”. There are several problems with this section. First, the appointment is to be made by the political head of the South African Police Service, namely the Minister of Police. It was found that the National Commissioner, appointed by the Minister of Police, was not an independent person as the appointment was done by the political head of the Police and could be renewed. It is inappropriate that the political head of the Police, a politician whose colleagues may be investigated by the unit, has the sole discretion to appoint the Head. This would render the Head insufficiently independent both in fact and in terms of perception by the public. Another mechanism for appointment will have to be found to ensure that the Head is not a political appointee with political loyalties that would render him or her in fact and in terms of perception not independent. Second, the wording of the proposed section means that a person could be appointed for any period of less than seven years. There are two potential problems with this sections, First, the discretion provided to the Minister to determine the term of office of the Head, Deputy Head and Provincial Heads (as long as this term is no longer than seven years) is open to abuse and impractical and could, arguably, be used to render the Directorate less effective or ineffective. If appointments are made for short periods it would make it difficult for the individuals appointed to gain the necessary knowledge, skill and confidence to do their jobs effectively, thus rendering the Hawks less effective than required. Whether the provision of this discretion rises to the level of a constitutional problem, by not guaranteeing that the Hawks act effectively to combat corruption, is a close call. Second, the term of office of seven years is arguably too short. Given the fact that the members remain members of the Police Service, are subject to the other provisions of this Chapter employed in terms of the South African Police Services Act, and are therefore not guaranteed any special pension benefits at the end of the seven year term, might place the Head, the Deputy Head and the Provincial Heads in a vulnerable position as they may have to return to the ordinary Police Service after the completion of their seven year stint, rendering them susceptible to political influence and interference. If these appointees need to return to the ordinary Police Service in order to secure for themselves a livable pension on retirement, they might tread carefully regarding politically sensitive cases in order not to jeopardize their chances for such “redeployment”. Moreover the proposed section 17CA(12) provides that the Head and Deputy Head, who would normally have to retire at the age of 60, may be retained at the Discretion of the Minister for a period of up to two years. If a person of suitable age is thus appointed to one of these positions it would render such a person vulnerable to political influence or interference as the person, rightly or wrongly, might believe that the Minister will not exercise his or her discretion in his or her favour unless politically sensitive cases are handled to take account of the wishes of the Minister.

3.2.2 Section 17E deals with the requirement that every member of the Directorate needs to obtain security clearance in terms of the relevant legislation in order to work and to continue working at the Directorate. Other members of the Police Services are not subjected to the same requirement. Moreover in terms of subsection (4) the National Commissioner (not the Head of the Directorate) may transfer an individual or if such a person cannot be redeployed elsewhere may discharge such a person if his or her security clearance is degraded, withdrawn or refused “on reasonable grounds”. This provision is open to abuse, First, the decisions of members of the Intelligence Services are kept secret and it will be very difficult if not impossible to have any decision to degrade, withdraw or refuse security clearance reviewed by a court. This means that (given the politicization of the Intelligence Services) these provisions would be capable of being used to influence, interfere and even remove members of the Directorate for political reasons. Second, the power and hence also the discretion to remove the individual from the Directorate is retained by the National Commissioner, a political appointee who is not independent and who might exercise his or her discretion wrongly for political reasons. At the very least, this power needs to be transferred to the Head of the Directorate in order to ensure that the exercise of this discretion to some degree protected from political abuse. Third, it is unclear why security clearance is required for all members of the unit. Ordinary members of the Police Service need not obtain security clearance of this sort. There is nothing inherently related to national security in the investigation of corruption (even the corruption of high powered business people or politicians) and most investigators would not encounter issues of national security. While a minimum number of members of the Directorate may be required to obtain security clearance in order to deal with matters of national security, this sweeping requirement is unnecessary and could well create the well founded perception that the unit is not independent.

3.2.3 A new section 17H is proposed, dealing with “Finances and Financial Accountability” of the Hawks. Some degree of financial security is guaranteed in that the section provides for ring-fenced funds allocated to it by Parliament, money that cannot be used by the rest of the Police Service (see section 17H(4)). But because the proposals envisage that the Hawks remains part of the SA Police Service, in terms of the Public Finance Management Act the National Commissioner remains the accounting officer for the Hawks and is also required “after consultation with the Head of the Directorate” to prepare the budget of the unit (see section 17H(2)). This means that the National Commissioner (and not the Head of the Directorate) is responsible for the drafting the budget of the Hawks. The National Commissioner (not an independent person) must consult with the Head but need not follow the advice of the Head. This means that the National Commissioner is entitled to ignore the advice of the Head of the Directorate as far as the drafting of a budget for the Hawks will be concerned, meaning that a political appointee who is politically open to influence and interference by politicians, will in effect have a final say on the budget of the Hawks, leaving open the possibility of indirect political influence and interference coming into play via the threat of starving the unit of the funds required to to its job without fear, favour or prejudice.

3.2.3 Proposals for the amendment of section 17I goes some way to allay fears expressed in the Glenister judgment about direct management of the work of the Hawks as it proposes the scrapping of almost all the powers of the Ministerial Committee to draft policy guidelines for the functioning and selection of priority crimes which may be investigated by the unit. In the light of the above, it may not immediately be clear why the Ministerial Committee is retained at all. If its only power were to request performance and implementation reports from the National Commissioner and the Head of the Directorate (in terms of section 17I(3)(b)), the Committee would hardly have any powers. As the Minister will now take over responsibility for drafting of guidelines regarding the investigation of priority crimes (other than corruption), for the appointment and also the removal of the Head, and as the Minister will take final responsibility for the Hawks, (similar to the Minister of Justice taking final responsibility for the NPA), the Ministerial Committee appears – judges on these provisions alone – to have become obsolete. However, section 17J(2)(b) provides for an Operational Committee to “perform such functions as from time to time may be directed by the Ministerial Committee”. The Operational Committee is comprised primarily of politically appointed functionaries. The section provides no guidelines for what kind of functions the Operational Committee might be instructed to engage in regarding the Hawks. This section may therefore be used – or will perceived to be open tom misuse – by the Ministerial Committee and as such, is not compatible with the Glenister judgement. Moreover, as was pointed out in section 2.3.3.4, the judgment found that the existing section 17I(3)(a) and (b) left open the danger of political interference in the operation of the unit by a political body, the Ministerial Committee. The Bill proposes to amend section 17I(3)(a) to remove language that would have allowed the Ministerial Committee to oversee the functioning of the Directorate, but it leaves in place section 17I(3)(b), which requires BOTH the National Commissioner (who is supposed to have no influence or oversight whatsoever over the unit) as well as the Head of the Directorate to provide performance and implementation reports to the Ministerial Committee. It is unclear what performance and implementation reports might entail and whether it would entail reports about specific cases and the evidence gathered in regard such cases. As such it is unclear whether the retention of this section is compatible with the judgment.

3.2.4 Proposed amendments to section 17K(4) include a proposed amendment that makes no sense. Namely a proposed newly inserted section 17L(4)(b) states that the “Minister shall submit to Parliament any policy guidelines referred to in section for concurrence”. The relevant sections are not mentioned which means this section is arbitrary and irrationally vague and does not comply with the basic requirements for adherence to the principle of legality, an incidence of the Rule of Law, and is therefore invalid.

4. Proposed way forward

4.1 The proposed draft Bill purporting to give effect to the Glenister judgment falls short of the requirements set out in that judgment. The reasons for this are clear: the drafters aimed at retaining the unit within the general hierarchy and structure of the South African Police Services which generally operates under the assumption of some political control and influence over the work of the various units in the SAPS. Following such an approach, it would be very difficult (but perhaps not impossible) to ensure that an effective, efficient and sufficiently independent corruption-fighting unit is created. This is because, first, the terms of the Public Finance Management Act requires the National Commissioner to remain the accounting officer and hence ultimately the “boss” of the unit. Second, given the hierarchical structure of the South African Police Service it is difficult to provide for structural and operational safeguards – including entrenched tenure security and salary provisions as well as insulation form political influence or even interference in a unit retained within the South African Police Service.

4.2 The judgment suggests that a better model to follow would be the National Prosecuting Authority or the relevant Chapter 9 institutions such as the Auditor General or the Public Protector (even though this might not be contained inside the Constitution), institutions that remain accountable to Parliament, but does not report directly to the political entity (the Minister of Finance or the Minister of Justice) from whose budget these bodies are financed and is hence free from the direct political influence or interference which the judgment warned against. It would be far easier to create an efficient, structurally and operationally independent, anti-corruption fighting unit safeguarded from political influence or interference as a separate unit (not included with the NPA nor with the Police). Detractors might argue that section 199(1) of the Constitution renders this option a non-starter as this section states that:

The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.

But in 2001 in the Constitutional Court in the Potsane case[50] interpreted a similar phrase referring to a single Prosecuting Authority in its historical context and said it did not mean that the Defence Force could not have its own prosecuting arm for military offenses. It only meant that the various prosecuting authorities of the so called homelands had to be amalgamated into one prosecuting authority for the country. As the Kamphephe Commission of inquiry pointed out, this means that there is not constitutional imperative to have only one prosecuting authority for the country. By analogy it would also mean that there is no constitutional imperative to have all investigative policing functions performed by the SAPS.

4.3 It is important to note that the Glenister judgment required the creation of a body that was independent in fact and that was perceived to be independent by all reasonable people. This would require extraordinary measures regarding the appointment of the Head of the Unit (perhaps by a super majority of members of Parliament after a process that includes input from civil society); as well as extraordinary protections for the security of tenure of both the Head of the unit and of all the other members of the unit (something that is not possible within the South African Police Service where entrenched job security for ordinary members of the unit will be difficult to square with the practices and culture within the SAPS and with the fact that the National Commissioner remains the Financial Officer of such a unit.

4.4 It would also require the creation of a credible mechanism to actually protect every single member of the unit from both prospective and retrospective political influence and interference and to ensure that this protection is also perceived by all reasonable people to be effective and real. This would require the creation of a mechanism that is in fact and is perceived to be completely free from political influence and interference, one that provides sufficient powers and standing to allow the person or body empowered to safeguard the independence of the unit to do its work without fear, favour or prejudice.

° Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law, University of Cape Town, email: Pierre.devos@uct.ac.za.

[1]2011 (7) BCLR 651 (CC).

[2]I focus throughout on the majority judgment, because this judgment is binding. I refer to it throughout as the Glenister judgment.

[3]South African Police Service Act 68 of 1995 (SAPS Act) as amended by the South African Police Service Amendment Act 57 of 2008 (SAPS Amendment Act).

[4]National Prosecuting Authority Act 32 of 1998 (NPA Act) as amended by the National Prosecuting Authority Amendment Act 56 of 2008 (NPA Amendment Act).

[5]Par 251.

[6]As published on 24 February 2012, Bill B7-2012.

[7] Par 162.

[8] Par 163.

[9] Par 175.

[10] Par 208.

[11] Par 206.

[12] Par 188.

[13] Obligations which the majority found bound South Africa and informed its interpretation of the constitutional duty to create an independent corruption fighting unit. See par 189.

[14] Par 184.

[15] Par 208.

[16] Par 210.

[17] Par 211.

[18] Par 183, quoting from article 6(2) of the United Nations Convention against Corruption,http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf. The UN Convention was adopted by South Africa on 31 October 2003 and entered into force on 14 December 2005. South Africa signed the Convention on 9 December 2003 and ratified it on 22 November 2004.

[19] Par 188. The quoted section is from page 17 of the Report which can be accessed at http://www.oecd.org/dataoecd/7/4/39971975.pdf.

[20] Par 192.

[21] Par 203.

[22] Par 207.

[23] Par 208.

[24] Par 213

[25] Par 219.

[26] Par 219.

[27] Par 220.

[28] Par 221.

[29] Par 222.

[30] Par 223. This view is in line with the Constitutional Court judgment in Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others 2011 (10) BCLR 1017 (CC) at par 69.

[31] Par 225.

[32] Par 226.

[33] Par 227.

[34] Par 227.

[35] Section 17(1) of the NPA Act before amendment by the NPA Amendment Act.

[36] Sections 17G and 24 of the SAPS Act.

[37] Section 206(1).

[38] Par 215.

[39] Par 216.

[40] Par 229.

[41] Par 229.

[42] Par 230.

[43] Par 231.

[44] Par 232.

[45] Par 234.

[46] Par 235 and 236.

[47] Section 17L(4)(b) of the South African Police Service Act.

[48] Par 246.

[49] Section 17L(5) of the South African Police Service Act.

[50] Minister of Defence v Potsane and Another, Legal Soldier (Pty) Ltd and Others v Minister of Defence and Others 2001 (11) BCLR 1137.

Justice Zac Yacoob on the “Dynamic Constitution”

Pierre De Vos — Thu, 15 Mar 2012 11:31:55 +0000

A Dynamic Constitution

Opening Address by Justice Yacoob, Judge of the Constitutional Court of South Africa (Acting Deputy Chief Justice of South Africa) presented at Constitution Week on Monday 12 March 2012 at the University of Cape Town, South Africa.

Programme Director, colleagues (and in this concept I include all people engaged in the law as students, academics, practitioners or judicial officers, retired or not), government representatives, honoured guests, ladies and gentlemen.

I am very grateful to the Democratic Governance and Rights Unit for this invaluable opportunity to take part in this series of events. I feel particularly honoured because the series is beyond doubt an ingredient that is both integral to and necessary for the process of forging an appropriate constitutional order: a constitutional order that is vibrant, responsive and dynamic. And a dynamic constitutional order is necessary to ensure that we have a dynamic Constitution. The importance of the activities planned by the Unit cannot be over-emphasised.

It is customary to describe the Constitution as an instrument that determines the relationship between and the functions of the three arms of government namely the executive, the legislature and the judiciary. This is certainly an important aspect of constitutionalism and I return to this aspect later. But for me this is not the most important element of our Constitution. The Constitution has been enacted not merely to give effect to a settlement between opposing forces in the struggle for our democracy, not merely to regulate government for its own sake, not merely to define the powers of governmental institutions but for the benefit of all the people of our country. More particularly the Constitution is there to ensure that people who are vulnerable and marginalised because of their poverty or for other reasons are protected and their quality of life improved. In this respect, we must always remember (in particular during the discussions of this week) the powerful vision the Preamble to the Constitution proclaims for all of us:

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to-

Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

Improve the quality of life of all citizens and free the potential of each person; and

Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.”

The rights in the Bill of Rights must be read in the context of this Preamble. There is a tendency of many to believe in the light of the way the Bill of Rights is framed that the passing of the Constitution has already resulted in the achievement of the rights enshrined there. Nothing could be further from the truth. We know that inequality, suffering, poverty, inhumanity and indignity remain the order of the day for many millions of people in this country. The Constitution creates a framework, a launching pad if you like, for the achievement of the society described in the Bill of Rights. It places an undeniable obligation on all the people of our country including everyone present here to leave no stone unturned in the process of achieving this result. This is essential to a dynamic Constitution. Unless this happens, the Constitution will not only be static but in addition will not be worth its paper.

A dynamic Constitution also implies a living instrument, a facilitator that has a life of its own and which breathes life and positive energy into the people of the country. Now a Constitution cannot be a living flexible instrument, a truly dynamic change agent if it is interpreted by reference to the intention of its makers. In my view, the Constitution must be interpreted, not to determine the intention of those who made it, but on its own terms and to achieve the society it promises. The Constitution in this sense has a certain timelessness and possibilities of enduring positive growth. I therefore have some difficulty with an approach that emphasises too much the intention of constitution-makers. That intention would in theory be wholly irrelevant. In practice however the intention of the makers of a Constitution would become less relevant with time. In our deliberations therefore we should bear in mind that our Constitution was adopted sixteen years ago.

A dynamic Constitution requires the participation of civil society. The Constitution should never be the preserve of constitutional lawyers alone. The Bill of rights in our Constitution is in my view its main pillar. But the values the Bill of Rights represents and reflects will die unless the majority of people in our country know and understand them, internalise, feel and live them. This can occur only if all of us do what the Constitution requires of us. Each of us has an obligation to do what we can to ensure that the Constitution and the Bill of Rights in particular is made known to and understood by the people of our country. I have never understood for example why it is that our Bill of Rights is not a significant item in the orientation program for new students irrespective of whether they are studying law at every university in our country. I have made this proposal at three universities thus far, but I almost sure, (I hope I am wrong about this), that none of them has accepted the suggestion. I would hope that someone present here will explain why. Our Bill of Rights is not more than ten pages long. It should not be over expensive or particularly burdensome to make a copy available to every new student at every institution of learning.

The ways in which the message of our Constitution and our Bill of Rights can be taught and popularised are innumerable. Schools might do well to have the subject of the Bill Rights and our Constitution on their curricula, political parties might teach rights at their political schools, and government might ensure, and I should hope that this suggestion is not too high an expectation of government, that all the members of the public service imbibe the values of the Constitution. One would have expected, at the very least, that appropriate structures and measures would have been in place to ensure that all members of the public service receive instruction on the values of the Constitution so that these values would resonate in the course of their work. At the very least, members of the public service should have been orientated to that chapter of the Constitution that is binding on the members of the public service and set standards for how the people of this country should be treated. I have spoken to many a member of the public service and, to my surprise, they say that the chapter on the public service has not formed part of their training and orientation program.

I must now say something about the difference between constitutional supremacy and parliamentary supremacy. The minority white Parliament was supreme in our country until 1994. Although South Africa did have a Constitution then, it was not supreme in the true sense of the word nor was it underpinned by a rights-based normative system of law. Our present Constitution proclaims its own superiority and says without qualification that all law and conduct inconsistent with it is invalid. We must remember here that the implementation of government policy is conduct that must comply with the Constitution. No state conduct is excluded from constitutional scrutiny. The supremacy of the Constitution has an obvious implication which is quite often not recognised. It is this. The corollary to the proposition that the Constitution is supreme is that none of the legislature, the executive or the judiciary can be supreme. We are all subject to the Constitution.

The fact that the Constitution is binding on all arms of government renders it necessary to determine a mechanism for deciding whether the Constitution is being complied with. That mechanism chosen in the Constitution is the courts. It may be that some other mechanism may be considered appropriate in the future but we must proceed on the basis that the courts make this determination. It is the duty of the court to set aside any law or conduct if that law or conduct is found to be inconsistent with the Constitution. It must be remembered that neither the executive nor the legislature has the power to decide whether there has been compliance with the Constitution. It may be said by some that this system that has been adopted in our country renders the judiciary and, in particular the Constitutional Court too powerful. I have often heard the following question asked in the context that courts pronounce on whether the executive and legislature have complied with the Constitution: “who checks on whether the courts in making their decisions have complied with the Constitution?”

If this question is meant to suggest that there are three equal arms of government and that fairness requires each to check on the constitutionality of the exercise of powers by other arms of government, I find myself unable to agree. In my view, the Constitution itself has its own checks and balances in relation to the power of the judiciary and its possible political impact. Take for example the way in which Constitutional Court judges are appointed. The Constitution shows an awareness of the politically sensitive nature of the role of the Constitutional Court when it exercises the power to make a final decision on legality or constitutionality. It is for this reason that the method of appointment of the judges of the Constitutional Court and those of other courts is different. The Chief Justice and the Deputy Chief Justice are appointed by the President of the country after consultation with the Judicial Service Commission and leaders of parties represented in the National Assembly. The President also has a significant and crucial role to play in the appointment of the other judges of the Constitutional Court. The Judicial Service Commission is obliged to submit to the President three names in excess of the number of judges that are to be appointed to the Constitutional Court. The President can appoint any of the people recommended by the Judicial Service Commission and, if not satisfied with the names submitted, can ask for more names. All other judges are appointed by the Judicial Service Commission and it must be emphasised that judicial representation on the Judicial Service Commission is minimal.

In the majority of cases where there are disputes about the constitutional validity of a law or government conduct, the dispute would start in the High Court, the executive is heard and a reasoned judgment in the High Court is given. The case comes to the Constitutional Court only after that. Sometimes we would also have before us a reasoned decision made by the Supreme Court of Appeal who would also have paid due consideration to the views of the executive. The Constitutional Court will consider carefully argument of the executive in relation to the constitutionality of the law or conduct before making up its mind.

But judging remains an extremely complex, sensitive and difficult exercise. It is not a mechanical exercise. That is why there are often differences of opinion. Many express the view that judges must be objective in making their decisions. In my view however there is a difference between objectivity on the one hand and independence and impartiality on the other. The latter are essentials but the value of the former is doubtful. All judges are human beings who determine issues that concern other human beings. An element of subjectivity in the decision-making process is not only inevitable but in my view necessary. The job of a judge is not to pretend objectivity but to be continuously vigilant to ensure that decisions are not the product of over-subjectivity. We can never escape our own humanness.

As Cardozo J said:

There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. . . . In this mental background every problem finds it[s] setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. . . . .

Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [she or he] be litigant or judge (Benjamin N Cardozo in The Nature of the Judicial Process (1921) at 12-13, and 167).

The fact that judges differ with each other is therefore not something to bemoan. Differences of opinion are vital to a healthy judiciary and to the development of a vigorous jurisprudence. As has been said many times, the dissent of today could be the majority judgment of tomorrow. I would be perturbed indeed if eleven judges of the Constitutional Court agreed with each other judgment after judgment, year after year. This would be an indication of a judiciary that is not sufficiently representative, and lacking the strength required for true independence and impartiality.

This does not mean that the courts are the only permissible mechanism for determining whether the executive and the legislature have complied with the Constitution. Other independent mechanisms could well be set up to make these determinations. All I would warn is that the legislature and the executive cannot check themselves. Whatever mechanisms are created must be sufficiently independent and impartial to resolve disputes about the constitutionality of the exercise of power with credibility.

Another way in which to improve the judicial function in our country is to ensure that the way in which the function is performed is always under scrutiny and the subject of robust debate amongst academics, lawyers and, of course, all the people of our country. The debate that we will have today about whether judges have intruded too much into the political process is vital to the maintenance of a healthy judiciary. While the result of debates will never conclusively determine whether a particular judicial approach is right or wrong the debate itself is very useful and will undoubtedly have an impact on judicial decision-making. In this context, the words by the former Chief Justice Chaskalson in the case concerned with the death penalty when dealing with the submission that public opinion was in favour of the death penalty are apposite (S v Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; 1995 (2) SACR 1 (CC)):

Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

I now touch upon the question of constitutional review. No Constitution is written in stone. In the first place, as I have said earlier, an interpretive exercise that is not bent on ascertaining the intention of the drafters of the Constitution would result in a living, flexible, relevant Constitution. But the Constitution is in every sense a political document created by the legitimate representatives of the South African people participating in a Constitutional Assembly. It is the product of vast consultation. It can however be amended provided that certain requirements are met. The only requirement relevant for present purposes is the number of votes in the National Assembly that are required to amend the Constitution. Our Constitution regards the general principles set out in section 1 as more important than other parts of it. It reads:

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.

(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.”

This section can only be changed by a vote of 75% of the members of the members of the National Assembly. Other amendments to the Constitution require two-thirds of the members of the National Assembly to vote for it.

Constitutional review must be understood in the light of this power to amend. We must always be thinking about whether our Constitution remains good for us. We must have the courage to change our Constitution when we need to and wisdom to know when change would be unnecessary, counter-productive or negative in some other way.

The next issue I must address briefly is what has been referred to as the review of the work of the Constitutional Court or a review of the role of the judiciary. As far as I am concerned there is absolutely nothing wrong with an evaluation of the work of the Constitutional Court or any other court. I would take results of evaluations of this kind extremely seriously. All of us value any reasoned opinion that seeks to show that a particular judgment was wrong. I am certain that any opinion expressed at the end of any judicial review process will be taken seriously by every judge in the country.

Finally, I must talk about an idea that has been expressed lately to the effect that there should be some measure of co-operation between the judiciary, the legislature and the executive. The thesis is apparently that all branches of government aim at achieving the same result and should in some senses work together. I would assume that this cannot be intended to mean that the executive and the legislature should be able to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it. If this is what is meant I would find it difficult to agree. It is obvious that there must be discussion between the judiciary and the executive about budgets, facilities and matters of this kind.

But the conversation between the courts on the one hand the legislature and the executive on the other is of a different kind. It is not about branches of government talking to each other privately and secretly to obtain a common understanding of the needs of our country. The executive and the legislature on the one hand and the judiciary on the other should indeed talk to each other and do indeed talk to each other. But they do so in a specialised structured way. When the Constitutional Court hears a case involving the executive or the legislature, at least the executive is represented in Court by counsel. Counsel’s argument reflects the position of the executive and conveys that position to the Court. Judges would ask questions on the written material presented during oral argument. The judgment of the Court would be the final position taken after argument is heard. And that is not the end of the conversation either. If courts have misinterpreted legislation in the view of the executive or legislature, the legislature might well amend the legislation so that it says precisely what the legislature meant it to say. The conversation between the judiciary and other branches of government must be open, structured and designed to ensure that judges are able to perform their functions independently and without fear, favour or prejudice.

It remains for me to wish you successful deliberations in the next few days and to express my certainty that your discussions will take the constitutional project forward in a meaningful and material sense.

Thank you.

Z.M Yacoob

Oslo Declaration on HIV criminalisation

Pierre De Vos — Mon, 05 Mar 2012 07:12:18 +0000

OSLO DECLARATION ON HIV CRIMINALISATION

Prepared by international civil society in Oslo, Norway on 13th February 2012

1. A growing body of evidence suggests that the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission is doing more harm than good in terms of its impact on public health and human rights.1

2.A better alternative to the use of the criminal law are measures that create an environment that enables people to seek testing, support and timely treatment, and to safely disclose their HIV status.2

3. Although there may be a limited role for criminal law in rare cases in which people transmit HIV with malicious intent, we prefer to see people living with HIV supported and empowered from the moment of diagnosis, so that even these rare cases may be prevented. This requires a non-punitive, non-criminal HIV prevention approach centred within communities, where expertise about, and understanding of, HIV issues is best found.3

4. Existing HIV-specific criminal laws should be repealed, in accordance with UNAIDS recommendations.4 If, following a thorough evidence-informed national review, HIV-related prosecutions are still deemed to be necessary they should be based on principles of proportionality, foreseeability, intent, causality and non-discrimination; informed by the most up-to-date HIV-related science and medical information; harm-based, rather than risk-of harm based; and be consistent with both public health goals and international human rights obligations.5

5. Where the general law can be, or is being, used for HIV-related prosecutions, the exact nature of the rights and responsibilities of people living with HIV under the law should be clarified, ideally through prosecutorial and police guidelines, produced in consultation with all key stakeholders, to ensure that police investigations are appropriate and to ensure that people with HIV have adequate access to justice. We respectfully ask Ministries of Health and Justice and other relevant policymakers and criminal justice system actors to also take into account the following in any consideration about whether or not to use criminal law in HIV-related cases:

6. HIV epidemics are driven by undiagnosed HIV infections, not by people who know their HIVpositive status.6 Unprotected sex includes risking many possible eventualities – positive and negative – including the risk of acquiring sexually transmitted infections such as HIV. Due to the high number of undiagnosed infections, relying on disclosure to protect oneself – and prosecuting people for non-disclosure – can and does lead to a false sense of security.

7. HIV is just one of many sexually transmitted or communicable diseases that can cause longterm harm.7 Singling out HIV with specific laws or prosecutions further stigmatises people living with and affected by HIV. HIV-related stigma is the greatest barrier to testing, treatment uptake, disclosure and a country’s success in “getting to zero new infections, AIDS-related deaths and zero discrimination”.8

8. Criminal laws do not change behaviour rooted in complex social issues, especially behaviour that is based on desire and impacted by HIV-related stigma.9 Such behaviour is changed by counselling and support for people living with HIV that aims to achieve health, dignity and empowerment.10

9. Neither the criminal justice system nor the media are currently well-equipped to deal with HIVrelated criminal cases.11 Relevant authorities should ensure adequate HIV-related training for police, prosecutors, defence lawyers, judges, juries and the media.

10. Once a person’s HIV status has been involuntarily disclosed in the media, it will always be available through an internet search. People accused of HIV-related ‘crimes’ for which they are not (or should not be found) guilty have a right to privacy. There is no public health benefit in identifying such individuals in the media; if previous partners need to be informed for public health purposes, ethical and confidential partner notification protocols should be followed.12

Prepared by international civil society in Oslo, Norway on 13th February 2012

Q: Who is behind the Oslo declaration?

A: We are a group of individuals from civil society around the world concerned about the inappropriate and overly-broad use of the criminal law to regulate and punish people living with HIV for behaviour that in any other circumstance would be considered lawful. We are working to end such injustice. We are led by, and include, people living with HIV, and supported by committed HIV advocates. Our expertise covers medical, social, ethical, political, human rights and judicial issues relating to HIV and the criminal law.

Q: Why is it called the Oslo declaration?

A: We came together in Oslo, Norway on the eve of the global High Level Policy Consultation on the Science and Law of the Criminalisation of HIV Non-disclosure, Exposure and Transmission, convened by the Government of Norway and the Joint United Nations Programme on HIV/AIDS (UNAIDS). The objective of the High Level Policy Consultation was to provide a global forum in which policymakers and other concerned stakeholders could consider their current laws and policies regarding the criminalisation of HIV non-disclosure, exposure or transmission in light of the most recent and relevant scientific, medical, public health and legal data.

Although our declaration is not an official High Level Policy Consultation document, we support the objective of the meeting, and encourage policymakers to review their own laws and policies, and to take any and all steps necessary to achieve the best possible outcomes in terms of justice and protection of public health in order to support effective national responses to HIV and uphold international human rights obligations.

Q: What is the current state of HIV criminalisation?

A: Prosecutions are taking place in many countries around the world either under HIV-specific criminal statutes or under a wide range of often inappropriate general criminal laws.13 Most criminal cases have been framed by prosecutors and the media as being cases of ‘deliberate’ or ‘intentional’ HIV transmission when, in fact, the vast majority have involved neither malicious intent nor alleged or even proven HIV transmission.14 In recent years, both the number of prosecutions, and the number of new HIV-specific criminal laws have been increasing15 even as the public health response to HIV – based on a human rights and evidence-informed approach16 – has significantly reduced the number of new infections and greatly improved the quality of life of people living with HIV.17

However, several countries are now rethinking their approach to the use of criminal law due to their awareness of advances in HIV-related science and medicine.18

Q: How do HIV-related criminal laws and prosecutions harm HIV prevention efforts?

A: Many experts have raised concerns regarding the broad, collateral harm inherent in a regulatory and criminal-based approach to HIV prevention.19 In particular, there is evidence of a negative public health impact in terms of:

misrepresenting and overstating HIV-related risks and harms. This contributes to increased myths about HIV, including about transmission risks and how best to protect oneself.
increasing HIV-related stigma. This has an adverse effect on a person’s willingness to learn about, or discuss, HIV.
undermining the importance of personal knowledge and responsibility as a key component of an HIV prevention package. Preventing HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
deterring people from wanting to know their HIV status. Undiagnosed (and, therefore, untreated) HIV harms individual and public health.20

ENDNOTES:

1 UNAIDS. Report of the Expert Meeting on the Scientific, Medical, Legal and Human Rights Aspects of Criminalisation of HIV Non-disclosure, Exposure and Transmission, 31 August- 2 September 2011. Geneva, February 2012.

2 UNAIDS/UNDP. Policy Brief: Criminalization of HIV Transmission. Geneva, July 2008; Open Society Institute. Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. 2008; IPPF,GNP+ and ICW. Verdict on a Virus. 2008. See also: IPPF. Verdict on a Virus (documentary) 2011.

3 GNP+/UNAIDS. Positive Health Dignity and Prevention: A Policy Framework. Amsterdam/Geneva, January 2011.

4 UNAIDS/UNDP. Policy Brief: Criminalization of HIV Transmission. Geneva, July 2008.

5 UNAIDS. (2012) Op. cit.

6 Marks G et al. Estimating sexual transmission of HIV from persons aware and unaware that they are infected with the virus in the USA AIDS 20(10):1447-50, 2006; Hall HI et al. HIV transmissions from persons with HIV who are aware and unaware of their infection, United States AIDS 26, online edition. DOI: 10.1097/QAD013e328351f73f, 2012.

7 Bernard EJ, Hanssens C et al. Criminalisation of HIV Non-disclosure, Exposure and Transmission: Scientific, Medical, Legal and Human Rights Issues UNAIDS, Geneva, February 2012; Carter M. Hepatitis C surpasses HIV as a cause of death in the US. Aidsmap.com, 21 February 2012.

8 UNAIDS. Getting to Zero: 2011-2015 Strategy. Geneva, December 2010.

9 Bernard EJ and Bennett-Carlson R. Criminalisation of HIV Non-disclosure, Exposure and Transmission: Background and Current Landscape. UNAIDS, Geneva, February 2012.

10 GNP+/UNAIDS (2011) Op. cit.

11 Bernard EJ and Bennett-Carlson R (2012) Op. cit.

12 UNAIDS. Opening up the HIV/AIDS epidemic: Guidance on encouraging beneficial disclosure, ethical partner counselling & appropriate use of HIV case-reporting Geneva, 2000.

13 GNP+. The Global Criminalisation Scan Report 2010. Amsterdam, 2010; Bernard EJ. Criminal HIV Transmission Blog (2007- 12).

14 Bernard EJ and Bennett-Carlson R (2012) Op. cit.

15 Ibid.

16 UNAIDS (2010) Op. cit.

17 WHO, UNAIDS, UNICEF. Global HIV/AIDS Response: Epidemic update and health sector progress towards Universal Access 2011 Progress Report. Geneva, 2011.

18 UNAIDS. Countries questioning laws that criminalize HIV transmission and exposure. 26 April 2011; Bernard EJ. Getting tough on criminalisation HIV Treatment Update 210, Winter 2012.

19 Weait M. Intimacy and Responsibility: The criminalisation of HIV transmission. Abingdon, Oxon: Routledge-Cavendish, 2007; Burris S, Cameron E, Clayton M.The criminalisation of HIV: time for an unambiguous rejection of the use of criminal law to regulate the sexual behavior of those with and at risk of HIV Social Science Research Network, 2008; Open Society Institute. Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. 2008; IPPF,GNP+ and ICW. Verdict on a Virus . 2008. Cameron E. Criminalization of HIV transmission: poor public health policy. HIV/AIDS Policy & Law Review 14 (2), 2009; AFAO and NAPWA. HIV, Criminal Law & Public Health Forum, Canberra. September 2011; RFSU, RFSL and HIV Sweden. HIV, Crime and Punishment. December 2011.

20 Cohen MS et al. Prevention of HIV-1 Infection with Early Antiretroviral Therapy. N Engl J Med 2011; 365:493-505.

21 Mykhalovskiy E The problem of “signiﬁcant risk”: Exploring the public health impact of criminalizing HIV non-disclosure. Social Science & Medicine, 2011; Bourne A, Dodds C, Weait M.Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales Reproductive Health Matters 17(34):135–145, 2009; Menadue D. The impact of the criminalisation issue on HIV-positive people. In: Cameron S and Rule J (eds), The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality Sydney, NAPWA, 2009.

22 GNP+ (2010) Op. cit.; Bernard EJ. (2007-12). Op. cit. Bernard EJ and Bennett-Carlson R (2012) Op. cit.

23 Strub S. HIV Is Not a Crime (documentary) 2011.

24 Athena Network. 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. 2009; In The Life Media. Perpetuating Stigma (documentary), 2012.

25 Heywood TA. State HIV disclosure forms legally inaccurate. Michigan Messenger, 7 February 2011; Heywood TA. Missouri backs off use of HIV client acknowledgment form. Michigan Messenger. 23 May 2011.

SIGN THE DECLARATION

Julius Malema expelled: the NDC ruling

Pierre De Vos — Wed, 29 Feb 2012 19:52:43 +0000

NDC STATEMENT ON MITIGATION AND AGGRAVATION FINDINGS

29 February 2012

1. Comrades Julius Malema, Sindiso Magaqa and Floyd Shivambu were charged and found guilty of misconduct in terms of rule 25 of the ANC Constitution. The findings were confirmed on appeal and the National Disciplinary Committee (NDC) has heard evidence in mitigation and aggravation of sanction.

2. Comrade Floyd Shivambu showed remorse with respect to the charges of swearing at a journalist. With respect to all other charges the charged members maintained that they had nothing wrong, that the charges were politically motivated and that they did not accept the findings of either the NDC or the National Disciplinary Committee of Appeal.

3. The NDC considered the seriousness of the misconduct and has imposed sanctions commensurate with this. A summary of the findings of the NDC is attached for the information of ANC members and the public.

4. The NDC also reminds all ANC members that, at its public announcement of the outcome of the disciplinary hearing, extensive reference was made to the ANC Constitution; the aims, objectives and character of the ANC; the injunctions of the September 2010 National General Council and the prevailing circumstances during the main hearing. The NDC again reminds all ANC members of their solemn commitment at the time of joining the ANC.

I solemnly declare that I will abide by the aims and objectives of thee African National Congress set out in the Constitution , the Freedom Charter and other duly adopted policy positions, that I am joining the organization voluntarily and without motives of material advantage or personal gains, that I agree to respect the Constitution and the structures and to work as a loyal member of the organization, that I will place my energies and skills at the disposal of the organization and carry out tasks given to me, that I will work towards making the ANC an even more effective instrument of liberation in the hands of the people, and that I will defend the unity and integrity of the organization and its principles, and combat any tendency towards disruption and factionalism.

5. In the light of public statements made by the ANC Youth League and Respondents following the main NDC hearing and the NDCA hearing, the NDC advises members to faithfully observe their solemn commitment and to fully familiarize themselves with the ANC Constitution.

Derek Hanekom

Chairperson of the ANC NDC

AFRICAN NATIONAL CONGRESS NATIONAL DISCIPLINARY COMMITTEE

Public Announcement on the Disciplinary hearings of:

FLOYD SHIVAMBU Respondent

JULIUS MALEMA Respondent

SINDISO MAGAQA Respondent

Luthuli House, Johannesburg 29 February 2012

PREAMBLE

1. The National Disciplinary Committee (NDC) was instructed by the National Disciplinary Committee of Appeal (NDCA) on 4 February 2012 to hear evidence in mitigation and aggravation of sanction in the cases involving comrades Sindiso Magaqa, Floyd Shivambu and Julius Malema.

2. The NDC has considered the evidence of witnesses and that of the charged members in mitigation of sanction, as well as evidence in aggravation of sanction.

3. The NDC has discharged its duty without fear or favour and has not been swayed by any outside party. All its decisions have been made on the evidence before it and a complete Record of the proceedings is available to support its conclusion.

4. At its public announcement of the outcome of the disciplinary hearing, the NDC referred extensively to the ANC Constitution; the aims, objectives and character of the ANC; the injunctions of the September 2010 National General Council and the prevailing circumstances during the hearing. In addition, the NDC specifically drew the attention of ANC members to the solemn commitment made by members at the time of joining the ANC.

5. In the light of public statements made by the ANC Youth League and the Respondents following the main NDC hearing and the NDCA hearing, the NDC advises members to faithfully observe their solemn commitment and to fully familiarise themselves with the ANC Constitution.

6. The ANC has the right at all times to explain and clarify its disciplinary proceedings and approaches to discipline. However, in all disciplinary proceedings, representatives, members, structures and employees of the ANC should respect the sub judice principle and not comment on the specifics of the cases. This would avoid any semblance of the perception that their utterances could be construed to influence the outcome.

FINDING

A. Background

1. On 10 November 2011 the National Disciplinary Committee (“NDC”) found the Respondents guilty of committing various acts of misconduct in terms of Rule 25.5 of the ANC Constitution and imposed a sanction in each case.

2. The Respondent, Sindiso Magaqa, was found guilty of contravening Rule 25.5(o) of the ANC Constitution for issuing, in his capacity as SG of the ANC Youth League, a derogatory and potentially defamatory statement about comrade Malusi Gigaba, a member of the National Executive Committee (NEC) of the ANC and the Minister of Public Enterprises.

3. The Respondent, Floyd Shivambu, was found guilty of contravening Rule 25.5(o) of the ANC Constitution for swearing at a journalist and for issuing, in his capacity as spokesperson of the ANC Youth League, a statement on Botswana in contravention of ANC policy.

4. The Respondent, Julius Malema, was found guilty of contravening Rules 25.5(c) and (i) of the ANC Constitution for expressing his personal views at a press conference of the ANC Youth League on 31 July 2011 which sought to portray the ANC government and its leadership under President Zuma in a negative light in relation to the African agenda and which had the potential to sow division and disunity in the ANC, and for expressing his personal views on Botswana which contravened ANC policy.

5. The Respondents appealed to the National Disciplinary Committee of Appeal (NDCA) against the findings and raised legal and factual arguments regarding the sanction imposed by the NDC.

6. On 4 February 2012 the NDCA dismissed the appeals against the findings involving the three respondents listed above, but provided the following directive in respect of sanction:

6.1 As prayed for by the Appellants, the matter is referred back to the NDC to determine an appropriate sanction after hearing evidence in mitigation and aggravation of sanction that the parties may wish to present.

6.2 Such hearing shall be concluded by the NDC within 14 (fourteen) days from date hereof and the NDC is directed to provide appropriate guidelines to the parties for the expeditious finalisation of the process.

6.3 In terms of the articulation between the ANC Constitution and Article 11.2 of the ANC Youth League Constitution, any sanction imposed by the NDC resulting in the imposition of a penalty of suspension of membership or expulsion from the ANC shall be applicable to the Appellant’s membership of the ANC Youth League.

EVALUATION BY THE NDC

7. In determining appropriate sanctions, the NDC took into consideration evidence led during the hearing, the evaluation of evidence in mitigation and aggravation of sanctions and the approach in the ANC Constitution towards sanctions.

Respondents’ arguments

8. A substantial part of the evidence given by the Respondents in mitigation of sanction was directed at reducing their blameworthiness. They sought to offer justification for the commission of the offences and to make out a case that the charges were political in nature, which required a political solution and not disciplinary action.

Comrade Sindiso Magaqa

9. In the case of comrade Magaqa, it was argued that the statement was issued because the ANC Youth League was provoked by comrade Gigaba’s characterisation of the debate on nationalisation of mines as reckless.

10. This argument was dismissed by the NDC in its Finding and confirmed by the NDCA. Consequently, the NDC does not consider it necessary to restate its Finding. Furthermore, the NDC is of the view that there is nothing “political” about making derogatory and potentially defamatory statements about a member of the NEC.

Comrade Floyd Shivambu

11. In the case of comrade Shivambu, the NDC has already dismissed the argument that the comrade was provoked by the journalist and this Finding was confirmed by the NDCA.

12. The NDC does not accept that there is anything “political” about swearing at a journalist.

13. With regard to comrade Shivambu’s conviction on the second count for issuing a statement on Botswana in contravention of ANC policy, the NDC reject the accusation that there is a political motive in the charge. The ANC has a policy on Party-to-Party relations and the Respondent contravened that policy, as already stated in the NDC finding on 10 November 2011 and subsequently confirmed by the NDCA.

Comrade Julius Malema

14. With regard to the charges against comrade Malema, the NDC does not accept that there is a political motive in the charges.

15. The NDC Finding which was confirmed by the NDCA, was that comrade Malema had publicly expressed his personal views in contravention of ANC policy, thereby sowing divisions within the organisation and bringing the organisation into disrepute.

16. Full reasons for the finding against comrade Malema were set out in the Finding and the NDC does not consider it necessary to restate these reasons.

All three Respondents

17. The arguments by all three Respondents that they were convicted for acting in a representative capacity and for utterances and statements made by a collective or for repeating the statement of the ANC Youth League were also dealt with at length in the NDC Findings and were rejected. The NDCA subsequently confirmed the Findings of the NDC.

18. The argument advanced by the Respondents that they submitted resolutions of their Congress to the ANC leadership timeously, was not accepted by the NDC because according to the evidence led the resolutions were submitted after the commission of the offenses in question.

19. Having considered the arguments raised by the Respondents, the NDC finds that there was no justification for their actions and utterances. Consequently, their blameworthiness is not reduced.

20. The evidence of comrades Andile Lungisa and Abner Mosaase was premised on the understanding that comrade Malema was found guilty for acting as a representative of the ANC Youth League and for repeating an ANC Youth League statement.

21. After listening to their evidence, the NDC is convinced that these two comrades did not read the Findings of the NDC and the NDCA because if they had, they would have understood the basis upon which comrade Malema was found guilty. For this reason the NDC finds that their evidence is not helpful to the Respondents, particularly comrade Malema.

22. The NDC also does not accept comrades Mosaase’s evidence that in the ANC Youth League matters of ill discipline are dealt with politically. The ANC Youth League Constitution sets out an elaborate formal procedure for dealing with misconduct.

23. The above arguments advanced by all three Respondents do not offer any mitigation, but instead offer a defense against findings which were made by the NDC and confirmed by the NDCA.

The relationship between the ANC and its members

24. The ANC owes a duty not only to its members, including the Respondents, but to all South Africans to ensure that discipline is maintained in pursuit of the fundamental goal “to construct a united, non-racial, non-sexist, democratic and prosperous South Africa”.

25. For this reason the NDC has taken into account the evidence given by the Complainant’s witnesses in the main disciplinary hearings about the negative impact that the Respondents’ misconduct has had on South Africa and its people for the purpose of determining an appropriate sanction.

26. As a voluntary organisation, the ANC has the power to regulate its internal affairs in terms of the ANC Constitution, including the right to refuse membership, and to suspend or expel any of its members.

27. Rule 25 of the ANC Constitution requires all members, without exception, to abide by the Constitution of the NEC and sets out acts, which constitute misconduct. Without the power to discipline members in the event of misconduct the ANC runs the risk that members could distort the character, purpose, and historic mission of the ANC.

28. All Disciplinary Committees, including the NDC and NDCA, are structures created in terms of the ANC Constitution for the purpose of maintaining discipline within the ANC. Their decisions must be respected by all members, structures and organs of the ANC.

29. The ANC Constitution promotes the principles of freedom of speech and free circulation of ideas and information within its ranks, provided that a member does not contravene the disciplinary code as set out in Rule 25.5 of the ANC Constitution and with regard to Rule 25.2(a).

30. Rule 25.5 set out twenty-eight (28) acts of misconduct in respect of which disciplinary proceedings may be invoked and instituted against ANC members. Acts of misconduct which seek to sow division or a breakdown of unity in the ANC and which bring the organisation into disrepute are specifically intended in the ANC Constitution to protect the core values, character, unity and historic mission of the ANC.

31. The relationship between the ANC and the three Respondents is contractual in nature. When the Respondents joined the ANC they took the membership oath; they were fully aware of the provisions of the ANC Constitution; they considered themselves bound by the ANC Constitution and they undertook to respect the ANC Constitution and its structures.

32. The potential for sanction arising from breach of discipline, including suspension or expulsion from the ANC, is part of the consideration that a person accepts in return for admission to the ANC as a member. A member is fully aware of this possibility at the outset when he or she joins the ANC.

33. As set out in the ANC Constitution the ANC is a voluntary organization, which people join willingly because they subscribe to its aims, objectives, culture, ideals and value system. This is the glue that has held the ANC together for a hundred years. No one is forced to join the ANC or compelled to remain in the ANC. In the same spirit, the ANC should not be obliged to associate with any member or to retain the active participation of any member, without exception, who pays scant regard to the membership oath of the ANC, its character and unity, aims and objectives and the policies of the organisation.

Factors taken into consideration in deciding an appropriate sanction

34. In deciding an appropriate sanction, the NDC took into consideration the following factors:-

34.1 The seriousness of the offence;

34.2 The presence of aggravating factors;

34.3 Any previous findings against the respondents;

34.4 The presence of mitigating factors;

34.5 The concept of a graduated approach to sanctioning;

34.6 The concept that the sanction must take into consideration the interests of the ANC, the respondents and society at large; and

34.7 The sanction must fit the offence.

The seriousness of the offence

35. Comrade Sindiso Magaqa was found guilty of contravening Rule 25.5 (o) of the ANC Constitution.

36. Comrade Floyd Shivambu was found guilty on two counts of contravening Rule 25.5 (o) of the ANC Constitution.

37. Comrade Julius Malema was found guilty of contravening Rules 25.5 (c) and (i) of the ANC Constitution.

38. The NDC is of the view that all three Respondents were found guilty of committing serious offences which warrant either suspension or expulsion from the organisation.

The presence of mitigating factors

39. The Respondent, comrade Sindiso Magaqa, is a first offender and is a newly appointed member of the NEC of the ANC Youth League.

40. Comrade Floyd Shivambu sincerely apologised for swearing at the journalist. He also apologised at his hearing last year.

41. Although evidence was led at his hearing of the commission of a similar offence where the ANC had to pay money to a third party for his misconduct, comrade Floyd Shivambu is treated as a first offender for purposes of sanctioning.

42. The evidence of long-standing political involvement and good character given by comrade Soviet Lekganyane in comrade Malema’s favour has been noted as a mitigating factor.

The presence of aggravating factors

43. Save for an apology from comrade Shivambu with respect to one of the charges, all three Respondents did not show any remorse or acceptance of wrong-doing.

44. The Respondents missed the opportunity to present argument in mitigation of sanction and instead challenged the findings of both the NDC and the NDCA. They largely confined their argument to insisting that the NDC and NDCA had erred in its findings.

Details of any previous findings against the respondents

45. The Respondent, comrade Julius Malema, is a repeat offender. In May 2010 he was found guilty of contravening Rule 25.5 (i) of the ANC Constitution.

The concept of a graduated approach to sanctioning

46. As stated above, the NDC is of the view that the offences committed by all three Respondents are sufficiently serious to warrant either a period of suspension or expulsion.

47. The NDC is of the view that a fine, reprimand or other corrective sanction would, in the circumstances, not fit the offence, would be inappropriate and would send the wrong message to ANC members and the wider community.

The concept that the sanction must take into consideration the interests of the ANC, the Respondents and society at large

48. The Respondents enjoy membership of the ANC, which is a liberation movement and also the ruling party and are in the privileged position of being members of the National Executive Committee of the ANC Youth League.

49. It is the responsibility of the ANC Youth League to inculcate the values of discipline and loyalty amongst its members.

Consideration of the case of Comrade Sindiso Magaqa

50. Comrade Magaqa did not testify at his disciplinary hearing. The NDC, in its discretion, gave him the benefit of doubt that he would have expressed remorse if he had testified. The NDC also adopted a remedial approach to his sanction by directing him to apologise to comrade Gigaba.

51. In his mitigation hearing, comrade Magaqa:-

51.1 Did not show any remorse;

51.2 Testified that the view of the ANC Youth League was to deal with ill-discipline politically;

51.3 The ANC Youth League would only apologise to comrade Gigaba if he was prepared to meet with the ANC Youth League to explain his views on nationalisation.

51.4 Testified that he agreed with the Youth League statement.

52. The NDC finds that comrade Magaqa has shown no remorse and his evidence has aggravated his case. The NDC also finds it extraordinary that the Secretary General of the ANC Youth League could even consider saying that issues of ill-discipline in the ANC Youth League are dealt with politically when the ANC Youth League’s own Constitution provide an elaborate and formal procedure for dealing with acts of misconduct.

53. Comrade Magaga should have realized that pronouncements by him as Secretary General of an organ of the ANC would carry a lot of weight and would readily be accepted by Youth League members as authoritative.

54. Comrade Magaqa’s unwarranted personal attack against comrade Gigaba was prejudicial to the integrity and repute of the ANC and constituted a serious offence.

55. The fact that he is a first offender and newly elected member of the NEC of the ANC Youth League count in his favour.

Consideration of the case of Comrade Floyd Shivambu

56. The Complainant did not lead any evidence in aggravation of sanction against comrade Floyd Shivambu.

57. Comrade Shivambu has shown no remorse for the Botswana statement which transgressed ANC policy and which differed significantly from the ANC Youth League’s 24th Congress resolution on Botswana.

58. Comrade Shivambu’s misconduct brought the ANC into disrepute and undermined the ANC’s commitment to respect the sovereignty of states. In the view of the NDC, both offences committed by comrade Shivambu are serious.

59. Comrade Shivambu has shown remorse for swearing at the journalist.

60. For the purpose of sanctioning, he is regarded as a first offender.

Consideration of the case of Comrade Julius Malema

May 2010 findings

61. The NDC noted that in respect of the May 2010 sanctions, the corrective elements of the sanctions were not implemented.

62. The NDC’s package of sanctions imposed in 2010 is severable. The first part relates to remedial action and was designed to correct comrade Malema’s behaviour and make him a responsible leader. The second part serves as a deterrent that he should refrain from conduct that would bring the ANC into disrepute and sow division in the organisation.

63. The NDC finds nothing inconsistent about these sanctions because they were intended to achieve two different purposes.

64. With regard to the second part of the sanctions, comrade Malema was fully aware that should he be found guilty for contravening Rule 25.5 (i) of the ANC Constitution within two years, he ran the risk of having his ANC membership suspended “for a period to be determined by the NDC”. Consequently, the NDC finds that there was an obligation on comrade Malema to observe, at least for two years, the terms of his suspended sanction and that his failure to do so obliges the NDC to impose the sanction of suspension of his ANC membership.

65. Although comrade Malema committed an extremely serious offence, he pleaded guilty, showed remorse and expressed a willingness to submit to corrective action.

Present disciplinary hearing

66. The Complainant led aggravating evidence against comrade Malema with regard to the current convictions.

67. Whilst comrade Malema testified that he subjected himself to the discipline of the ANC and that he would comply with any sanction imposed by the NDC, the NDC is particularly disturbed by the following evidence given by comrade Malema at the mitigation hearing:-

67.1 In his evidence-in-chief, comrade Malema said that he did not agree with the Findings of the NDCA and repeated it under cross- examination.

67.2 He said that he was not persuaded by the NDCA findings and will continue to challenge the outcome internally because he was unfairly found guilty.

67.3 He said that the disciplinary proceedings will come to an end but the real battle will start after that when the ANC has to persuade the youth.

68. In the NDC’s view, this evidence is indicative of comrade Malema’s unrepentant attitude and non-acceptance of the findings of the disciplinary machinery of the ANC, particularly the NDCA.

69. The NDC accepts that as a tribunal of first instance in this case, comrade Malema has a right not to agree with the Findings of the NDC because the ANC Constitution gives him and the other comrades the right to appeal to the NDCA.

70. However, Comrade Malema’s refusal to accept the Findings of the NDCA, which confirm the findings of the NDC, is clearly untenable.

71. Comrade Malema should have known or have been advised that Rule 25.6 (a2) of the ANC Constitution declares decisions of the NDCA as final, except that the NEC may, in its discretion, review such a decision.

72. When comrade Malema joined the ANC he undertook in his membership oath to respect the ANC Constitution and its structures.

73. As stated above, both the NDC and the NDCA are structures that are created in terms of the ANC Constitution.

74. The NDC is of the view that if comrade Malema is not prepared to accept final decisions of the NDCA, then the likelihood of him respecting the ANC Constitution is remote.

75. This conclusion is reinforced by his utterance that after the conclusion of the disciplinary proceedings, which are conducted in terms of the ANC Constitution, the real battle will start when the ANC will still have to persuade the youth. As the President of an organ of the ANC responsible for mobilizing the youth behind the ANC, this statement, in the view of the NDC, constitutes a threat and is tantamount to holding the ANC to ransom.

76. Moreover, in his application in August 2011 to quash the charges, one of the arguments raised by comrade Malema was that the ANC Constitution was unconstitutional. In its ruling, the NDCA confirmed that he did raise this argument.

77. Comrade Malema is a repeat offender. He has now been found guilty of two serious offences in under two years whilst under suspension after his 2010 Finding; has shown no remorse; is not prepared to be disciplined by the ANC and is not prepared to respect the disciplinary machinery of the organisation.

78. Based on comrade Malema’s own evidence the NDC finds that comrade Malema is, in effect, reneging on his membership oath and is not prepared to respect the ANC Constitution.

79. With regard to comrade Malema’s plea not to have his membership taken away, the NDC believes that any period of suspension imposed as a sanction would not, as the Complainant’s representative submitted, achieve the purpose of rehabilitating the comrade.

80. In the view of the NDC, comrade Malema’s misconduct of bringing the ANC into disrepute and sowing division within its ranks is very serious.

81. The ANC Constitution demands that discipline be enforced without exception. The cumulative effect of comrade Malema’s past and present offences, coupled with his own evidence of lack of remorse and disrespect for the ANC Constitution and its structures, particularly the NDCA, has left no room for the NDC to consider his misconduct as anything but extremely serious.

82. In exercising its duty to balance the interest of the Respondent on the one hand and that of the ANC and its membership as an organization on the other hand, the balance weighs in favour of the ANC to impose the sanctions as stated below.

Sanctions

83. The ANC Constitution under Rule 25.8 (a) provides for penalties or sanctions, which may be imposed by a disciplinary committee, for proven violations of the Constitution, other relevant instruments, principles, norms, policies and decisions of the ANC. Such sanctions will include reprimand, payment of compensation and/or the performance of useful tasks, remedial action and suspension of membership or expulsion from the ANC.

84. Rule 25.8 (b) provides that a disciplinary committee may suspend the imposition of any of the above penalties or sanctions, with or without conditions, for a period to be determined by such disciplinary committee.

85. The NDC evaluated and gave due weight to all the evidence and submissions, within the context of the above framework of assessment and imposed appropriate sanctions in line with the offences committed.

Sanction in the case of Comrade Floyd Shivambu

86. Having weighed and considered all factors, the NDC imposes the following sanction in respect of the two acts of misconduct of which cde Shivambu has been found guilty:

86.1 Cde Shivambu’s membership is suspended for a period of three (3) years.

86.2 In accordance with the NDCA finding of 4 February 2012, this sanction is applicable to cde Shivambu’s membership of the ANC Youth League. Consequently, he shall vacate his position as a member of the National Executive Committee of the ANC Youth League.

87. Cde Shivambu has the right to appeal to the NDCA against this sanction within 14 days.

Sanction in the case of Comrade Julius Malema

88. Having weighed and considered all factors, the NDC imposes the following sanction in respect to the May 2010 findings and the two acts of misconduct of which cde Malema has now been found guilty:

88.1 With regard to Cde Malema’s disciplinary hearing held in May 2010, his membership is suspended for a period of two (2) years.

89. In respect of the present disciplinary hearing:

89.1 Cde Julius Malema is expelled from the ANC.

90. In respect of both findings:

90.1 In accordance with the NDCA finding of 4 February 2012, this sanction is applicable to cde Malema’s membership of the ANC Youth League. Consequently, he shall vacate his position as President of the ANC Youth League.

91. Cde Malema has the right to appeal to the NDCA against this sanction within 14 days.

Sanction in the case of Comrade Sindiso Magaqa

92. Having weighed and considered all factors, the NDC imposes the following sanction in respect of the act of misconduct of which the respondent has been found guilty:

92.1 Comrade Sindiso Magaqa’s membership is suspended for a period of three (3) years.

92.2 This sanction shall be suspended for a period of three (3) years and will be implemented if cde Magaqa is found guilty of any act of misconduct in terms of the ANC Constitution during the period of suspension.

92.3 In accordance with the NDCA finding of 4 February 2012, this sanction is applicable to cde Magaqa’s membership of the ANC Youth League.

92.4 Subject to his right of appeal, cde Magaqa shall make a public apology to comrade Malusi Gigaba within fifteen (15) days. Failure to do so will result in Clause 92.1 coming into operation with immediate effect.

93. Cde Magaqa has the right to appeal to the NDCA against this sanction within 14 days.

Media Statement by Minister Radebe about Con Court “Review”

Pierre De Vos — Tue, 28 Feb 2012 12:41:09 +0000

Media statement by the Minister of Justice and Constitutional Development, Jeff Radebe, on the occasion of releasing a discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State on 28 February 2012, Cape TownOn 4 February 1997 the Constitution of the Republic of South Africa, 1996 came into operation, symbolising the birth of the South African democratic state founded on the supremacy of the constitution and the rule of law. It is befitting that we today publish the Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State in remembrance and celebration of the 15th anniversary of this supreme law of the Republic that positively changed the course of the South Africa’s history. In the recent State of the Nation Address delivered on 9 February 2012, President Zuma, described our basic law of the land as follows:

“The Constitution is South Africa’s vision statement, which guides our policies and action. We reaffirm our commitment to advance the ideals of our country’s Constitution at all times”.

Therefore, consistent with the above statement by President Zuma, the release of this Document marks (the beginning of the) articulation of policies that would guide the further transformation of the judicial system in South Africa.

The Document, which was considered and adopted by Cabinet on 23 November 2011, is an overview of the protracted debate and negotiations within the judicial sector and the legal profession which spans over a period of 14 years. Time is now opportune to initiate a national dialogue on these fundamental principles of judicial reform which have crystallised over time.

The transformation of the judicial system is a constitutional imperative which is entrusted upon Government as a branch of the state that is assigned the responsibility of developing and implementing national policy and of initiating legislation, among others. In particular item 16(6) of Schedule 6 to the Constitution states that:

“(a) As soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a)”

The above constitutional provisions are predicated on Item 16(1) of the Schedule 6 to the Constitution, which provides that

“(1) Every Court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it, and anyone holding office as a judicial officer continues to hold office in terms of the legislation applicable to that office, subject to –

Any amendment and repeal of that legislation; and

Consistency with the new Constitution”.

The President’s comments relating to the review of the powers of the Constitutional Court is consonant with the rationalisation project mandated by the Constitution.

When the Constitution Seventeenth Amendment Bill and its accompanying Superior Courts Bill were published for public comments in May 2010 as required by the Constitution, divergent views were made by various commentators on the powers and the composition of the Constitutional Court. The comments were made as part of the reorganisation of the courts envisaged in the Constitution. For example in its submission on the Bill the Legal Resource Centre argued that the Constitutional Court’s power to hear “issues connected with decision on a constitutional matter be retained”. On the other hand the General Council of the Bar acknowledged that there were divergent views within its own ranks on this point, with others in favour, while others were opposed to the changing of the jurisdiction of the Constitutional Court. These divergent views reflect the character of our vibrant public participatory discourse.

This Document reflects on, among others, the following themes and principles which underpin the transformation of the judicial sector:

The role of the judiciary in transforming the state and society
Separation of powers, the independence of the judiciary and the rule of law as foundational values that underpin the democratic society
Significant interventions and steps we have taken to enhance the independence and effectiveness of the judiciary
The impact of South African jurisprudence on the transformation of society
The assessment of the impact of the decisions of the Constitutional Court on the reconstruction of society and the state
How the assessment of the impact of the decisions of the Constitutional Court would unfold.

Before I elaborate on the above themes, it is important to give a brief historical background to the transformation discourse.

Historical Background
It is important to have regard to the history of the country’s transition from an apartheid state to a constitutional democracy shaped by the Multi-party negotiations led by the ANC. As part of the political settlement reached during these negotiations the Constitutional Court was to be established as an institution of change entrusted with the mandate of championing the reform of the South African legal landscape including our jurisprudence, which was influenced by the unjust laws of colonialism and apartheid. It is therefore of prime importance, that seventeen years into democracy, a critical assessment of how the Constitution has changed the lives of ordinary citizens be made. The role played by the Constitutional Court is of fundamental importance in this process, hence the necessity to evaluate the impact of our constitutional jurisprudence on society as a whole. I will, later on, provide the details of how this assessment process will unfold.

Throughout the history of the struggle for freedom, the ANC, which celebrates its centenary this year, fought for a free and democratic South Africa. The Bill of Rights adopted by the ANC in 1923, the Africa’s Claims of 1943 and the Freedom Charter of 1955 reflect the ANC’s deep rooted human rights culture which defined its character and stature as a liberation movement that fought for the emancipation of the disenfranchised majority against the tyranny of the apartheid regime. These fundamental policy documents form the basis on which the Constitution of the Republic of South Africa, 1996 is premised.

The Constitution is the supreme law of the land and provides the basis for the transformation of the state and society. It sets out, as its vision, the establishment of a non-racial, non-sexist, equal and prosperous democratic society, founded on human rights. The Bill of Rights enshrined in the Constitution, entrenches justiciable socio-economic rights which underscore the developmental character of the South African state with an overwhelming commitment to social justice. It is these uniquely transformative features of our Constitution that seek to redress the legacy of inequality and deprivation implanted during the 300 years of colonialism and apartheid. In redressing this legacy, the Constitution, in its Preamble, affirms the peoples’ commitment “to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”

The making of the Constitution, which was a culmination of intense negotiations, was quite remarkable, not only because it was open and transparent, but also for its unprecedented levels of popular participation and the breadth of consultation across all sectors of society. The final Constitution was certified by the Constitutional Court, in a move unprecedented world-wide. The Constitution is an embodiment of the values that the ANC stood and fought for. The ANC-led government will defend these values at all cost, including the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy. This re-assurance comes against the backdrop of irresponsible commentary that has been published recently, which is intended to instil fear that the ANC is hell bent on revoking the fundamental rights and freedoms that many had fought and some died for in order for all of us to reap the benefits of a free society. We want to allay those fears and reaffirm our commitment to the Constitution and its values in our quest to building a non-racial, non-sexist and prosperous democratic South Africa.

The role of the judiciary and the courts in transforming the state and society
Despite the significant strides we have made in the 17 years of democracy in realising the values in the Constitution, there are still challenges and hurdles that confront the state in its endeavour to transform society. The National Planning Commission, in its Diagnostic Report released in 2010 acknowledged that “..Though divisions of race and class remain, with inequality more often than not reflecting these lines of division, law, government policy and broad social consensus are seeking to remove these inequalities, rather than entrench them as was the case in the apartheid era”.

The observations of the National Planning Commission find reflection in the address by Justice O’ Regan, a retired judge of the Constitutional Court during the Helen Suzman Memorial Lecture in 2011, when she painted the realities of the South African society as follows:
“The deep inequalities that persist are visible reminders of the effects of apartheid and colonialism. Until these scars are healed, the vision of our Constitution will not have been achieved. There is a great burden on government, in particular to address this historic legacy”.

The challenge for us as we near the end of our second decade of democracy is to consolidate the advances that we have made in such a way that we begin to make a difference in the lives of all South Africans. This should be upper most in our minds as we forge ahead in consolidating our constitutional democracy.

The judiciary has an important role in safeguarding and protecting the Constitution and its values and in ensuring the consolidation of democracy and the realisation of a better life for all. It does this through its constitutionally entrenched judicial authority. Over the years, many in the Judiciary have shown a profound understanding of the constitutional imperatives and set out to defend the basic law of the land. This includes many judgments, particularly by the Constitutional Court, that have reflected a progressive interpretation of the Constitution and social rights in particular. The landmark decisions in Government of the RSA and Others v Grootboom which relates to the provision of housing and the Treatment Action Campaign judgment which pertains to right to health, are among the many judgements of the Constitutional Court which form the building blocks of our constitutional jurisprudence admired world-wide.

Government’s response to court judgments has been respectful and has helped to reinforce the legitimacy of the courts and thereby enhance public confidence in the judicial system. As a direct response to and within the context of its overall constitutional mandate, Government has initiated and promoted laws to give effect to the judgments of the courts. The Police Amendment Act which aims to address concerns raised by the Court in the case of Glenister and the President of the Republic of South Africa is one recent example. Where Government required additional time beyond the timeframe given by the Constitutional Court to rectify the defects in the impugned laws, it has asked for more time to tackle the complex issues and to give full effect to the decision of the court. The State Liability Act is one such example.

Criticism of the decisions of the courts especially where such decisions are against government are usually met with outrage by some commentators and those who purport to act in defence of our Constitution. There is, however supporting literature that in a Constitutional democracy such as ours that criticism of the court’s decisions is both permissible and desirable. This finds reflection in the citation by Justice Felix Frankfurter of the US Supreme Court: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Judges must be kept mindful of their limitation and of their ultimate public responsibility by vigorous stream of criticism expressed with condor however blunt”

It is therefore important that that the role of judicial officers is properly understood by those whose fate and livelihood is dependent on the judgments they give through the courts. Judges are not less immune to public scrutiny than members of the Executive and Legislature.

Separation of Powers and the independence of the judiciary
The Constitution enjoins the three branches and organs of state to strive for the realisation of the democratic values that are enshrined in the Constitution, which include the establishment of an equal society and the eradication of poverty. The Bill of Rights, which is a cornerstone of democracy in South Africa, provides the basis and framework for the attainment of these goals. The Bill of Rights applies to all and binds the legislature, the Executive, the judiciary and all organs of the state. The judicial power of the Constitutional Court in striking down of laws made by the legislature it deems unconstitutional which occurs often in constitutional democracies similar to ours, is a fundamental principle of our constitutional dispensation. It has occurred a number of times where the Constitutional Court had invalidated laws passed by Parliament and the conduct of the President as being inconsistent with the letter and spirit of the Constitution. This is common in constitutional democracies and an affirmation of the vibrancy of our constitutional democracy founded on the supremacy of the Constitution and the rule of law.

President Zuma, when addressing the 2011 Access to Justice Conference reiterated the importance of a clear delineation of responsibilities of the arms of Government and articulated the position as follows:
“ While acknowledging the strides we have made, it is our well considered view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of government, especially with regard to government policy formulation. The Executive, as elected officials, has the sole discretion to decide policies for the Government. This challenge is by Justice VR Krishna Lyer of India who observed that: “Legality is the courts’ province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule”.

Many profound constitutional writers and scholars and the Constitutional Court itself have cautioned of the need for the judiciary to exercise their power of judicial review with great circumspection. The late former Chief Justice Mahomed, the first black Chief Justice of a democratic Republic of South Africa when addressing the International Commission of Jurists in Cape Town in 1998 had this to say on the subject:
“ Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs”.

The Constitutional Court, in the case of State v Makwanyane elaborated on the delicate roles of the branches of government in the context of the separation of powers when it contended that:

“… This court is not to ‘second guess’ the executive or legislative branches of government or interfere with the affairs that are properly their concern… Our task is to give meaning to the Constitution and, where possible, to do so in ways that are consistent with the underlying purposes and are not detrimental to effective government. The issues raised in the present case… concern the powers of Parliament and how it is required to function under the Constitution… Constitutional control over such matters goes to the root of democratic order… It is of crucial importance at this early stage of the development of our new constitutional order to establish respect for the principle that the Constitution is supreme.”

Justice O’Regan, in her address given at the Helen Suzman Memorial Lecture which I have made reference to earlier, contrasted the roles of Government and the courts in the context of socio-economic rights when she states as follows:

“… the approach of the Court has been to require government to explain why its policies in the field of social and economic rights are reasonable. Government must disclose to the Court ‘what it has done to formulate the policy, its investigation and research, the alternatives considered and the reasons why the option underlying the policy was selected. This approach permits citizens to hold the democratic arms of government to account through litigation, but does not require government “to be held to an impossible standard of perfection.”

Justice O’Reagan also reflected on the importance of judicial modesty and restraint when she remarked:

“…Courts need to be modest about the judicial role in addressing the legacy of our history. They must recognise that their responsibility is primarily to ensure that government works within the threefold framework of legality, rationality and compliance with the bill of rights. Outside of this framework, it is not for courts to impede the functioning of government. There are reasons for this: the first is that legislature, and indirectly, the executive are democratically elected arms of government whose office is determined by popular vote.

In an article by EK Quansah and CM Fombad, Professors of Law of University of Botswana titled Judicial Activism in Africa: Possible Defence Against Authoritarian Resurgence” they wrote:

“The long history of apartheid and the role which the judiciary played in it and the transformatory foundation laid down by the South African 1996 constitution has led to one commentator to rightly suggest that what obtains in South Africa today is judicial activism of a special type. It is worth noting that section 39 merely requires the South African Judge “when interpreting the Constitution to do what judges should normally do when interpreting a Constitution that is to give effect to its values. This is not necessarily synonymous with judicial activism; nevertheless, it makes it much easier than not for a judge to adopt an activist stance”.

Former Chief Justice Sandile Ngcobo emphasised the equal status of the branches of the state when he delivered a key note address during the Chief Albert Luthuli Memorial Lecture early this year when he stated:

“Each arm of the government must observe the constitutional limits on its own power and authority – there is no branch that is superior to the others in its service of the constitutional mission of the Republic”.

This reaffirms the position that the three branches of the state are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa.

Significant interventions and steps geared to affirm the independence and the effectiveness of the judiciary
In relation to the administration of justice in particular, we have completed and taken to Parliament several Bills, including the Constitution Seventeenth Amendment Bill and the Superior Courts Bill. The Legal Practice Bill has been approved by Cabinet is due to be introduced soon. We are optimistic that these Acts will be passed during 2012. We have turned around the Criminal Justice System and the working of the Justice Cluster and positive results are starting to show. We have established a formidable foundation to advance judicial reform with a view to enhancing the independence of the judiciary. As part of these institutional reforms the President proclaimed the Office of the Chief Justice, in September 2010 as a national department.

Assessment of the impact of the decisions of the Constitutional Court
We have alluded to the fact that the kind of assessment we set to embark upon is not unusual. It occurs all the time and as research will show, universities undertake form of research to evaluate the social-rights jurisprudence on the lives of peoples. Assessments undertaken by different institutions will be used as resource documents for purposes of our initiative. Ours is an in-depth research focused on implementable solutions and not on academic and curriculum advancement which some of the universities’ project mainly seek achieve. However the academic institutions remain an important player in this endeavour.

As the Cabinet statement of 23 November 2011 read, not only did Cabinet consider and approve the assessment of the impact of the decisions of the Constitutional Court, but considered a package of measures geared to fundamentally reform the administration of justice. Therefore the assessment should not be seen in isolation but as part of a holistic approach to the transformation of the judicial system in line with the values of the Constitution. These recommendations, including, the assessment of the decisions of the Constitutional Court, are with a view to developing clear and concise recommendations that are necessary to unlock challenges that have the potential to undermine the transformation goals that are intended to nourish our constitutional democracy. The approaches approved by Cabinet are:

Intensifying institutional reforms that are geared to enhance the capacity of the Constitutional Court to lead the evolution of our constitutional jurisprudence. The desired reforms to be informed by the assessment of the impact of the decisions of the Constitutional Court on social transformation.
Accelerating institutional reforms in the context of our developmental State; also including the optimum use of the Judicial Education Institute to facilitate the development of an appropriate judicial education curriculum that will enhance the skills, competencies and social context attributes of judicial officers.
Implementing appropriate measures, including legislative amendments, where necessary, to enhance the efficiency and the integrity of the Judicial Service Commission and the Magistrates Commission in the execution of their constitutional mandates of facilitating the transformation of racial, gender and other constitutional attributes in the Judiciary.
Establishing a framework for the monitoring of the evaluation of implementation of the court decisions by all state departments and to advance the respect for the rule of law.
Building a strong research capacity for the state by re-engineering the South African Law Reform Commission and the Rules Board for Courts of Law, to realise the full potential of the research capacity of the State. The programme to strengthen these institutions should include the revision of their legislative mandates in order to respond to the expanded mandate of government and to look at the broader socio economic context in the country. All branches of state should contribute to the agenda for change that will inform the programmes of these research institutions from time to time.
Facilitating the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to benefit society at large.

How will the assessment of the impact of the decisions of the Constitutional Court unfold
We seek to engage the services of research institution(s) to conduct the desired assessment. The identified institution(s), will be expected to -

undertake a comprehensive analysis of the impact of the decisions of the Constitutional Court, since the inception of the court, on the transformation of the state and society and how the socio-economic conditions and lives of people or a category of persons or individuals have been and or are affected by such decisions within the context of a transformative Constitution;
assess the impact of the decisions of the Constitutional Court, since the inception of the court, on all branches of the law of the Republic and the extent to which any such branch of the law has or should be transformed to give effect to the transformative goals envisaged by the Constitution;
assess the capacity of the Judiciary and that of the courts in building a South African jurisprudence that is in-line with the Constitution as the supreme law of the Republic.
assess the capacity of the State in all its spheres to implement measures that seek to give effect to the transformative laws of the Republic and the decisions of the courts.

The assessment is envisaged to be completed within 18 months from the date of commencement thereof. The outcome of the assessment and the accompanying recommendations, analysis, research papers and opinions, will form basis for –seminars and a national conference which will take place after the completion of the exercise.

I look forward to constructive views and commentary on the Document in our quest to transform the judicial system that all South Africans are yearning for.

Bizos & Kerfoot: LRC submission on Secrecy Bill

Pierre De Vos — Wed, 22 Feb 2012 18:04:58 +0000

Legal Resources Centre, Constitutional Litigation Unit, Submission on Bill B6-2010 Protection of State Information Bill on behalf of People Against Suffering, Suppression, Oppression and Poverty, February 17 2012

I. INTRODUCTION

1. The Legal Resources Centre (LRC) on behalf of People Against Suffering, Suppression, Oppression and Poverty (PASSOP) is pleased to respond to the call of the Ad Hoc Committee on the Protection of State Information Bill (National Council of Provinces) for written and oral submissions on Bill B6-2010 Protection of State Information Bill (the Bill).

2. Established in 1979, the LRC is a human rights organization in South Africa. We use the law as an instrument of justice for the vulnerable and marginalised, including poor, homeless, and landless people and communities who suffer discrimination by reason of race, class, gender, disability or by reason of social, economic, and historical circumstances. This response is primarily the work of the Constitutional Litigation Unit.

3. PASSOP is a public, non-profit organisation established with the objective of assisting oppressed people with a specific focus on documented and undocumented immigrants in accessing the rights laid down in the Bill of Rights.

4. These submissions are made by the LRC on behalf of PASSOP and outline a response to seven aspects of the Bill. We use the draft of the Bill as of the date of submission and thus our submissions may not reflect any changes from that date.

5. While there is general agreement that there is a need to replace the Protection of Information Act No 84 of 1982, the Bill does not correctly balance the principles of protecting classified state information against the equally important principles of openness, transparency, accountability and the rule of law.

6. The Bill has not received the detailed and careful consideration necessary and appropriate for such significant legislative change. Even more important than our concerns about the process that the Bill has undergone is our concern about the general tenor of the Bill.

7. Like the government of South Africa, we are committed to protecting genuinely and legitimately classified state information, but any legislative response must be reasonable, proportionate, legal and constitutional.

8. The current draft of the Bill, as it stands, runs contrary to and indeed threatens many of the fundamental values and principles enshrined in our Constitution. Rather than revisiting apartheid-era securocratic methods of information protection, the Bill must seek an appropriate balance between state secrecy and human rights.

9. There are seven points in particular that we would like to raise with respect to the Bill:

a. The Bill does not include a public interest defence;

b. The Bill adopts a standard of ‘ought reasonably to have known’;

c. The Bill allows for an improper delegation of powers;

d. The Bill does not include an improper classification defence;

e. The Bill adopts disproportionately severe penalties;

f. The Classification Review Panel lacks independence; and

g. The review jurisdiction of the Court must be maintained.

10. We will examine each in turn.

II. SUBMISSIONS

Rights at Stake

11. Section 12 of the Bill of Rights guarantees for everyone ‘the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; to be free from all forms of violence from either public or private sources; not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way.’

12. Legislation containing sanctions of imprisonment risks violating the right to freedom and security of the person.

13. Section 16 of the Bill of Rights guarantees for everyone ‘the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.’

14. Section 16(2) of the Bill of Rights provides for express restrictions on the right to freedom of expression, including propaganda for war, incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

15. National security does not figure in this list.

16. Legislation that limits freedom of expression infringes on the right guaranteed in section 16.

17. Section 32 of the Bill of Rights guarantees for everyone ‘the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.’ The Promotion of Access to Information Act No 2 of 2000 (PAIA) gives effect to this right.

18. Legislation that limits access to information infringes on the right guaranteed in section 32.

19. Section 36 of the Bill of Rights states that ‘the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.’

Public Interest Defence

20. We view a public interest defence as imperative. Such a defence would exempt from prosecution certain individuals in limited and appropriate circumstances where the disclosure has been made in the public interest.

21. It is axiomatic that the Bill will limit the right to freedom of expression and the right to access information.

22. Furthermore, the Bill must be read in conjunction with PAIA, a constitutionally-mandated statute, which provides for a public interest defence. Section 32(2) of the Constitution states that ‘[n]ational legislation must be enacted to give effect to this right (of access to information), and may provide for reasonable measures to alleviate the administrative and financial burden on the state.’ PAIA is that legislation.

23. In Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC), Chaskalson CJ offered a discussion of the relationship between the Constitution and the Promotion of Just Administration Act No 3 of 2000 (PAJA) noting that section 33 of the Constitution entrenches the right to administrative action that is “lawful, reasonable and procedurally fair” and states that “[n]ational legislation must be enacted to give effect to these rights…” Chaskalson CJ also wrote at paragraphs 95-96:

[95] PAJA is the national legislation that was passed to give effect to the rights contained in section 33. It was clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field and purports to do so.

[96] A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely on section 33(1) of the Constitution or the common law. That would defeat the purpose of the Constitution in requiring the rights contained in section 33 to be given effect by means of national legislation.

24. Like PAJA, PAIA (and we borrow the words of Chaskalson CJ) ‘is the national legislation that was passed to give effect to the rights contained in section’ 32. ‘It was clearly intended to be, and in substance is, a codification of these rights. It was required to cover the field and purports to do so.’

25. Sections 46 and 70 of PAIA provide for mandatory disclosure in the public interest where the disclosure would reveal evidence of ‘a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.’

26. Any proposed legislation that seeks to displace the clear provisions of PAIA also violates section 32 of the Constitution and is thus unconstitutional.

27. Section 5 of PAIA states that PAIA applies ‘to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a public body or private body; and is materially inconsistent with an object, or a specific provision, of this Act.’

28. Conversely, section 1(4) of the Bill states that in ‘respect of classified information and despite section 5 of the Promotion of Access to Information Act, this Act prevails if there is a conflict between a provision of this Act and a provision of another Act of Parliament that regulates access to classified information.’

29. The Bill’s attempt to trump PAIA, a constitutionally-mandated statute, is a further indication of the Bill’s overall unconstitutionality.

30. In light of the limits on the right to freedom of expression and the right to access information, the next question becomes whether these limits can be justified in terms of section 36. Without a public interest defence, we do not believe they can.

31. As it stands, section 43 of the Bill affords a limited defence to the crime of disclosing classified information to (1) those employees who may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers in terms of the Protected Disclosures Act No 26 of 200 and (2) whistle blowers in terms of section 159 of the Companies Act No 71 of 2008. All others, including journalists and other whistle blowers, risk arrest, prosecution and imprisonment.

32. Those who dispute the necessity of a public interest defence do so on the basis that section 47 of the Bill criminalises improper classification of state information in order to ‘conceal breaches of the law; promote or further an unlawful act, inefficiency, or administrative error; prevent embarrassment to a person, organisation or agency; or give undue advantage to anyone within a competitive bidding process’ with jail terms of up to 15 years.

33. This suggests that a public interest defence and the criminalisation of improper classification are mutually exclusive when they are not. This further ignores the practical reality that improperly classified information will be difficult, if not impossible, to detect and challenge without the efforts of investigative journalists and whistle blowers who will be hamstrung in their ability to bring these illegal classifications to light if they fear lengthy jail terms. Furthermore, the severity of prison sentences for legitimate disclosure far outweighs that for unlawful misclassification.

34. While there are mechanisms for bringing a classified document to the public by having it de-classified, the processes will be long and convoluted, including reporting possession to the authorities, formally requesting access to the information, and then if the organ that initially classified the document does not declassify, an application to the Classification Review Committee and then to the High Court, a potentially time-consuming and costly endeavour.

35. A public interest defence would allow an individual or organization to disclose without fear of arrest, prosecution and imprisonment. Of course such decisions would have to be made after careful deliberation since the individual or organization could face severe criminal sanctions.

36. As an illustration of the harsh effects of excluding a public interest defence, we take the example of the Bill’s criminalisation of mere possession of classified information for which there are severe criminal penalties.

37. Section 15 states that a ‘person who is in possession of a classified record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act … must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner.’

38. Section 44(1)(a) of the Constitution states that any ‘person who fails to comply with section 15 is guilty of an offence and liable to a fine or imprisonment for a period not exceeding five years.’

39. Without a public interest defence, one would be criminally liable for possession of classified information even if the information has been unlawfully classified thus fundamentally undermining the constitutionally entrenched right to access information and right to freedom of expression. Any resulting imprisonment in turn leads to an unconstitutional deprivation of freedom and security of the person.

40. In terms of foreign and international support for a public interest defence, we note the following:

a. Sections 13 and 14 of the Canadian Security of Information Act RSC 1985 c O-5 make it an offence liable to imprisonment for a person permanently bound to secrecy to intentionally and without authority communicate or confirm information that is, or would be if it were true, special operational information. Section 14 states that no ‘person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.’ The subsections to section 14 go on to describe the circumstances in which a person acts in the public interest.

b. Section 152(e) of the Danish Criminal Code (Straffeloven) NR 1235 of 26 October 2010 creates a public interest defence, which can be invoked to avoid sanction if a person is found guilty of disclosing confidential information.

c. Sections 93(2), 97a and 97b of the German Criminal Code permit public interest disclosures as a measure of last resort.

d. Article 3(2) of the Council of Europe’s Convention on Access to Official Documents (adopted by the Committee of Ministers on 27 November 2008) states that ‘[a]ccess to information contained in an official document may be refused if its disclosure would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.’

e. Principle 15 of the Johannesburg Principles of National Security, Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39 (1996) states that ‘no person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.’ The introduction to the document states that the ‘Principles are based on international and regional law and standards relating to the protection of human rights, evolving state practice (as reflected, inter alia, in judgments of national courts), and the general principles of law recognized by the community of nations.’

f. Section 19 of the International Convention on Civil and Political Rights (adopted and opened for signature, ratification and accession by General Assembly resolution 2200A of 16 December 1966 with entry into force 23 March 1976) (ICCPR), to which South Africa is a signatory, guarantees the right to freedom of expression, including the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’ The ICCPR says these rights are ‘subject to certain restrictions, but these shall only be such as are provided by law and are necessary for respect of the rights or reputations of others or the protection of national security or of public order or of public health or morals.’ (emphasis added)

g. In Guja v Moldova [2008] ECHR 14277/04, the European Court of Human Rights has also recognised that in certain circumstances, the public interest may favour the disclosure of confidential and secret information and accordingly such disclosures may merit protection in accordance with Article 10 of the European Convention of Human Rights which guarantees the right to freedom of expression.[1]

h. Article 9 of the African Charter on Human and Peoples’ Rights states that every individual ‘shall have the right to receive information’ and ‘shall have the right to express and disseminate his opinions within the law.’

41. According to section 198(c) of the Constitution, ‘[n]ational security must be pursued in compliance with the law, including international law.’

42. It is clear that not only does the exclusion of a public interest defence violate the right to freedom of expression and the right to access information but that such exclusion is also not in line with binding (and non-binding) international law standards.

43. The right to freedom of expression and right to access information are not absolute and may be limited in terms of section 36.

44. It is well established that the five factors expressly itemised in section 36 are not an exhaustive list, but are ‘key factors that have to be considered in an overall assessment as to whether or not the limitation is reasonable and justifiable in an open and democratic society.’[2] Thus, we briefly consider each here:

(a) The nature of the right is that of the right to freedom of expression and right to access information relating to state activities that may be classified.

(b) The importance and purpose of the limitation is to protect classified state information in order to safeguard the national security of South Africa.

(c) The nature and extent of the limitation is a complete prohibition on accessing or disclosing classified state information with severe criminal sanctions for any breach of the statute’s provisions.

(d) The relation between the limitation and the purpose is clear since there is a rational connection between limiting access and disclosure of classified information and the national security of South Africa.

(e) The crux of the section 36 analysis in terms of the Bill lies at the fifth enumerated factor, namely, whether there is a less restrictive means to achieve the purpose.

45. While there are a number of flaws in the Bill that demonstrate it does not adopt restrictive means that are less rights limiting, we will focus here on the exclusion of a public interest defence.

46. It cannot be said that the Bill has adopted the least restrictive means to achieve its purpose in terms of section 36 when it has not adopted a public interest defence, which represents a viable option for continuing to protect classified information with intrusion into the rights at stake.

47. By criminalising access and disclosure in all circumstances irrespective of the public interest, the Bill goes beyond what is strictly ‘necessary’ (to borrow the binding word of the ICCPR) for national security.

48. While Parliament may not be required to use the perfect or absolute least restrictive option to achieve its purpose, the alternative of the public interest defence demonstrates that there are options for restricting rights less without compromising national security since heavy penalties for unlawful access and disclosure remain. Parliament must do more and indeed can do more to protect the rights at stake and meet the requirements in an open and democratic society based on human dignity, equality and freedom.

49. Finally, while we do not purport here to re-draft the Bill, we note that a public interest defence does not have to be broad or general, but rather like the Canadian example may require strict conditions and list specific instances where disclosure will be in the public interest. We offer in brief the following examples:

a. where the disclosure reveals criminal activity, including for the ulterior purposes listed in section 47, which are now criminalised under the Bill;

b. where the disclosure reveals actions by officials or politicians that may tend to undermine South Africa’s constitutional democracy; and

c. where the disclosure reveals actions that may pose a risk to human life.

50. The guiding principle must be that in some limited instances the public interest in access and disclosure will clearly outweigh the public interest in secrecy over classified documents.

51. A balance between disclosure and secrecy is reflected in the Bill at section 19(3) where, upon receiving a request for access to classified information and status review, the ‘head of the organ of state concerned must declassify the classified information in accordance with section 14 and grant the request for state information if that state information reveals evidence of a substantial contravention of, or failure to comply with the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the state information clearly outweighs the harm that will arise from the disclosure.’(emphasis added)

52. The unjustifiable and unreasonable failure to include a similar public interest provision in the list of offences in Chapter 11 renders that chapter unconstitutional.

53. We would be pleased to participate in furthering the Bill’s constitutionality through more specific and concrete modifications.

‘Ought Reasonably to Have Known’

54. In Chapter 11 on Offences and Penalties, the wording ‘ought reasonably to have known’ is used in relation to the proof of the offence at least 15 times, including for: espionage offences (section 36) carrying jail terms of up to 25 years; receiving state information unlawfully (section 37) carrying jail terms of up to 25 years; and hostile activity offences (section 38) carrying jail terms of up to 20 years. Similarly, section 49 adopts the wording ‘reasonably should know’ for the prohibition of disclosure of a state security matter, which carries a jail term of up to 10 years.

55. The effect of these provisions is to not require the state to prove actual knowledge on the part of the accused, but rather to only require the state to show that a reasonable person standing in the shoes of the accused should have known that what he or she did was an offence.

56. The Bill introduces statutory liability with harsh criminal sanctions for merely negligent behaviour. This low standard is unacceptable and runs contrary to the fundamental principle of legality that laws must be certain, predictable, knowable in advance and not be vague or overbroad.

57. All offences in the Bill must require intention or actual knowledge on an absolutely subjective standard and nothing less.

58. Furthermore, it is well accepted in South African criminal law that conduct must have an element of mens rea or fault, which may take the form of intention (dolus) or negligence (culpa).[3] All common law crimes are based on intention with two exceptions – culpable homicide and contempt of court by a newspaper editor.[4] Even these two negligence based crimes do not carry jail terms as severe as those imposed by the Bill.

59. Such a low standard may also risk creating a reverse onus whereby the accused may have to adduce evidence establishing the reasonableness of his or her subjective belief thus effectively introducing statutory liability for the negligent, albeit innocent, accessing or disclosure of classified information. The Constitutional Court has held that reverse onus provisions, which may infringe on the right to silence and limit the presumption of innocence, are inconsistent with the Constitution.[5]

60. To only require the state to prove offences carrying severe penalties on the low objective standard of ‘ought reasonably to have known’ or ‘should have known’ creates a climate of fear and has a chilling effect on both the accessing and disclosure of information.

61. Where individual liberty is at stake and possible jail sentences are severe, statutory offences must adopt a high threshold for fault.

Delegation of Powers

62. Section 13 deals with the authority to classify state information and allows ‘any head of an organ of state’ to ‘classify or reclassify state information’ subject to section 3.

63. Section 3(1) states that the ‘provisions of this Act with regard to the protection of valuable information against alteration, destruction or loss apply to all organs of state.’ Section 3(2) states that the ‘classification, reclassification and declassification provisions of this Act apply to the security services of the Republic and the oversight bodies referred to in Chapter 11 of the Constitution; and may be made applicable by the Minister, on good cause shown, by publication in the Gazette, to any organ of state or part thereof that applies in the prescribed manner, to have those provisions apply to it.’ (emphasis added)

64. The Bill defines ‘classification authority’ as ‘the entity or person authorised to classify state information and includes a head of an organ of state; or any official to whom the authority to classify state information has been delegated in writing by a head of an organ of state.’

65. The Bill in turn defines ‘head of an organ of state’ as encompassing:

a. ‘in the case of a department, the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), or the person who is acting as such;

b. in the case of a municipality, the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), or the person who is acting as such;

c. in the case of any other institution, the chief executive officer or equivalent officer, of that public body or the person who is acting as such; or

d. in the case of a national key point declared as such in terms of the National Key Points Act, 1980 (Act No. 102 of 1980), the owner of the national key point.’

66. The Bill defines ‘Minister’ as the member of the Cabinet designated by the President in terms of section 209(2) of the Constitution to assume political responsibility for the control and direction of the intelligence services established in terms of section 209(1) of the Constitution.’

67. The Bill defines ‘relevant Minister’ as ‘any Cabinet member whose portfolio is affected by this Act.’

68. In Justice Alliance of South Africa v President of Republic of South Africa and Others, 2011 (5) SA 388 (CC) (JASA), a unanimous Constitutional Court offered a discussion of the law surrounding the delegation of powers noting that the Court had ‘frequently recognised that the Constitution sometimes permits Parliament to delegate its legislative powers and sometimes does not.’[6]

69. The Court went on to cite an earlier decision in which Chaskalson P made plain:

In a modern State detailed provisions are often required for the purpose of implementing and regulating laws and Parliament cannot be expected to deal with all such matters itself. There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies. The power to do so is necessary for effective law-making. It is implicit in the power to make laws for the country and I have no doubt that under our Constitution Parliament can pass legislation delegating such legislative functions to other bodies. There is, however, a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning plenary legislative power to another body . . . .[7] (emphasis added)

70. The Court went on to examine whether the Constitution permitted the delegation in the case before it.

71. In JASA, where the question was one of renewing the term of the Chief Justice of the Constitutional Court, the Court considered in the main Chapter 8 on Courts and Administration of Justice. In Executive Council I, where the question was one of the power of local government, the Court focused primarily Chapter 7 on Local Government.

72. In most if not all cases involving an impugned delegation of power, Chapter 4, which provides that the legislative authority of the national sphere is vested in Parliament, will be relevant.

73. Section 3(2) of the Bill purports to grant authority to the Minister responsible for the Bill to delegate the power of classification to other Ministers. Therefore, our analysis will focus on Chapters 4, which deals with the powers of Parliament, and Chapter 5, which deals with the powers of the President and Executive Council.

74. There are a number of textual and contextual indicators that the Constitution does not empower Parliament to empower a Minister to in turn empower other Ministers.

75. Section 44 states that the ‘national legislative authority as vested in Parliament confers on the National Assembly the power to amend the Constitution; to pass legislation with regard to any matter including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government.’

76. Section 55(2) of the Constitution states that the ‘National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state.’

77. Section 85(2) states that the ‘President exercises the executive authority, together with the other members of the Cabinet, by implementing national legislation except where the Constitution or an Act of Parliament provides otherwise; developing and implementing national policy; co-ordinating the functions of state departments and administrations; preparing and initiating legislation; and performing any other executive function provided for in the Constitution or in national legislation.’

78. Section 91(2) states that the ‘President appoints the Deputy President and Ministers, assigns their power and functions, and may dismiss them.’

79. Section 92 states that (1) ‘The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President. (2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. (3) Members of the Cabinet must (a) act in accordance with the Constitution; and (b) provide Parliament with full and regular reports concerning matters under their control.’

80. Citing the above passage of Chaskalson P, the Court in JASA described the nature and extent of delegation by saying that the ‘primary reason for delegation is to ensure that the legislature is not overwhelmed by the need to determine minor regulatory details. Thus, delegation relieves Parliament from dealing with detailed provisions that are often required for the purpose of implementing and regulating laws.’[8]

81. It cannot be said that the Bill delegates the determination of mere minor detail to the Executive. Rather, it is allowing power that Parliament has granted to one organ of state to be in turn granted to an equal and not subordinate organ of state, namely by one Minister to another.

82. The legislative delegation of the power to delegate to parallel organs must be seen to constitute an unlawful delegation. Nowhere in the Constitution does it contemplate that Ministers may allocate powers to other Ministers.

83. Such a parallel delegation of power runs contrary to the principle of accountability in terms of sections 55(2) and 92 of the Constitution. Will Ministers be accountable to the Minister responsible for the Bill? Who will oversee the exercise of authority of those Ministers to whom the responsible Minister delegates the power of classification?

84. By allowing the responsible Minister to delegate to another Minister, the fundamental principle of accountability, which is enshrined in section 1 of the Constitution, vanishes in this context, and the critical function of overseeing the exercise of authority by the other Ministers is seemingly displaced from the National Assembly to the Minister responsible for the Bill, which is an unlawful and unconstitutional delegation of power.

85. As the Court in JASA stated, ‘[i]n a constitutional democracy, Parliament may not ordinarily delegate its essential legislative functions.’[9]

86. The delegation of power to the relevant Minister cannot be then delegated on a parallel basis to another Minister. The Parliamentary delegation of power to Ministers through legislation is a matter of utmost importance in our constitutional democracy. Parliament’s important role in delegating power should not be handed over to Ministers to wield as they wish particularly when that power involves classifying state information as confidential, secret or top secret. Such an improper delegation represents a threat to the separation of powers between the legislature and the executive, which is a governing principle in our constitutional democracy.

87. Even if this parallel delegation from one Minister to others is constitutional (and we are of the view that it is not), there must in that case be factors, criteria or guidelines relating to the delegation so that the Minister is not permitted to simply exercise an unfettered discretion.

88. In the event such factors, criteria or guidelines are developed, the scope of delegation must be narrow. There may be obvious reasons for granting the power of classification to certain organs of state, including those already envisioned by section 3 of the Bill, namely the security services of the Republic (defence force, police service and intelligence services) and the oversight bodies referred to in Chapter 11 of the Constitution, but other organs of state should not be granted the power of classification without substantial and compelling reasons justifying the grant.

Improper Classification Defence

89. As it stands, the Bill does not currently allow for a defence of improper classification to the criminal charges. Indeed, once the state has proved the required elements of the offence, it does not appear that there are any available defences.

90. We maintain that a defence of improper classification is necessary. Such a defence would allow an accused to defend charges by arguing that the document should not be classified.

91. Improper classification already exists as an offence at section 47, which criminalises the classification of state information ‘in order to achieve any purpose ulterior to the Act…’ Why then is improper classification not a defence to those charged for unlawfully accessing or disclosing state information?

92. The current processes in the Bill at Chapter 5 involving declassification, at Chapter 7 involving the Classification Review Panel and at Chapter 8 involving appeals for refusal of access to information are inadequate for defending against the Bill’s criminal charges and do not address the need for a defence of improper classification.

Punishment Severity

93. In terms of punishment severity, as an example, we note section 36 of the Bill, which makes communicating, delivering or making available classified state information or making, obtaining, collecting, capturing or copying a record containing classified state information an offence punishable by a term of:

i. 15 years minimum and 25 years maximum in the case of top secret information;

ii. 10 years minimum and 15 years maximum in the case of secret information;

iii. 3 years minimum and 5 years maximum in the case of confidential information.

94. In a similar vein, we note all the provisions in Chapter 11 on Offences and Penalties of the Bill from sections 36 to 51.

95. The severity of the penalties is disproportionate to the gravity of the crimes committed and will work to silence whistle blowers, journalists and concerned members of South African society where the public interest demands that they be permitted to communicate information. The Bill will thus have a chilling effect on freedom of expression.

96. Although there are penalties for public officials who conceal public information that should be disclosed, those penalties are significantly less than the penalties potentially imposed on others for the disclosure of classified information.

97. Additionally, section 36(4) states that if ‘a court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in this section, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence.’

98. While we are in favour of affording a level of sentencing discretion to the Courts, particularly when the right to liberty is at stake and such severe penalties may be imposed, we are concerned about the uncertainty surrounding the onus. It is important that the Bill clarify on whom the onus falls and not leave it to debate.

99. When the right to freedom and security of the person is at stake, the imposition of disproportionately severe terms of imprisonment will not pass constitutional muster in terms of section 36. As it currently stands, the severity of the penalties contained in the Bill amount to using the proverbial sledgehammer to crack a nut.

Classification Review Panel Independence

100. Chapter 7 of the Bill establishes the Classification Review Panel (the Panel). Section 24 describes the circumstances in which a member of the Panel may be removed from the Panel, including ‘the adoption by the National Assembly of a (majority vote) resolution calling for that member’s removal as member from the Classification Review Panel.’

101. Section 33 of the Constitution provides for ‘review of administrative action by a court or, where appropriate, an independent and impartial tribunal.’ The possible removal of a Panel member by the adoption of a majority vote resolution by the National Assembly undermines the independence of the Panel and will lead to a reasonable apprehension of bias based on the perceived possibility of political manipulation. Such a removal provision is thus unconstitutional and should be struck from the Bill.

Court Jurisdiction Maintained

102. As a final point, section 6(1) of PAJA provides for the instituting of a judicial review of an administrative action before a court or tribunal. Accordingly, any attempt, implicit or otherwise, on the part of the legislature to oust the jurisdiction of the High Court to judicially review administrative acts, such as the classification of information, must be seen to be unequivocally unconstitutional. The judicial review jurisdiction of the Court must be maintained.

III. CONCLUSION

103. States have a fundamental duty to protect the safety and security of those within their borders. Nevertheless, at this critical stage in South Africa’s democratic growth, we believe that the proposed Bill, if passed as it currently stands, will operate to return South Africa to the secrecy and securitisation that pervaded our dark history rather than moving us forward with a democracy built on openness, transparency, accountability and the rule of law.

104. As the Preamble to PAIA notes, ‘the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public bodies which often led to an abuse of power and human rights violations.’

105. Accordingly, PAIA was enacted to ‘foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information; [and] to actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights.’

106. As affirmed by the Supreme Court of Appeal in the opening lines of its recent judgment in The President of the Republic of South Africa and Others v M & G Media Ltd(2011) (2) SA 1 (SCA): ‘Open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy.’

107. Pursuant to section 80 of the Constitution, members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional. If the current Bill proceeds unchanged, we strongly encourage the National Assembly to make such an application.

108. We also request an opportunity to make an oral presentation in Parliament during the public hearings of 13 March 2012 and 14 March 2012.

GEORGE BIZOS S.C.
LEGAL RESOURCES CENTRE
CONSTITUTIONAL LITIGATION UNIT
JOHANNESBURG

p.p. WILLIAM KERFOOT
LEGAL RESOURCES CENTRE
CAPE TOWN

17 FEBRUARY 2012

Footnotes:

[1] See paras [69] – [78].

[2] S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1; 2000 (CC) (Manamela) at [32].

[3] Jonathan Burchell, Principles of Criminal Law Third Edition (Juta: Landsdown, SA, 2005) (Burchell) at 151-152.

[4] Burchell at 152.

[5] Manamela at [52].

[6] JASA at [53].

[7] Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others, 1995 (4) SA 877 (CC) at [51] (Executive Council I).

[8] JASA at [51].

[9] JASA at [55].

Thabo Mbeki Dullah Omar Memorial Lecture

Pierre De Vos — Thu, 16 Feb 2012 19:39:52 +0000

DULLAH OMAR EIGHTH MEMORIAL LECTURE BY THE TMF PATRON, THABO MBEKI: COMMUNITY LAW CENTRE, UWC, BELLVILLE. FEBRUARY 16, 2012.

“Reflections on Peacemaking, State Sovereignty and Democratic Governance in Africa.”

Director of Ceremonies,
Vice Chancellor of the University of the Western Cape,
Members of staff, students and workers of the UWC and the Community Law Centre,
Our dear sister, Farida Omar and other members of the Omar family,
Ladies and Gentlemen,
Comrades and friends:

Firstly, I would like to thank the Community Law Centre for giving me the opportunity to deliver this 8th Dullah Omar Memorial Lecture, as well as apologise for having obliged the Centre, last year, to postpone the delivery of this Lecture.

I would also like to salute the Centre for having instituted this Lecture Series, thus to honour and sustain the memory of a truly outstanding South African.

I was privileged to address a Memorial Meeting on March 24, 2004 which was held to pay tribute to Dullah Omar whose mortal remains had been laid to rest eleven days earlier.

On that occasion I said:

“We should speak of what it is that makes us to value Dullah Omar as we do, as an outstanding comrade and African, who belongs among the galaxy of stars that point our way to a better future…

“We owe it to him and others who dedicated themselves to serve the people of South Africa, ready to lay down their lives, to ensure that we eradicate poverty and underdevelopment, racism and sexism in our country, realise the renewal of Africa, and contribute to the construction of a new world order of equality among the peoples and a shared prosperity…

PRIVATE BAG X444, HOUGHTON, 2041 REPUBLIC OF SOUTH AFRICA Tel +27 11 486 1560 Fax +27 11 486 0723 INFO@THABOMBEKIFOUNDATION.ORG.ZA WWW.THABOMBEKIFOUNDATION.ORG.ZA

“To achieve these objectives we need the quiet courage of a Dullah Omar, without seeking fame and acclaim. We need the steadfast attachment to principle of a Dullah Omar, without expectation of personal reward. We require the unwavering focus on the interests and aspirations of the masses of the people of a Dullah Omar. We must cultivate the use of our minds and skills to advance the interests of the people as did Dullah Omar, rather than our selfish desires.”

I am more than certain that we have even greater need today to commit ourselves to emulate Dullah Omar in practical ways, than perhaps we did when we said our final farewell to him eight years ago.

The subject I have been asked to address this evening relates directly to the important issue of the State and Governance on our Continent.

In this context, I know that many of us present here this evening will recall that when we came into government in 1994 there was much discussion about what was described as the “right-sizing” of government.

We will also recall that whatever the domestic merits of this discussion, it was taking place in a situation of the global domination of the neo-liberal ideological perspective which argued for the “minimisation of the role of the state”, in favour of the so-called market.

I mention all this because it was Dullah Omar who first warned us that as we went about “right-sizing” government, to avoid creating a bloated and expensive public administration, we should take care not to fall into the dangerous trap of weakening and therefore disempowering the democratic state.

In this regard, he warned against the surrender to the private sector by the democratic state of a substantial portion of the delivery of services especially to the poor, which the private sector would do, informed by the goal of the pursuit of profit, rather than the needs of the people.

I recall this today to underline that Dullah Omar advanced the view that for us and other developing countries, the sovereign democratic state, a state which derives its legitimacy from the will of the people, has to play a critical role as a motive force for progressive change.

I also recall this to make the point that Dullah Omar the lawyer was not only a „legal eagle‟, but also played an important role as a theoretician of the national democratic revolution and a principled defender of the perspectives of this revolution.

This is yet another reason why we owe the UWC Community Law Centre a debt of gratitude for what it has done to ensure that we do not apply to the eminent revolutionary, Dullah Omar, the prescript – out of sight, out of mind!

At its close, the First Pan African Congress, held in London, England, in 1900, issued a call “To the Nations of the World”, in which it said:

“In the metropolis of the modern world, in this closing year of the nineteenth century, there has been assembled a Congress of men and women of African blood, to deliberate solemnly upon the present situation and outlook of the darker races of mankind. The problem of the 20th Century is the problem of the colour line, the question as to how far differences of race, which show themselves chiefly in the colour of the skin and the texture of the hair, are going to be made, hereafter, the basis of denying to over half the world the right of sharing to their utmost ability the opportunities and privileges of modern civilization.”

In these famous words, 112 years ago leaders from the African Continent and the African Diaspora, including the Caribbean and the United States of America, made the assertion that the 20th Century would have to address the related issues of:

 the liberation of the peoples of Africa and the Caribbean from colonialism and imperialism, enabling them fully to enjoy the rights to self- determination and development; and,
 the emancipation of the peoples in the African Diaspora, especially in the United States, from racial discrimination and oppression, to enable them to enjoy equal citizenship rights and thus access all available opportunities for development.
To underline all this, in his closing address on July 25, 1900, the outstanding African American, W.E.B. du Bois said:

“Let the nations of the world respect the integrity and independence of the free Negro states of Abyssinia, Liberia, Haiti, and the rest, and let the inhabitants of these states, the independent tribes of Africa, the Negroes of the West Indies and America, and the black subjects of all nations take courage, strive ceaselessly, and fight bravely, that they may prove to the world their incontestable right to be counted among the great brotherhood of mankind. Thus we appeal with boldness and confidence…for a generous recognition of the righteousness of our cause.”

Five weeks ago we celebrated the Centenary of Dullah Omar‟s movement, and ours, the African National Congress. As we continue to mark this historic achievement during the rest of this year, the question we will have to ask is – has the ANC realised the goal which was proclaimed by the 1st Pan African Congress!

We say this because in fact that Congress, held 12 years before the ANC was formed, set the agenda for all African liberation movements, and therefore the ANC itself.

All this relates directly to the important topic we have been asked to address –

“Reflections on Peacemaking, State Sovereignty and Democratic Governance in Africa.”

Recent events on our Continent, and specifically what happened in Côte d‟Ivoire and Libya last year, have given particular and immediate relevance to this topic.

In the context of this Lecture I will focus on Libya, even as the events in Côte d‟Ivoire would also confirm much of what I will say about Libya, relating to the purposes and outcome of contemporary foreign armed interventions in Africa.

Before I proceed any further, I would like to reiterate what I have said before and elsewhere, which bears on the insulting allegation that the African Union and some of us had been bought with petrodollars we had received from the Libyan Gaddafi regime.

In this regard, the charge has been made that we took the positions we did to oppose the abuse of the United Nations Security Council to effect regime- change in Libya, because we had been corrupted by these petrodollars.

Once again I would like unreservedly to repudiate the fabrications that have been propagated that the African Union depended on Libya for its budget requirements, and that Libya supported the ANC in any way whatsoever during the period of our struggle against the apartheid regime prior to 1990.

Despite this reality, much of our domestic media and its international counterparts, and the so-called analysts, have consistently and stubbornly propagated the entirely unfounded falsehood that Gaddafi‟s Libya played a significant role in helping to give the ANC the wherewithal to survive and successfully conduct the struggle against apartheid.

What I will say relating to the UN Security Council Resolution 1973, in support of the AU positions in this regard, has nothing whatsoever to do with any supposed historic friendly relationship with Gaddafi‟s Libyan Arab Jamahiriya.

On March 10, 2011, the AU Peace and Security Council adopted a Roadmap for the peaceful resolution of the then Libyan conflict.

Among other things, this Roadmap provided for an end to the violent conflict in Libya and the institution of a process whereby the Libyan people would engage one another in inclusive negotiations freely to determine the future of their country, including its obligatory and genuine democratisation.

The African Union secured the agreement of the Gaddafi regime to this Roadmap, relying on the fact that Libya is one of its members.

This created the framework to address the issues identified in the theme of this Lecture – peace-making, state sovereignty and democratic governance in Libya

- without further resort to force and therefore the needless killing of tens of thousands of Libyans and the destruction of valuable national infrastructure and other property.

The AU forwarded its March 10 decision to the United Nations, the League of Arab States and other relevant organisations.

However, the UN Security Council wilfully elected to ignore the decisions of the African Union, treating these decisions relating to an African country, and therefore us, the peoples of Africa, with absolute contempt.

Even in its communications, the Security Council virtually decreed that Libya had ceased to be an African country. Accordingly it argued that it derived the legitimacy of its actions from decisions taken by the League of Arab States.

On March 17, seven days after the African Union had adopted its Roadmap for the peaceful resolution of the Libyan conflict, it adopted its Resolution 1973, which created the space for NATO, an independent US-European military and political alliance, to intervene in Libya to impose a violent resolution of this conflict, centred on regime change, which objective was completely at variance with Resolution 1973.

I am certain that all of us present here this evening are familiar with what then happened.

In essence, NATO intervened not to impose a no-fly-zone to protect civilians, as prescribed by the UN Security Council, but to lead and empower the opposition National Transitional Council in a military campaign to overthrow the Gaddafi regime.

Indeed, once the NATO campaign was launched, we were forewarned that this was the intention of the major Western powers.

As early as only a month after the adoption of UNSC Resolution 1973, the architects of this Resolution and the NATO campaign, Presidents Obama and Sarkozy and Prime Minister Cameron, publicly announced their intentions.

In a joint letter published in the newspapers, The Times of London, the French Le Figaro, and the International Herald Tribune, these three Permanent Members of the Security Council, shamelessly repudiating the UNSC mandate, said:

“There is a pathway to peace that promises new hope for the people of Libya: a future without Gaddafi…So long as Gaddafi is in power, NATO and its coalition partners must maintain their operations…Colonel Gaddafi must go, and go for good…”

Having become slaves to this illegal regime-change objective, the relevant United Nations institutions betrayed all the prescriptions they are obliged by international law to respect. Thus:

 the UN Secretary General allowed the representatives of the rebel National Transitional Council to act as the legitimate representatives of the UN Member State of Libya, contrary to all UN protocols;
 the UN Secretary General refused to accredit the representatives of the Libyan Government;
 the UN Secretary General failed to take action to insist that even his own peace Envoy, former Jordan Foreign Minister, Abdel-Elah al-Khatib, should have the space to facilitate a peaceful resolution of the Libyan conflict;
 the UN Security Council refused to ensure that NATO acted in a manner consistent with its own resolutions, thus declining to hold NATO to account;
 the UN Security Council surrendered its authority to oversee the future of Libya to a self-appointed „Libya Contact Group‟, made up of countries and organisations committed to regime-change in Libya, in defiance of the Security Council decisions; and,
 as we have said, the UN ensured that in all respects Libya should be defined as other than an African country, insisting that the legitimacy of the regime-change agenda derived from its support by the League of Arab States, knowing very well that for many years Libya had become virtually only a nominal member of this regional organisation, thus earning the wrath of many of the Member States of the League.
The naked reality is that the relevant organs of the United Nations – the Security Council and the Office of the Secretary General – elected to betray their binding obligations in terms of international law, especially as prescribed by the UN Charter.

Rather, they chose to give free reign to the so-called P3, the United States, France and the United Kingdom of Great Britain and North Ireland, exclusively to decide the future of Libya.

As we all know, this P3 justified its illegitimate military actions in Libya and its regime-change agenda on the basis of the four propositions that:

 it was acting in the interest of peace in Libya, consistent with the peace- making responsibilities of the United Nations;

 it was acting in support of legitimate representatives of the Libyan people, constituted of a rebel formation opposed to what they unilaterally decreed was an „illegitimate‟ Government;
 together with this opposition, it was acting to bring democracy to Libya, thus to liberate the Libyan people from a dictatorship; and,
 it was acting to implement the principle of the right of the international community „to protect the people‟ from criminal abuse by their Government, especially if, to maintain itself in power, this Government committed crimes against humanity, war crimes, ethnic cleansing and genocide.
In this context I would like to state that there is absolutely no evidence that the Gaddafi regime either committed or had any intention to commit any genocide or wage a war against civilians, justifying the evocation by the UN, the P3 and NATO of the so-called „right to protect‟.

In this regard, in a Report published in June last year, the International Crisis Group, the ICG, said:

“Much Western media coverage has from the outset presented a very one-sided view of the logic of
events, portraying the (Libyan) protest movement as entirely peaceful and repeatedly suggesting that the regime‟s security forces were unaccountably massacring unarmed demonstrators who presented no real security challenge.

“This version would appear to ignore evidence that the protest movement exhibited a violent aspect from very early on.

“While there is no doubt that many and quite probably a large majority of the people mobilised in the early demonstrations were indeed intent on demonstrating peacefully, there is also evidence that, as the regime claimed, the demonstrations were infiltrated by violent elements.

“There are grounds for questioning the more sensational reports that the (Gaddafi) regime was using its air force to slaughter demonstrators, let alone engaging anything remotely warranting use of the term „genocide‟…

“To insist that (Gaddafi) both leave the country and face trial in the International Criminal Court is virtually to ensure that he will stay in Libya to the bitter end and go down fighting.”

In an article published by the US newspaper, The Boston Globe, on April 14, 2011, Professor Alan Kuperman wrote:

“Evidence is now in that President Barack Obama grossly exaggerated the humanitarian threat to justify military action in Libya…

“Human Rights Watch has released data on Misurata, the next biggest city in Libya (after Benghazi), and scene of protracted fighting, revealing that Moammar Khadafy is not deliberately massacring civilians but narrowly targeting the armed rebels who fight against his government…

“(The NATO) intervention did not prevent genocide, because no such bloodbath was in the offing. To the contrary, by emboldening rebellion, US interference has prolonged Libya‟s civil war and the resultant suffering of innocents…”

Just over a fortnight before the adoption of Resolution 1973, answering questions at a press conference on March 1st, relating to the allegation that the Gaddafi regime was using its Air Force to massacre civilians, then U.S. Secretary of Defence, Robert Gates, said: “We‟ve seen the press reports, but we have no confirmation of that.”

Admiral Mike Mullen, then head of the US armed forces said – “That‟s correct. We‟ve seen no confirmation whatsoever.”

Nevertheless the UNSC based its decision to impose the so-called no-fly-zone precisely on these very same unsubstantiated reports!

Interestingly, the US right-wing Heritage Foundation, which has little respect for the United Nations, published an article on September 1 last year, written by one Dr Ted R. Bromund, in which he said:

“The Obama Administration badly wanted to act (against Libya) with the approval of the U.N. Security Council. So on March 17, it got, by a vote of 10-0 with five abstentions, a U.N. Security Council resolution authorizing “all necessary measures…to protect civilians.” It then immediately reinterpreted
this resolution into approval for NATO to become the rebel air force. The next time the Administration wants to do something through the U.N. – say, on Syria – it will find Russia and China a lot less eager to abstain on resolutions that might be subject to creative reinterpretation. Relying on the U.N. carries immense inherent costs (for the US): tricking the U.N. to get what you want just increases those costs.” [“Obama‟s Top Ten Errors on Libya”.]

When I spoke at Stellenbosch University on August 26 last year, I said:

“The naked reality is not that the Western powers did not hear what the ICG said. Rather, they heard, but did not want to listen to anything informed by the objective to address the real interests of the people of Libya. They were…bent on regime-change in Libya, regardless of the cost to this African country, intent to produce a political outcome which would serve their interests.”

Together with everything I have said, we must nevertheless accept that various concrete realities in Libya provided the excuse for the Western powers to intervene in the manner they did.

The fact is that Libya was not a democratic country, having lived under a military autocracy since 1969, when young military officers, led by Colonel Gaddafi, took power through an anti-imperialist coup d‟état to overthrow a feudal regime beholden to the Western powers, thus to advance the objective to assert the right of the African and Libyan people to self-determination.

For the record, we must state this that at that time, more than four decades ago, the entire global progressive movement welcomed this coup d‟état as a progressive step forward, because it was against feudalism and imperialism.

It is also true that seen as part of the so-called „Arab Spring‟, it was inevitable that any repressive action taken against unarmed demonstrators, as happened at the beginning of the Libyan demonstrations, and also in Tunisia, Egypt and Bahrain, would be unacceptable.

We must also understand that Gaddafi‟s Libya occupied a particular position in the context of the system of international relations.

Through its actions, it had earned the wrath of the major Western powers, partly informed by the conviction that Libya had carried out terrorist actions which had claimed many lives of citizens of these powers.

Similarly, it was in the bad books of especially the Arab Gulf countries, and generally the Arab League.

Within Africa, it had made many enemies and had positioned itself as a rouge element, intent to establish client states which would serve its interests.

At the same time, it was attractive to the Western powers because of its large reserves of high quality crude oil, and the need to recruit it into a geo-strategic arrangement focused on tying the countries of North Africa into a particular partnership with the EU.

For all these reasons, it was relatively easy for the Western powers to intervene in Libya as they did, knowing that they would meet little resistance in this regard, as actually happened.

In the result, they have achieved what to them are welcome strategic outcomes, which:

 will secure Libya as a „friendly‟ state in the context of the Middle East, especially with regard to the unresolved and globally strategic issue of the fate of the people of Palestine;
 will place them in a strong position to intervene in the African Maghreb, including in Egypt;
 will guarantee their favourable access to Libyan oil; 9

 will shut down an important point of departure for unacceptable illegal migration into Western Europe; and,
 will serve as a precedent enabling them to intervene in all other African countries as they wish.
At the same time we must fully understand the implications of the critically important and strategic observation made by the EU External Action Service, relating to the linkage between the EU, North Africa, and the African Sahel, which includes Senegal, Mali, Burkina Faso, Niger, Nigeria, Chad and Sudan, that:

“The current political developments in the Maghreb have consequences for the situation in the Sahel, taking into account the close relations between the countries of the two regions, a significant presence of citizens of Sahel countries in the Maghreb and the risks that arise from the proliferation of arms in the region. The problems facing the Sahel not only affect the local populations but increasingly impact directly on the interests of European citizens.” [European Union External Action Service: Strategy for Security and Development in the Sahel.]

Some of the vitally important lessons we, as Africans, must draw from the Libyan experience are that:

 in the post-Cold War setting, the Western powers have enhanced their appetite to intervene on our Continent, including through armed force, to ensure the protection of their interests, regardless of our views as Africans;
 these powers will use the argument that they are our unique friends as defenders of our democratic and human rights, obliged to act in this regard especially when our Continent, through the AU and our regional bodies, can be presented as having failed to act to defend these rights;
 these powers will act as they did in Libya especially if, in situations of internal conflict, which they would also foment, they can argue that they are implementing the UN-approved „right to protect‟, the so-called R2P; and,
 our Continental disunity and weakness with regard to the defence of the right of all Africa to act to guarantee our right to self-determination opens the door to our „re-colonisation‟, including in the context of the resolve of the Western powers to limit our possibility to establish a truly strategic alliance especially with the People‟s Republic of China.
I trust that all of us understand that this makes the clear statement that as Africans we must act in a decisive manner to ensure the achievement of the objectives we have set ourselves, long before the Libyan debacle, based on the

perspective we had elaborated together, to pursue the historic goal of the renaissance of our Continent.

In earlier times, the African scribes saw the terrible tragedy we were visiting on ourselves as Africans, during the years of our independence, as when our ruling African elites became venal rent-seekers who set themselves the objective to suck the blood of the people, in their personal interest.

In this context, the eminent Nigerian and African writer and thinker, Chinua Achebe, warned the African masses:

“Warriors will fight scribes for the control of your institutions; wild bush will conquer your roads and pathways; your land will yield less and less while your offspring multiply; your houses will leak from the floods and your soil will crack from the drought; your sons will refuse to pick up the hoe and prefer to wander in the wilds; you shall learn ways of cheating and you will poison the cola nuts you serve your own friends. Yes, things will fall apart.”

Another scribe, in different circumstances, the Irish poet William Butler Yeats, had used exactly the same words – things fall apart!

Yeats had gone on to express in poetic words the catastrophe which Achebe described in beautiful prose, expressed with the necessary sensibility to the African setting.

This is what Yeats said, in part:

Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity…
And what rough beast, its hour come round at last, Slouches towards Bethlehem to be born?

The Libyan tragedy and debacle occurred because things fell apart, since, as Africans, as Chinua Achebe had said, we had learnt the ways of cheating, and allowed those who have the means to abuse state power to control us, our institutions and our minds.

In the end, and as a result, the African centre could not hold.

As an exemplar of this reality, indeed with treacherous welcoming smiles on our faces, many of us had poisoned the very eminent gift of friendship, the cola nut, which we had set aside to give to other Africans, knowing that this was a false and deadly affirmation of a non-existent expression of African unity and solidarity.

As W.B. Yeats did, given our own behaviour, we too must ask ourselves the dread question –

And what rough beast, its hour come round at last, Slouches towards Bethlehem to be born?

It is clear that unless we change our ways, consciously to deny the inevitability of the ominous and frightening perspective so accurately described by Chinua Achebe, our own rough beast will slouch towards our Bethlehem, ready to be born!

In this regard, among others, we must act honestly, unequivocally and in unity to:

 reinforce democracy and respect for human rights throughout our Continent, and thus confirm that the noble objectives of African unity and solidarity can only be achieved when each and every one of our countries abides by the inalienable principle and practice that the people shall govern;
 develop our own capacity to resolve our conflicts, committed to find African solutions to African problems, in much the same way that, for instance, the Europeans insist, correctly, that they have the right to arrive at European solutions to European problems, as do the people of the United States of America with regard to their problems;
 implement in all our countries the all-Africa policies adopted through the OAU and the AU, whose implementation would constitute the cement we need to give practical meaning to the objective to achieve genuine African unity and solidarity, thus to build the firewall to guarantee that we succeed to defend our right to self-determination;
 use these policies to structure our individual and collective relations with the rest of the world, specifically to achieve the objective of securing Africa‟s rightful place among the world community of nations, understanding that none of our countries can achieve this objective on its own; and,
 strengthen our Continental and Regional organs, relying on our resources, and institutionalise the cooperation among our 54 States, thus to defend the strategic goal of the realisation of the historic objective of African integration and unity even as our governments change as a consequence of the exercise of the democratic right of each of our peoples to mandate any party to serve as the government of their choice.
At the recent AU Assembly of Heads of State and Government, the AU Commission reported that the requisite number of ratifications had been achieved which brought the important „African Charter on Democracy, Elections

and Governance‟ into force as a binding legal obligation affecting all AU Member States.

In this regard, I would humbly suggest that all of us present here, under the leadership of the Community Law Centre, should familiarise ourselves with this Charter, thus to position ourselves as activists for its implementation.

I would also suggest that, perhaps starting with a pilot project, the AU Commission must take the necessary steps to help ensure the implementation of all the provisions of this Charter.

This would relate directly and immediately to the theme of this Lecture -

Peacemaking, State Sovereignty and Democratic Governance in Africa.

Everything we have said makes the very important statement that:

(i) recent events, as in Libya and Côte d‟Ivoire, have confirmed that the major Western powers remain interested and determined to attach Africa to themselves as their appendage, at all costs, ready to use all means to achieve this objective;

(ii) to realise this objective, these powers will exploit the universal commitment to democracy, human rights and good governance to intervene in any and all our countries to advance their interests;

(iii) these powers will intervene in our countries especially during periods of violent conflict, with no regard to the principle of the sovereignty of our states, taking advantage of the UN-approved principle of the „right to protect‟, which they will interpret freely, to serve their interests;

(iv) unless, practically, we assume responsibility for the advancement of democracy, the protection of human rights and the realisation of the objective of good governance on our Continent, and act to guarantee peace and security, these powers will intervene in our countries in pursuit of their selfish objectives, legitimising such intervention by presenting themselves as „friends of Africa‟, intent to give us the gift of democracy, human rights, peace, good governance and progress, regardless of our wishes;

(v) in all instances we must expect that such interventions will be supported by some native forces, our own kith and kin, which the world powers concerned will present as the genuine representatives of our peoples, without regard to the truth in this regard;

(vi) these powers will use their might to oblige the supposedly inclusive multilateral institutions to facilitate the achievement of their objectives, including through the imposition of sanctions;

(vii) they will also use the global media to demonise whomsoever they view as their enemy, and present in the best possible light whomsoever they determine is their friend; and,

(viii) where and when necessary, they will misuse especially the UN Security Council to legitimise their actions.

On other occasions I have sought to draw our attention as Africans to the deeply troubling reality of the perspective that has surfaced in the aftermath of the end of the Cold War, which has argued for the re-colonisation of Africa.

If I may, I would like to cite only two statements in this regard.
The British commentator, Richard Gott, wrote in the London New Statesman

magazine published on 15 January 2001:

“There is a growing belief, not least within the ranks of latter-day new Labour missionaries, that appears to favour the reconquest of Africa. No one really suggests how this would come about, nor is there a “plan” available for discussion. Yet the implicit suggestion of recent reporting from Sierra Leone, Zimbabwe and Nigeria, sometimes echoed in London, is that imperial intervention might indeed be welcomed by peoples threatened with mayhem, anarchy and civil war…

“What Africa really needs, Maier, (in his book This House Has Fallen: Nigeria in Crisis), seems to suggest, is the advice of a new generation of foreign missionaries, imbued with the new, secular religion of good governance and human rights…

“With the reporting and analysis of today’s Africa in the hands of (this new generation of missionaries)…it is not surprising that public opinion (in the West) is often confused and disarmed when governments embark on neo-colonial interventions. The new missionaries are much like the old ones, an advance guard preparing the way for military and economic conquest.”

Seven years later, on April 19, 2008 The Times (London) published an article by Matthew Parris entitled „The new scramble for Africa begins‟, which drew attention to the global demand for the immense African natural resources, and said:

“Fifty years ago the decolonisation of Africa began. The next half-century may see the continent recolonised. But the new imperialism will be less benign. Great powers aren’t interested in administering wild places any more, still less in settling them: just raping them. Black gangster governments sponsored by self-interested Asian or Western powers could become the central story in 21st- century African history.”

It is very easy for the self-interested to dismiss such concerns as amounting to no more than the ravings of misguided addicts to theories about allegedly fictional malevolent conspiracies.

In our case we have the advantage, if this is the right word, to point to the concrete examples of Libya and Côte d‟Ivoire, which are by no means fictional.

Thus we return to the statement issued by the 1st Pan African Congress during the last year of the 19th Century, that „the problem of the 20th Century is the problem of the colour line.‟

It is clear that despite the advances that were made, the 20th Century did not finally solve „the problem of the colour line‟, as understood by that Congress.

The question therefore arises – will it happen that the 21st Century, which we made bold to identify as the African Century, finally solves „the problem of the colour line‟?

In the continuing context of the vision of the 1st Pan African Congress, we must understand that this question also relates to the African Diaspora.

In this regard, using only the example of United States, I would like to cite some observations made by the prestigious US „Pew Research Center‟, relating to the comparative material conditions of the African American population.

In a report released on July 26, 2011, entitled “Wealth Gaps Rise to Record Highs Between Whites, Blacks, Hispanics”, the Center said:

“The median wealth of white households is 20 times that of black households and 18 times that of Hispanic households, according to a Pew Research Center analysis of newly available government data from 2009.

“These lopsided wealth ratios are the largest since the government began publishing such data a quarter century ago and roughly twice the size of the ratios that had prevailed between these three groups for the two decades prior to the Great Recession that ended in 2009.”

This statement, based on hard empirical evidence, confirms that even in the African Diaspora, during the second decade of the 21st Century, „the problem of the colour line‟ persists.

In the period between 1900 and 2012, as Africans we have registered historic victories in pursuit of the objectives handed down to us by the eminent representatives who met at the 1st Pan African Congress, representing the then and future struggles on the African Continent and the African Diaspora.

These victories have given us some space to help us to determine our destiny, and therefore to answer the question, in our interest, about what should

happen to achieve the related objectives of peace, state sovereignty and democratic governance certainly on our Continent.

112 years after W.E.B. du Bois spoke in London, we must heed the directive he issued, that, in his words, “the black subjects of all nations (must) take courage, strive ceaselessly, and fight bravely, that they may prove to the world their incontestable right to be counted among the great brotherhood of mankind.”

To be part of that „great brotherhood‟, and indeed sisterhood, surely means that we must conduct ourselves as Dullah Omar did, and remain loyal, in word and deed, to the objectives which inspired him throughout his life, to serve the ordinary people of our country, of Africa and the world.

Dullah understood the intimate relationship between, and fought for the realisation of the integration through our efforts as Africans, of the objectives of democratic rule in Africa, the construction of sovereign developmental African states committed to serve especially the interests of the poor, and the achievement of peace among the Africans, regardless of race, colour, gender, religion and historical origin.

I know that Dullah Omar shared with the Afrikaner youth I met 14 years ago, the vision that – “Yesterday is a foreign country – tomorrow belongs to us!”

As his movement, and ours, the African National Congress, celebrates its Centenary, and honours the memory of Dullah Omar, it will have to ask itself the simple yet challenging question – does it, as it advances into its second century, remain loyal, still, to the dream to whose realisation Dullah Omar dedicated his life, up to his last day on earth, as a committed and unwavering Pan-African revolutionary democrat, ever-faithful to the clarion call that was made by the 1st Pan African Congress, 112 years ago?

I am honoured that today I have had the privilege to speak here, in honour of the revolutionary intellectual, who belonged among you as a teacher, Advocate Dullah Omar, at this historic „intellectual home of the left‟, described in these words many years ago by your former Vice Chancellor, Professor Jakes Gerwel.

Because of the combination of these circumstances, I make bold to pose to you a question I believe you have to answer in terms of your practical actions as a centre of learning, teaching, research and uninhibited intellectual inquiry and expansion of the frontiers of knowledge – what shall we, the Africans, do, regardless of the Continent of our abode, to ensure that tomorrow belongs to us!

Thank you.