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Invitation: Public Lecture on political party regulation in SA

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Judicial Vacancies: nominations sought

 MEDIA ANNOUNCEMENT:  JUDICIAL VACANCIES

 The Judicial Service Commission (JSC) invites nominations to fill vacancies as Judges in the following Courts:

  • Eastern Cape Division of the High Court

Two vacancies (Deputy Judges President, Bhisho and Mthatha)

One vacancy (Port Elizabeth)

  • Free State Division of the High Court

Two vacancies

  • Gauteng Division of the High Court

Six vacancies

  • Labour Court

Two vacancies

  1. KwaZulu-Natal

            One vacancy (Deputy Judge President)

Two vacancies

  • Northern Cape Division of the High Court

One vacancy

Nominations must be accompanied by the candidate’s written consent, detailed curriculum vitae disclosing the candidate’s formal qualifications for appointment, the standard questionnaire completed and signed by the candidate, as well as copies of at least three written judgments by the candidate.  The standard questionnaire to be completed by all nominees is available on the South African Judiciary website: www.judiciary.org.za alternatively on the Constitutional Court website: www.constitutionalcourt.org.za.

The JSC reserves the right to recommend a candidate for the filling of any vacancy which may exist at the time of the interviews. This is to avoid the situation which has arisen in the past when, despite the availability of suitable candidates, no appointments could be made to fill vacancies which had occurred subsequent to the notice calling for nominations. Consequently, in making nominations, regard should be had to the possibility that more judicial vacancies may occur than have been advertised.

The Secretariat wishes to emphasize the following points:

  1. Interviews with short-listed candidates will be conducted in public, i.e. members of the public and the media (both electronic and print) will be entitled to be present.
  2. It is open to persons or bodies nominating candidates to motivate their nominations by referring the JSC to the candidate’s qualifications and general fitness for appointment.
  3. The questionnaire must be accompanied by the standardized “clearance certificate” which the candidate is required to obtain from his/her professional body regarding the candidate’s professional status within that body, his or her suitability for appointment to the Bench and the nature of any disciplinary proceedings completed or pending in respect of the relevant candidate.
  4. Nominations must be addressed to and reach the Secretariat of the JSC not later than Monday, 11 August 2015.

Interviews will take place during the week of 05-09 October 2015 in Cape Town.  The exact venue for the interviews will be communicated to shortlisted candidates and members of the public in due course.

Applications must be addressed to:

The Secretariat of the JSC

Constitutional Court

Private Bag X1

Constitution Hill

Braamfontein

Johannesburg

2017

Tel: (011) 838 2019/2015

Fax2Email: 086 649 0944

Email: Chiloane@concourt.org.za alternatively Dube@concourt.org.za

Candidates who wish to hand deliver their nominations could do so either at 14th Floor Edura House, 41 Fox Street, Johannesburg alternatively at the Constitutional Court.

___________________________________

Sello Chiloane

Secretariat: Judicial Service Commission

Justice Yvonne Mokgoro on Rule of Law, Judicial Authority and Democracy

The Rule of Law, Judicial Authority, and Constitutional Democracy in South Africa.

 Justice Yvonne Mokgoro

1 Introduction: A Tribute to Professor Asmal

 It is a privilege for me to present this lecture in honour of Professor Kader Asmal whose role and contribution in the development of our constitutional democracy was in no small measure.  He was part of a select group of veterans and thought leaders whose exemplary work will remain a source of inspiration for future generations. Many of us have fond memories of him as a fellow patriot who has demonstrated his unwavering commitment to the rule of law and respect for the judiciary at appropriate moments.

His involvement in the processes that culminated in the adoption of our Constitution has been widely acknowledged.  As former President, Kgalema Motlanthe, remarked, his contributions to the constitution-making process has ensured that “his voice will be eternally encoded in democratic South Africa”.[1] Professor Asmal also saw our Constitution as a “detailed social contract” reflecting the views and aspirations of the people, a significant change and shift from the old apartheid constitution which he described as a ‘‘convoluted monstrosity rooted in racism’’.[2]

As member of cabinet, he worked tirelessly to ensure that the fundamental rights enshrined in our Constitution do not remain lofty ideals, good only on paper but with no place in the real world.  And who can forget how, as Minister of Water Affairs and Forestry, Professor Asmal displayed a unique understanding of human dignity and human rights by viewing government water policy as an important means through which some of the basic rights enshrined in the Constitution, such as access to clean water and sanitation, could be realised for the benefit of millions of people, especially the indigent.[3]

As Education Minister, being the accomplished academic he was, and despite some weaknesses in the education system ascribed to him, he demonstrated great understanding of the concept of access to education as a fundamental right, by taking a principled stand and adopting policies against the rising costs of education and the exclusion of the majority of young South Africans from institutions of higher learning, among others.[4]  As he would later recount in his memoir, “I was not prepared to tolerate exclusion of any form wherever it appeared”.[5]

Professor Asmal’s admirable strength was his inability to remain silent in the face of deviation from democratic constitutional ideals and human rights violations.  His description of then Government policy on HIV and Aids as a kind of “quackery” that deserved to be dismissed contemptuously was a classic example.[6]  And here I must admit I chose to paraphrase rather than quote his exact words because he did use some choice words to express his frustration at what he saw as serious human rights violations[7]  His decision to resign from parliament in protest against the disbanding of the Scorpions and his public outspokenness against the Protection of State Information Bill are other examples to illustrate this point.

Kader Asmal was greatly concerned that the foundation of our democracy was being “chiselled away” by public officials who appeared to respect the Constitution in public while attacking it by stealth.[8]  In particular, he was troubled by the relentless attacks on the judiciary, which he felt had become standard practice in political discourse.[9] He believed that attacks like those threaten and undermine public confidence in the judiciary as an institution. Professor Kader Asmal strongly believed that the independence and dignity of the judiciary were non-negotiable preconditions for the survival of our own democracy. Clearly, he believed strongly in our Constitutional democracy, which I proceed to describe.

 2 Constitutional Democracy and the Principle of Separation of Powers and Checks and Balances

 The basic principles which underlie our constitutional order include constitutionalism, separation of powers with checks and balances, the rule of law and accountability.9.  Some of these principles or values are expressly provided for in the Constitution while others are implicit. However, whether explicit or implicit, they are all justiciable in that any law or conduct inconsistent with them, may be declared unconstitutional and invalid.  More particularly, these principles or values shape the basic framework which defines our constitutional order and inform the interpretation of the constitution and the law.

Whereas in any democracy, the political party elected by the majority of the electorate enjoys the right and authority to constitute the government of the day, when that democracy is a constitutional one, like ours, a written Constitution, among others create the rules for government and sets procedural and substantive limitations on the exercise of government power.

Important for the purpose of this address is that our Constitution is the supreme law of the land and is binding on all three arms of the state.12  Needless to say, all law and conduct of any of the three arms of the state which are inconsistent with the Constitution are invalid. Further, any obligation imposed by the Constitution on any arm of the state is peremptory, and takes precedence over other internal rules of the legislature, the executive and the judiciary. That obligation must therefore be fulfilled.  But then, what would constitutional supremacy mean if the Constitution cannot be enforced?  Thus the power to enforce the Constitution is vested in the courts,13 which are independent and subject only to the law and the Constitution.  However, when the courts exercise this judicial power, courts must do so impartially, without fear, favour, or prejudice.  But then again, there is the tricky aspect of the counter-majoritarian idea (not counter revolutionary), where the recurring question is always why unelected judges should have the power to strike down laws and conduct of a majority elected legislature and a representative executive, declaring them invalid.  The answer lies in the nature of a Constitutional democracy.  While democracy in its most literal sense may be understood as “rule by the majority”, in a constitutional democracy “rule by majority” must be exercised subject to predetermined constitutional rules and procedures. An important provision in our Constitution, is the constitutional rule that the orders of court are binding on all persons and organs of state, including the legislature and the executive (or government).  Therefore, whereas before the adoption of our interim constitution in 1994, parliament was sovereign and exercised legislative supremacy, today, the irreversible truth is that, integral to our constitutional democracy, our legislature is no longer sovereign.  The Constitution is.

But let’s not belabour the point because although the separation of powers with checks and balances is also fundamental in our Constitution, what is also important is that the three arms of the state are not to pool in opposite directions.  Their roles are complementary rather than competitive. Together they have an obligation to protect the supremacy of the Constitution.  It is for that reason that all organs of state must assist and protect the courts and therefore the judiciary, ensuring its effectiveness, dignity, independence, impartiality and accessibility.[10]  Any law or conduct which has the impact of interference in the functioning of the courts by any person or organ of state is a violation of the Constitution and may be declared invalid and set aside and the court must say so.  Alternatively the court, as the case may be, may suspend the invalidity for a limited period of time, while the legislature is given the opportunity to correct the invalidity.  An order of court which is just and equitable may ensue.

The Rule of Law and Judicial Authority

That is the power of judicial review assigned to all higher courts in our Constitution.  And the courts must exercise that power.  There is no question that the exercise of the power of judicial review, where the laws of parliament or conduct of the executive are set aside, is potentially imposing and my even overwhelm.  In crucial times, it can indeed determine the destiny of a nation.  Indeed, this power of the courts will add up to nothing and be totally impotent if organs of state in particular, have the choice to disregard court orders.  The potential for this notion in my view is not far-fetched considering the recent events in the matter of Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others[11] (popularly known as the Al Bashir matter).  Speaking for myself, I must admit, I am still reeling in shock at what appeared, and we might be wrong, to have been a blatant disregard for the order of court in the Al Bashir matter, including the subsequent responses of leading public figures in that regard.  And I was reminded of the insight of the late Chief Justice Ismael Mahomed when he stated, in an address he gave to the International Commission of Jurists in Cape Town on 21 July 1998, how the judiciary does not have its own massive physical resources to execute its own orders and can only rely on the executive to do so.  Thus, he said, if court orders are disregarded, “the courts could easily be reduced to paper tigers with a ferocious capacity to snarl and roar but no teeth with which to bite and no sinews to execute their judgements, which may then be mockingly reduced to pieces of sterile scholarship, toothless wisdom and pious poetry”.[12]  And he continues, “…the potentially awesome theoretical power of the judiciary in the Constitution could in those circumstances implode into nothingness. Judges, in such circumstances, would visibly be demeaned. But much much worse: human rights could irrevocably be impaired and civilisation itself dangerously imperilled”.[13]  In no circumstances have I ever found these often quoted powerful words of Ismael Mahamed CJ more compelling.  That, for me, is exactly the cause for concern.

Besides, I too believe that the fact that judges are not elected must be seen as an important strength of our judicial system, rather than its weakness.  For me, it reinforces the impartially interventionist and protective role of the courts.  Here there is no room for populism.  Personal views and positions are irrelevant.  That is the role mandated to the judiciary by the Constitution.  In many respects, that role is assigned to the judiciary by the legislature who is the authority elected by the people.  And as our Constitution has it, the legislature and executive must protect this role and assist the courts to remain independent, impartial, accessible, effective and perform their role and function with outmost dignity.[14]  That obligation to protect the courts is therefore assigned to them in the Constitution by the people who they represent.

But then, to manage the irony of the lack of their own physical resources for the effective execution of their orders, the judiciary can only continue to cultivate for its self-respect and legitimacy in the minds of the society they serve generally, and of the litigants who appear before them – based on their fierce independence and awe-inspiring integrity at both individual and institutional level.  It is on this independence and integrity that the legitimacy and esteem of the courts will thrive, as long as judicial officers continue to ensure that the judicial power they exercise is matched by the depth of responsibility they have to fulfil their constitutional mandate and to do so honourably, without fear, favour or prejudice. That too is a responsibility mandated by the Constitution.

It is important, however, for judges to be cognisant of the notion that when litigants appear before the courts, they are entitled and will anticipate an outcome of a case in their favour. If the decision goes the other way, there will certainly be disappointments.  Where the outcome is about striking down and invalidating laws or conduct of the executive, controversy and/or vigorous debate may ensue from time to time.  Besides, robust and constructive debate and free expression of views or opinion are integral to a vibrant democracy and must be welcomed.  However, what places the legitimacy and integrity of the courts at risk is the reckless responses of litigants amounting to attacks without substance to decisions of the courts, whenever they are dissatisfied with the outcome of their cases.  And it makes it so much more dangerous when litigants are influencial public officials. In that case, it easily sends the wrong message to an already restless public that if the outcome of a court case is not favourable, a litigant is entitled to publicly “attack” the judicial officer and may even disregard court orders. This is a culture of disrespect for courts and the judiciary we can least afford.

However, judges can take solace in the idea that their decisions are the outcome of a fair adjudication process, where relevant issues are raised and submissions are made in open court, and each party has a fair opportunity to make compelling arguments in support of their contentions. It is then the responsibility of the judicial officer to ensure that the orders they make are just and equitable, taking into account facts of the case in the context of surrounding circumstances, the issues raised in argument, the contentions submitted, research analysis and interpretation of the applicable law and the Constitution using classical judicial approaches and rational objective standards of assessing available evidence.. Important for the judge is to recognise and identify the limits of their judicial power in the decisions they arrive at and the orders they make.

Of course, judges are human and are not infallible. However, errors in law and in fact are appealable to the highest court through the hierarchy of courts. That too is the case when a judge has over-reached herself or himself. That is the discipline the rule of law requires of each litigant who comes before the courts and is aggrieved by court decisions.

Further, judgments are handed down in open court, in the presence of litigants and or their representatives. They are presented with a copy of the judgment to study  and determine whether or not to lodge an appeal within a stipulated time. A litigant will know if even an aorta of irrelevant, extraneous, undue and unbecoming influence has affected the decision of the court and or the logic of the court’s reasoning does not add up. Any unbecoming conduct identified and affecting the integrity of the judge and amounting to misconduct in terms of the judicial oath of office and or under the Judges’ Code of Conduct, may be basis for lodging a complaint against the judge with the Judicial Services Commission (JSC). The process before the JSC may result in the impeachment of the particular judicial officer. This disciplined route is equally available to all litigants including organs of state and all public officials.

The JSC itself is constituted by a cross-section of representatives including members of the executive and the legislature.[15]  Again, the availability of these processes leave no room for any form of public attack on a judicial officer and or the judiciary.

4 Conclusion

The judiciary has the first responsibility, in my view to cultivate for itself public respect, trust, integrity and legitimacy, based on the way they perform their constitutional mandate. But I have no doubt that organs of state and public institutions or bodies who have an interest at stake if the independence, integrity and legitimacy of judiciary is placed at risk, to various degrees and in various ways, also have a responsibility to protect the courts. In my view they have an obligation at least to speak up in defence of the judiciary which is the bulwark of our constitutional democracy. Although the show of leadership demonstrated by the Heads of Courts led by the Chief Justice after the recent spate of attacks on the judiciary is commendable, and was appropriate in the circumstances, the judges do not have to go that far in defence of the judiciary if others who have what I view as a constitutional responsibility stoop up in defense of the judiciary. Notable however, are the efforts of the Public protector, the media and others in that regard.

More specifically the Chapter 9 institutions, which are independent and like the courts, are subject only to the Constitution and the law, have primary role of supporting constitutional democracy. They certainly have an important interest in the protection of the courts. Surely, other public institutions and bodies who have a stake in the strength of our courts to perform effectively also have an important role:

The organised legal profession is integral to the system of the administration of justice. In view of their close association with the courts and the direct reliance they place in their work on the independence and integrity of judges, they should be the first line of defence of the courts when their integrity is placed in jeopardy. Similarly, the academia, in particular the legal academy is clearly an important role player. Only last week, the Society of Law Teachers had their General meeting and it would be interesting to learn of their response regarding these recent developments.

The role of a vibrant independent media in identifying and investigating the most pertinent issues for public attention and debate, promoting public dialogue cannot be exaggerated and should therefore not loose its lustre.

My generation can remember well the game-changing role that human rights civil society organisation’s played in the dark days of apartheid oppression and repression. And we know also too well how the need for transformation in government generally, and the public service in particular almost depleted the resourcefulness of the civil society sector. And although the majority of these non-governmental bodies are now limited in membership and for various reasons, are much more restricted in their funding, affecting their impact, the role that they still play, although slightly shifted, is obviously as critical today as it was yesterday19. I believe they have a serious interest at stake if the independence of the courts is not protected.

The long and short of it is that whether state or the public at large, we all have an interest in the independence, integrity and legitimacy of our courts and must therefore protect them and desist from creating circumstances which weaken them and place their authority in jeopardy. If there is a point of social cohesion which has the greatest potential for institution-building with a view to nation-building, it is the respect we must show for our Constitution as the foundation of our constitutional democracy, where the role of our courts is central.

 NOTES

[1] Kgalema Motlanthe ‘Eulogy by Deputy President Kgalema Motlanthe at the Memorial Service of Professor Kader Asmal’, Cape Town, 30 June 2011.

[2] Kader Asmal ‘The Making of a Constitution’ Mail & Guardian, Issue 36, March/April 1995.

[3]  Achim Steiner ‘A Tribute to Professor Kader Asmal’ (24 June 2 011).

[4] These included measures to merger various institutions of higher learning pursuant to section 23 of the Higher Education Act 101 of 1997.  Some of the mergers were aimed at breaking down apartheid’s racial divides that saw certain universities catering primarily for white students, with huge budgets and extensive facilities, while others catered for blacks on shoe string budgets and with almost no facilities.

[5] Kader Asmal, Adrian Hadland and Moira Levy Kader Asmal: Politics in My Blood : A Memoir (2011) at 287-288.

[6] Jeremy Michaels ‘Rath Gets a Taste of Asmal’s Wrath’ IOL 4 May 2005.

[7] Jeremy Michaels ‘Rath Gets a Taste of Asmal’s Wrath’ IOL 4 May 2005.

[8] Speech by Professor Kader Asmal at the conferring of the honorary degree of Doctor of Laws by the University of South Africa on 12 April 2010.

[9] Speech by Professor Kader Asmal at the conferring of the honorary degree of Doctor of Laws by the University of South Africa on 12 April 2010.

[10] See generally section 165 of the Constitution.

[11] (27740/2015) [2015] ZAGPPHC 402 (24 June 2015).

[12] Id.

[13] Id.

[14] Section 165(4) of the Constitution.

[15] See Section 178 of the Constitution.

Statement by Chief Justice and Heads of Court on Rule of Law

STATEMENT ISSUED BY THE CHIEF JUSTICE, THE HEADS OF COURT AND SENIOR JUDGES OF ALL DIVISIONS

ON 8 JULY 2015

THE JUDICIARY’S COMMITMENT TO THE RULE OF LAW

A Judge’s principal article of faith is to adjudicate without fear favour or prejudice. When each Judge assumes office she or he takes an oath or affirmation in the following terms: to be faithful to the Republic of South Africa; to uphold and protect the constitution and the human rights entrenched in it; to administer justice to all persons alike without fear favour or prejudice and in accordance with the constitution and the law.

To Judges this obligation and the oath are sacred.

Our constitution, like others of its kind, sets out the powers of each arm of state. No arm of the state is entitled to intrude upon the domain of the other. However, the constitution requires the Judiciary ultimately to determine the limits and regulate the exercise of public power.

Judges like others should be susceptible to constructive criticism.

However, in this regard, the criticism should be fair and in good faith.  Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable.

In the adjudication process, Judges do not act as a collective with a collective mindset.  Each Judge is informed by constitutional values, her or his conscience and brings to bear an individual judgement.

Of course, Judges, like other mortals, err. There are several levels of courts that serve a corrective purpose when Judges make a mistake. That explains why the constitution provides for an appeal mechanism. Moreover, judgments are often subjected to intensive peer and academic scrutiny and criticism.

There have been suggestions that in certain cases Judges have been prompted by others to arrive at a pre-determined result. This is a notion that we reject.  However, in a case in which a Judge does overstep, the general public, litigants or other aggrieved or interested parties should refer the matter to the Judicial Conduct Committee of Judicial Service Commission..

The Rule of Law is the cornerstone of our constitutional democracy. In simple terms it means everybody whatever her or his status is subject to and bound by the constitution and the law.  As a nation, we ignore it at our peril. Also, the rule of law dictates that court orders should be obeyed. Our experience by and large is that court orders have been honoured by others arms of state. The few instances of where court orders have not been compiled with, whatever the reasons, have the effect of undermining the rule of law.

The Heads of Court and senior Judges of all Divisions have requested the Chief Justice, as head of the Judiciary to meet with the head of state to point out and discuss the dangers of the repeated and unfounded criticism of the Judiciary. Criticism of that kind has the potential to delegitimise the courts.  Courts serve a public purpose and should not be undermined.

Another link to Marikana Report

Here is another link to the full Marikana Commission Report. Report of the Marikana Commision of Inquiry

Complete High Court al-Bashir judgment

IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)

 Case Number: 27740/2015

In the matter between:

THE SOUTHERN AFRICA LITIGATION CENTRE                           APPLICANT

And

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT                                   1ST RESPONDENT

THE DIRECTOR-GENERAL OF JUSTICE

AND CONSTITUTIONAL DEVELOPMENT                           2ND RESPONDENT

THE MINISTER OF POLICE                                                  3RD RESPONDENT

THE COMMISSIONER OF POLICE                                      4TH RESPONDENT

THE MINISTER OF INTERNATIONAL

RELATIONS AND COOPERATION                                      5TH RESPONDENT

THE DIRECTOR-GENERAL OF INTERNATIONAL

RELATIONS AND COOPERATION                                      6TH RESPONDENT

THE MINISTER OF HOME AFFAIRS                                    7TH RESPONDENT

THE DIRECTOR-GENERAL OF HOME

AFFAIRS                                                                                 8TH RESPONDENT

THE NATIONAL COMMISIONER OF THE

SOUTH AFRICAN POLICE SERVICE                                   9TH RESPONDENT

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS                                                     10TH RESPONDENT

THE HEAD OF THE DIRECTORATE FOR

PRIORITY CRIMES INVESTIGATION                                  11TH RESPONDENT

THE DIRECTOR OF THE PRIORITY CRIMES

INVESTIGATION UNIT                                                          12TH RESPONDENT

JUDGMENT

The Court

1. Introduction

This matter involves a consideration of the duties and obligations of South Africa in the context of the Implementation of the Rome Statute of the International Criminal Court Act, Act 27 of 2002 (“the Implementation Act”). Directly posed, the question is whether a Cabinet Resolution coupled with a Ministerial Notice are capable of suspending this country’s duty to arrest a head of state against whom the International Criminal Court (ICC) has issued arrest warrants for war crimes, crimes against humanity and genocide.

2 The Court Proceedings

On Monday 15 June 2015 this court handed down an order in the following terms:

“1. THAT the conduct of the Respondents, to the extent that they have failed to take steps to arrest and/or detain the President of the Republic of Sudan Omar Hassan Ahmad Al Bashir (“President Bashir”), is inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid;

  1. THAT the Respondents are forthwith compelled to take all reasonable steps to prepare to arrest President Bashir without a warrant in terms of section 40 (1) (k) of the Criminal Procedure Act, 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court;
  2. THAT the Applicant is entitled to the costs of the application on a pro-bono basis.”

Pursuant to handing down the order referred to above the court undertook to provide its reasons for that order. We hand down these reasons  in keeping with that undertaking. We point out however that subsequent to the handing down of the order, we were informed that the President of the Republic of Sudan, Omar Hassan Ahmad Al Bashir (“President Bashir”), the central figure in the proceedings, had left South Africa. Nevertheless, it is our view that the order we handed down, as well as this judgment remain relevant in view of the important constitutional and International law principles at stake.

4 The court’s order referred to above was actually a sequel to and a continuation of proceedings which had commenced the day before, Sunday the 14th June 2015. On that day the Applicant launched proceedings in the urgent court seeking the following orders:

“2. Declaring conduct of the Respondents, to the extent that they have failed to prepare to take steps to arrest and/or detain the President of The Republic of Sudan Omar Hassan Ahmad Al Bashir (“President Bashir”), to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid;

  1. Compelling the respondents forthwith to take all reasonable steps to prepare to arrest President Bashir without a warrant in terms of section 40 (1) (k) of the Criminal Procedure Act, 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court; alternatively

  2. Compelling the Respondents forthwith to take all reasonable steps to provisionally arrest President Bashir in terms of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002;

  3. Compelling the Respondents to prevent President Bashir from leaving the country without taking reasonable steps to facilitate his arrest in terms of domestic and international laws.

  4. Compelling the Respondents who oppose the application to pay costs jointly and severally, such costs to include the costs of two Counsel…”

5. On that Sunday morning Adv I. Ellis who appeared for all the Respondents, laid out the basis of Respondents’ defence to Fabricius J who was on duty at that stage. The defence propounded was to the effect that the Cabinet had taken a decision to grant President Bashir immunity from arrest, and that this decision “trumped” the government’s duty to arrest the President on South African soil in terms of two warrants of arrest issued by the ICC, and its concomitant obligation in terms of the Implementation Act. Adv Ellis requested a three hour adjournment to prepare a complete argument. Fabricius J granted a three hour adjournment, but issued an interim order that in its terms compelled the Respondents to prevent President Bashir from leaving the country until a final order was made in the proceedings. A request to lead oral evidence by a law professor to explain the defence proffered by Adv Ellis was disallowed. The court’s attitude to this request then was that  it is for the court  to decide what the law is, and that the opinion of a witness  is in most (but not all) instances inadmissible evidence.

6. At about 15:00 on the same day Adv Mokhari SC appeared with Adv Ellis and instead of arguing the legal point mentioned earlier, requested time to draft an answering affidavit. Such a request is not easily refused in urgent proceedings depending on the particular facts at issue, Fabricius J, mindful of   the fact that the African Union Summit, which President Bashir was attending, would be in session for the whole of that day and for the entire day on Monday, granted a further adjournment until 11:30 on Monday 15 June 2015, but deemed it necessary to make the following order:

  1. “President Omar Al Bashir of Sudan is prohibited from leaving the Republic of South Africa until a final order is made in this application, and the Respondents are directed to take all necessary steps to prevent him from doing so;

  2. The Eighth Respondent, the Director General of Home Affairs is ordered:

  • to effect service of this order on the official in charge of each and every point of entry into, and exit from, the Republic; and
  • once he has done so, to provide the Applicant with proof of such service, identifying the name of the person on whom the order was served at each point of entry and exit;
  1. the matter is postponed until 11:30 on Monday 15 June 2015;

  2. the Respondents are directed to file any Answering Affidavits by 09:00 on 15 June 2015, the Applicant to reply by 10:00.”

7. The proceedings were adjourned accordingly. Due to the importance of the matter especially having regard to South Africa’s Constitutional and international legal obligations in respect of international crimes that are at issue, the Judge President of this Division took a decision that the application would continue before a Full Court on Monday, i.e. before three Judges, being Mlambo JP,  Ledwaba DJP and Fabricius J. The Answering Affidavit was only filed at about 11:25 instead of 9h00 on Monday 15 June 2015, without any explanation being tendered as to why it was late. The lack of an explanation for the lateness is particularly significant as the Answering Affidavit only consisted of 24 typed pages, a supporting affidavit of four pages, and printed annexures of 87 pages. In our experience, all of this could easily have been produced within a few hours.

8. In view of the late filing of the Answering Affidavit and the need for the court and the applicant to peruse it, as well as the necessity to file a reply, if any, the proceedings were adjourned until just before 13h00.  When adjourning the proceedings at 11h30 and upon resumption thereof the court specifically requested Adv Mokhari SC to provide an indication whether President Bashir was still in the country. This was rendered necessary in the light of media reports, which we took judicial notice of, that suggested that President Bashir was either in the process of flying out or had already left this country. Adv Mokhari SC, specifically disavowing reliance on media reports, stated that his instructions were that President Bashir was still in the country. During the entire hearing Adv Mokhari SC repeatedly re-assured us that President Bashir was still in the country, which fact was necessary for the Court’s jurisdiction. As it transpired later that day and after we handed down our order, all these assurances were not correct as President Bashir had, most probably left the country before argument commenced just before 13h00. We return to this aspect later.

9. The court concluded hearing argument just after 14h30 and handed down the order referred to in para 2 above at about 15:00. It is only then that the court was   informed by Adv Mokhari SC that President Bashir had left the country. This, in our view, is a clear violation of the order handed down by Fabricius J on Sunday afternoon. On being apprised of this state of affairs the Court issued an order that the Minister in the Office of the Presidency and the Minister of State Security should file an affidavit within seven days explaining the circumstances under which President Bashir managed to fly out of this country despite the explicit court order prohibiting this, handed down on Sunday 14 June referred to in para 6 above.

10. The Adoption of the Rome Statute of the International Criminal Court

An understanding of the issues involved in this matter necessitates that we first speak about the ICC and how President Bashir became its fugitive. The ICC came into being when the Statute of the International Criminal Court was adopted in July 1998 by a majority of the states attending the Rome Conference hence the name – Rome Statute. The adoption of the statute and creation of the ICC is properly articulated at para 40 of the judgment of the Supreme Court of Appeal in National Commissioner of the South African Police Service vs Southern African Human Rights Litigation Centre 2014 (2) SA 42 (SCA) as follows:

“[40]    The Statute of the International Criminal Court was adopted on 17 July 1998 by an overwhelming majority of the states attending the Rome Conference. The Conference was specifically organized to secure agreement on a treaty for the establishment of a permanent international criminal tribunal. After five weeks of intense negotiations, 120 countries voted to adopt the treaty. Only seven countries voted against it…, and 21 abstained. By the 31 December 2000 deadline, 139 states had signed the treaty. The treaty came into force upon 60 ratifications. Sixty-six countries – six more than the threshold needed to establish the court – had ratified the treaty by 11 April 2002…. To date, the Rome Statute has been signed by 139 states and ratified by 117 states. Of those 117 states, a significant proportion – 31 – are African. South Africa is a party to the Statute and has been a vocal endorser of the International Criminal Court. One significant absentee amongst the ratifications is that of the United States.

[42]     The Rome Statute’s structures of international criminal justice are grounded in the core principle of complementarity. The Statute devises a system of international criminal justice wherein the primary responsibility for the investigation and prosecution of those most responsible for serious violations of international law rests with domestic jurisdictions. In principle, a matter will only be admissible before the ICC where the state party concerned is either unable or unwilling to investigate and prosecute, which operates so as to ensure ‘respect for the primary jurisdiction of States’ and is based on ‘considerations of efficiency and effectiveness’.”

11. A critical obligation of a state party that signed on to and ratified the Rome Statute was the domestication of the provisions of the statute into national law to ensure that such law became compatible with the statute. In the case of South Africa, ratification of the statute was in terms of section 231 of the Constitution of the Republic of South Africa, 1996. It is also in terms of that section of the Constitution that South Africa enacted the Implementation Act through which the incorporation of the Rome Statute was accomplished. In this regard Article 86 of the Rome Statute provides:

“States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the court [ICC] in its investigation and prosecution of crimes within the jurisdiction of the Court.”

In similar vein article 89(1) provides:

“The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.”

In terms of the Implementation Act, South African authorities are enjoined to cooperate with the ICC, for example, to effect the arrest and provisional arrest of persons suspected of war crimes, genocide and crimes against humanity. These crimes have been specifically created in the South African context in terms of section 4 of the Implementation Act.

12. During 2009 the ICC issued a warrant for the arrest of President Bashir for war crimes and crimes against humanity. Thereafter and in 2010 the ICC issued a second warrant for the arrest of President Bashir for the crime of genocide. Both warrants were issued pursuant to the situation in Darfur. In the wake of these warrants and relying on Article 59 of the Rome Statute, the ICC requested States Parties to the  Statute including South Africa to arrest President Bashir in the event that he came into their jurisdictions. Indeed it is common cause that during 2009, President Bashir was invited by South Africa to attend the inauguration of President Zuma in South Africa. As a result of the 2009 warrant of arrest issued by the ICC and South Africa’s obligation to give effect thereto, South African officials confirmed that they would arrest President Bashir should he arrive in the country. For this reason President Bashir declined South Africa’s invitation to attend the inauguration.

13. Background facts relating to the current proceedings

The facts giving rise to the current proceedings are in large measure found in the answering affidavit deposed to by the Director-General: Justice and Constitutional Development who is also the Central Authority as defined in section 1 of the Implementation Act. She was also authorised by all other Respondents to depose to the Answering Affidavit. She states that on or about January 2015, the Republic of South Africa agreed to host an African Union (“AU”) Summit during June 2015; that in order to facilitate the hosting of the AU Summit, the Republic of South Africa was required to enter into an agreement with the Commission of the AU, specifically relating to the material and technical organization of the meetings (“the host agreement”) which was concluded on or about 4 June 2015.

14. The Director General makes reference to the preamble to the host agreement, inter alia, which records:

“These Meetings which are provided for in the Constitutive Act of the African Union, the Rules and Procedures of the Assembly, the Executive Council and the Permanent Representatives’ Committee as well as in decisions of the African Union policy organs will be held in Pretoria, Republic of South Africa, from 7 – 9 June, and from 10 – 13 June and on 14 – 15 June 2015 in Johannesburg, respectively, at the invitation of the Government; that accordingly, the Commission is charged with the exclusive responsibility of organising, conducting and managing the Meetings, while the Government will, on its part, provide all the necessary facilities and assistance to ensure the success and smooth running of the Meetings.”; that although the preamble to the host agreement contains the phrase “at the invitation of the Government”, the Republic of South Africa was in no manner whatsoever involved or responsible for extending invitations to any or all of the delegates or attendees of the AU Summit; that the preamble to the host agreement clearly provides that the Commission of the AU is charged with the exclusive responsibility of organising, conducting  and managing the meetings. The Director General states in this regard that the Republic of South Africa merely agreed to host the AU Summit, whilst the Commission of the AU was solely responsible for inviting all the delegates and attendees of the AU Summit”.

15. The Director General proceeds to make out the case that Article VIII of the host agreement specifically provides for privileges and immunities; that Clause 1 of Article VIII records that the Republic of South Africa shall accord the Members of the Commission and Staff Members, the delegates and other representatives of Inter-Governmental Organisations attending the Meetings, the privileges and immunities set forth in Section C and D, Articles V and VI of the General Convention on the Privileges and Immunities of the Organisation of African Unity (“the OAU Convention”).

16. The Director General then refers to Section C, Article V (1) (a) and (g) of the OAU Convention, which reads:

 “1. Representatives of Member States to the principal and subsidiary

institutions, as well as to the Specialized Commission of the Organization of African     Unity, and to conferences convened by the Organization, shall, while exercising their functions and during their travel to and from the place of meetings, be accorded the following privileges and immunities:

  • Immunity from personal arrest or detention and from any official interrogation as well as from inspection or seizure of the personal baggage;

  • Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of the personal baggage) or from excise duties or sales taxes.”

17. The Director General further points out  that the aforesaid provisions are contained in the Vienna Convention on Diplomatic Relations, 1961 (“the Vienna Convention), which she asserts, has the force of law in terms of section 2 of the Diplomatic Immunities and Privileges Act 37 of 2001 (“the DIPA); that article 29 of the Vienna Convention specifically provides that the person of a diplomatic agent shall be inviolable, that he shall not be liable to any form of arrest or detention, that the receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity; that accordingly and in order to give effect to the provisions of the host agreement, the Fifth Respondent on 5 June 2015 and in terms of the provisions of section 5(3) of DIPA read with section 231 (4) of the Constitution, published Article VIII of the host agreement under Government Gazette NO 38860 and thereby incorporated the privileges and immunities accorded delegates and attendees of the AU Summit as provided for in the host agreement, as domestic law in South Africa.

18. She continues to state that she was advised that the provisions of Article VIII of the host agreement are specific privileges and immunities extended by the AU to all its delegates and attendees of the AU Summit, which the hosting country of an AU Summit, the Republic of South Africa in this instance, is required to uphold. She then contends that the Court is enjoined to take cognizance of the fact that the provisions of the host agreement read with the contents of Government Gazette No 38860 are only effective for the duration of the AU Summit in South Africa, provided that the host agreement specifically provides for its termination two days after conclusion of the AU Summit. She makes the point that by necessary implication, the provisions of Article VIII would cease to be effective after the expiration of the aforesaid period.

19. The Director General states further that after having agreed to host the AU Summit during June 2015, the Government of South Africa, through the appropriate diplomatic channels received confirmation from the Republic of Sudan that President Bashir would  attend the AU Summit, with a concomitant request by that country that President Bashir should be granted the necessary privileges and immunities as provided for in Article VIII of the host agreement; that the Executive Authority of the Republic of South Africa discussed and received the aforesaid request by the Republic of Sudan.

20. The Director General further states that she was advised that the immunities and privileges referred to in Article VIII of the host agreement (which she says is law in South Africa) prevent the Respondents from arresting President Bashir during the duration of the AU Summit and an additional two days after the conclusion of the AU Summit.

21. The Director-General of the Presidency and Secretary of Cabinet, Dr. Cassius Reginald Lubisi deposed to a supporting affidavit stating that Cabinet was aware of the invitation from the African Union to  President Bashir to attend the AU Summit and that the President indeed confirmed his attendance. Dr Lubisi also confirms that Cabinet was alive to the fact that the Republic of South Africa is a State Party to the Rome Statute and therefore obliged to give effect to any request by the ICC pertaining to a warrant of arrest; that accordingly and as a result of the two warrants of arrest issued by the ICC and the concomitant hosting of the AU Summit, Cabinet deemed it prudent and necessary to deliberate and discuss the issue on whether the Republic of South Africa was required to arrest President Bashir whilst attending the AU Summit; that during early June 2015 Cabinet requested advice from the Chief State Law Advisor and deliberated on this issue at length; that during the said discussions, Cabinet was apprised of the host agreement with the AU together with the intention of promulgating Article VIII of the host agreement as well as the implications thereof regarding the immunities and privileges enjoyed by President Bashir as head of a member state of the AU; that Cabinet collectively accepted and decided that the South African Government as the hosting country was  first and foremost obliged to uphold and protect the inviolability of President Bashir in accordance with the AU terms and conditions and to consequently not arrest him in terms of the ICC arrest warrants whilst  attending the AU Summit, and that in addition to the above, Cabinet collectively appreciated and acknowledged that the aforesaid decision could  only apply for the duration of the AU Summit.

The assertions made by the Director General and Dr Lubisi formed the essence of the submissions made on behalf of the Respondents by Adv Mokhari SC. The primary basis of the argument being essentially that the promulgation of the notice by the 5th Respondent, which embodied the terms of the host agreement and which, in its terms, made provision for the immunity of heads of AU member states whilst engaged in AU business, provided the requisite reprieve to South Africa not to comply with its ICC obligations of arresting President Bashir during his attendance of the Summit.

23. Applicant’s Argument:

Against this background, and articles 86, 87 (1) and 89 of the Rome Statute, Ms Goodman argued that where the ICC  has made a request for the arrest and surrender of a person within a  State party’s jurisdiction, the State party must comply with the request. South Africa, by virtue of its enactment of the Implementation Act, is bound by each of those obligations both under international law and at the domestic level. She submitted that in the present context South Africa became liable to arrest and surrender President Bashir as soon as he entered the country. She further submitted that the only basis on which the State Respondents could avoid their obligation to arrest and surrender President Bashir would be if he enjoyed some kind of diplomatic immunity from arrest, or from this Court’s jurisdiction.

24. International Law and the Constitution:

In Glenister v The President of the Republic of South Africa and Others 2011 (3) SA 347 at par. 97, Ngcobo CJenunciated the significance of International Law to the Constitution:

“Our Constitution reveals a clear determination to ensure that the Constitution and South African law are interpreted to comply with international law, in particular international human rights law… These provisions of our Constitution demonstrate that international law has a special place in our law which is carefully defined by the Constitution”.

In South African Human Rights Centre v National Director of Public Prosecutions and others [2012] 3 All SA 198 (GNP), (Zimbabwe decision), this court (per Fabricius J) found that in line with South Africa’s duties and obligations as a signatory to the Rome Statute but more importantly arising from the Implementation Act, the South African Police Service was obliged to investigate certain human rights violations committed in Zimbabwe.

25. This matter was taken on appeal but the Supreme Court of Appeal, in National Commissioner of the South African Police Service vs Southern African Human Rights Litigation Centre (para 10 supra) confirmed the finding made by Fabricius J. In a further appeal to the Constitutional Court, in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another 2014 (12) BCLR 1428 (CC) that court strongly asserted South Africa’s duties and obligations arising in international law and especially the Rome Statute and the Implementation Act. The Constitutional Court said at par. 23 that the legislation must be interpreted purposely in accordance with international law and referred to s. 231 (4) of the Constitution which provided for the domestication of international law through national legislation.

26. It must be stated at this juncture that the Implementation Act as mentioned earlier is such national legislation, and the State is bound to implement it. By way of its enactment, the legislature complied with its obligations as a state party to the Rome Statute to take measures at national level and to ensure national criminal jurisdiction over the crimes set out in the Rome Statute. This is clear from the long title of the Act and the preamble also gives good insight into its motivation. Note should also be taken of ss. 3 (a) and (b) which define the objects of the Act, which mainly are, in the present context, to ensure that anything that is done in terms of this Act conforms with the obligation of the Republic in terms of the Statute. The decisions of the SCA (supra) at par. 43 – 46 and the Constitutional Court (supra) at para 23 are binding legal authority that must be followed when considering disputes regarding the duties of this country arising from international law.

27. The Constitutional Court decision actually dispels any doubt about the duties of South Africa in line with the Implementation Act. Crimes against humanity are referred to in Part 2 of Schedule 1 of the Implementation Act and include those referred to in the first warrant of arrest issued against President Bashir. Another case in point on South Africa’s duties in terms of and arising from International law is S v Okah 2013 JDR 0219 (GSJ). In that matter a Nigerian national resident in South Africa was convicted on 13 counts of terrorist acts committed in Warri and Abuja Nigeria by the Gauteng Local Division of the High Court.The prosecution was based on the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. This Act had domesticated a number of international instruments and a Security Council resolution aimed at combating, prosecuting and punishing acts of international terrorism. The South African security agencies and prosecution authorities had clearly acted in keeping with South Africa’s duties in terms of international instruments in which the country was a party.

Claims to immunity:

Diplomatic immunity is governed, as mentioned by the Director General of Justice and Constitutional Development earlier, under South African law, by the Diplomatic Immunities and Privileges Act 37 of 2001 (Immunities Act):

 28.1   Section 2 of the Immunities Act ratifies and domesticates the 1946 and 1947 United Nations Conventions on Privileges and Immunities, and the 1961 and 1963 Vienna Conventions on Consular and Diplomatic Immunity. The former confer immunity broadly on United Nations staff and officials, and experts or organizations acting on their behalf. The latter confer immunity on consulates and their staff, and diplomatic missions and their staff.

28.2    Section 4 of the Immunities Act recognises that heads of state are immune from civil and criminal jurisdiction to the extent afforded to them under customary international law, or as agreed to between South Africa and the relevant State party, or as are conferred on them  by the Minister of International Relations.

28.3    The remaining sections of the Act afford the Minister of International Relations and Cooperation discretion to confer immunity and privileges on various categories of people.

28.4    The Immunities Act does not domesticate the General Convention on the Privileges and Immunities of the OAU (the OAU Convention). It is therefore not binding in South Africa, and the structures, staff and personnel of the AU consequently do not automatically enjoy privileges and immunity in South Africa.

28.5    However, acting in terms of s 5 (3) of the Immunities Act, the Minister has agreed with the African Union Commission on Material and Technical Organisation (the AU Commission) to grant privileges and immunity to “Members of the Commission and the Staff Members, [and] the delegates and other representatives of Inter-Governmental Organisations” attending the present African Union Summit. That agreement was published in the Government Gazette on 5 June 2015 – just two days before the first AU meetings were due to commence (“the June agreement”).

28.6    The only grounds on which President Bashir could conceivably be alleged to enjoy immunity would be as a head of state or in terms of the June agreement. But in fact, neither basis confers immunity on him. Significantly however the notice promulgated by the 5th Respondent makes no reference to section 4 of the Immunities Act.

28.7    The June agreement does not confer immunity on heads of state. President Bashir could thus only claim head of state immunity based on customary international law.

28.8    However, the Rome Statute expressly provides that heads of state do not enjoy immunity under its terms. Similar provisions are expressly included in the Implementation Act. It means that the immunity that might otherwise have attached to President Bashir as head of state is excluded or waived in respect of crimes and obligations under the Rome Statute.

28.9    Indeed, the Pre-Trial Chamber of the ICC has expressly confirmed that “the immunities granted to President  Bashir under international law and attached to his position as Head of State have been implicitly waived by the Security Council”, and that South Africa is consequently under an obligation to arrest and surrender him.

28.10 Clearly and as submitted by Adv Goodman, the provisions of the June agreement do not confer any immunities or privileges on President Bashir:

28.10.1 On its terms, that agreement confers immunity on members and staff of the AU Commission, and on delegates and representatives of Inter-Governmental Organisations. It does not confer immunity on Member States or their representatives or delegates.

28.10.2 Congruent with that, the June agreement was concluded under s 5 (3) of the Immunities Act, which provides:

“(3) Any organisation recognised by the Minister for purposes of this section and any official of such organisation enjoy such privileges and immunities as may be provided for in any agreement entered into with such organisation or as may be conferred on them by virtue of section 7 (2).”

28.10.3          The provision only deals with the conferral of immunity and privileges on an organisation, which is defined in s. 1 of the Immunities Act as “an intergovernmental organisation of which two or more states or governments are members and which the Minister has recognised for the purposes of this Act”. It does not deal with, or confer a power to grant immunity on, a head of state, envoy or other representative.

28.11  It follows that the June agreement also does not confer immunity on President Bashir, and cannot serve to exclude this Court’s jurisdiction.

28.12  The Immunities Act, at its highest, confers discretion on the Minister to grant immunities and privileges on persons of her choosing. But she must exercise that discretion lawfully, in accordance with South Africa’s domestic and international law obligations. She cannot lawfully exercise the discretion where the effect will be to prevent the arrest and surrender of a person subject to an ICC warrant and request for surrender.

28.13  Nor can the State Respondents rely on the African Union’s Convention or decisions to defend the validity of the June agreement. Neither of them can trump South Africa’s obligations under the Implementation Act and the Rome Statute, for the following reasons:

28.13.1          The Rome Statute gives effect to international human rights law and enables the prosecution of customary international law crimes. As such, its provisions enjoy pre-eminence in our constitutional regime. Moreover, it has been domestically enacted. Its binding status is clear.

28.13.2          By contrast, the OAU Convention has not been domestically enacted. Despite the Immunities Act having been passed after the adoption of the OAU Convention, it was not ratified. That represents a clear choice by the Legislature not to confer blanket immunity on AU bodies, meetings and officials that attend them.

28.13.3          Decisions of the African Union also cannot trump South Africa’s obligations under the Rome Statute. That is because their status in domestic law is persuasive, at best.

29. The Government Notice of 5 June 2015 issued by the Fifth Respondent in Gazette No. 38860 reads as follows:

“Minute

In accordance with the powers vested in me by section 5 (3) of the diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), I hereby recognize the “Agreement between the Republic of South Africa and the Commission of the African Union on the Material and Technical Organization of the Meetings of the 30th Ordinary Session of the Permanent Representatives Committee from 7 to 9 June 2015; the 27th Ordinary Session of the Executive Council from 10 to 12 June 2015 and the 25th Ordinary Session of the Assembly on 14 to 15 June 2015 in Pretoria (7 and 8 June 2015) and Johannesburg (10 to 15 June 2015), Republic of South Africa” for the purposes of granting the immunities and privileges as provided for in the Agreement between the Government of the Republic of South Africa and the Commission of the African Union as set out in the Notice.”

It was issued in terms of the provisions of s 5 (3) of the Immunities Act. It “recognizes” the mentioned Agreement between the Republic and the “Commission of the African Union on the Material and Technical Organization of the Meetings …”

Section 5 of the Immunities Act reads as follows:

Immunities and privileges of United Nations, specialised agencies and other international organisations

  • The Convention on the Privileges and Immunities of the United Nations, 1946, applies to the United Nations and its officials in the Republic.

  • The Convention on the Privileges and Immunities of the Specialised Agencies, 1947, applies to any specialised agency and its officials in the Republic.

  • Any organization recognised by the Minister for the purposes of this section and any official of such organization enjoy such privileges and immunities as may be provided for in any agreement entered into with such organization or as may be conferred on them by virtue of section 7 (2).”

30. It is clear that neither the Minute, nor s 5 (3) refers to a Head of State. Nor does Article VIII of said Agreement which per clause 1 reads as follows:

“The Government shall accord the Members of the Commission and Staff Members, the delegates and the representatives of Inter-Governmental Organizations attending the Meetings the privileges and immunities set forth in Sections C and D, Articles V and VI of the General Convention on the Privileges and Immunities of the OAU.”

The Agreement is between the Republic and the AU Commission and this is recognised by the said Minute of 5 June 2015. Article VIII does not refer to a Head of State but to Members of the Commission and other Inter-Governmental Organizations. It is also clear from the Preamble to the Agreement that the Commission is charged with the exclusive responsibility of organizing, conducting and managing the meetings. No head of state has this responsibility and no such submission was advanced before us. Furthermore, whilst the Fifth Respondent relied on s 5 (3) of the Immunities Act and issued the Minute in terms thereof, it is clear that s 4 of that Act specifically deals with ‘Immunities and Privileges of heads of state, special envoys and certain representatives. It reads as follows:

“Immunities and privileges of heads of state, special envoys and certain representatives

  • A head of state is immune from criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as –

  • Heads of state enjoy in accordance with the rules of customary international law;

  • Are provided for in any agreement entered into with a state or government whereby immunities and privileges are conferred upon such a head of state; or

  • May be conferred on such head of state by virtue of section 7 (2).

  • A special envoy or representative from another state, government or organisation is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as –

  • A special envoy or representative enjoys in accordance with the rules of customary international law;

  • Are provided for in any agreement entered into with a state, government or organisation whereby immunities and privileges are conferred upon such special envoy or representative; or

  • May be conferred on him or her by virtue of section 7 (2).

  • The Minister must by notice in the Gazette recognize a special envoy or representative for the purposes of subsection (2).

It cannot be argued that Section 5 applies to a Head of State according to the basic principles of interpretation nor can s 4 (1) (a) be used to confer immunity on the President, as he does not enjoy immunity in accordance with the rules of customary international law. We have already pointed out above that the 5th Respondent did not rely on this section in any way in her notice.

31. The Respondents’ reliance on these documents is therefore ill-advised and ill-founded. They could not possibly “trump” the international agreement, the Rome Statute i.e, and the subsequent Implementation Act. In any event the Implementation Act enjoys legislative authority, having passed through Parliament, and it cannot be displaced by a notice promulgated by a Minister nor by a Cabinet decision. Finally, the decision of the ICC Pre Trial Chamber On the Cooperation of the Democratic Republic of the Congo regarding Omar Al Bashir’s arrest and Surrender to the Court No ICC 02/05-01/09 dated 9 April 2014 bears mention. The facts in that matter bear a striking resemblance to the facts in the matter we are dealing with. In that matter President Bashir had attended a Common Market for Eastern and Southern Africa (COMESA) meeting hosted by the Democratic Republic of the Congo (DRC) in Kinshasa. The ICC had issued a request to the DRC as a signatory to the Rome Statute to arrest President Bashir. This  did not happen as the DRC stated that as a signatory to the Rome Statute on the one hand and a member of the AU on the other, it had been placed in a difficult situation and that time constraints rendered it materially impossible to take a decision to arrest the President especially considering that the President had left the country early in the morning. The DRC had also contended that President Bashir enjoyed certain immunities as a result of his position as Head of a Member State of the AU and further that the AU had decided on 12 October 2013 that no serving Head of State or Government shall be required to appear before any international court or tribunal during their term of office.

32. The DRC had further argued that the request to arrest and surrender President Bashir became inconsistent with its obligation to respect the immunities attached to his position as Head of State. The ICC jettisoned this argument on the basis of article 27(2) as providing an exception to the personal immunities of Heads of State and that such immunities did not bar the Court from exercising jurisdiction over such Head of State. As to the alleged difficulty arising because of the Court’s assertion of jurisdiction on the one hand and the AU’s stance on the other, the Court referred to Security Council Resolution 1593 (2005) as well articles 25 and 103 of the UN Charter. The essence of these provisions boils down to the fact that Members of the UN agree to accept and carry out the decisions of the Security Council. Further that in the event of a conflict in the obligations of members of the UN under the UN Charter and their obligations under any other international agreement their obligations under the Charter would prevail. For these reasons the ICC Pre Trial Chamber dismissed the DRCs reasons for failing to arrest President Bashir. The ineluctable conclusion borne out by this ruling is  that the Respondents’ argument based on immunities provided for in the host agreement and on AU membership are misguided.

33. One last important aspect deserves mention: The Respondents’ argument was solely founded on the relevant Statutes and legislative documents. Neither in the Answering Affidavits nor during argument, was any question of necessity raised, namely that the government of South Africa was justified in disobeying the order of 14 June 2015, or ignoring its domestic and international obligations in terms of the Implementation Act, in order to preserve international relations, or relations between AU members. Having regard to the principle of separation of powers between the executive, legislative and judicial arms of the State, it is in any event clear that this Court would not have concerned itself with policy decisions which in their nature fall outside our ambit. As a court we are concerned with the integrity of the rule of law and the administration of justice.

See: National Treasury vs Opposition to Urban Tolling Alliance 2012 (6) SA 223 CC at par. 63 – 67.

34. We are further impelled to state that as a court of law we are obviously the wrong forum for the ventilation of regional and international policy considerations, which as we say above, were not ventilated before us. We however find it prudent to invite the ICC to take cognisance of the issues that arise in this matter. As we demonstrate in this judgement, South Africa is not the only Rome statute signatory that has failed to carry out its duties in terms of that statute when it could have done so based on a conflict between its regional affiliation on the one hand and its broader international obligations on the other.

35. For all the aforegoing reasons the order was granted on 15 June 2015, with all members of the Full Court agreeing.

36. The departure of President Bashir despite an order prohibiting this.

We dealt with the departure of President Bashir earlier in the face of an order of this court handed down on Sunday 14 June 2015 which prohibited such departure. Perhaps the questions that can be asked about the apparent non-compliance with this court’s explicit order of Sunday 14 June are:

36.1    how was it possible that President Bashir would, with his whole entourage, travel from Sandton to Waterkloof Airbase, without any of the Respondents’ knowledge?

36.2    how was it possible that the Sudanese plane would take off from the airbase without the Respondents knowing whether the President was on board or not?

36.3    how would that plane be able to land in Sudan by late afternoon if it had not departed at about noon that same day?

37The answers suggest themselves, and without intending to pre-empt the proceedings that may follow once the affidavit this court has ordered is received, it is necessary, in the interests of justice and the rule of law to say the following:

37.1. The Respondents are quite aware of the provisions of ss 1 and 2 of the Constitution which declare that the State is founded on the supremacy of the Constitution and the rule of law. They are also aware of the constitutional enjoinder that international agreements bind the Republic, especially those that have been ratified (s. 231). They are obviously bound to comply with domestic legislation and obviously the Implementation Act. They must also be aware of s. 165 of the Constitution, which reads as follows:

“165 Judicial Authority

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

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

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

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

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

37.2. At this stage, on a common sense approach, there are clear indications that the order of Sunday 14 June 2015 was not complied with. It is in this reason that we are moved to state that:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.

38. In the context of s. 165 of the Constitution of South Africa, the Constitutional Court has also confirmed that principles of the rule of law are indispensible cornerstones of our constitutional democracy.

See: Justice Alliance of South Africa v The President of the Republic of South Africa 2011 (5) SA 388 at par. 40.

The emphasis must be on “indispensible”. Where the rule of law is undermined by Government it is often done gradually and surreptitiously. Where this occurs in Court proceedings, the Court must fearlessly address this through its judgments, and not hesitate to keep the executive within the law, failing which it would not have complied with its constitutional obligations to administer justice to all persons alike without fear, favour or prejudice.

39. We stated earlier that the departure of President Bashir form this country before the finalisation of this application and in the full awareness of the explicit order of Sunday 14 June 2015, objectively viewed, demonstrates non-compliance with that order. For this reason we also find it prudent to invite the NDPP to consider whether criminal proceedings are appropriate.

_____________________________

JUDGE D MLAMBO

JUDGE PRESIDENT OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

_____________________________

JUDGE A P. LEDWABA

DEPUTY JUDGE PRESIDENT OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

_____________________________

JUDGE H. J. FABRICIUS

JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

Case number: 27740/15

Counsel for the Applicant:                         Adv I. Goodman

Instructed by: Webber Wentzel Inc Johannesburg

Counsel for the Respondents:                  Adv I. Ellis on 14 June 2015

Adv Mokhari SC on 15 June 2015 with Adv I. Ellis

Instructed by: The State Attorney

Date of Hearing:      14 – 15 June 2015

Date of Judgment:   23 June 2015 at 11:30

Law Society Statement on Rule of Law and court orders

PRESS RELEASE

18 June 2015: For immediate release

LAW SOCIETY CONDEMNS COMPROMISE OF THE RULE OF LAW

The Law Society of South Africa (LSSA) raises its serious concern at the clear trend emerging of undermining the Rule of Law and disregarding court orders. Generally, this has been a concern for some time, but the clear flouting of our constitutional and international obligations and the order of the Gauteng High Court earlier this week in the events surrounding the African Union Summit, have been a glaring manifestation of this trend.

‘We also express our serious concern at the trend by African leaders – including our Government – to emasculate regional and international instruments and tribunals set up to protect human rights and the victims of human rights abuses. This is evident in the attitude adopted towards the International Criminal Court and the SADC Tribunal, and the lack of progress in granting criminal jurisdiction to the African Court on Human and Peoples’ Rights,’ say LSSA Co-Chairpersons Busani Mabunda and Richard Scott.

They add: ‘The threat to withdraw from the Rome Statute is akin to the developments that have taken place at SADC Tribunal level, where Heads of States have agreed to change the protocol to deprive members of the public from the right to approach the court for redress if their own courts do not provide such. The protocol now provides only for interstate access, namely access by states only, not individuals. These developments do not bode well for the African Court’s expanded jurisdiction.’

In addition, grave concern is expressed that the Minister of Justice and Correctional Services was party to a Cabinet decision that led to the serious situation that arose this week.

The LSSA commends our judiciary for its independence and the strong stance taken in protecting the Rule of Law without fear, favour or prejudice.

‘As regards the Southern Africa Litigation Centre (SALC), we point out that – like any individual or duly recognised body – it has jurisdiction and locus standi to bring an application before our courts, and we commend them for doing so in this case. Undermining its standing and casting unwarranted aspersions on its funding, is unacceptable and is rejected outright,’ say Mr Mabunda and Mr Scott.

The LSSA urges Government to consider its stance carefully in this case and also its obligations when it accedes to and domesticates international treaties; particularly in the light of the collapse of the SADC Tribunal. This has serious ramifications for us as South African and regional citizens.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, BUSANI MABUNDA AND RICHARD SCOTT
by the Law Society of South Africa Communication Department
Tel: (012) 366 8800 or Website: www.LSSA.org.za

Contact: Barbara Whittle, Communication Manager, barbara@LSSA.org.za (012) 366 8800 or 083 380 1307
Nomfundo Manyathi-Jele, nomfundom@LSSA.org.za (012) 366 8800 or 072 402 6344

Editor’s note:

The Law Society of South Africa brings together its six constituent members – the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces, the Black Lawyers Association and the National Association of Democratic Lawyers – in representing South Africa’s 23 000 attorneys and 5 500 candidate attorneys.

Media Statement: Public Protector responds to Minister Nhleko’s Nkandla Report

Media Statement; Friday, May 29, 2015

Subject: Public Protector responds to the Minister of Police’s report on Nkandla

The Public Protector, Adv. Thuli Madonsela, notes Minister of Police Nathi Nhleko’s report to Parliament on the security upgrades at President Jacob Zuma’s private residence in Nkandla, KwaZulu-Natal. She is of the view that Minister Nhleko gave the matter his best and that he applied his mind to the issues at hand.

The Public Protector believes the shortcomings of the Minister’s report are partly due to the fact that the Minister is a member of an executive, whose members, including the minister’s supervisor, are among the public functionaries found to have acted improperly in the report.

The shortcomings observed by the Public Protector include misstatements, inaccuracies, incomplete information, innuendos and false accusations in relation to her own investigation culminating in a report titled Secure in Comfort, issued on 19 March 2014.

1. Examples of misstatements, inaccuracies, incomplete information and innuendos

A claim is made in Minister Nhleko’s report, which incorrectly states that the Public Protector found that “no public funds was used to build the President’s house(s)” (sic). This could not be further from the truth. According to paragraph 10.10.1.1. of the Public Protector’s report: “President Zuma told Parliament that his family had built its own houses and the state had not built any for it or benefited them. This was not true. It is common cause that in the name of security, government built for the President and his family at his private residence a Visitor’s Centre …” This is important because the Visitor’s Centre itself is a house, a double story building.

In another instance, an impression is created in Minister Nhleko’s report that the Public Protector found that there was no need for a water source to help in the event a fire broke at the President’s residence. This is false. As can be gleaned from paragraph 10.3.2 of the Public Protector’s report: “Measures that should never have been implemented as they are neither provided for in the regulatory instruments, particularly the Cabinet Policy of 2003, the Minimum Physical Security Standards and the SAPS Security Evaluation Reports, nor reasonable, as the most cost effective to meet incidental security needs, include … a swimming pool …”

Minister Nhleko’s report further does not indicate the scope of his investigation and timeline. The relevance of these is to indicate what issues where included or excluded in his investigation.

2. Status of the Public Protector’s report

The Public Protector stands by her report. As far as the Public Protector understands the Constitution and the law, neither the Executive nor the Legislature can override the findings of any independent institution established under Chapter 9 of the Constitution, replacing such determinations with their won. This is why the Constitution states in Section 181(2) that “these institutions are independent and subject only to the Constitution and the law …” In any event, Minister Nhleko’s report does not attempt to review the Public Protector’s report. Instead, it makes random and sometimes adverse comments on isolated aspects of the report.

3. Security expertise

The Public Protector has further noted repeated uninformed statements that seek to suggest that she needed to have been a “security expert” in order to make findings on what constitutes security items and what doesn’t. Such a view cannot be possibly rational. Firstly, in deciding which items were security measures and which were not, the Public Protector relied on authorising instruments and decisions of authorised people and structures such as the security experts assigned responsibility in the relevant policies. The authorising instruments were the Cabinet Policy of 2003, the Minimum Physical Security Standards and the South African Police Service (SAPS) Security Evaluation Reports compiled by security experts. In addition, the very same experts prepared a list that itemised things that the owner had to pay for.

In any event, adjudicators need not be experts in the field of matters that are the subject to their scrutiny. For example, Judge Ian Farlam who presided over the Marikana Commission of Inquiry did not need to be an “expert” on policing in order to discharge his duties in that regard. This is because adjudicators such as the Judges and the Public Protector, among others, make determinations on the basis of the evidence before them, coupled with what the law says versus what happened.

4. What ought to have happened

In terms of paragraph 11.1.1. of the Public Protector’s report, the President was to “Take steps, with the assistance of the National Treasury and the SAPS [South African Police Service], to determine the reasonable cost of the measures implemented by the DPW [Department of Public Works] at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheater, the cattle kraal and chicken run, the swimming pool”. The President was also to “pay a reasonable percentage of the cost of the measures as determined with the assistance of the National Treasury, also considering the DPW apportionment document”. From the above extracts, it is clear as to what the role of the SAPS was in relation to the implementation of the remedial action the Public Protector took in terms of Section 182(1) (c) of the Constitution and Section 9 of the Public Protector Act 23 of 1994.

5. Way forward

The Public Protector, as the only oversight authority that is legally competent to advise the President on matters of Executive Ethics, will write to the President to point out the limitations in the Minister of Police’s report, with a view to ensuring that the President is placed in a position to make an informed decision not based on withheld or distorted information.

Lastly, the Public Protector would like to emphasise the point that she did not make the rules that she relied upon in investigating the matter in question, the government did. Furthermore, Minister Nhleko is a member of the executive, who serves at the behest of the President. This is why the late former President Nelson Mandela, in making the point that executive excesses and conduct must be subjected to the scrutiny of independent institutions that operated outside the executive, said the following:

“Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order. An essential part of that constitutional architecture is those state institutions supporting constitutional democracy. Amongst those are the Public Protector, the Human Rights Commission, the Auditor General, the Independent Electoral Commission, the Commission on Gender Equality, the Constitutional Court and others…”

End.

SERI Press statement: Judge Farlam entitled to release Marikana Report

PRESS STATEMENT

Issued by: Socio-Economic Rights Institute of South Africa (SERI) and Legal Resources Centre (LRC)

27 May 2015

 Families request Marikana Report be released by Friday

The Socio-Economic Rights Institute of South Africa (SERI) and the Legal Resources Centre (LRC) represent the families of the 37 mineworkers killed at Marikana on 13 and 16 August 2012.

Yesterday we wrote to President Jacob Zuma expressing concern that the report of the Marikana Commission has not yet been publically released, despite the clear public interest in it being promptly made available. We are aware of the announcement made by the President during his budget vote speech in Parliament yesterday that the report will be released before the end June.

This has not been communicated to our clients, and a letter sent on their behalf on 31 March has received no response. The families consider the more than seven weeks since the report was handed to the President reasonable time to consider it, and have requested that the President release the report by 1 June 2015.

Today we also wrote to Judge Ian Farlam on the families’ behalf requesting that, in the event that the President refuses to release the report by 1 June, he and his fellow Commissioners release the report. Regulation 15 of the Procedural Regulations establishing the Commission provides that:

No person shall, except in so far as shall be necessary in the execution of the terms of reference of the Commission, publish or furnish any other person with the report  or any interim report of the Commission or a copy or a part thereof or information regarding the consideration of evidence by the Commission for publication before the expiration of a period of 14 days after it has been submitted to the President: provided that the President may authorise publication of any such report before the expiration of that period.

Our clients are aware that the Commission has had the power to release the report to the public for more than five weeks. They accept that this has not occurred in order to allow the President a reasonable period of time to consider the report and prepare a response. However they believe this period has now expired and that there is no legitimate reason to delay publication any further. The families request that Judge Farlam make an undertaking that, should the President not release the report by 1 June, he will release it on 2 June, or provide reasons for refusing to do so.

A particular concern of the families is the risk that the dates on which their claims against the State prescribe will arrive before the report has been published. This will obviously hamper them in pursuing these claims, and possibly lead to wasted time and costs in amending pleadings to take account of the contents of the report. 

  • Presentations made by the 37 families of the deceased miners before the Marikana Commission of Inquiry here.

 Contact details: 

Nomzamo Zondo, SERI director of litigation: nomzamo@seri-sa.org / 071 301 9676 / 011 356 5868.

Naadira Munshi, SERI researcher: naadira@seri-sa.org / 082 494 3988 / 011 356 5872.

DCJ Dikgang Moseneke: The Media, Courts and Technology: Remarks on the Media Coverage of the Oscar Pistorius Trial and Open Justice

The Media, Courts and Technology: Remarks on the Media Coverage of the Oscar Pistorius Trial and Open Justice

(First published on the Constitutional Court website, the speech can also be accessed here.)

Dikgang Moseneke*

Introduction

Good evening ladies and gentlemen and esteemed guests. I want to extend my gratitude to the Chairperson of the National Press Club as well as to Professor Dan Kgwadi, the Vice Chancellor of North-West University for inviting me to speak here tonight. I extend my gratitude to Mr Ben Rootman who did just about everything to get me to break away from my full court schedule and to be here tonight. I would like to recognise the Honourable Madam Justice Mathilda Masipa and esteemed counsel in the Pistorius trial and other judicial colleagues who may be here. Since I will not have another opportunity, it is opportune to congratulate the winning 2014 journalists. Thank you for all the hard work and thoughtfulness you put into your work. I just don’t know how to congratulate the winner for 2014 which is said to be the Oscar Pistorius trial. But I remain deeply proud of the manner in which all of those who were part of this trial allowed our nation and the world into our courts and into how we dispense justice.

As we all know, something happened last year that changed the landscape of how the media reports on court proceedings. In 2014, the trial against Oscar Pistorius gained as much worldwide media attention as the missing MH370 plane. It inspired books, newspaper articles, TV channels, journal articles and blogs. Everything about the trial – the judge’s rulings, the witnesses that gave evidence, and especially the verdict – clogged social media newsfeeds in our laptops and other devices for months on end. There can be no doubt that the Pistorius trial was of great interest, both at home and abroad. And it has changed irreversibly the manner in which the media and the justice system of our country converge. But I will leave the impact the trial had on the media in South Africa in the more capable hands of Professor Froneman. For my part, I want to talk about the impact of the Pistorius trial on the intersection between, or if you will the interface between, the judicial function and the media and the public. Let me warn again that I will not be talking about how the trial, which is still in an appeal process, changed the judicial system, but rather about how the Oscar Pistorius trial has changed how the public and the media has acquired greater insight and access to the judicial function. In other words, I am not going to talk about the merits of the trial, whether or not is correctly decided and least still about whether it will create a good or bad judicial precedent going forward. My concern will be how the trial has ushered in a new era in the intersection between justice and the media.

In fact, I am proud to announce that the Constitutional Court, just two days ago, became the first court in Africa to have an active presence on Twitter, with a newly-accessible audience of the five-and-a-half million South Africans that currently use that social media platform.1 I’m even led to believe that, so long as I press all the right buttons, I can post a tweet during this very speech.2 The United States and the United Kingdom Supreme Courts have been on Twitter for some time now. We are becoming part of that elite team of apex courts adapting to the modern age. Our presence on Twitter is symptomatic of that change.

But tweeting aside, here is what I want to do tonight. I would like to start, as I do every time I consider a case, with our rightly venerated Constitution. In particular, I want to talk about the time-honoured notion of “open justice”. We have all no doubt heard the concept summarised in that pithy quote: “justice must not only be done, it must be seen to be done”.3 I want to trace that concept across the lineage of our nation. Then, I would like to pause and look at judicial response to the public and media clamour to have full access to the proceedings in the Pistorious trial against the backdrop of the doctrine of open justice. That seminal response is to be found in the decision of Judge-President Mlambo in Multichoice.4 That decision was delivered just ahead of, and as a result of, the imminent start of the Pistorius trial. The media houses made a big ask indeed from the courts. They posed serious questions about how our courts could better ensure the hallowed principle of open justice. The questions were many and complex, but even more intriguing, they were new to the judicial system. Should we let the reporters in: yes? With more than their pens and little traditional note pads: yes? With their smartphones, electronic notebooks and iPads? Or should we perhaps jam the signal in the court houses? Why, then, shouldn’t we let the cameras in as well? If we do, should the cameras relay to the world instantly or at all, everything we say and do in court? Or should we rather have the cameras fixed on the judge only?

With that in mind, I would like to then discuss this new age we live in, and how, because of the rapid advancement of technology, our society is no longer one in which citizens must, or should have to, wander into courtrooms to find out what is happening. People can now see, people can now see and hear, all in the confines of their own homes, offices, villages or indeed in any other open spaces, so long as they have an active internet connection. And finally, as a reality check for all of us, I would like to evaluate the challenges for open justice as it faces the brave new world of limitless instant feeds about everything, everywhere.

Our Constitution and open justice

The principle of open justice is an incident of the values of openness, accountability and the rule of law, as well as a core part of the notion of a participatory democracy. All these are foundational values entrenched in the Constitution. The preamble of the Constitution contemplates “a democratic and open society in which government is based on the will of the people”, and the text requires that our democracy shall ensure accountability, responsiveness and openness.5 The public is entitled to have access to the courts and to obtain information pertaining to them.6

In traditional African culture, the shade of a tree was the place where disputes of society were mediated and resolved. It was on this soil that the community would meet for a “lekgotla”. There was room for all to have their say. Everybody was an active participant of the process. This is how justice was done. It is the age-old concept of justice under a tree.

Courts play a vital role to solve conflicts in all spheres of life. This is what the Constitution promises us. The aesthetics of the Court building are a daily gentle reminder of this promise. The overarching theme of the Constitutional Court building is justice under a tree. For instance, the Constitutional Court logo depicts people sheltering under a baobab tree. As former Justice Sachs described it, “[t]he tree protects the people, and they look after the tree.”7 This is symbolic of the synergy between the law and the people. It gives the Court an organic ambience: a space where you feel welcome to see justice in motion.

There are innumerable quotes, many of which invoke powerful imagery, about the ills suffered by a society that does not promote open justice. It does, after all, form part of the bedrock principles of a functioning democracy, and helps to quench the people’s “fundamental, natural yearning to see justice done”.8 The crispest and truest of these quotes is that “[d]emocracies die behind closed doors”.9 The principle of open justice is one which strikes at the very heart of what South Africa has been, and is still, trying to achieve in the post-apartheid era. We acknowledge a difficult truth: trust in government institutions in this country is hard-earned. If we do not subject ourselves to the greatest of scrutiny, how can we hope to persuade the public to recommence, or perhaps commence for the first time, that which was lost for so long: faith in the social contract. We can only move forward as a country when we voluntarily, if not happily, sacrifice certain liberties in return for the good that can be achieved in a representative democracy: uniform laws that apply to all, a social welfare system that protects the most vulnerable among us, and institutional redress when our rights are compromised. Indeed, transparency of the judicial process is so fundamental to developing public trust that “all other checks are insufficient [and] of small account. Recordation, appeal, [and] other institutions operate as [mere] cloaks [rather] than checks; as cloaks in reality, as checks only in appearance”.10 The arguments in favour of open justice are discussed widely, but are perhaps best summarised as:

First, it assist[s] in the search for truth and play[s] an important role in informing and educating the public. Second, it enhance[s] accountability and deter[s] misconduct. Third, it ha[s] a therapeutic function, offering an assurance that justice has been done [a sense of communal catharsis]11

Of course, open justice is not a novel concept in South Africa, miraculously discovered in our lifespan as a constitutional democracy. The foundational nature of a public trial has been recognised in our country since as far back as 1813.12 And globally, the roots of the public trial have been “traced back beyond reliable historical records”,13 with the notion being incorporated into almost every international human rights instrument.14

But what did happen recently, in 1994, was that time stopped, and our country was divided. Not by people, though, but by time. When the new constitution came into force, a new South Africa was born. The old South Africa, tyrannical and unjust, was now impotent in its reign, while the new South Africa was full of hope and unconstrained potential. The Constitution of the new South Africa has been applauded by Justice Ginsburg of the United States Supreme Court as “a deliberate attempt to have a fundamental instrument of government that embrace[s] human rights [and ensures] an independent judiciary”.15 For open justice alone, the Constitution guarantees the freedom of the press, the freedom of the media, and the right of the public to receive and discuss information and ideas.16 It provides for all criminal accused the right of a fair and public trial.17 And for all others, a fair and public hearing.18 Even the Constitutional Court itself is architecturally designed to both ensure, and represent, open justice. For example, the courtroom includes a dedicated media box, windows on all sides, and artwork of clouds on the walls to give one the impression of being outside. Further, the logo of the Court is intended to symbolise justice under a tree. Consider this in comparison to the past, the old South Africa, with rampant practices of incommunicado detention, without any prospect of a proper trial. The old Terrorism Act19 permitted a senior police officer to decide that a person should be detained without trial for up to sixty days, without any right to communicate with the outside world. While the Act had the appearance of being “designed to combat terrorism [it in fact] itself became an instrument of terror”.20

There is also no shortage of comments about open justice from judges in the last twenty years, particularly when it butts heads with the right to a fair trial. In 2006, for example, the Constitutional Court was asked to decide whether it was acceptable for the Supreme Court of Appeal to restrict the media to purely visual recordings, with no audio.21 The matter was brought before us on an urgent basis, and almost exclusively because of that, and the desire not to rush such an important decision, most of the Judges refused to allow the media to audio-record the proceedings. The now-retired and well-revered Justice Albie Sachs said that he only refused the media’s request in order to “await the establishing of appropriately negotiated procedures for guaranteeing accurate, balanced and fair reporting.”22

This provision is, to a large extent, realised via section 152 of the Criminal Procedure Act 51 of 1977, which expressly requires all criminal prcoeedings to “take place in open court”.

The principle of open justice is, after all, a core part of the notion of participatory democracy, particularly one whose Constitution begins with the very words “democratic and open society”.23 It is not a principle that should be defined in haste. The public is entitled to have access to courts, and to obtain information about them. Besides the obvious space limitation of there not being enough room in a courtroom to always fit everyone, and the distance limitation of court proceedings taking place in all four corners of our country, there is also the realistic point that not everyone wants to come to court to find out what is happening. Instead, they rely on the media to tell them. And we do not want a system in which the judicial system is “shrouded in mystique and protected at all times from the prying eye of the camera or the invasive ear of the microphone”.24 We want a system in which the public trusts that the judiciary is acting according to the “time-honoured standards of independence, integrity, impartiality and fairness.”25 For that to happen, we must, as far as reasonably practicable, create means for the media to access, observe and report on the administration of justice.26 This has generally involved the media having the ability to enter the courtroom, and to access papers and written arguments.

Multichoice: enabling society a first-hand look in the courtroom

This brings me to the watershed decision of Judge President Mlambo on how to strike a balance between openness and justice. The newsmaker of the year for 2014, the Oscar Pistorius trial, posed trenchant questions on the real life meaning of open justice. In September 2014 Mr Pistorius was found guilty of culpable homicide and a firearm offence,27 and sentenced to a maximum of five years’ imprisonment.28 But I did not come here tonight to talk about the verdict and sentence against Mr Pistorius. I was invited here to talk because the Pistorius trial broke boundaries previously unbroken. International journalists flocked here in droves. Our newspapers, our televisions, our radios, even our Facebook feeds, were flooded with information. An entire 24-hour television channel was created with the sole purpose of televising, and then discussing, the proceedings. The coverage was so extensive that one would have needed to sever all contact with the human world to not hear about the trial. And all of this was made possible because, before the trial even began, Judge Mlambo did what no South African court had before dared to do: media organisations were given permission to broadcast, live and in full Technicolor, a criminal trial.

In reaching that decision, the Judge recognised that when two constitutional rights butt heads, such as the right to freedom of expression and the right to a fair trial, it is not a matter of determining which right is more deserving so that courts may declare a victor and jettison the loser.29 No, the true path is far more complex, and involves a balancing exercise to reconcile the two.30 The media in that case, unsurprisingly, argued that “[f]reedom of expression lies at the heart of a democracy”31 and urged the court to “exercise its. . . inherent power to regulate its own”32 processes in order to permit the broadcasting of “the entire criminal proceedings”33 against Mr Pistorius. Mr Pistorius, on the other hand, contended that he, his counsel and his witnesses would be inhibited by the “mere knowledge of the presence of audio visual equipment, especially cameras”,34 and that media coverage as sought would “enable witnesses. . . to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified.”35

The Court began by reflecting that the question is not whether the media – be they electronic, broadcast or print – should be allowed to cover court proceedings, but “how guarantees can be put in place to ensure the public is indeed well informed about how the courts function”.36 The learned Judge did not look favourably upon the potential situation in which only the “small segment of the community. . . [with] access to tools such as Twitter [are]. . . able to be kept informed”,37 particularly when “[our] democracy is still somewhat young and [there are still negative] perceptions that continue to persist in the larger section of South African society”.38 But the Court did concede the valid concerns of broadcasting visual images of Mr Pistorius and his witnesses, such that they may be “disabled. . . in giving [their] evidence.”39 So the learned Judge concluded that the audio of those witnesses could be broadcasted, but no visual imagery. Ironically this was the exact opposite of what was permissible in Shaik, in which visual imagery was permitted but no audio. And so it was that Judge Mlambo struck a compromise, which he believed, achieved, open justice without improperly impinging on the fairness of the trial.

It was only four months later in the trial against Radovan Krejčíř40 that we saw a similar order made, permitting media coverage of another trial. And already there was improved media freedom. In the Pistorius trial, the media was required to have their cameras installed 72 hours before the trial was set to begin, and those were to be controlled in a nearby room, with no cameramen permitted in the courtroom.41 But in Krejcir, two cameras were allowed to be controlled by cameramen in the courtroom itself, so long as they did not move around the court while it was in session.42 Next, we must ask ourselves, should court orders be limited to discussing only cameras and microphones in the courtroom? Or should we begin to address intentionally the question of whether those in the gallery, including the media, should also be allowed to use their smartphones and laptops? And if so, to what extent? Should live- streaming be permitted, straight from the courtroom?

Technology in the courtroom

The question of technology in courts is a two-pronged question: what technology should the court itself use, and what technology should the court allow others to use? In response to the first question, we are making strides on that front. As I just said, we now have a Twitter account. We are also investigating the possibility of evolving into a paperless court. We are truly proud of the strides our Constitutional Court has taken to become substantially digital. It is compulsory for litigants to file court records in digital form alongside hard copies. All case records, pleadings, written argument, court judgements and orders are digital and may be accessed by the public from our website within minutes of their being issued. Parties, their lawyers and the public can track our case management online. In fact our website is visited extensively and reflects thousands of hits from all over the world week after week. This has helped courts of other countries to draw from our judicial experience and their citizens to formulate their constitutional claims.

As to the second question, of what technology people should be allowed to use in court, was the question the learned Judge Masipa had to grapple with in the course of the Pistorius trial. Before one of the witnesses gave evidence, the Judge prohibited reporters from tweeting or blogging about that witness’ evidence. But then, only a day later, before that witness ever gave evidence, she changed her mind and allowed all non-participants in court to tweet and blog to their heart’s content.43

A similar carte blanche approach has been taken in the United Kingdom for over four years now. In December 2010 the judge hearing the bail proceedings against Wikileaks founder Julian Assange permitted reporters to tweet in the courtroom.44 A year later, the UK Supreme Court issued a formal direction permitting “live text-based communications” such as email and social media (including Twitter) in the courtroom, in order to better promote open justice.45 In doing so, the Lord Chief Justice urged the media: “Twitter as much as you wish”.46 Now my law clerks tell me that it would have been more accurate to say “Tweet as much as you wish”, but the message remains clear: delayed information is as good as denied information. There is no reason not to, as a default position, permit live tweeting and whatever else from the courtroom. There is no logic in asking the media to step outside of the courtroom to press “send”.

And as for letting TV cameras into the courtroom, in the Constitutional Court, media houses do not need special permission to televise our proceedings live or delayed. One must however be careful here. There is a big difference between appellate proceedings where only seasoned advocates appear before appeal courts and trial proceedings were live testimony is heard from witnesses. It is indeed arguable that unmitigated publicity, particularly in relation to lay witnesses may undermine the fairness of a trial. The search for the truth may fall victim of the “you are on camera” syndrome. Having warned as I have, in most cases, live camera footage will be more accurate than a reporter’s after-the-fact summary. Whatever account they give after they leave the courtroom will inevitably be a second-hand account, their interpretation bleeding into their report. More so, mischievously selected sound bites may indeed undermine accuracy and the important context within which the words were uttered.

Challenges for open justice

Setting aside, for a moment, our celebrations about the progress we have made in encouraging greater transparency in court processes, it is important to remember that open justice is not, and has never been, absolute.47 As I mentioned earlier, there are competing objectives, which must be reconciled. And there are challenges, which must be tackled. Witness testimony might be altered if they see other witnesses testify. Witnesses might be intimidated by the presence of cameras. The last remnants of the sub judice rule may still prevent people from speaking outside of court while proceedings are still afoot. And there is also a fear that the media might manipulate audio-visual recordings out of context and mislead the public perception,48 or, as just mentioned, that any summarised version of a case will be a second-hand account, susceptible to inaccuracies and interpretive ‘spin’.49

Media presence: effect on witnesses

The first challenge for open justice is the effect of media presence on witnesses. We must guard very carefully against the possibility that witnesses might change their testimony. This might be a simple matter of their memory of events being subconsciously changed by what they see and hear in the media. In the Pistorius trial itself, witnesses all but confessed to being glued to their televisions.50 I am by no means saying that this will have affected their testimony. The concern, rather, is that we cannot safely say that it did not affect their testimony. There is also the prospect of witnesses consciously changing their tune in response to media presence. The media’s presence subjects witnesses to potential intimidation, both from others and from within themselves. Public speaking is, after all, feared by some more than death. And if rumours are to be believed, some may even fear it more than load-shedding.

But these concerns are not enough to warrant closing the courtroom doors to reporters and cameras. To prevent the possibility of witness intimidation, we would quite literally need to bar everyone from the courtroom except the litigants in every trial and subject them to stringent gag orders. Open justice demands quite the opposite.

And there are myriad measures available to protect witnesses. These range from: anonymity orders to protect vulnerable witnesses’ identities51 and allowing witnesses to testify through intermediaries52 or with the help of a support person,53 to closing the courtroom so that only certain people are present,54 or even allowing witnesses to testify from a remote location via closed-circuit television.55 Other measures might include suppression orders such as that ordered in Multichoice when Judge Mlambo prohibited the media from photographing or broadcasting the testimony of Mr Pistorius or his witnesses,56 or even, as the United States has started experimenting with, allowing witnesses to wear disguises in court.57

Sub judice rule: dead as the dodo?

In order to address the potential pitfalls of media presence in the courtroom, justice systems around the world have done what lawyers do best: they have created exceptions to a rule, the rule here being open justice. But not all of these operate in South Africa. We do not have the “threadbare fiction”58 of implied undertakings still present in some countries, which prevent parties from using documents discovered in litigation for any purpose other than the purpose for which they were provided.59 And in the absence of a juror system, we also need not concern ourselves with sequestration of juries or the possibility that jurors might go home at night and Google the case.

What may still operate in South Africa, though, is the principle of sub judice, which literally translates as “under judgment”. It refers to a prohibition on publicly discussing what happens in a case until the case is finalised. In America, the rule manifests itself in the lawyers’ ethical rules, prohibiting them from making statements outside of court that will be publicly broadcast and might affect the outcome of the proceedings.60 But how, you might ask, can a statement outside of court affect the outcome of a case in South Africa, where we have no jury system?61 The answer must surely be that it rarely could, and that the sub judice rule, and its relevance in South Africa, is, at the very least, on the verge of extinction.

The pedigree of the rule is yet to reach the Constitutional Court, but the Supreme Court of Appeal in 2007, in a case that did not even use the word sub judice, significantly narrowed the scope of the rule.62 After a crime of horrific proportions, which I needn’t detail here, the media and public’s attention was grabbed. A documentary was made, and the Director of Public Prosecutions sought an order prohibiting its broadcast before the trial on the basis that it would hinder the integrity of the administration of justice.63 First, the documentary might demonstrate inconsistencies in witness testimony that could be used to discredit them at trial. Second, witness safety may be compromised if their identities are released to the public. The Court hearing the matter considered these pitfalls to be, at best, conjectural. If there were discrepancies, all the better that the light be shone upon them, earlier rather than later. And the witnesses’ identities were already public knowledge. The Court therefore followed authorities from England,64 Canada65 and Australia66 and concluded that “a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place.”67 As you can see, in that decision the sub judice rule has been whittled down considerably. About that I say nothing now. Let it be enough to observe that the social and other media blasts and immediacy make the sub judice rule nearly impossible to hold and to keep, for better or for worse. What is more it will be near impossible for the courts to police the rule. And, as you know, what the courts cannot police cannot be enforced.

The media’s highest obligation: accuracy

Finally, perhaps the greatest challenge for open justice, as much as it is the greatest strength as well, is the role of the media. The people do not, after all, give to the media a privilege, something to enjoy. You are instead entrusted with a sacred duty, one that if not properly carried out could topple the democracy we have fought to build. You are charged with the role of conduit. It is your responsibility to take the events that happen in a courtroom with a seating capacity of no more than a couple of dozen, and convey those events, as accurately as possible, to as many of the more- than-50-million South Africans that you can reach.

And open justice is all for nought if the media does not accurately convey what happens in the courtroom. Mistakes have been made. Even in the Pistorius trial itself some analysts incorrectly cited the provisions of section 77 of the Criminal Procedure Act68 as applying, suggesting that a question had been raised whether Mr Pistorius could understand the proceedings. It was actually sections 78 and 79 that were brought into question, and whether some mental illness or mental defect impacted his criminal responsibility.69 Other mistakes have been of a more trivial nature, but are nonetheless important not to make. For example, two separate media outlets recently got various Constitutional Court judges’ names wrong when reporting on the same judgment70 earlier this year.71 We are by no means a flock of prideful egos, but we would prefer the media got our names right. That is, we ask that in carrying out your responsibilities, you worship at the altar of accuracy.

In addition to ensuring mistakes are not made, the media must also be careful not to sensationalise cases and turn them into media circuses. For example, on 16 January 2012 a headline appeared in the Pretoria News that read “Judge okays child sex”. A very misleading headline, to say the least.72 We cannot condone a situation in which a witchhunt is traipsing around in the guise of open justice, as was perhaps the case with the O.J. Simpson trial in the mid-1990’s.

Conclusion

All this to say: we, the media and the courts, share a common goal. We want the public to know. Indeed, it is our shared responsibility to ensure that they do. The trial against Oscar Pistorius may have attracted great media attention, but it is the decision in Multichoice that will set a trend for many years to come. It has paved the way for us to begin reassessing how to achieve open justice in the technological age. My caution to us all is that in doing so, we mustn’t blindly ignore the potential risks: inaccurate or sensationalised reporting or intimidation of witnesses. So while the technology is new and the language has changed, our task remains the same: a meticulous balancing exercise between many competing rights, which can only be protected through carefully considered guidance and instructions from the presiding judge in each case.

Thank you for listening, good night and God bless.

FOOTNOTES

* Deputy Chief Justice of the Constitutional Court of South Africa. I am indebted to my legal researchers Paul McGorrery, Justin Jaftha, Molebogeng Kekana and Jenalee Harrison for their invaluable help in writing this speech.

1 A number of other countries’ apex courts have been on Twitter for some time. The United Kingdom Supreme Court, for example, has been on Twitter for a few years now. See https://twitter.com/UKSupremeCourt, indicating that the profile was created in October 2011, though the first official tweet was on 6 February 2012, reading “Hello all, thanks for the warm welcome! We’ll kick off at 11.30 with Lord Reed’s swearing-in. How we’ll use Twitter: bit.ly/AaGloB”.

2 It was at this point in the speech that I sent a tweet from the Court’s official Twitter account @ConCourtSA that read “DCJ: This tweet sent live on stage from the National Press Club”. See https://twitter.com/ConCourtSA/status/599267403764215809.

3 R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256; [1923] All ER 233 at 259 per Lord Hewart CJ, as cited in Van der Walt v Metcash Trading Limited [2002] ZACC 4; 2002 (4) SA 317; 2002 (5) BCLR 454 at para 68. Note that the original reads “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

4 Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In re: S v Pistorius, In re Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others [2014] ZAGPPHC 37 (Multichoice).

5 South African Broadcasting Corporation Limited v National Director of Public Prosecution, Schabir Shaik and Others [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC) (Shaik).at para 97.

6 Section 34 of the Constitution of the Republic of South Africa, 1996 (Constitution).

7 http://www.joburg.org.za/index.php?option=com_content&id=1188&.

8 Richmond Newspapers v. Virginia, 448 U.S. 555, 571 (1980).

9 Detroit Free Press v. John Ashcroft, 303 F.3d 681, 683 (2002).

10 Bentham J, Rationale of Judicial Evidence: Specially Applied to English Practice: in Five Volumes, Vol 5 (Hunt and Clarke, London 1827) at 524.

11 City of Cape Town v South African National Roads Authority Limited and Others [2015] ZASCA 58 (Cape Town v SANRAL) at para 12. See also S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) at para 29, in which the Constitutional Court held that open justice “seeks to ensure that the citizenry know what is happening. . . so that the people can discuss, endorse, criticise, applaud or castigate the conduct of the courts. . . [It also] promotes impartiality, accessibility and effectiveness, three of the important attributes prescribed for the judiciary by the Constitution”.

12 Financial Mail (Pty) Ltd v Registrar of Insurance and Others 1966 (2) SA 219 (W).

13 Richmond Newspapers above n 8 at 564. The United States Supreme Court in that case went as far as saying that “although great changes in courts and procedure took place [since the 1300’s], one thing remained constant: the public character of the trial at which guilt or innocence was decided.” Id at 566.

14 See for example: Universal Declaration of Human Rights (1948) article 19 (freedom of opinion and expression); and International Covenant on Civil and Political Rights (1976) article 19.2 (freedom of expression).

15 http://abcnews.go.com/blogs/politics/2012/02/ginsburg-likes-s-africa-as-model-for-egypt/.

16 Section 16(1) (Freedom of expression) of the Constitution provides in relevant part that:

“Everyone has the right to freedom of expression, which includes-

  1. (a)  freedom of the press and other media;
  2. (b)  freedom to receive or impart information or ideas;
  3. (c)  freedom of artistic creativity; and
  4. (d)  academic freedom and freedom of scientific research.”

See also Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 22, in which the Constitutional Court held that “[t]he media are key agents in ensuring that. . . the [public’s] right to receive information and ideas. . . [is] respected”.

17 Section 35(3)(c) (right to a public trial) of the Constitution provides that:

“Every accused person has a right to a fair trial, which includes the right. . . to a public trial before an ordinary court”. (Emphasis added.)

18 Section 34 of the Constitution (Access to Courts) provides:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” (Emphasis added.)

19 83 of 1967, particularly section 6.

20 Dugard J, Human Rights and the South African Legal Order (Princeton University Press, Princeton 1978) at 136.

21 Shaik above n 5.

22 Id at para 135.

23 Id at para 97.

24 Id at para 33.

25 Id at para 32.

26 See for example Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) at para 41.

27 S v Pistorius [2014] ZAGPPHC 793.

28 S v Pistorius [2014] ZAGPPHC 924.

29 Multichoice above n 4 at para 18, citing Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56; [2007] 3 All SA 318 (SCA) (Midi Television) at para 9.

30 Id at para 15, citing South African Broadcasting Corporation Ltd v Downer NO and Shaik [2006] ZASCA 90 at paras 14-5.

31 Id at para 6, citing South African National Defence Union v Minister of Defence and Another [1999] ZACC 7; 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC) at para 7.

32 Id at para 9, citing South African Broadcasting Corporation Limited v Thatcher and Others [2005] ZAWCHC 63; [2005] 4 All SA 353 at paras 29 and 31, in particular relying on section 173 of the Constitution, which grants superior courts the inherent power to protect and regulate their own processes, taking into account the interests of justice.

33 Id at para 1.

34 Id at para 12.

35 Id.

36 Id at para 20, citing Shaik above n 5 at para 70. 37 Id at para 21.

38 Id at para 27.

39 Id at para 25.

40 South African Broadcasting Corporation Limited v Director of Public Prosecutions, South Gauteng High Courts, Johannesburg and Others; In re: S v Krejcir and Others [2014] ZAGPJHC 241 (Krejcir).

41 Multichoice above n 4 at Orders 2.2-2.3. 42 Krejcir above n 40 at Order 4.4.

43 See http://www.biznews.com/grubstreet/intelligence/2014/03/11/twitter-ban-on-pistorius-trial-lifted-but-media-lawyers-and-journalists-worried-about-rulings/.

44 http://www.theguardian.com/technology/2010/dec/14/twitter-allowed-bail-hearing.

45 UK Supreme Court, Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) From Court for the Purposes of Fair and Accurate Reporting, 14 December 2011. Section 9 of the Practice Direction does, though, limit the carte blanche use of live text-based communications. Members of the public that are not part of the media must directly apply to the judge, even if informally through court staff.

46 http://www.theguardian.com/law/2011/dec/14/judge-court-reporters-twitter. 12

47 See for example Scott v Scott [1913] AC 417 (HL), a seminal British case on open justice from over a century ago, in which the House of Lords held there to be three exceptions to holding court proceedings in public: cases affecting “lunatics”, cases affecting wards of the Court, and cases where a public trial would defeat the entire purpose of the proceedings, such as those involving trade secrets. See in particular pages 437 (per Viscount Haldane), 441 (per Earl of Halsbury) and 480 (per Lord Shaw of Dunfermline), as discussed in A v British Broadcasting [2014] UKSC 25 at para 29.

48 Multichoice above n 4 at para 19, citing Shaik above n 5 at para 68, in which the Constitutional Court held that “[s]ound bytes from political discourse, sometimes played over and over again on television. . . carry the very real risk of trivialising complex issues and converting what should be public education into public entertainment.” The Supreme Court of Victoria in Australia seems to overcome this hurdle by providing their own audio-visual recordings of important decisions. See that Court’s website, which provides “live, or on demand, video and audio webcasts of sentences and judgments” at http://scv2.webcentral.com.au/sentences/.

49 Multichoice above n 4 at para 21.

50 See Wardle B, The sub judice rule and the Oscar Pistorius case: will the crime of contempt of court ex facie curiae become abrogated by disuse? 534 De Rebus 27 (2014), commenting that “witness after witness in the Pistorius trial [has] confess[ed] to having been glued to their television screens” (Wardle).

51 See for example Central Authority for the Republic of South Africa v K [2014] ZAGPJHC 373 at para 63 (ordering anonymity of the parties to “protect the interests of the child”) and H v S [2014] ZAGPJHC 214 at paras 1-2 (ordering anonymity because “[a]side from being a minor, as she grows up her self-esteem and dignity may be unnecessarily affected if she perceives that those who she comes into contact with are aware of her identity”).

52 See for example section 170A of the Criminal Procedure Act 51 of 1977, which permits witnesses “under the biological or mental age of eighteen. . . to give his or her evidence through [an] intermediary.”

53 This is, unfortunately, a protection that is currently only given to accused persons under the age of eighteen, allowing a parent or guardian to assist them, as per section 73(3) of the Criminal Procedure Act 51 of 1977. Witnesses and victims are not yet legislatively entitled to a support person. See for example, Galgut H, In Camera Hearings, Closed Circuit Television, Support Persons and Vulnerable Witnesses, Gender Law Unit, Sonnenberg, Hoffman & Galombik, noting that “[a]t present, no statutory provision is made for the appointment of a designated support person to accompany and thereby provide emotional support”. Available at http://www.ghjru.uct.ac.za/sexual-offencebill/Protective-Measures.pdf.

54 See for example section 153 of the Criminal Procedure Act 51 of 1977, which protects vulnerable persons by giving the judge the discretion to prohibit people from being in the courtroom if the alleged offending involves a sexual offence or extortion.

55 See for example section 158 of the Criminal Procedure Act 51 of 1977, which gives courts the discretion to allow evidence to be given by means of closed-circuit television or similar electronic media.

56 Multichoice above n 4 at Orders 4.3 and 5.10.

57 See for example United States v. Jesus-Casteneda, 705 F.3d 1117, 1119 (9th Cir. 2013) (holding that allowing a witness to testify in disguise does not necessarily violate a defendant’s rights).

58 Hearne v Street [2008] HCA 36 at paras 34, 49 and 52-3 per Kirby J.

59 See in particular Cape Town v SANRAL above n 11 at paras 27-9, holding that implied undertakings are “not part of our law”. Justice Ponnan also cautioned other courts not to impulsively adopt the implied undertaking rule without engaging in the necessary analysis under section 39(2) of the Constitution of whether it accords with the spirit and objects of the Bill of Rights, despite the inherent power under section 173 of the Constitution for courts to regulate their own processes.

60 American Bar Association Model Rules of Professional Conduct, rule 3.6(a).

61 See, for example: Kriel, Social Media in Court [2013] DEREBUS 52 at 7, such that one would “need to show that a tweet creates a real risk that substantial and demonstrable prejudice to the administration of justice [would occur]. It would be very difficult to show that a judge would be swayed by commentary on Twitter. In South Africa, we do not have the added problem of a jury system.”

62 See Midi Television above n 29.

63 Id at paras 5 and 22.

64 Attorney-General v British Broadcasting Corporation [1981] AC 303; [1980] 3 All EWR 161 (holding that “the prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice”, at 362), and Attorney-General v Times Newspapers Ltd [1974] AC 233; [1983] 3 All ER 54 (holding that a ban on publication to protect the administration of justice would be allowed only if there was a “real risk [of prejudice], as opposed to a remote possibility”, at 299A per Lord Reid and 303B-C per Lord Morris).

65 Dagenais v Canadian Broadcasting Corporation (1995) 25 CRR. (2d) 1 at 47 (holding that a publication ban could only be ordered if there was a “real and substantial risk of interference with the right to a fair trial”).

66 Hinch v Macquarie Broadcasting Holdings Ltd v Attorney General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15 (holding at para 32 that a publication would only amount to contempt if there was a “substantial risk of serious interference with the trial”).

67 Midi Television above n 29 at para 19.

68 51 of 1977.

69 See Wardle above n 50.

70 Democratic Alliance v African National Congress and Another [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR 298 (CC), a case that ironically protected freedom of expression.

71 Justice Bess Nkabinde was “Jess” Nkabinde, and Justice Johan Froneman was “Coenraad” Froneman (his middle name) in the article from January 2015. See http://mg.co.za/article/2015-01-19-da-sms-ruling-a- landmark-judgment. And Justice Van der Westhuizen was referred to, twice, as Justice van der Merwe in an another article from January 2015. See http://iolmobile.co.za/#!/article/da-victory-deserved-but-judgment- sloppy-1.1806815.

72 http://www.iol.co.za/news/crime-courts/judge-okays-child-sex-1.1452575#.VS5evfC4ddw. Note, though, that there was a retraction and apology the next day on 17 January 2012 that read “The Pretoria News wishes to retract the main headline. . . which, we believe, sensationalised a sensitive issue. . . We acknowledge the headline could have been better phrased and regret the inappropriate wording of the poster”.