Constitutional Hill

Supreme Court of Appeal

Jackie Selebi is finish and klaar

Dec 3rd, 2011
by Pierre De Vos.
150 comments

We definitely live in a strange place (as Bernoldus Niemand sang in “Reggae Vibes is Cool”). This is a society in which somebody was found guilty of bribing the President of the country, but the President was never prosecuted for being bribed; one in which the Police Commissioner is sent to prison for being corrupted by a really slick crook, but that crook (allegedly also involved in the “assisted suicide of another businessman-crook) never received a jail term; a society in which a former President fired the head of the prosecuting authority after he wanted to arrest the very Police Commissioner (now facing 15 years in jail for corruption) before that head of the prosecuting authority was himself fired for “undermining national security” by wanting to arrest the very Police Commissioner who showed a National Intelligence Estimate (NIE) prepared for the President to the very crook who bribed the Police Commissioner.

Today, in the judgment of Selebi v S, 5 judges of the Supreme Court of Appeal (SCA) confirmed that former Police Commissioner Jackie Selebi (the very Selebi who showed the NIE to Glen Agliotti after Agliotti had given him money) is guilty of corruption in terms of section  4(1)(a)(i)(bb) of the Prevention and Combating of Corrupt Activities Act  which states that:

Any public officer who . . . accepts . . . any gratification from any other person . . . in order to act, . . . in a manner that amounts to the . . . misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; . . . is guilty of the offence of corrupt activities relating to public officers.

In the main judgment, Deputy President of the SCA (Mr Justice Khayelihle Kenneth Mthiyane) pointed out that leave to appeal was only granted to consider two issues. First, the court had to decide whether the High Court was correct when it found that the state has proven beyond reasonable doubt that Mr Selebi had received payment from Agliotti. Second, it had to consider the question whether the State has proven that Selebi has provided Agliotti with any favours as a result of money paid by him to Selebi.

All the judges agreed that the State had indeed done so.

It is clear that Mr Selebi’s legal strategy hinged on denying that he ever received any money or other favours from Agliotti. This was a high risk strategy because once the court found that money did change hands and favours were done, it inevitably led to the conclusion that Selebi had a corrupt intention when he received the money, This is so because Mr Selebi had admitted during his testimony that he believed Agliotti was a “hustler” and that if a “hustler” like Agliotti gave him anything he would immediately know that it was for an illegal purpose. He added that if Agliotti made any payment to him he would know that he intended to induce him to afford him some favours in one way or another.

This strategy might have worked if all the state had to rely on was the testimony of Mr Agliotti, who was found by the court not to be a credible witness. Unfortunately for Mr Selebi, the state provided ample corroborating evidence of payments made and benefits given by Mr Agliotti to Selebi and where it did the court found that there was sufficient evidence to find that payments were indeed made.

The corroborating evidence included that of Agliotti’s former girlfriend Dianne Muller who was found to have been an impressive witness. The “bizarre spending patterns” of Mr Selebi, which showed that for several months he hardly spent any of his salary, also added corroboration.

Most damning for Mr Selebi was perhaps the finding that he had shown a National Intelligence Estimate (NIE report) to Agliotti. The court found that Selebi shared this information with Agliotti to enable Agliotti and the Kebbles to take steps to protect themselves. Accordingly, the portion of the NIE document was shown to Agliotti for the benefit of Agliotti and the Kebbles. The fact that Selebi had admitted to showing a document to Agliotti provides, in itself, corroboration for Agliotti’s evidence that Selebi.

In a separate concurring judgment Suretta Snyders emphasised that the trial court, faced with the absence of reliable, detailed evidence from Agliotti, “exercised what can only be described as extreme caution and only convicted the appellant on the basis of a few payments for which clear corroboration existed” and continued:

Insofar as the general corroboration relied on by the trial court is concerned, I am of the view that the trial court, in applying the rules of caution and seeking corroboration, was benevolent to the appellant and preferred to refrain from convicting the appellant in relation to a specific payment when the faintest doubt was raised. Thus the appellant was not convicted in relation to four more cheques that reflected inscriptions that could be interpreted as references to the appellant.

Snyders, in concluding that the relationship between Agliotti and Selebi was neither a pure friendship or a professional one concluded that:

One does not expect the National Commissioner of Police to take his friend along on police business; to take his friend and informer along to the very meeting where the verification of the informer’s information is to take place; to meet his friend to shop together during office hours; to favour his friend by attending to minor complaints for which structures exist to be dealt with; and to divulge information regarding police operations to his friend’s friends. If the relationship was so close to have made these occurrences ordinary, one would have expected it to spill over to the families of the appellant and Agliotti, which did not happen.

How did the appellant explain this unusual relationship? It was repeatedly put to state witnesses on his behalf that he had an innocent friendship with Agliotti. I have already illustrated that to have been highly improbable, to the point of being unbelievable. During his own evidence, however, the appellant dramatically changed this version and described the relationship as one between informer and handler. This explanation is equally inherently improbable. Their relationship was a public one. Agliotti was previously, from the beginning of 2002 for a period of one year, registered as a police informer and had an official handler, not the appellant. He lost that status within a year and was deregistered as an informer. The appellant’s mendacity in this regard, dealt with extensively by the trial court, is yet another indication that the relationship between them was extraordinary, not one of friendship, nor one between informer and handler.

The appeal did not deal with constitutional issues dealing with allegations that the trial judge had to recuse himself and that conduct by the prosecutors had rendered the trial unfair as no leave to appeal the findings of the trial court on these matters were granted by the trial court or the SCA. This will make an appeal to the Constitutional Court more difficult (if not impossible) to sustain. In S v Boesak the Constitutional Court found that:

A challenge to a decision of the SCA on the basis only that it is wrong on the facts is not a constitutional matter. In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory. There is a need for finality in criminal matters. The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises. Disagreement with the SCA’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial. An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.

Unless the Constitutional Court is prepared to entertain the arguments of Mr Selebi’s lawyers that he did not have a fair trial — something explicitly rejected by the trial court and which the SCA refused even to entertain — this is the end of the road for Mr Selebi.

This case is remarkable in many ways. It has demonstrated that even the South African Police Commissioner was corruptible and dented trust in the police. Nevertheless, at the same time it is remarkable that the Police Commissioner was successfully prosecuted — something that would happen in very few countries in the world as it is notoriously difficult to investigate and prosecute members of the police leadership who usually have the resources to derail any such investigation. It would never have happened in the absence of the Scorpions, a relatively independent corruption fighting unit situated in the Prosecuting Authority.

It is also remarkable that the Police Commissioner will now spend time behind bars while the person who bribed him will not — despite the fact that he was not a truthful witness and never received indemnity from prosecution. There might be good reasons why the Scorpions went after Selebi and in effect let Agliotti off the hook (who was later unsuccessfully prosecuted for his alleged involvement in the Kebble murder while those who confessed to having committed the murder were granted indemnity). This would be that a crooked head cop subverts the law and undermines respect for the Rule of Law in a way that the actions of an ordinary gangster could never do. But it does leave a bad aftertaste that Selebi is going to jail while Agliotti is a free man.

Lastly, the case is remarkable because it once again reminds us of the mendacity of former President Thabo Mbeki and his strange behaviour around the Selebi matter. On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, in which he stated that:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

As I noted before, it is not clear how this claim could have been true. As the Ginwala Enquiry Report found:

It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006 [the very day Mbeki wrote the letter], on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.

It is also common cause that Adv. Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.

The SCA’s confirmation of the conviction of Selebi — based on some of the evidence provided to President Mbeki at the time, which he claimed never to have seen  — thus underlines once again that for some reason unknown to us the former President had not believed the information provided to him (unlike the High Court and the SCA who found that it proved Selebi’s guilt beyond reasonable doubt) and had then misled the public about receiving any such information. Why he did this, will probably remain the biggest mystery of this sad saga.

On banks, judges and the right to housing

Apr 13th, 2011
by Pierre De Vos.
43 comments

When Elsie Gundwana (pictured below) went to Nedbank in 1995 to borrow R25 000 to help her buy a house in Thembalethu outside George, she could not have known that the granting of this mortgage bond by the bank would cause her so much pain and sleepless nights. She could also not have known that her fight with Nedbank (“who are those people?”) would end up in the Constitutional Court and that she would eventually win a clear legal victory against one of the mighty banks in South Africa.

For Ms Gundwana her house was literally her life. She stays in the house with family members, but also utilises part of the house to run the only Bed & and Breakfast establishment in Thembalethu. As she wrote in a letter explaining her predicament (reproduced here in full):

I bought this house about eighteen years ago. This is not only a house to me.  This is my home, my source of income, a legacy that I would like to leave for my children.  With this house, I want to break the chain of poverty that has been handed within my family from generation to generation.

ElsieWhen she fell behind with her payments to the bank, the Registrar of the High Court – at the Bank’s insistence – granted default judgment against her for the outstanding amount of the debt. No judge was involved in the decision about whether to grant this order. This judgment meant that the house could be sold in execution, but the bank did not take further action because Ms Gundwana went to the bank and arranged to make two large payments to wipe out her arrears. She says she thought this meant that the bank would no longer seek to sell her house in execution.  

She continued paying the bank – as if the original mortgage bond was still in place – until 2007 when she again fell behind with her payments. She then learnt – on a return from a visit to her sister in Cape Town – that the house would be sold in execution. She promised the bank that she would pay the arrears of more or less R5000 and made an initial payment of R2000 to this effect, thinking that the bank would not go ahead with selling her house. She was wrong. Banks, so it seems, do not always adhere to the ethos represented by their advertisements. Two days after the bank took her R2000, it sold her house to Steko Development CC. An application was then made to evict her from her house.

Ms Gundwana resisted the eviction and also took steps to have the original order to have her house sold in execution rescinded. She was, unfortunately, not well served by various lawyers, but eventually received sound legal advice (even if I have to say so myself) and her case – in which she challenged the constitutionality of the rule that the Registrar of a High Court could declare immovable property specially executable when ordering default judgment under Rule 31(5) of the Uniform Rules of Court and that the house could then be sold – ended up in the Constitutional Court. (Full disclosure: my sister was the advocate who argued this case in the Constitutional Court and I provided legal advice.)

In Gudwana v Steko Development CC and Others the Constitutional Court (Froneman J writing for a unanimous court), declared this rule unconstitutional as it found that the rule infringed on the rights set out in section 26 of the South African Constitution. A similar rule relating to the Magistrate’s court had already been declared invalid in Jaftha v Schoeman several years ago, but banks were circumventing the Jaftha decision by approaching the Registrar of the High Court – even where the amount due would normally mean they would approach the Magistrates Court – to ensure that the Registrar would be able to grant default judgment against defaulters.

The legal problem in this case centred around the Supreme Court of Appeal (SCA) who, in its wisdom, had found in the case of Standard Bank v Saunderson that the principles set out in Jaftha v Schoeman would not ordinarily be applicable to mortgage bonds as such bonds were a very special kind of legal instrument. The SCA found that the Registrar was therefore constitutionally entitled to make execution orders when granting default judgment in cases where the debt arose out of a mortgage bond agreement and that a judge need not be involved in such cases. This reasoning of the SCA in the Saunderson was perplexing. It was almost as if it thought that certain common law rules and principles were so important for the economic well-being of the country that these were not subject to the discipline of the Constitution.

Section 26 of the Constitution clearly states that:

  1. Everyone has the right to have access to adequate housing.
  2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
  3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

In Jaftha this was taken to mean that only a court (in this case the Magistrates Court) could declare immovable property executable, which they would do unless there were very good reasons not to. The Jaftha decision found that administrators could not make decisions which might lead to an individual losing access to housing or to being evicted from a house as this was prohibited by the Constitution.

Of course, section 26 of the Constitution should not be read as meaning that one would never have one’s house sold in execution if one did not pay one’s bond instalments in time. Bondholders have a duty to keep on paying their mortgage bonds. If one obtains a loan from a bank in the form of a mortgage bond and one does not repay the bond, then the bank would normally be able to convince the judge that default judgment should be granted and that the house over which the bond was registered could be sold in execution. Banks are entitled to take steps to make sure that bondholders pay their bonds.

But where the bank acts in a callous and unreasonable manner to force payment (for example where the bank wishes to sell the house in execution even where the amount outstanding is very small and other mechanism apart from selling a house in execution is available to force the bondholder to pay his or her debt) a court may well find that the granting of default judgment and the sale in execution should not proceed.

What is important is that there will now always be judicial oversight over this process. Banks won’t be able to go to the Registrar in the hope of obtaining a default judgment against the defaulter – even where that defaulter owes a few hundred Rand to the bank and may well pay back the amount owed  to the bank in the near future. Ms Gundwana’s legal battle is not over yet. Her lawyers will have to go back to the High Court to try and convince the court that the default judgment should not have been granted by the Registrar.  

But for now she can stay on in her house. I for one, am rather happy. Ms Gundwana, her attorney informs me, is ecstatic.

On Zimbabwe, foreign policy and the limits of the law

Apr 6th, 2011
by Pierre De Vos.
19 comments

What can a South African citizen expect from our government when he or she gets into trouble in a foreign country (maybe by smuggling vast quantities of tik or a bunch of Vuvuzela’s into the United Kingdom) or where his or her financial interests are affected by the policies of that country’s government (maybe when his farms are expropriated and redistributed to “War Veterans”).

In the case of Kaunda & Others v President of the Republic of South Africa and Others handed down in 2005 the Constitutional Court made clear that a South African citizen did not in fact have a right to diplomatic protection from our government when such a misfortune befalls him or her. (Although perhaps an exception would be made for the Vuvuzela-smuggler.)

One does have a right to request our government to provide one with diplomatic protection, and this means the government has a corresponding obligation to consider the request and to deal with it consistently with the Constitution. But as Chief Justice Chaskalson made clear in the Kaunda case, this “right” does not amount to much. (In other words, whatever you do, never smuggle Vuvuzela’s into the United Kingdom – even if you are a South African Airways air hostess and the smuggling of cocaine has become too boring.)

Said Chaskalson:

A decision as to whether protection should be given, and if so, what, is an aspect of foreign policy which is essentially the function of the Executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than Judges, and which could be harmed by court proceedings and the attendant publicity.

This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection. The exercise of all public power is subject to constitutional control. Thus even decisions by the President to grant a pardon or to appoint a commission of inquiry are justiciable. This also applies to an allegation that government has failed to respond appropriately to a request for diplomatic protection. For instance, if the decision were to be irrational, a court could intervene. This does not mean that courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection….

If government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.

It was therefore surprising when the High Court first found that the South African government had  failed to deal rationally, appropriately and in good faith with an application of Mr Crawford Lindsay von Abo (what a wonderful name!) for diplomatic protection in respect of the violation of his property rights by the Zimbabwean government. Even more surprising was that the High Court had ordered the South African government to take all necessary steps to have the violations of Mr Von Abo’s rights remedied within 60 days. If this was not successful, the government was ordered to pay an amount in damages to Mr Von Abo to compensate him for the losses he had incurred because of the violation of his rights by the Zimbabwean government.

Many lawyers said at the time, that this High Court judgment was completely wrong and that it was not in line with the Constitutional Court precedent on the matter.

In a judgment handed down on Monday, the Supreme Court of Appeal (SCA) agreed with this view — well, sort of. It criticised the High Court for trying to prescribe to the President and the Department of Foreign Affairs (now the Department of International Relations) how to conduct its negotiations with the Zimbabwean government and for ordering the South African government to pay damages to Mr Von Abo for the loss he had incurred due to the actions of old Bob Mugabe and his cronies. Snyders JA, writing for a unanimous bench, wrote:

The conclusion by the court below that the appellants [including the President and the Minister of Foreign Affairs!] had to have personally taken steps and deposed to affidavits, unrealistically and naïvely ignores that diplomatic actions involve complex and sensitive relationships conducted through an extensive hierarchy according to a particular protocol which, if breached, could result in failure even before the substance is considered. It was also unrealistic to have expected the appellants to comply personally with the second order within the short time frame of 60 days without taking account of relevant facts like other pressing matters of state, that may have made it impossible for them to comply personally with the order.

In issues relating to our government’s interaction with its Zimbabwean counterpart, the President and the Minister of International Relations (as she is now called) exercise a political discretion. When the SA government engages with Bob Mugabe and his government, they must obviously have some leeway to decide how to go about it. At the same time, they must not act irrationally or breach the Constitution in any other way when they do so. It is a difficult issue and courts must be careful not to muddle in policy issues in a manner that has less to do with constitutionalism and more with naked politics. One would not want the Zimbabwean army to invade South Africa (given the shambles in which our Defence Force finds itself in) merely because the President had said the wrong thing to President Mugabe or had been a bit too insistent in asking questions about Mr Von Abo’s farms because he was instructed to do so by any judge.

Even though the role of the court is therefore limited, our Constitutional Court jurisprudence is quite radical on this score as it insists that even the exercise of such powers are reviewable by our courts. Although the review will seldom be successful, it establishes the principle that no exercise of public power is free from judicial scrutiny — even if it is in aid of advancing “national security”. The President or a Minister can be found to have acted unconstitutionally because he or she had not acted in good faith or had acted irrationally. This is a very high standard to meet and it would be rare for a court to find that the President or the Minister had not met their constitutional obligations in terms of the principle of legality.

Curiously the SCA did not seem to stick to the law as so admirable described by the judgment. Instead of dismissing the entire order of the High Court, the SCA confirmed that part of the order of the High Court which declared that the failure of the President and his Ministers to rationally, appropriately and in good faith consider and decide the respondent’s application for diplomatic protection in respect of the violation of Mr Von Abo’s rights by the Government of Zimbabwe is inconsistent with the Constitution and hence invalid. This it did because the President and Ministers had not provided detailed enough reasons of what they had done to try and assist Mr Von Abo.

The reasoning is very thin and unconvincing. The SCA seems to rely on rather dubious legal reasoning that does not seem to comply with the letter and the spirit of the Constitutional Court precedent. Yes, the government had not provided detailed answers to what it was doing  to assist Mr Von Abo. But it had taken some steps to fulfil its obligations and it is far from clear that this was irrational. We might not like what the government did or did not do, but that does not mean it had acted unconstitutionally.

Worse, as the SCA points out, this order that the appellants’ response does not conform to what is demanded of them in terms of the Constitution, was “of theoretical value only”. It did not order the President or the Ministers to do anything. It merely found that what it had done so far does not conform to what is demanded by the Constitution. So while Mr Von Abo now has a SCA judgment which confirms that his rights have been infringed, he still loses the case because the government is not ordered to do anything to correct its alleged “mistakes”. This leaves the SCA looking impotent and toothless: having been “reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship” (in the words of the late Chief Justice Ishmael Mahommed).

What this case demonstrates rather well is that the courts are not always the appropriate forum for the handling of essentially political disputes. Mr Von Abo in essence is upset that the South African government’s foreign policy towards Zimbabwe was too tentative and timid and was therefore far less successful than it could have been. But a court of law is not the place where foreign policy should be decided. If we think the ANC government is not following the correct policy towards Zimbabwe, we should vote against the ANC in the next election or organise civil society opposition to the policy in an attempt to get the government to change it. This is not the work the courts can do for us.

A good day for open and accountable government (sort of)

Dec 14th, 2010
by Pierre De Vos.
174 comments

On paper, the Promotion of Access to Information Act (PAIA) is a relatively good piece of legislation. It gives effect to the right of access to information guaranteed in section 32 of the Constitution, but in practice state officials seldom comply with this act. Often applications to gain access to certain documents are ignored. Sometimes applications for access to documents are denied on the most spurious grounds. It is as if many state officials have been sent on a crash course in secrecy, a course co-ordinated by Minister Lindiwe “Princess” Sisulu.

This is perplexing, to say the least, as secrecy was the hallmark of the apartheid state. We do not live in an apartheid and authoritarian state anymore but rather in a constitutional democracy. Pity that some state officials, Ministers, and the President does not always act accordingly.

But today the Supreme Court of Appeal (SCA) reminded all these people — who believe that they have a right to hide the truth about government activities from pesky journalists and the public who might have the cheek to think that the government is accountable to it — that open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy.

In the case of President of the Republic of South Africa and Others v M&G Media the SCA ordered the Presidency to provide the Mail & Guardian with a report prepared by two South African judges for President Thabo Mbeki about the 2002 elections in Zimbabwe. I have not read this report, but it is difficult not to conclude that the President wants to hide this report from the public because it contains findings that might cast doubt on whether Robert Mugabe actually fairly won the 2002 election (I am choosing my words rather carefully here). Quoting from the Constitutional Court’s Brummer judgment, justice Nugent reminded state officials of the importance of the right of access to information:

in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.’

As I read the judgment, it strengthens the hand of a person or a body who seeks information from a public body (including the Presidency) through PAIA. It does so by making clear that a public body may not refuse to provide the requested information merely by making bald assertions that the documents fall outside the scope of PAIA.

It has to produce tangible evidence and good reasons for denying a request of access to information under PAIA. In this case, the SCA found that the Presidency seemed to have changed its story and made wilder and wilder claims about the nature of the mission of the judges who went to Zimbabwe at the behest of President Mbeki. The SCA rejected the — what it called — sometimes absurd reasoning of officials in the Presidency and in effect found that they had not provided any evidence or any cogent reasons for denying access to the report.

Nugent did not mince his words:

If an application for information is not to be thwarted by that inequality of arms I think that a court must scrutinise the affidavits put up by the public body with particular care and, in the exercise of its wide discretion… it should not hesitate to allow cross-examination of witnesses who have deposed to affidavits if their veracity is called into doubt.

The affidavits that have been filed by the appellants are reminiscent of affidavits that were customarily filed in [apartheid era cases]. In the main they assert conclusions that have been reached by the deponents, with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter. That is not how things work under the Act. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy.

It found that the Presidency’s case amounted to little more than rote recitation of the relevant sections of PAIA and bald assertion that the report falls within their terms. That is not the “stark and dramatic contrast” with the apartheid past required by he Constitution. Nor does it reflect the “culture of justification” established by that Constitution. The SCA was particularly scathing about the papers filed by a Mr Fowler, the deputy information officer in the Presidency:

Counsel for the appellants [that is the Presidency] submitted that those allegations by Mr Fowler were erroneous and should be ignored. I cannot see why allegations that have been made with deliberation under oath should simply be ignored. That the reasoning is absurd does not demonstrate that the allegations were made erroneously — it demonstrates only that the reasoning is absurd…. At first the appellants cast the judges in the role of diplomats rather tentatively. Mr Fowler described them initially as no more than ‘something in the nature of envoys’ but the appellants became emboldened as the affidavits unfolded. Later it was said that the judges were on a ‘diplomatic mission’; yet later that they were ‘special envoys’ to the President; and finally that they were ‘in essence the embodiment of the President’.

The SCA did not find “in essence” that Mr Fowler and others tried to mislead the court, but it is difficult not to conclude from the passages quoted above that Mr Fowler and others were a bit adventurous in making their “bold assertions” about what the report was for and what it may contain.

The effects of this judgment is that — at least those with money to pay lawyers — will be able to force state officials to provide them with access to documents held by the state as required by PAIA. The SCA took a strong stand against the culture of secrecy that permeates the state. The decision should therefore be welcomed and should act as a wake-up call for public officials who act as if we do not live in a constitutional democracy based on openness, transparency and accountability but rather in an authoritarian state in which state officials, ministers and the President have a right to hide important information in the public interest from the public.

Whether officials and Ministers (Minister Sisulu comes to mind) will heed the warnings of a mere court, is another matter. A culture of secrecy is like the bad stench created by cat pee – it is very difficult to get rid of.

I assume that the Presidency will appeal this judgment to the Constitutional Court. Based on this judgment and on the papers filed by the Presidency so far this would probably not be wise and would amount to a further wasting of public funds. After two court judgments the Presidency has failed dismally to provide any cogent reasons for denying access to the report, so it would be surprising if they managed to conjure up such reasons for an appeal to the Constitutional Court  - something they would need to do to have any chance of success.

But this is not the whole story. Ordinary citizens – Mrs Ledwaba in Sheshego and Mr Ntuli in Ulundi – who cannot pay lawyers to fight these cases in court will probably continue to be ignored by state officials when they request information needed to enforce their rights.

Oh, I just had a great idea: instead of creating a Media Appeals Tribunal (remember, the ANC argues it is needed because ordinary citizens cannot go to court when they are defamed) why not create an Access to Information Tribunal staffed by journalists and constitutional law academics. That way Mrs Ledwaba and Mr Ntuli might have a chance to access the information that is, indeed, the lifeblood of our democracy. Not going to happen is it? Which just goes to show, all the arguments for a MAT is utter bogus and is part of the attempt by the government to avoid accountability and to deny ordinary citizens the access to information that they have a right to obtain in order to exercise their democratic rights.

Braamfontein = 1 : Bloemfontein = 0

Nov 8th, 2010
by Pierre De Vos.
67 comments

When South Africa became a democracy in 1994, the new Constitution replaced the system of Parliamentary sovereignty (in which Parliament could make any law as long as it followed the correct procedure) with that of constitutional supremacy (in which every law had to conform to the requirements of the Bill of Rights). This brought about a legal revolution and gave our courts enormous power to declare invalid Acts of Parliament as well as the power to declare invalid the conduct of members of the executive – including the President.

But in 1994 South African courts were still largely staffed by conservative white men appointed by the apartheid government and the courts therefore lacked democratic legitimacy. To address this problem, it was decided to create a new Constitutional Court as the highest court for all constitutional matters. The Constitutional Court was also given the power to  make a final decision on whether an issue was a constitutional matter or not, thereby giving it the power to determine — to some extent at least — the limits of its own jurisdiction. The Supreme Court of Appeal (SCA) — then still called the Appellate Division of the High Court — would remain the highest court for non-constitutional matters, but its power and status had clearly been diminished by the new constitutional dispensation.

Although some of the judges appointed to the Constitutional Court in 1994 served as High Court judges, other Constitutional Court judges were appointed from the ranks of academia. Highly respected human rights lawyers and lawyers who took part in the struggle against apartheid such as Arthur Chaskalson, Albie Sachs and Pius Langa were also appointed without ever having served on the bench. This did not go down well with more traditional lawyers and the majority of apartheid-era judges.

At first, the head of the SCA remained the Chief Justice while the head of the Constitutional Court became the President of that court. But as our constitutional jurisprudence developed, it became clear that the Constitutional Court — and not the SCA — was now the highest and most important court in South Africa and the Constitution was amended to make the  head of the Constitutional Court the Chief Justice (and hence the head of the judiciary) while further “downgrading” the SCA by making its head the President of that court.

It was therefore perhaps inevitable that perceptions would arise about tension between the two highest courts in the land. The SCA judges (stuck in Bloemfontein — both physically and metaphorically) were seen as being reluctant to embrace the new constitutional dispensation — even when its own constitutional jurisdiction was extended by the 1996 Constitution. Initially the SCA seemed reluctant to make use of section 39(2) of the Bill of Rights, which requires every court, tribunal or forum to promote the “spirit, purport and objects” of the Bill of Rights when it interpreted any legislation, and when developing the common law or customary law.

The SCA attempted to draw a distinction between “purely” constitutional matters — on which the Constitutional Court  would have the final say — and matters relating to the interpretation of legislation and the development of the common law — which it saw as its rightful domain and on which it hoped to retain the final say. But the Constitutional Court seemed to have put a stop to this when  it made it clear in the Pharmaceutical Manufacturers case that there was only one body of law in South Africa:

The common law supplements the provisions of the written Constitution but derives its force from it. It must be developed to fulfil the purposes of the Constitution and the legal order that it proclaims — thus, the command that law be developed and interpreted by the courts to promote the “spirit, purport and objects of the Bill of Rights”. This ensures that the common law will evolve within the framework of the Constitution consistently with the basic norms of the legal order that it establishes. There is, however, only one system of law and within that system the Constitution is the supreme law with which all other law must comply.

Game, set and match to the Constitutional Court — or so it seemed. Until the Constitutional Court was asked to interpret section 7(1)(b) of the National Building Regulations and Building Standards Act 103 of 1977 in the case of Walele v The City of Cape Town and Others.

In its judgment in the Walele case, the Constitutional Court used a so called “purposive approach” to interpretation of the section to give this section an expansive meaning that was more protective of the property rights of those who might object to the building plans of their neighbours.

In effect, it found that it was an applicant who sought approval for building plans who had to satisfy the local authority that the area in which it is to be erected will probably not be disfigured; will probably not be unsightly or objectionable; and will probably not derogate from the value of adjoining or neighbouring properties. Moreover,  it imposed an obligation on the local authority to ensure the absence of the disqualifying factors before it granted building permission.

The SCA was not amused. It was of the opinion that the Constitutional Court had gotten it all wrong and shortly afterwards the SCA in True Motives 84 (Pty) Ltd v Madhi and Others — using a far more literal and conservative approach to legal interpretation — found that it was the objector to the plans who had to satisfy the local authority about the positive existence of the disqualifying factors and also found that there was no duty on the local authority to ensure the absence of the disqualifying factors. It did so by arguing that the Constitutional Court’s interpretation of section 7(1)(b) was what lawyers call obiter dictum (an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding) and was therefore not binding on the SCA despite it having been made by a higher court.

Justice Jaftha, who has since been elevated to the Constitutional Court but had authored the Walele judgment while acting as a judge in the Constitutional Court, wrote a spirited dissent in the True Motives case. Justice Cameron, who has since also been elevated to the Constitutional Court, signed on to the majority decision in the SCA case in which it ignored the Constitutional Court interpretation of section 7(1)(b) of the relevant Act.

The table was therefore set for a rather interesting judgment when the applicants in the case of Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another raised the question of whether the SCA had ignored the principle of stare decisis (the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions) and had therefore unlawfully overrule the Constitutional Court’s Walele judgment. Jaftha and Cameron, who had been on different sides of this case in the SCA, would now have the opportunity to re-visit the issue as members of the Constitutional Court. And what would they say about the rather surprising argument by the SCA that the Walele interpretation of section 7(1)(b) was not binding on it?

Sadly, the Constitutional Court avoided dealing with the issue directly as it found that the applicants had not, in fact, relied on section 7(1)(b) in its long battle to stop the building of a rather fancy house in Camps Bay. But the Constitutional Court nevertheless proceeded to give the SCA and other courts a sermon on the importance of stare decisis (also called the doctrine of precedent in which lower courts are bound by the precedent set by higher courts).

Stare decisis, said the court in its judgment handed down last Thursday, was important because it ensured “certainty, predictability, reliability, equality, uniformity, convenience”. It then pointedly proceeded to remind the SCA:

The doctrine of precedent not only binds lower courts but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos….

Of course, it is trite that the binding authority of precedent is limited to the ratio decidendi (rationale or basis of deciding) and that it does not extend to obiter dicta or what was said ―by the way. But the fact that a higher court decides more than one issue in arriving at its ultimate disposition of the matter before it does not render the reasoning leading to any one of these decisions obiter, leaving lower courts free to elect whichever reasoning they prefer to follow. It is tempting to avoid a decision by higher authority when one believes it to be plainly wrong. Judges who embark upon this exercise of avoidance are invariably convinced that they are “doing the right thing”. Yet, they must bear in mind that unwarranted evasion of a binding decision undermines the doctrine of precedent and eventually may lead to the breakdown of the rule of law itself. If judges believe that there are good reasons why a decision binding on them should be changed, the way to go about it is to formulate those reasons and urge the court of higher authority to effect the change. Needless to say this should be done in a manner which shows courtesy and respect. Not only because it relates to a higher court but because collegiality and mutual respect is owed to all judicial officers, whatever their standing in the judicial hierarchy.

This extraordinary and pointed slap-down of the SCA by the Constitutional Court will hopefully not go unnoticed by the judges in Bloemfontein. Although the Constitutional Court refrained from expressing an opinion on whether its interpretation of section 7(1)(b) of the Act was part of the precedent that the SCA was bound by or merely obiter dicta, I suspect this passage quoted above was included in the judgment handed down last week to provide the SCA with the opportunity to see the error of its ways and to abide by the principles laid out by the Constitutional Court in the Walele case.

Whatever one’s views on the correct interpretation of section 7(1)(b) of the Act, the SCA’s argument that the interpretation provided of that section by the Constitutional Court was obiter dictum is rather difficult to justify. To this reader, the SCA decided that the Constitutional Court had given a wrong interpretation of the section and proceeded to ignore it – something it could not do as it was bound by the Constitutional Court’s interpretation.

It is not difficult to read the quoted passage above as a pointed criticism of the SCA. After all, the Constitutional Court by implication accused the judges of the SCA of inviting legal chaos by completely disregarding the ratio decidendi of a Constitutional Court judgment — merely because it thought the Constitutional Court judgment was wrong. As Braamfontein and not Bloemfontein now has the final say in the interpretation of legislation, one hopes that the SCA judges will heed the call and will change their “wicked ways”. In the end, this is not a fight they can ever win.

Nicholson a hero of judiciary after all?

Jan 15th, 2009
by Pierre De Vos.
21 comments

The Times asked me to write a short piece on the effect of the SCA Zuma judgment on the judiciary. Money quote:

Ironically, Nicholson might inadvertently have done our judiciary and democracy a favour. He took the heat off the judiciary at a time when judges were being branded as counter-revolutionaries and then it was left to the SCA to correct his legal mistakes.

Though not planned, the outcome shows that our judiciary is alive and well and that even powerful men like Zuma cannot expect special favours from our judges, because in the process of checks and balances built into our judicial system, the law will triumph over demagoguery and idle threats.

Now I see Bantu Holomisa has called upon the Judicial Services Commission to investigate Judge Chris Nicholson. Says the press release:

The SCA identified several instances in which Justice Nicholson had relied on hearsay and documents not contained in the affidavits before the court in order to draw conclusions that were untested. These inferences were not required in order to make a ruling and had massive political implications.

We call upon the Judicial Service Commission to investigate the instances identified by the SCA where Justice Nicholson contravened judicial procedure. We further request that the JSC makes a finding on whether Justice Nicholson is fit to hold office under the circumstances.

Ag nee wat, this is just political opportunism on the part of the UDM – probably scared they will lose the few votes they still got to Cope. I would have expected more from Mr Holomisa, the ex-military dictator.

First, the complaint is not going to go anywhere. Judge Nicholson was wrong. He made political statements and applied the law wrongly. He would not be the first judge in the hirstory of South Africa to have done that. That is why we have an appeals process – so that mistakes can be corrected by higher courts. Unless Holomisa can show that Nicholson was bribed or improperly influenced to make his judgment, the JSC is going to laugh at this ridiculous complaint, as they should.

Second, Mr Holomoisa is not doing our judiciary any favours by politicising the issue even further. Yes, Nicholson made mistakes. yes, he was lambasted by Harms (not an angel himself!) for wading into political terrain best kept to politicians or for brandy and coke talk around the braaivleis fire (with or without Steve Hofmeyer present). But to lay a complaint may suggest to the public that some of our judges cannot be trusted to make findings based on the law and how they see it and might actually have the effect of creating distrust in our judiciary.

Let it rest Mr Holomisa. Our judiciary will always make mistakes – sometimes very serious mistakes of fact or law)  and these may or may not be corrected on appeal. This does not mean that judges are dishonest or have breached their oath of office. Unless a judge acted unethically (by taking money from a political party or a company and then doing favours for them from the bench, say) we should be slow to run to the JSC with complaints.

On “deliberate falsehoods” and conspiracies

Jan 14th, 2009
by Pierre De Vos.
40 comments

Why is it that South Africans so love conspiracies and are so quick to believe in them? Your paper not delivered this morning? Must be a conspiracy involving various journalists, the tooth fairy and maybe Father Christmas (or Santa Clause as they call the ugly fat guy with the cotton wool beard here in the USA). Arrested after robbing a bank and being caught on the security camera waving at your mother? Must be a conspiracy by Glen Agliotti, Jackie Selebi, your mother’s new lover and maybe also the Loch Ness Monster.

I am by nature a rather sceptical person (maybe it is the legal training or maybe it is because I do not believe in the tooth fairy anymore, who knows?), so pardon me for not jumping so easily on the conspiracy bandwagon. It might well be that there is a political conspiracy against Mr. Jacob Zuma. Maybe the National Prosecuting Authority has been infiltrated by colonialist, racist CIA agents in cahoots with Thabo Mbeki, Tony Leon, and all those leaders of Cope who had the bloody cheek to start their own party. And, who knows, maybe judge Chris Nicholson concocted his own conspiracy theories when he sat down to write his judgment in the Zuma case - as was rather unkindly suggested by the Acting Deputy President of the SCA.

But as the SCA judgment on Monday made clear, no conclusive evidence have been presented for any of these conspiracy theories. This does not mean that there might not be some questions worth asking, of course. Questions like why Jacob Zuma was investigated and prosecuted for rather minor issues of corruption (the poor guy only received R500 000 from the arms company!) while Chippie Shaik, the ANC and various other players reported to have benefited far more from the arms deal have so far not been charged.

It is worth asking such questions, but maybe we should be a little bit careful before making wild allegations of conspiracies because we might just come accross as mentally unstable and a bit coocoo. If we are not careful we might even be confused with Julius Malema or those wonderful people from the Young Communist League who entertain us with their almost daily badly written, and sometimes downright weird, press releases.

I therefore have some sympathy for Mr. Thabo Mbeki who was fired shortly after Nicholson in effect found that Mbeki and his Ministers had meddled in the prosecution of Zuma – thus seeming to confirm one of the most widely held conspiracy theories around. In the absence of hard evidence, it was rather surprising that a judge in motion proceedings would come to such a conclusion, despite the lingering questions about the whole Zuma affair.

Who knows what Mbeki had whispered into the ears of advisors about the Zuma prosecution and what they, in turn, might have whispered to the NPA?  Who knows why Mbeki had not intervened to stop the prosecution of Zuma? Why he had fired Zuma as Deputy President – even before he was charged - but went into an apoplectic fit when Vusi Pikoli wanted to arrest the Police Commissioner for corruption and then got his advisors to help quash the warrants for Jackie Selebi’s arrest. (This latter fact was proven beyond doubt during the Ginwala Commission of Enquiry, so those Mbeki fans out there, calm down.)

But I was nevertheless, shall we say, suprised and amused by some aspects of Thabo Mbeki’s response to the SCA judgment. First, Mbeki gives his own interpretation of the judgment that might – at best – be described as a rather innovative interpretation of its outcome and - at worst – as a twisting of the facts. Said Mbeki:

We intervened in the NPA appeal to the SCA because we wanted to correct the unfair and unwarranted inferences made by Judge Nicholson against us, and as the SCA said, we “had ample reason to be upset by the reasons in the judgement which cast aspersions on (us) without regard to (our) basic rights to be treated fairly.” The SCA ruling has vindicated us.

Problem is, only in the most broadest sense of the word has the SCA “vindicated” Mbeki and his cabinet. The judgment decidedly did not find that there was no political meddling in the Zuma prosecution. It merely said that there was not sufficient evidence before the court to have made such a finding – especially given the rules of evidence that apply in motion proceedings. The jury is still out about whether Mbeki and his cabinet did interfere or not, so to talk of a vindication is perhaps a little bit premature.

But this is perhaps a small point. One must not be too churlish. Given the fact that Mbeki was fired in the wake of the Nicholson judgment – even though he was not given an opportunity to give his side of the story – one can be generous and allow the ex-President to stretch the truth a little to score a political point against those upstarts who think they can run the country into the ground as well as he did.

So, let’s grant Mbeki the satisfaction of the claim that he was vindicated and move on to the last paragraph of his statement, which brings us right back into – you guessed it! – conspiracy theory country. In vintage Mbeki style and with all the dry, bitter, certainty of a person who once questioned the link between HIV and AIDS because of what he read on the Internet – to the detriment of 300 000 people who then died – Mbeki continues:

It seems to me that the unacceptable practice of propagation of deliberate falsehoods to attain various objectives is becoming entrenched in our country. I am pleased that the SCA has provided firm leadership in this regard by insisting that nobody’s integrity should be impugned on the basis of untested allegations.

Mbeki loves that phrase – “deliberate falsehoods”. It suggests that Mbeki thinks that there is only one possible’s interpretation of any set of facts, that what he claims to be true must be accepted by the rest of us as absolute and final proof of that Truth, and that any questioning of his version of events or his interpretation of the facts constitutes a conspiracy to ”deliberately” spread false information.

He seems to think: “I told you what the Truth is – yet you do not believe me. How can that be? How dare you? The impertinence! Surely you know that I am so wise, so imbued with integirty, wisdom and an ability to interpret facts definitively (a bit like God, really) that what I say will ALWAYS be true, just because I said it. If you then question the Truth of what I said, it must be because you deliberately want to spread falsehoods about me, my government, black people in general, the arms deal, the existence of crime, the nobility of the masses of our people, the ANC and its traditions and, for that matter, HIV and AIDS.”

This seems to me like a very, very scary world view for a leader of a country to hold. It eschews doubt for a kind of messianic certainty. It fails to understand that in a democracy politicians must earn our trust through their words, yes, but also through their deeds, that we – “the masses of our people” - have a duty to be sceptical about the self-exculpating claims made by politicians and that we are not part of some conspiracy, deliberately spreading falsehoods about the politician or his government, just because we do not believe every word the politician – even our President – says.

Besides, sometimes the known facts are open to different interpretations and even reasonable people may differ about how the known facts can or should be viewed. We all interpret facts from the vantage point of our own world view. Mbeki has often made the excellent point that many sceptics of his government interpreted the facts about South Africa’s progress away from apartheid injustice towards a more egalitarian and sane country, based on their rather Afro-pessimistic, colonialist, world view.

But that does not mean Mbeki himself does not have a world view and that his interpretation of an event or of a set of facts will be devoid of self-interest, delusional paranoia or prejudice. Just think about his flirtation with AIDS denialism. Duhhh!

The fact that he never could apply his excellent insights about the inevitable situatedness of our version of events to himself says a lot about the tragedy of Mbeki’s reign as President of the ANC and the country. When one forgets that one’s world view might not be shared by others and that one’s interpretation of the facts might be clouded by the fact that one travels in a eleven car motorcade and are obsequisly bowed down to by others, one becomes arrogant and out of touch. And that is one of the real, very human, tragedies of Thabo Mbeki’s Presidency.

SCA provides common sense interpretation of section 179

Jan 12th, 2009
by Pierre De Vos.
126 comments

It is always nice when one is proven to be correct. After the Nicholson judgement, some readers of this Blog issued rather cataclysmic condemations of myself and others and suggested that we were stupid and uninformed for having predicted that section 179 of the Constitution (read with the relevant sections of the NPA Act) did not give Mr Zuma the right to make representations to the acting head of the NDPP before he was charged.

Now I see the SCA decision entirely agrees with the approach advocated by myself and others. Apologies from all those who impugned my integirty might be in order. But I am not holding my breath.

As the SCA pointed out (and as I have consistently argued) the power to review, set out in section 179 of the Constitution, can only be an ‘apex’ function. In other words, it can only be a function of the head of the NPA as head of the NPA. Section 179(5)(d) accordingly deals only with the review of a decision by the ‘relevant’ DPP – it does not include a reconsideration of the NDPP’s own decisions. The SCA then continued:

Mr Kemp also submitted that para (d) is an empowering provision, meaning that the NDPP’s power to review decisions derives solely from its terms. The corollary of his argument is that the consultation and representation requirement applies to decisions of the NDPP or else the NDPP would not be entitled to revisit his own prosecutorial decisions. In the light of the finding in the preceding paragraph thatthe provision is an ‘apex’ provision that deals with the control of the NDPP over the DPPs, the premise of the argument falls away.

As is clear from the structure of the Constitution, the underlying purpose of the provision in section 179(5)(d) is not to protect the accused or the complainant: it is to define the procedure for the exercise of the power of control of the NDPP. According to the SCA, it would be strange to find such an important right, which is not known in comparable jurisdictions or in our common law, in a chapter of the Constitution that deals basically with structures concerned with the administration of justice and not rights. The Bill of Rights deals in great detail with the rights of accused persons, and is silent about the right to be invited to make representations concerning prosecutorial decisions.

This section was therefore wrongly latched onto by Mr Zuma’s lawyers. If they thought his rights had been infringed, they should have relied on section 35 of the Constitution. But of course the rights in section 35 only comes into play once a person actually stands trial and the last thing Mr Zuma wants is ever to stand trial – so they had to clutch at straws like this to try and keep their client from facing the very serious and credible charges on which basis Schabir Shaik is already sitting in jail.

The judgment of the SCA represents a stunning victory for the NPA as it also vindicates the much maligned decision by the NPA to ask for a striking out of passages from Mr Zuma’s papers in which he mutters darkly about the political conspiracy, which Harms (for a full bench of judges from the SCA) calls “completely irrelevant”.

Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes. An order on the scale of attorney and client is fully justified, especially since it is not the first occasion on which Mr Zuma has insisted on including such irrelevant allegations.

So, does the SCA judgment also represent a vindication of Thabo Mbeki? To some degree it does, because it found that the reasons for which he was fired – namely findings of a political conspiracy to prosecute Mr Zuma – was wrongly decided by Nicholson. Mbeki was therefore fired for reasons now rejected by the SCA.

At the same time the SCA – unlike cowboy Nicholson – is careful to point out that it does not have sufficient evidence to make a finding on a political conspiracy and in any event even if it did, this would not be relevant for the case brought by Mr Zuma. The judgment will thus be read by many as a rejection of the political conspiracy findings of Nicholson J – but such a finding is not made because the court said it was not proper for it to delve into these issues. We still do not know definitively whether such a conspiracy existed or not. If we follow the logic of Mr Zuma and his backers (“innocent until; proven guilty, remember!) we cannot find the NPA and Mbeki guilty of this conspiracy because they have not been found by a court of law to have engaged in such a conspiracy.

It will be interesting to see how the ANC and Mr Zuma react to the judgment. Are they now going to resurrect the rhetoric of counter-revolutionaries? Can they afford to do that with an election coming and COPE breathing down their necks? Given the fact that they embraced the Nicholson judgment and said much about their respect for the judiciary an attack on the SCA will come accross as the most callous and opportunistic kind of political move. Surely even the Gwede Matashe’s of the world are not stupid enough to throw away their last bit of credibility with the thinking population of South Africa? Now, Julius Malema on the other hand . . .

PS: This post was slightly edited. I am travelling in the USA and had to type it rather fast so there were many typos. Apologies.

NPA appeal: Is Nicholson embarrased yet?

Nov 7th, 2008
by Pierre De Vos.
41 comments

The NPA Heads of Argument in its appeal of the Nicholson judgment to the Supreme Court of Appeal (SCA), makes for interesting and convincing reading. The NPA is appealing not only the legal findings made by Nicholson, but also the factual findings about the “political interference” into the decision to charge Mr Jacob Zuma.

I must say, the challenge to the finding by Nicholson that the NPA Act required the NDPP to give Mr. Zuma a hearing before charging him at the end of last year, provides a convincing – even devastating – critique of the lower courts reasoning.

This part of the appeal attacks the underlying assumptions of the Nicholson judgment that section 179(5)(d) of the Constitution was aimed at protecting the human dignity of the accused, noting that such an interpretation was completely incompatible with the history of the section and also did not make logical sense. As I have argued before, this section was included in the Constitution to limit the right of the NDPP to review a decision by one of the Provincial Directors of Public Prosecution either to prosecute or not to prosecute someone and had nothing to do with the rights of the accused, which come into play only once a person is actually charged and is required to defend him or herself in court.

Section 179(5)(d) – on which Nicholson relied – states that the NDPP may review a prosecution decision “after consulting the relevant Director of Public Prosecutions” and after giving a hearing to the DPP, the accused and the complainant. But in this case the decision was not a review of a DPP, but an original decision by the NDPP to prosecute.

It points out that Mr Zuma’s (and Nicholson’s) interpretation of s 179(5)(d) gives rise to unexplained anomalies such as the following:

34.1. Why protect an accused when an earlier prosecution decision is reversed but not when the first prosecution decision is taken?
34.2. Why protect an accused when the NDPP reverses an earlier prosecution decision but not when a DPP or a prosecutor does so?
34.3. Who is “the relevant Director of Public Prosecutions” with whom the NDPP must consult in terms of section 179(5)(d) when the earlier decision was his own?
34.4. Why must the NDPP consult with the accused before he withdraws a pending prosecution against him, that is, before taking a decision favourable to the accused?
34.5. Conversely, why must the NDPP consult with the complainant before he decides to institute a prosecution, that is, to take a decision favourable to him?

It also points out that Nicholson’s tortured interpretation of this section (replicated in the NPA Act) made so little sense that it required him to read words into the Act. But one cannot read words into a statute unless one has found the provision in the Act was unconstitutional. Nicholson thus wrongly used the mechanism of “reading in” – which just proves how untenable his interpretation of the relevant section was.

It also points out that PAJA explicitly states that a decision to institute or continue a prosecution does not constitute administrative action and that the findings by Nicholson that Mr Zuma had a legitimate expectation to be heard could therefore not be sustained because PAJA did not apply to the decision to institute a prosecution against Mr. Zuma.

These arguments seem so obvious to me that I find it a bit embarrasing that a judge of the High Court could have ignored them to find in favour of Mr Zuma.

Interestingly, the NPA is also appealing the findings made by Nicholson about the “political interference” of Mr Mbeki and his Ministers in the decision to prosecute Zuma thus traversing the same ground that would have been covered by Mbeki’s application to the Constitutional Court. Here the technical arguments that the Nicholson findings went beyond what Mr Zuma had pleaded and that it was required in law to accept the version offered by the NPA, also seem rather convincing to me.

It is only when the appeal deals with the specific factual findings of political interference, that the arguments of the NPA seem even remotely questionable. Nicholson made much of the fact that the Minister of Justice attended the briefing where Mr Ngcuga announced that he would not prosecute Zuma despite the fact that a prima facie case existed against him.

In this regard the NPA points out that in terms of s 179(6) of the Constitution and s 33 of the NPA Act, the Minister of Justice exercises “final responsibility” over the NPA. It argues that this means there must be a working relationship between the Minister and the NDPP. When the NDPP decides to arrest and prosecute the Deputy President, the duties of the NDPP and the Minister would at least include the following:

102.1. The NDPP must keep the Minister informed of the process towards the arrest and prosecution of the Deputy President to enable the President and his cabinet to address and deal with the fall-out of such a dramatic event.
102.2. The Minister must in turn protect the NDPP against political pressure and make it clear to him that he enjoys government’s support whatever his decision because the Constitution requires him to act without fear, favour or prejudice.
103. We do not know why Mr Maduna attended the press conference or why Mr Ngcuka thanked him because nobody ever raised the issue and the NDPP was never called upon to explain those things. What one can say however is that they were perfectly consistent with the proper performance of their functions by the Minister and the NDPP. There was nothing in their conduct to warrant the High Court’s sinister inferences.

Here I am not so sure I agree with the submissions of the NPA. Like Nicholson, I believe it was extremely  unwise of the Minister to be present at this briefing and for Ngcuka to thank the Minister for his support. But whether that warranted a finding of political interference by a court of law is at least a debatable point.

In any event, it is now up to the SCA to consider this appeal. I was already wrong once in predicting the outcome of this case, but let me go out on a limb and predict that on the law it is difficult to see how the SCA will not overturn the Nicholson judgement. But the wonder of law is that different people can see the same legal principles in different ways, so it is up to the five judges of the SCA to make the decision they believe to be correct based not on political considerations but on the law. Let’s hope they do that and that everyone will accept the decision.

The dangerous constitutionalisation of our politics

Sep 9th, 2008
by Pierre De Vos.
38 comments

The debate that is now raging about the publication of a Zapiro cartoon – which depicts Mr Jacob Zuma on the verge of raping a woman representing the justice system while his allies hold her down – is potentially a healthy manifestation of democracy in action. The more we talk and debate and argue about controversial matters and the more we get to focus on important issues regarding the independence of the judiciary and the role of politicians in endangering our democracy, the better.

Unfortunately, much of the debate has not focused on the issue which Zapiro meant to highlight – namely how Mr Zuma and his allies are prepared to abuse the justice system for short term political gain. Instead, most people have commented on the wisdom of using the rape metaphor to make the point.

Some have  lambasted Zapiro for his “disgusting cartoon” that “borders on defamation” and have argued that it infringes on the dignity or privacy of Zuma and Gwede Mantashe. Others have cheered him on while attacking those who have criticised Zapiro as enemies of freedom of expression.

I was again forcefully struck by one aspect of this debate that I find troubling. Both on this Blog and elsewhere people seem to confuse and conflate the constitutional issues around freedom of expression and the right to privacy and dignity on the one hand, with a broader political/ethical question of whether a cartoonist should use a rape metaphor in his work on the other.

For me this is part of a dangerous constitutionalisation of politics, which allow people to skirt the very real, and difficult political and ethical issues of our time in favour of constitutional sloganeering. Unfortunately this tendency is not limited to one group alone. We all seem to hide behind constitutional slogans when it is too difficult, embarrassing or complex to engage meaningfully with an issue.

Thus, if one criticises Zapiro one is suddenly an enemy of free speech – even if one has never suggested that he should be censored or that the Sunday Times should apologise for publishing the cartoon. If one points out that Jacob Zuma is a morally flawed character, one is suddenly blamed for infringing on his right to be presumed innocent until proven guilty and on his dignity and his privacy. Because rights are often seen as trumps – and thus as a way to stop the political debate by appealing to a higher kind of principle – this hiding behind rights is dangerous for open and robust debate.

I am not saying that rights are not important or that a concern for human rights should not form part of the political discourse. On the contrary, a human rights sensibility should inform every discussion of politics. But South Africans seem to have a tendency to shy away from moral ambivalence and from acknowledging and confronting the complexities of living in South Africa by shouting out human rights slogans to stop any argument.

It is much easier to shout down an opponent with constitutional soundbites than to actually engage with the issues – which are often more complex and less obvious than we want to admit. For example, because it is too complex, difficult or uncomfortable to talk about racism, sexism and homophobia, we far too easily fall back on tired old assertions of hate speech.

And because it is too embarrassing or politically uncomfortable to have to deal with the fact that Mr Zuma took more than a million Rand from a convicted fraudster and then did some favours for him,  and that he lied to Parliament about this, some of us prefer to shout from the rooftops about unfair trials and the dignity and privacy of our beloved leader.

For the same reason, some comments on this Blog have suggested that I am a depraved ANC lackey who is the enemy of press freedom because I asked some questions about the wisdom of the rape cartoon, instead of engaging in a meaningful and thoughtful way with the questions I posed.

This kind of discourse seems like an ethically lazy and dangerous one, because it allows individuals to skirt the real issues in favour of manufactured issues around the Bill of Rights. It is dangerous because it cheapens real concern for human rights and uses human rights language as a way to hide from taking responsibility for our actions and beliefs.

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