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Not a day for an argument

Jun 11th, 2010
by Pierre De Vos.
17 comments

I was woken up this morning at 5:30 by the blaring of Vuvuzela’s. I got up and was going to write something for this Blog about the judgment of the High Court which found that the Mail & Guardian had the right to access all the information regarding tenders given out by the Local Organising Committee of the Soccer World Cup.  A great day for the principle of freedom of information and openness and transparency and all that important stuff.

But I put on my Bafana Bafana shirt and practiced my Vuvuzela blowing instead.

Then I thought of writing about the Human Rights Commission Report criticising the City of Cape Town for not providing proper toilets to the poor and destitute of our City, but discovered Gavin Silber had already said what I wanted to say on the Writing Rights Blog.

Soon the fever will pass, sanity will return and with it my critical faculties. Meanwhile – sorry dear readers – no attempt at insightful and critical analysis of the legal and constitutional issues of the day seems possible. Once the World Cup gets started I promise to return.

World Cup guide to South Africa (part 1)

Jun 10th, 2010
by Pierre De Vos.
14 comments

This is not a Blog about sport (unless you view politics as a kind of robust and sometimes dirty sport), but South Africa only hosts the Soccer World Cup once in a lifetime, so in the spirit of the moment, I thought I would post something fun about this momentous event in our nations history. So, here is the first part of an occasional guide for locals and for foreign visitors to help them come to grips with the World Cup and with the intricacies of our country.

world cup

The Vuvuzela: A cheap plastic trumpet that makes an ungodly noise and can be blown at any occasion. Also called South Africa’s secret weapon in the tournament. Not to be confused with Julius Malema (see below) as the Vuvuzela probably scored higher marks in woodwork.

Do say: I am a Mexican player,  please blow in my ear. Don’t say: Hope this was not made by child labour in China.

Jacob Zuma: The President of South Africa when Fifa is not in town, this affable and very musical politician has a complicated family life that includes several wives and a brood of children that could form its own soccer team. He loves discussing things, but really hates making any kind of decision. When asked a question he will chuckle and say: “Well, why are you asking me that, I am only the President?” Not to be confused with Sepp Blatter who is the President for the next month.

Do say: I believe the ANC will rule until Jesus returns to earth or Schabir Shaik goes back to prison. Don’t say: Whatever happened to that R500 000 from the arms company your friend Schabir scored for you under the table?

Julius Malema: The man white South Africans love to hate, this youngster obtained a G for Woodwork in High School but is nevertheless a sharp businessman who has invented a whole new way of making money: he pretends to build roads and bridges and most South Africans pretend we like him while giving him lots of our tax money so that he would not sing “Kill the Boer”.

Do say: What a lovely revolutionary and militant watch you are wearing. Don’t say: Can you help my son with his woodwork project – it will be good exercise and help you with your weight problem?

Greenpoint stadium: A magnificent football venue which was supposed to be built in Athlone until Sepp Blatter realized that it would look better if it was built in the rich suburb against the backdrop of table mountain, far away from Cape Town’s poor. Everybody was against the building of the stadium in Greenpoint. Now everybody believes it was a brilliant idea.

Do say: It looks like a traditional Xhosa woman’s hat. Don’t say: How many toilets could you have built with the money spent on the stadium?

Helen Zille: The leader of the official opposition in South Africa, this feisty and principled  journalists turned politician is an avid fan of conspiracy theories involving the ANC. No one does hurt and beleaguered the way she can. Just a pity her eyebrows can’t shoot up in alarm anymore, apparently because of a botched operation which was intended to make her look less white.

Do say: By building the stadium in Greenpoint you have brought Cape Town together and shown a principled commitment to the poor and to the Constitution. Don’t say: Do you know where I can have some Botox done (and by the way, where can I find a toilet?)

SABC: The official mouthpiece of the Soccer World Cup (and the ANC government) the South African Broadcasting Corporation pretends to be a public broadcaster by ensuring that its own management drama’s provide South Africans with a never ending soap opera worthy of “Days of our Lives”. They love reporting on events of world importance – like a Cabinet Minister opening the annual Biltong festival in Koekenaap – but are less succesful at paying their bills and reporting even-handedly about politics.

Do say: Feel it, it is here! Don’t say: When am I getting paid? The Minister called and you are in big trouble.

Newsflash: sex workers also have dignity

Jun 7th, 2010
by Pierre De Vos.
15 comments

Do sex workers have the same inherent human dignity guaranteed in our Constitution for everyone else living in South Africa – despite the fact that our Parliament in its “wisdom” has declared sex work illegal? In the case of Kylie v Commission for Conciliation, Mediation and Arbitration the Labour Court in effect found that they did not. Now on Appeal Judge Dennis Davis (Zondo JP and Jappie JA concurring), used some nifty legal footwork to find otherwise.

The Labour Court found that Kylie, who worked at a massage parlor and was dismissed without a fair hearing, was not entitled to protection against unfair dismissal as provided in terms of section 185 (a) of the Labour Relations Act (LRA) because it would be contrary to a common law principle that courts “ought not to sanction or encourage illegal activity”.

Cheadle AJ invoked the principle ex turpi causa non oritur actio which “prohibits the enforcement of immoral or illegal contracts” to justify this decision. He argued that if a contract is illegal, courts must regard the contract as void and hence unenforceable. As the Constitutional Court found in the much criticized case of S v Jordan that Parliament had the right (if not the duty) to criminalize sex work, it would be untenable to allow the application of the LRA to sex workers as this would, in effect, undermine the principle of the Rule of Law.

The Labour Appeal Court argued that in dealing with this question one should not start by looking at the law of contract. Instead, one should focus first on the provisions of the Constitution, most notably section 23 of the Constitution which guarantees for “everyone” the right to fair labour practices.

Davis argued that the word “everyone” in section 23(1) of the Constitution refers to all people in the country and is thus “supportive of an extremely broad approach to the scope of the right guaranteed in the Constitution”. This did not mean that sex workers enjoyed exactly the same rights as everyone else. After all, engaging in sex work (and now, making use of the services of sex workers) is a criminal offense and obviously this means that sex workers have fewer rights – even labour rights – than individuals not engaging in unlawful activity to earn a living.

Nevertheless, sex workers may, in certain circumstances, enjoy protection under the LRA. This is because the LRA, read in the context of section 23, is very broad in scope and applies not only to workers who has a legally valid contract with employers but also to workers where an employment relationship (if not a legal contract) exists between the worker and the employer.

Summarising this argument, Judge Davis focused on the inherent human dignity of sex workers and wrote:

As sex workers cannot be stripped of the right to be treated with dignity by their clients, it must follow that, in their other relationship namely with their employers, the same protection should hold. Once it is recognised that they must be treated with dignity not only by their customers but by their employers, section 23 of the Constitution, which, at its core, protects the dignity of those in an employment relationship, should also be of application.

But would somebody like Kylie be entitled to any legal relief – despite the fact that she engaged in unlawful activity? Would a court not be undermining the Rule of Law if it provided a remedy for the unfair dismissal of a worker whose work entailed engagement in illegal activity? Were a court to recognise a claim based on the constitutional right to a fair labour practice, would the court not be sanctioning or encouraging the prohibited activity?

Well, Davis seemed to have managed to skirt this problem (taking this into account when deciding on what remedies might be available to someone like Kylie) by focusing – once again – on the inherent human dignity of sex workers. He noted that the express purpose of the LRA “is to advance economic development, social justice, labour, peace and the democratisation of the work place”.

In itself, this set of principles can be traced to section 23 of the Constitution. In particular, section 23(1), which provides that everyone has the right to fair labour practices, was designed to ensure that the dignity of all workers should be respected and that the workplace should be predicated upon principles of social justice, fairness and respect for all.

The Court found that where a sex worker forms part of a vulnerable class by the nature of the work that she performs (one could add that not all sex workers are female) and the position that she holds and she is subject to potential exploitation, abuse and assaults on her dignity, there is no principled reason why she should not be entitled to some constitutional protection designed to protect her dignity. This protection has been “operationalised” by the provisions of the LRA.

This does not mean that all the remedies of the LRA would be available to a sex worker who has been unfairly dismissed by an employer. For example, it would be against public policy to reinstate a sex worker – even if she could show, on the evidence, that her dismissal was unfair. Compensation for a substantively unfair dismissal may also be inappropriate. It would be against public policy, one assumes, because it would undermine the Rule of Law by “endorsing” illegal activity.

But a court could award monetary compensation for a procedurally unfair dismissal because this kind of compensation is independent of the loss of illegal employment. In other words, so argues Davis, a court will not be enforcing the unlawful contract and would not be undermining the Rule of Law if it provided compensation for the procedurally unfair dismissal. Where a sex worker has been dismissed and this dismissal was procedurally unfair her dignity would be exploited or abused. Public policy based on the foundational values of the Constitution does not deem it necessary that these rights to a procedurally fair dismissal be taken away from a sex worker for the purposes of the Act to be properly implemented.

This is a clever argument, but is it convincing? I suppose it depends on one’s view of the reach of the rights in the Bill of Rights as well as on whether one sees sex workers as a vulnerable and exploited group or as a social menace. Perhaps because I believe sex work should not be criminalized and because I endorse the implicit assumption of the Davis judgment that everyone – regardless of who they are or what work they do – has an inherent human dignity that cannot be taken away, I find the argument plausible.

Some judges and lawyers fail to understand that the principle that every human being has an inherent human dignity, which forms the basis of the rights in the Bill of Rights, does not refer to a subjective dignity that one can “lose” because of what one did for a living or who one is. Whether one is a sex worker or a politician (some would say these activities are rather similar in nature), one retains an inherent human dignity.

Just because a moralistic legislature (influenced by the prevalent Christian nationalist ethos) purports not to like the work one does or because one is forced by circumstances to do a job that is frowned upon by some, one does not lose one’s inherent dignity and hence one does not lose the protection of the Bill of Right. If one is treated unfairly the law should therefore protect you – if it is at all possible.

The larger question remains though: why do we criminalize sex work? Some argue that sex work is inherently demeaning to women while others argue that it is immoral. The latter argument is obviously not sustainable in a constitutional democracy as the criminal law should not be used to impose the morality of some on society as a whole. The former argument seems to me fundamentally hypocritical. We allow men and women to do work that some would find just as (or more) degrading than sex work. We do this because we are too lazy or high-minded to do these jobs ourselves.

Thus, the law does not prohibit anyone from cleaning a toilet, removing other people’s rubbish, becoming a criminal lawyer defending rapists and murderers or becoming a politician – despite the fact that many in society might see these jobs as degrading or immoral. Why single out sex workers for criminal sanction? I suspect we single out sex workers because of the deeply conservative and moralistic views about sex that our society pretends to endorse.

By condemning sex workers we can feel good about ourselves and can feel morally pure – even if our own sexual attitudes and behavior does not comply with the prescriptions imposed by religious teachings and by societal attitudes. The ban on sex work therefore seems rather hypocritical and self-serving.

The Law Reform Commission is currently investigating the regulation of sex work, but no matter what proposals it may make, I fear that our legislature will not agree with Davis’s judgment which reminds us that sex workers have an inherent human dignity that should be respected. Parliament may well do so not because its representatives themselves live lives of chastity, but because they need to condemn others in order to deal with their own internalized prejudices about sex and sexual morality.

Report of the disciplinary committee in Adv Seth Nthai case

Apr 16th, 2010
by Pierre De Vos.
13 comments

REPORT OF THE DISCIPLINARY COMMITTEE APPOINTED TO INQUIRE INTO THE CONDUCT OF ADVOCATE SETH NTHAI SC

1 The Disciplinary Committee was appointed by the Pretoria Bar Council in terms of article 39(12) of its constitution, in conjunction with the Johannesburg Bar Council, after a complaint had been received by both councils from the State Attorney against Advocate Seth Nthai SC, a member of both Bars.[1] The members of the Committee are: K van Dijkhorst (a retired judge), TJB Bokaba SC (of the Johannesburg Bar) and J H Dreyer SC (of the Pretoria Bar).

2 The complaint concerns the actions of Nthai SC, who, while being counsel for the Government of the Republic of South Africa, unbeknown to his instructing attorney or opposing legal representatives, had a number of discussions with the client of the opposition with the aim of soliciting a bribe.

3 On 5 March 2010 attorneys Webber Wentzel in a reasoned letter requested access to the proceedings of the Committee for the public and the media on behalf of Avusa Media, owners of The Sunday Times.[2] After due consideration the Committee refused this request and informed the attorneys thereof in writing.[3] The attorneys were notified that the Committee would recommend to the Bar Councils that its report be made public.[4]

4 The charge sheet was filed on 15 March and despite a promise by counsel for Nthai SC that by 23 March a detailed answer thereto would be delivered, such answer was not received. At a procedural preliminary meeting [5] with counsel the Committee warned that in the absence thereof the member would be required to set out orally what his version was.

5 The hearing commenced on 25 March. Nthai SC was present and was represented by senior counsel IAM Semenya SC and an attorney MPC Manaka of Werksmans. The pro forma prosecutors were N G D Maritz SC of the Pretoria Bar and L Malan of the Johannesburg Bar.

6 At the commencement of the proceedings Semenya SC informed the Committee that Nthai would that day terminate his membership of the Johannesburg and Pretoria Bars. The chairman ruled that the hearing would continue nevertheless. Thereupon Nthai sc addressed the Committee and stated that he resigned from the two Bars with immediate effect. Nthai SC and his legal representatives were invited by the chairman to remain in attendance and participate in the proceedings nevertheless, but this invitation was declined and they then left the hearing. Later that morning two faxes were delivered which proved that Nthai had in writing resigned some minutes after 11 o’clock.

7 In view of the fact that the Committee has the duty to report on the alleged misconduct and in the light of Clause 10 (a) of the Constitution of the Pretoria Bar and Clause 10 (a) of the Constitution of the Johannesburg Bar which stipulate that membership terminates upon acceptance of the resignation by the Bar Council, the inquiry continued.

8 The charges against Nthai SC are set out in the charge sheet which is annexed hereto.[6]

9 Two witnesses were called. Mr J E Veeran, attorney of Webber Wentzel who acts for the claimants in the arbitration proceedings against the Government in which Nthai SC was involved. He handed in:

·         A letter by himself to Ellis SC dated 26 January 2010 [7];

·         Witness statement of Mario Marcenaro submitted to the ICSID Tribunal on 20 January 2010 [8]; Mr Marcenaro is the de facto CEO of Finstone s.a.r.I. one of the claimants in the litigation who acted as intermediary on behalf of the claimants and who is the person with whom Nthai SC had the discussions which gave rise to the complaint.

·         Transcripts of audio recordings of conversations between Nthai SC and Marcenaro;[9]

·         Two compact discs with audio recordings, transcribed in the 
transcripts mentioned.[10] The two compact discs were copies of the original recordings which were made by their IT department and which originals were in possession of their client.

10 The second witness was Advocate G L Grobler SC, now counsel for the Government in the arbitration. He knows Nthai SC very well. He identified Nthai’s voice on the recordings and testified that the Government’s position had been compromised by the irregular discussions between Nthai sc and Marcenaro.

11 In addition there is the fact that during the procedural preliminary meetings it was stated by Nthai’s then counsel that his client admits that the discussions between him and Marcenaro were held (but he did not admit the contents thereof.) Furthermore the compact discs were submitted to an expert by Nthai’s legal team and a report was received thereon, but this report was not submitted to the inquiry. Neither was any evidence tendered which cast doubt on the correctness of the recordings or transcripts.

12 For the reasons set out above the Committee finds that the compact discs are correct copies of the original recordings which correctly reflect the conversations between Nthai SC and Marcenaro. The Committee, having listened to the compact discs, also finds that the transcripts, exhibits C to F fairly reflect what was recorded (even though there is a lot of annoying electronic background noise on parts thereof). On the basis of the above the Committee makes the findings of fact set out in the paragraphs below.

13 On 10 October 2009 Nthai SC and Marcenaro met at the offices of attorney Maurizio Mariano where the dissension in Government circles about settling the arbitration was discussed . Nthai informed Marcenaro that if the matter was settled he would lose a substantial amount of fees and proposed that an amount of R5 million be secretly paid into his bank account, whereupon he would use his influence to get the Government to agree to settle the matter on a basis favourable to the claimants. Paragraph 2 of the charge has been proved by the statement of Marcenaro corroborated by the recording (which commenced when the discussion was already under way).

14 On 18 October 2009 Nthai and Marcenaro met at Marcenaro’s house where Nthai again attempted to persuade Marcenaro to procure the payment of the said sum of R5million by claimants to Nthai in consideration of Nthai procuring the favourable settlement. To put undue pressure on Marcenaro to attain payment, Nthai informed him that if arbitration proceedings continued this would damage the companies of the claimants and their interests, which companies would encounter problems in the future with the National Union of Mineworkers, the NGO’s and the claimant’s operations in other countries such as Zimbabwe. Paragraph 3 of the charge is found to be proved by the statement of Marcenaro and the recordings.

15 On 20 October 2009 Nthai and Marcenaro met at the latter’s house where Nthai again attempted to persuade Marcenaro to procure the payment of the said sum of R5million by claimants to Nthai in consideration of Nthai procuring the favourable settllement. They arranged to meet in Pisa, Italy, on 28 October 2009 with a view to meeting with Mr Ponzanelli of RED Graniti SA (Pty) Ltd in order to discuss payment of the sum of R5million to Nthai. Paragraph 4 of the charge is found to be proved by the statement of Marcenaro and the recordings.

16 On 28 and 29 October 2009 in Pisa Nthai met Marcenaro, but not Ponzanelli. Marcenaro conveyed to Nthai the claimants’ unwillingness to make the proposed payment of R5 million to him. Paragraph 5 of the charge is found to be proved by the statement of Marcenaro.

17 On 30 October 2009 Nthai assisted Marcenaro in drafting a letter from the claimants to the Government. Paragraphs 6 and 7 of the charge are found to be proved by the statement of Marcenaro.

18 On 2 November 2009 Nthai and Marcenaro telephonically discussed the contents of a letter sent by Freshfields,the Government’s attorneys in Paris, France, to the claimants and Nthai supplied Marcenaro with information pertaining to the Government official dealing with the matter, advised him how to respond to the letter from Freshfields and informed him what the Government’s next step would be and advised him how to respond thereto in order to obtain a favourable settlement. Paragraph 8 of the charge is found to be proved by the statement of Marcenaro and the recordings.

19 On 3 November 2009 during a telephonic conversation Nthai discussed the Request for Discontinuance of the claimants with Marcenaro and told Marcenaro not to disclose to the claimants’ lawyers that they were meeting. Paragraph 9 of the charge is found to be proved by the statement of Marcenaro and the recordings, with the exception of paragraph 9.2.3.

20 During a further telephone conversation on 3 November 2009 Nthai informed Marcenaro that the Government was working on a proposal for settlement and an agreement on discontinuance of the arbitration proceedings. Marcenaro confirmed to Nthai that the claimants had turned down his offer to procure a favourable settlement of the arbitration proceedings in consideration for the payment of R5million. Paragraph 10 of the charge is found to be proved by the statement of Marcenaro and the recordings.

21 During a further telephone conversation on 3 November 2009 Nthai and Marcenaro discussed the letter of Freshfields of 2 November and the Request for Discontinuance of the claimants and Nthai stressed that Marcenaro should not reveal that Nthai was talking to him and that Nthai could not himself reveal that he was talking to Marcenaro to settle the matter. Paragraph 11 of the charge is found to be proved by the statement of Marcenaro and the recordings.

22 On 4 November 2009 during a telephone conversation Nthai and Marcenaro discussed a letter of Webber Wentzel of that date. Nthai informed Marcenaro that he could not assist the claimants to settle the arbitration proceedings unless the discussions which he had with Marcenaro were kept confidential. Paragraph 12 of the charge is found to be proved by the statement of Marcenaro and the recordings.

23 Shortly after 4 November 2009 (but before 8 November 2009) and at a meeting at Nthai’s home in Bryanston with Marcenaro, Nthai again attempted to solicit a payment of R5 million to himself in consideration of his facilitating a favourable settlement of the arbitration proceedings. Paragraph 13 of the charge is found to be proved by the statement of Marcenaro.

24 Having regard to the above findings of fact the Committee concludes that S Nthai SC is guilty of misconduct in relation to his profession as an advocate, and which conduct is prejudicial to the interests of the Pretoria Society of Advocates and the Johannesburg Society of Advocates, of which he is a member (until his resignation has been accepted), in that:

·        he corruptly, improperly and dishonestly attempted to procure payment of a sum of R5 million to himself in consideration for advising and persuading his own client to pay its own costs in the arbitration proceedings should the claimants discontinue the arbitration proceedings;

·        he placed his own personal financial interest above the interests of his client, to the actual or potential prejudice of his client;

·        he established a relationship with Marcenaro, a representative of the claimants, which compromised the legitimate expectation of Nthai’s client that his advice with respect to the conduct of the arbitration proceedings would be honest and independent;

·        he entered into and engaged in settlement discussions with a representative of the claimants, without any authority to do so, and with a view to advancing his own personal financial interests rather than the interests of his client;

·        he disclosed privileged and confidential client – legal representative information to the opposing party, to the actual or potential prejudice of his client;

·        he betrayed the confidence which his client and his instructing attorney had placed in him to honestly, objectively and independently advance its interests in the arbitration proceedings.

25 The Committee recommends

1 That the membership of Seth Nthai SC of both the Johannesburg and Pretoria Societies of Advocates be terminated forthwith;

2 That steps be taken to have his name removed from the roll of advocates in terms of section 7 of Act 74 of 1964;

3 That this report be sent to Nthai SC and made available to the media.

Signed on 
K van Dijkhorst Chairman

6 April 2010

J DreyerSC

T J B Bokaba SC

FOOTNOTES

[1] Annexure 1: Letter dated 22 January 2010 
[2] Annexure 2; Letter dated 5 March 2010 
[3] Annexure 3 Letter dated 16 March 2010. 
[4] Annexure 3 paragraph 8 
[5] On 15 March 2010 
[6] Annexure 4 The following amendments were effected during the hearing: In paragraph 1.7 the word London’; in paragraph 6.1 the date was changed to 30 October; in paragraph lithe date was changed to 3 November 
[7] ExhibitA 
[8] Exhibit S. Irrelevant portions were blanked out by the attorneys.
[9] Exhibits C, D, E and F of discussions on 18/10/09, 10/10/09, 20/10/09 and several between 2/11/09 and 4/11/09 
[10] Exhibits G and H

What now for Shaik and De Kock?

Feb 23rd, 2010
by Pierre De Vos.
25 comments

The Constitutional Court today found that the President had erred and had acted irrationally by not affording the victims of “politically motivated crimes” a hearing before making a decision on whether to pardon the perpetrators of those crimes. In Albutt and Others vs President of the RSA and Others Chief Justice Ngcobo, writing for a unanimous court, upheld the decision of the High Court. The High Court interdicted the President from pardoning these prisoners before affording the victims a hearing about the matter.

In this case the stated purpose of pardoning the prisoners for their “political crimes” was nation-building and national reconciliation. The court thus held that the participation of victims was crucial for the achievement of these objectives. It could therefore not be suggested that the exclusion of the victims from the special dispensation process was rationally related to the achievement of the objectives of the special dispensation process.

The court made it clear that the judgment only applied to the group of prisoners who were going to be pardoned as part of a special process to deal with the “unfinished business” of the Truth and Reconciliation Commission. What distinguished this category of prisoners from others not before the court was:

that the crimes in respect of which pardons are sought are alleged to have been committed with a political motive; the objective of these pardons is to promote national unity and reconciliation; and the crimes concerned were committed in a particular historical context. Different considerations may very well apply to other categories of applications for pardon. This judgment does not therefore decide the question whether victims of other categories of applications for pardon are entitled to be heard. That question is left open.

The judgment therefore makes it clear that it would not necessarily require the President to afford the victims of Eugene de Kock or Schabir Shaik a hearing before pardoning them. However, it confirms that the President does not have an unfettered discretion to pardon prisoners. The President is bound by the principle of legality, which is part of the rule of law, when exercising his power to pardon prisoners.

This means two things. First, the exercise of the power to grant pardons must be rationally related to the purpose sought to be achieved by the exercise of that power. In other words, there must be a rational link between the purpose that the President wishes to achieve by granting a specific pardon and the actual granting of that pardon. A President is therefore obliged to identify the purpose he wishes to achieve by granting a pardon and to make a case for why there is a rational relationship between that purpose and the granting of said pardon.

Thus, if the President were to pardon Shaik and De Kock, he will have to say why he did so. A court will then be allowed to determine whether the identified purpose is rationally related to the granting of the pardon.

If Shaik were to be pardoned for the purpose of advancing national reconciliation, say, it would be rather difficult to show that there was a rational connection between this pardon and the achievement of national reconciliation because Shaik was not convicted of a “political” crime. Shaik is an ordinary criminal who happened to have bribed the President, so pardoning him could not be said to have anything to do with the achievement of national reconciliation. Instead it would have everything to do with the granting of a political favour to a friend. As the Court explains:

The executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved.

What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution.

This brings us to the second requirement for a valid granting of a pardon. The pardon must be granted for a constitutionally valid purpose. If the pardon was granted merely to do a friend a favour, or to prevent that friend from spilling the beans about your own involvement in criminality, or because that friend happened to have paid you bribes worth millions, it would not constitute a “constitutionally valid” purpose for pardoning the friend.

The judgment underlines the fact that the President does have a relatively wide – but not unfettered – discretion to pardon prisoners. But it also reminds us that the rule of law requires the President to act rationally when doing so. The President thus has a constitutional duty to state clearly what the purpose of the granting of the pardon might be. That purpose had to be a legitimate purpose. It could not have the purpose merely to advance the personal interests of the President himself or the party he happens to lead.

If De Kock and Shaik are pardoned, the presidency will therefore have to concoct a very good excuse – otherwise the decision could very well be set aside by a court.

Mpshe’s appointment: scandalous attack on independence of the judiciary

Feb 8th, 2010
by Pierre De Vos.
75 comments

Maybe we are all suffering from abuse-of-power-fatigue? What with the probably unlawful dropping of charges against President Jacob Zuma, the probably unlawful firing of Vusi Pikoli as National Director of Public Prosecutions (NDPP), the clearly unlawful granting of “medical parole” to Schabir Shaik – that “terminally ill” (ha!) friend of President Zuma’s - (the same friend who was convicted of bribing the President), the appointment of a clearly unfit Menzi Simelane as the head of the NDPP, and the alleged appointment of world class homophobe and lover of Motata tea, John Qwelane, as ambassador to Uganda, we have become used to actions that undermine our Constitution and the law.

Still, I do not understand why there has not been more outrage about the Mail & Guardian report that Justice Minister Jeff Radebe has been working hard to secure a new job for Mokotedi Mpshe, who was responsible for the dropping of charges against President Jacob Zuma. Radebe has now finalised Mpshe’s appointment as acting judge in the North West Provincial Division after first trying to get him a post in the Western Cape. This sets him on a path towards a more permanent position on the Bench.

There are three reasons why this appointment is scandalous and perhaps unlawful.

First, while section 175(2) of the Constitution states that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve”, this provision must be read in the light of the separation of powers doctrine and the constitutional guarantee of judicial independence. The present convention that gives effect to these principles is that the Judge President identifies candidates for appointment as acting judges and that the Minister then appoints them. The Minister is not supposed to canvass for a particular candidate. 

This convention finds strong constitutional support in section 165(2) and (3) of the Constitution and the power of the Minister is in effect qualified by these provisions which states:

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

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

Judges need to be both impartial and independent. Even when they will be impartial it does not mean they will be independent. Because judges – even acting judges – might be called upon to hear cases in which the government of the day has an interest or is a party to, the separation of powers doctrine and the guarantees of an independent and impartial judiciary require the Minister not to take an active role in the appointment of acting judges.

If the Minister took an active role in such appointments and if that judge then later has to hear a case in which the government of the day has an interest, it would be akin to the Minister having chosen a judge to hear the government’s case and this would fundamentally erode the independence of the judiciary. This is because there would be a reasonable apprehension that the judge, who was only appointed because the Minister put pressure on the Judge President to appoint him, would not act without fear, favour or prejudice. 

Second, in this case the problem is compounded by the fact that Mpshe was the acting head of the NDPP who controversially did the President and the governing party a HUGE favour by dropping all charges against its candidate for President shortly before the election. What is worse, he justified his decision by plagiarising an overturned Hong Kong Court decision and without referring at all to the prosecution policy to which he is constitutionally bound and which should have guided him in the decision.  One would have to be very gullible not to have serious doubts (in law we would call it “a reasonable apprehension”) about the independence and impartiality of Mpshe and of his ability to resist political pressure.

Lastly, Mpshe I am told is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!

In the case of Law Society of Lesotho v The Prime Minister and Another the Lesotho Appeal Court nullified the appointment of an Adv Peete, a member of the Attorney General’s Office, as an acting judge, affirming the principle that justice should not only be done but should be seen to be done. “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”, the court said and continued:

Peete AJ’s official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors!

The independence of judges does not only rely on the question of whether an appointee will indeed be impartial in his judgments and capable of acting independently, argued the court. The public’s right to feel confidence in the independence of judges is in itself part of the concept of independence. Where a current member of the NPA is appointed as acting judge the public would have no such confidence. Where that man is also the man who took a highly controversial decision to let the most powerful citizen off the hook and save his political bacon, the situation could not be clearer.

It may be that Mpshe will act in an exemplary fashion as acting judge. He may display the kind of impartiality we can only dream of. After all, as an apartheid Minister of Justice once remarked: “The problem with these judges are that once they are appointed they think they are there on merit and they start thinking for themselves”.

This is not the point though. The point is that the appointment of Mpshe and the involvement of the Minister undermines respect for the independence of the judiciary (which is distinct from the impartiality of a particular candidate) and creates a reasonable suspicion that Mpshe is being rewarded for unlawfully dropping charges against the President. Whether this is true or not, it creates a reasonable apprehension of bias on the part of the particular acting judge and undermines the independence of the judiciary.

This appointment is an unseemly and probably unlawful one. The Bar Council, surely, has a duty to take up this matter and challenge the appointment in court if need be? The integrity of our legal system is surely at stake.

What went right in 2009

Dec 30th, 2009
by Pierre De Vos.
29 comments

(1) South Africa had another free and fair election (it’s fourth!) without any serious violence and the fourth democratic President was inaugurated soon afterwards.

(2) The government decisively changed direction on HIV/AIDS and President Jacob Zuma appointed a health minister who clearly understands that the problem of HIV needs to be dealt with in a comprehensive manner.

(3) Nkosazana Zuma has begun to change things around at the Department of Home Affairs. A friend of mine received her passport only 4 weeks after submitting her application!

(4) The South African banking system weathered the international financial crisis very well and the SA government did not need to pump billions of dollars into the system as was required by the USA, the UK and some European countries.

(5) A free press and independent electronic media continued to thrive and to present a variety of news, exposes and opinion, sometimes harshly critical of the foibles of the governing party and sometimes singing its praises.

(6) Some members of the tripartite alliance began exposing Julius Malema as the self-serving, headline-grabbing, tenderpreneur that he is.

(7) The selection of a new Chief Justice and four new judges to the Constitutional Court proceeded without unnecessary controversy and several good candidates were appointed to the positions while a certain Judge President were clearly not a serious contender for appointment.

(8) A vibrant civil society continued to thrive and to challenge seemingly unlawful decisions made by the President and y constitutional institutions such as the Judicial Services Commission in various courts across South Africa.

(9) South Africa successfully hosted the Confederations Cup and the various soccer stadiums for 2010 Fifa World Cup were completed on time.

(10) Many South Africans quietly continued to build bridges and build the nation by giving of their time and money to address the poverty and deprivation of fellow South Africans.

Happy holidays everyone

Dec 24th, 2009
by Pierre De Vos.
12 comments

The brilliant Catherine Tate as “Derek”, making fun of prejudice.

Manto Tshabalala-Msimang: In her own words

Dec 17th, 2009
by Pierre De Vos.
116 comments

Respecting the feelings of her family and friends, but not wanting to be hypocritical, I will rather not comment on the death of former health Minister Manto Tshabalala-Msimang. It is always very painful for those close to someone when he or she dies and one should respect their feelings. I am, however,  reproducing several quotes from the late Minister below without comment.

17 Nov 2006
 “The incident of my illness was portrayed as an opportunity to turn others into champions of a campaign to rid our government of the so-called ‘HIV and AIDS denial at the highest level’.” (ANC Today)
8 October 2006
 “I can’t stop working. The health of the nation depends on it.”
28 August 2006
 “I think the TAC was just a disgrace, a disgrace not only to the [health] department but a disgrace to the whole country. But I think, as South Africa, we really demonstrated that we are doing pretty well.” Manto After the AIDS conference in Toronto 2006
 

18 August 2006
 “There is this notion that traditional medicine is some quack thing practised by primitive people… unfortunately 80 percent of our people don’t care about ‘scientifically proven’.”
7 June 2006
 “People say ‘your stall is great’. I don’t know what they are reporting on at home. We haven’t shocked the world, we have told the truth…I don’t mind being called Dr Beetroot.” – Health Minister Tshabalala-Msimang, responding to criticism of South Africa’s garlic, lemon and beetroot exhibit at the International Aids Conference in Toronto…2 vials of pills were hurriedly added to the stand on Sunday after journalists posed questions about the absence of antiretroviral drugs.
7 June 2006
 “Shall I repeat garlic, shall I talk about beetroot, shall I talk about lemon… these delay the development of HIV to Aids-defining conditions, and that’s the truth.” Health Minister Manto Tshabalala-Msimang said in debate on her department’s budget vote.
30 June 2005
 “Nutrition is the basis of good health and it can stop the progression from HIV to full-blown Aids, and eating garlic, olive oil, beetroot and the African potato boosts the immune system to ensure the body is able to defend itself against the virus and live with it. I am sure that loveLife will continue to raise that.”
 
8 June 2005
 “beetroot, garlic, lemon … and buy a bottle of olive oil. All these things are very critical.”
 
10 May 2005
 “Dr Rath’s work complies with and complements our programmes.”
 
10 May 2005
 “I don’t know how many [South Africans] with HIV would want to take anti-retrovirals.”
 
5 May 2005
 “When we were being pressured to use ARVs, we did warn about the side effects, and when I get reports about the people on ARVs nobody presents to me how many people have fallen off the programme or died because of the side effects.”
 
5 May 2005
 “Raw garlic and a skin of the lemon – not only do they give you a beautiful face and skin but they also protect you from disease.”
9 February 2004
 ” I think garlic is absolutely critical. Lemon is absolutely critical to boost the immune system. Olive oil is absolutely critical … just one teaspoon, it will last the whole month.”
1 April 2003
 (Aids)… “could also be a God-given opportunity for moral and spiritual growth, a time to review our assumptions about sin and morality”.
 
19 December 2002
 “Look at what Bush is doing. He could invade.” … Manto on why money needs to be spent on defence rather than treating AIDS
14 May 2001
 “Some are going to be disappointed that we are not going to give the ARVs [antiretrovirals] tomorrow, but it is this message which does not get through – that people are getting treatment even if there are no ARVs.”
 
7 November 2000
 “Today I want to dispel this myth, because it is absolutely not true .[ that ARV's work ] The pharmaceutical industry and those who have a vested interest in the drug industry fuels this propaganda.”
8 November 2000
 “We (the ANC government) have no plans to introduce the wholesale administration of these drugs in the public sector. ARVs are not a cure for Aids.”
 
September 2000
 Robbie: You have said that the policy of the ministry is well known. Do you accept that HIV causes Aids? 

Tshabalala-Msimang: Why do you ask me that question today? I have answered that question umpteen times. 

R: Yes, and the answer is? 

T-M: Umpteen times I have answered that question. My whole track record of having worked at the area of HIV and Aids for the last 20 years is testimony. Why should you ask me that question today? 

R: You haven’t answered the question, Manto. 

T-M: Why should you ask me that question? 

R: To avoid confusion. 

T-M: I have never said anything contrary to what you want me to say today. 

R: So, therefore, you accept that HIV causes Aids. 

T-M: You are not going to put words into my mouth. 

R: I am not putting words into your mouth. I am asking you a question. 

T-M: Yes you are. 

R: I am asking you a straight – now hold on a second – I am asking you a straight question, the minister of health of South Africa, I am asking you a question: does HIV cause Aids? 

T-M: I have been party to developing a strategic framework and that strategy testifies what my policy understandings of the HIV epidemic are. If you haven’t read that, please go and read it. And then you will understand where I depart from. 

R: Manto, Manto. A simple yes or no is the answer I am looking for. 

T-M: You will not force me into a corner into saying yes or no. 

R: I am not forcing you into a corner, I am asking you a straight question – I find your reaction bizarre. 

T-M: I would advise you to read the strategic framework. You have to analyse it. It is important for the media to inform the public about the positions of government … It is time that when you interview people, not on yes or no, but on the tenets of the framework.
 
November 1999
 “There is not substantial data that AZT stops the transmission of HIV from mother to child. There is too much conflicting data to make concrete policy.”
November 1999
 “South Africa is the only country in the world who gives AZT to health workers for needle-stick injuries. It’s very doubtful that we’re doing the right thing.”
November 1999
 “The fact is that some of the mice [tested on with AZT] have contracted cancer. It attacks bone marrow. It is very toxic.”
 
November 1999
 “AZT was never meant to treat HIV. It was meant to treat cancer and, when it was discovered to be toxic, the drug companies stopped clinic trials of the drug because it was so toxic. Is this drug really one we want to use?”

JSC, Minister doth protest too much

Oct 1st, 2009
by Pierre De Vos.
23 comments

When Justice Minister Jeff Radebe (that guy who masterminded the scandalous decision of the JSC not to investigate the complaints of gross misconduct against John Hlophe because it feared that a real investigation would have to lead to the impeachment of Hlophe) gave a speech yesterday at the farewell for five justices of the Constitutional Court, he sounded rather defensive.

Instead of mouthing warmhearted platitudes about our highest court – as one would have expected of a good politician – he spoke for fifteen minutes in defense of the JSC. He said the true test of the JSC’s character was that it was “fair, honest, and focused on providing the president with a cadre of justices from which he will make his decision”. The test was “not the accolades that arise as a consequence of whom they did not short-list as much as who they did”.

Of course the JSC did not embarrass itself with the compilation of the Constitutional Court short-list, but rather when it made an inexplicable decision to let John Hlophe off the hook and condoned lying by a judge.

No matter what the Minister says now, nothing can erase the fact that the JSC decided that it had nothing to do with it that a judge of one of our highest courts had lied under oath (and maybe that same judge had lied several other times to the media or under oath – that judge being John Hlophe, seemingly a pathological liar.

The fact that the Minister is now so defensive about the JSC suggests that he does have some shame and that he feels a bit embarrassed about the indefensible decision of the JSC. Maybe this is a good thing as it suggests the Minister of Justice  understands what is right and wrong, what is legally and constitutionally required and what cannot be justified – he just chose for expedient reasons not to do what is right and not to obey the Constitution.

That is marginally better than having a Minister of Justice who acts unlawfully and does not even recognise that his actions are scandalous. Maybe there is something to work with there. Maybe he can still be convinced that following the Constitution and the law is not optional and that condoning the lying ways of a judge in the long term will hurt us all.

If he does not and if he thinks it is perfectly fine that a leader of our judiciary continues on the bench despite the fact that he is a pathological liar and a skel, well, then god help us all.

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