Constitutional Hill

Updates

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”.

DA v Speaker – judgment on removal and arrest of MPs:

Here is the Western Cape High Court judgment declaring invalid section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (dealing with the removal and arrest of MPs in Parliament). Click here: DA v Speaker

Constitutional Court Vacancy

Here is a reminder of the judicial vacancy on the Constitutional Court. Deadline for nominations is Monday 11 May. JSC Advert- Reminder- Concourt 2015

North Gauteng High Court judgment on assisted dying

Here is the full North Gauteng High Court judgment on assisted dying (euthenasia) focusing on the right of any person to decide whether to die with dignity. (Click on this link: Euthenasia case)

LLM scholarships for 2016 at UCT Law Faculty

Claude Leon Foundation Scholarships in Constitutional Governance 2016

 2 LLM scholarships (R80 000 each for 2016)

Prof Pierre de Vos, the Claude Leon Chair in Constitutional Governance at the University of Cape Town Law Faculty, invites suitably qualified applicants to submit applications for the above post-graduate scholarships. The successful applicants will be South African citizens who plan to embark on Master’s degree by dissertation in 2016 in the fields of South African or comparative Human Rights Law, Constitutional Law or other legal and political questions relating to constitutional governance, constitutionalism, rights discourse or the promotion of social justice – including topics that require interdisciplinary research. The dissertations will be supervised by the Chair in Constitutional Governance.

  • The successful applicants will have an excellent academic record. In making the selection, the selection panel will strive to select a cohort of recipients broadly representative of South Africa’s racial and gender composition.
  • The scholarship will be awarded for a period of one year;
  • The selected scholars will be required to provide reasonable research assistance to the Chair in Constitutional Governance; and
  • The selected scholars will be expected to live in Cape Town or surroundings to be reasonably present at the University of Cape Town.

For further information contact: pierre.devos@uct.ac.za or 021 6503079.

Applicants must send a covering letter providing motivation for the application, accompanied by a full curriculum vitae with the names and contact details of three referees, all available undergraduate degree transcripts and a short (no more than one page) proposal indicating the possible topic of the post-graduate research to: pierre.devos@uct.ac.za by no later than 25 May 2015.

Con Court calls for applications for Law Clerks for 2016

LAW CLERKS 2016

CALL FOR APPLICATIONS

The Constitutional Court invites applications from suitable candidates seeking appointment as law clerks for 2016.  Each Justice of the Constitutional Court is assisted by two law clerks whose primary function is to carry out legal research for their respective Justice.  Appointments are made for the periods January 2016 to December 2016 or July 2016 to June 2017 depending on each Justice’s requirements.  Applicants should indicate the period for which they wish to be considered.  Applications are considered by all Justices of the Court, and applicants should not specify a preference to work for a specific Justice.

The Office of the Chief Justice (Constitutional Court) seeks to ensure that the persons selected are broadly representative of the South African population in terms of race and gender.  Applicants should be in possession of an LLB degree (or an equivalent or post-graduate degree) or in the final year of study for such degree and should display an interest in subjects relating to constitutional law.  Academic excellence and research experience is recommended.  Further details about the programme can be found on our website www.constitutionalcourt.org.za.

Applications should include the following:

  • a cover letter;
  • a full curriculum vitae;
  • a certified ID copy;
  • certified copies of all academic records;
  • an example of written work between 6 – 12 pages in length, which demonstrates critical legal analysis and is written solely by the applicant; and
  • letters of recommendation from two referees, together with their names and contact details (including but not limited to email addresses).

Applications are to be submitted electronically to:

E-mail: applications@concourt.org.za

The salary for these contract positions is R 270 804.00 per annum plus 37% in lieu of benefits. No other benefits are afforded.

The closing date for applications is 31 March 2015.  No applications will be accepted after this date.  A letter and/or email will be sent to each applicant upon receipt of his/her application.  If an applicant does not receive an acknowledgment of receipt, he/she must contact the Office of the Chief Justice: Human Resources Department on 011 838 2010, attention Ms C Gideon.  Applicants who are shortlisted for an interview will be notified by 15 May 2015.  If you are not notified by that date, please consider your application unsuccessful.

Con Court hears case on right not to be refused emergency medical treatment on 26/02/15

CONSTITUTIONAL COURT OF SOUTH AFRICA

Charles Oppelt v The Head: Health, Department of Health, Provincial Administration: Western Cape

CCT 185/14

Date of hearing: 26 February 2015

________________________________________________________________________

MEDIA SUMMARY

________________________________________________________________________

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 26 February 2015 at 10h00, the Constitutional Court will hear an application for leave to appeal against a judgment of the Supreme Court of Appeal regarding the right not to be refused emergency medical treatment.

On 23 March 2002, the applicant, Mr Charles Oppelt, suffered a low velocity spinal cord injury during a rugby match which left him severely paralysed. A rapid closed reduction procedure was performed on Mr Oppelt about 13 hours after the injury occurred.

Mr Oppelt instituted a claim for damages in the Western Cape High Court against the Head: Department of Health, Western Cape (the department) and three organisations responsible for the administration of the game of rugby. The claim against the department was based on the medical treatment Mr Oppelt received from three hospitals under its control.

The High Court dismissed the claims instituted against the rugby organisations. It found however that the department’s employees had failed to timeously treat the spinal injuries sustained by Mr Oppelt. Evidence of an expert witness for Mr Oppelt indicated that had the rapid closed reduction procedure been performed within four hours of the injury, Mr Oppelt would probably not have become a person with quadriplegia. This was controverted by the expert witness for the department. The High Court found that the department’s employees were negligent in failing to timeously refer Mr Oppelt to a hospital specialised in spinal injuries to enable him to be treated there for his injury within four hours. The Court further found that the unreasonable delays justified the conclusion that the department refused emergency medical treatment to Mr Oppelt as provided for in section 27(3) of the Constitution. The Court concluded that the department was liable for Mr Oppelt’s proven damages.

The department appealed to the Supreme Court of Appeal. That Court found that Mr Oppelt had failed to prove the validity of his expert’s methods on a balance of probabilities and thus failed to prove that he probably would have recovered if the expert’s methods had been applied. It therefore upheld the appeal.

In this Court, Mr Oppelt submits that the Supreme Court of Appeal’s approach to the evaluation of expert medical evidence was wrong and that it denied him a fair hearing. He further submits that his constitutional right not to be refused emergency medical treatment was violated. The department opposes the application. It submits that the approach of the Supreme Court of Appeal to medical evidence was sound and it supports that Court’s finding that Mr Oppelt had not proven causation between the treatment provided and the condition of Mr Oppelt. The department further submits that the constitutional rights relied upon by Mr Oppelt find no application in this matter.

DCJ Moseneke: Reflections on South African Constitutional Democracy – Transition and Transformation

KEYNOTE ADDRESS – REFLECTIONS ON SOUTH AFRICAN CONSTITUTIONAL DEMOCRACY – TRANSITION AND TRANSFORMATION

BY DEPUTY CHIEF JUSTICE DIKGANG MOSENEKE

AT THE MISTRA-TMALI-UNISA CONFERENCE

20 YEARS OF SOUTH AFRICAN DEMOCRACY: SO WHERE TO NOW? THE UNIVERSITY OF SOUTH AFRICA

WEDNESDAY 12 NOVEMBER 2014

Introduction and salutations

I salute you all distinguished people of our great country. I am grateful to be here rather than in court this morning. I owe gratitude to Mapungubwe Institute for Strategic Reflection (MISTRA), the Thabo Mbeki African Leadership Institute (TMALI) and special thanks to my alma mater and the only university I have ever attended and from which I acquired no less than 3 degrees during my short stint of 10 years on Robben Island. Yes, 10 years can only be a short stint if one remembers that our departed and beloved leader, Mr Nelson Rolihlahla Mandela was there for 27 years.

I have been asked to reflect on our constitutional democracy with a slant on transition and transformation. This I propose to do by looking at the past 20 years only fleetingly in order to proffer reflections on our collective future. Our hosts have urged that our dialogue in the next two days should be not diagnostic but rather prognostic. The thematic conversations at this conference seem to require of us not to analyse the past until we are hypnotised but rather to probe the future, as Lenin famously asked: “what’s to be done.” Appropriately, we have been counselled to dwell in the past only so that we may thoughtfully pose the question: “so where to now?”

This conference will be reflecting on selected trends and features of our democratic transition. I hope not to venture into allotted terrains of distinguished leaders, scholars and other thinkers who will be presenting in panels. Therefore, I will not recount historical moments, nor dabble in the discourse on our political economy or African economic renewal, let alone the global economy. There are others better suited to that task. Similarly, I won’t debate values, nation formation and social compacting. Nor will I venture into a discussion on innovation, trans-disciplinary knowledge or of the prognosis for a developmental state. These matters will enjoy the attention of distinguished contributors.

I propose to stick to my knitting. I must remind myself that, although I am a child of our revolution for a just society, I am a sitting judge in the service of all our people and their democratic state. It behoves me to speak like a judge, a role I have played so long that it now feels like the only thing I have done all my life. I will describe briefly our transition and the normative scheme of our democratic enterprise. Next, in broad brush strokes, I will depict what the transition has yielded. Being a judge I will catalogue what the courts have done in the two decades of transition. I will then turn my lens onto four selected features of our democratic project that pose trenchant challenges to the democratic project. These challenges, I think, deserve our careful reflection, as we, patriots, ask what is to be done.

The first of the challenges is the land question. Here, I will be probing whether the democratic project has secured urban and rural land justice. The second issue flows from the first. It is the vexed terrain of the achievement of equality, non racialism and restitution. In the third instance, I will ask questions about the impact of concentrated executive power on our public institutions and lastly I will reflect on the mediation and adjudication of public disputes.

Transition and resultant normative scheme

Let me start with a touch of patriotic vanity. In the wake of the Arab Spring, a US Supreme Court Justice, Ruth Bader-Ginsberg, whilst visiting Egypt was asked to provide advice on constitution-making. She is reported to have said: “I would not look to the United States Constitution if I was drafting a constitution in 2012”. She recommended to the Egyptians to look, in her words, to “the South African Constitution and perhaps the Canadian Chapter on Rights and Freedoms, and the European Convention on Human Rights.”1

A fascinating law journal article: ‘The Declining Influence of the United States Constitution’2 penned by two American Law Professors,3 bemoans the decline of American constitutionalism around the world. The article reports on an empirical study of constitutions of the world and finds that four constitutions are influential benchmarks for modern constitution-making. It lists the constitutions of South Africa, Canada, Germany, and India.4 So we can afford to be gentle on ourselves. We have managed our post-conflict arrangements better than we grant ourselves.

Our constitutional democracy was forged on the anvil of division, past injustice and economic inequity, but also on the hope for reconciliation, nation building and social cohesion. Notionally, our Constitution is premised on the will of the people expressed in representative and participatory processes. It does not only establish its supremacy, rule of law and fundamental rights but also recites our collective convictions. 5 It contains our joint and minimum ideological and normative choices of what a good society should be. It enjoins the state, all its organs to take reasonable steps without undue delay to achieve that good society. The virtuous society envisioned has a significant social democratic flavour, some reckon, and yet others take it to be a neo- liberal compromise. Aside facile tags, the Constitution provides for many progressive things. It protects and advances fair labour practices.6 It compels all to preserve an environment that is not harmful; for the benefit of present and future generations. 7 It envisions restitution of land to victims of dispossession but does not permit arbitrary deprivation of property. It permits expropriation and redistribution of land for public good provided that it is against just and equitable compensation.8 The envisioned society sets itself firmly against poverty, ill health and ignorance. This it does by promising everyone the right to have access to adequate housing, healthcare, food, water and social security subject to available resources and progressive realisation.9 A child’s best interests are of paramount importance in every matter concerning it.10 And everyone has a right to basic education including adult basic education.11

The Constitution enjoins and hopes for an effective, responsive, open and accountable governance from all organs of state inclusive of parliament, the executive and the courts. Parliament must make laws, hold the executive accountable and provide a forum for the debate of matters of national importance. The executive must implements laws, makes policy and spend fiscal allocations. Courts must resolve disputes in accordance with the Constitution and the law which includes African indigenous law and the common law.

It must follow from what I have said that our constitutional design is emphatically transformative. It is meant to migrate us from a murky and brutish past to an inclusive future animated by values of human decency and solidarity. It contains a binding consensus on or a blueprint of what a fully transformed society should look like.

What has the transition yielded?

We are dismantling racial domination. We have managed a treacherous transition and set up ground rules that underscore our democratic ethos, public morality and governance. We have established and maintained a functional democratic state with all the customary markers including multi- partyism, regular elections, and rule of law and separation of powers. Our parliamentary system functions certainly more at an elective than at a participatory level. Our fiscal and state treasury functions are not shabby and our revenue collection is world class. Our courts are independent and effective. Our chapter 9 institutions 12 , the Auditor General, the Electoral Commission, the Human Rights Commission and the Public Protector, to name a few, have teeth and often do bite. We boast of a robust civil society that takes up social causes around just about every social issue: for instance, campaigns on HIV Aids and access to healthcare; on genderised violence and on access to textbooks and education. For good measure one may add poo protests; wide-spread opposition to e-tolling; objections to the use of labour brokers and the campaign on the right to know. We have our more than fair share of open and public dissent and street protests amongst marginalised people. We are blessed with a vigilant labour movement, a free press that is prying, fearless and unbending. None of our citizen has been jailed only for political, religious or other beliefs. We are not pitted against each other in a civil war or genocide or terrorist attacks. Our transition has indeed yielded much.

If you think that is an overly rosy picture of our democratic transition I urge you to suspend your judgement until I finish. I will shortly debate future challenges to our democracy.

What value have the courts added?

In many senses our courts have been remarkable. Shortly after our transition equality and discrimination cases proliferated. In a series of notable cases, courts have refused to tolerate inequality and discrimination.13 They have struck down scores of laws that undermined appropriate respect for diversity or that harboured antiquated prejudices.14 Amidst many rumblings, courts would not tolerate for example homophobia or gender inequality inspired by religious or cultural patriarchy. They have fashioned the notion of substantive equality that travels well beyond liberal notion of formal equality.15 We have insisted that laws and policy must provide for adequate protection of children, root out domestic violence and people with disability and refugees as well as migrants.16

Courts have, time without count, required the executive to give effect to socio- economic claims of the poor and vulnerable. We have required government to provide appropriate access to health care.17 Happily so today, our jurisdiction has arguably one of the best public treatment regimes for HIV/Aids patients. We have reminded the executive of its duty to provide access to housing.18 We have mediated differences around rampant eviction of homeless, urban and rural occupiers who are said to be unlawful.19 We have insisted that land owners must display patience as homeless occupiers find other refuge.20 Often we have ordered municipalities to engage meaningfully with communities in order to avert inhumane evictions.21 We have ordered government to find alternative accommodation should evictions ensue.22 Courts have insisted that drinkable water be made available to vulnerable members of society.23 We have protected learners from being subjected to medium of instruction they don’t want.24 We have required that learners be furnished with study material.25 Courts have required the social grants to reach all including vulnerable migrants and that grants be paid promptly, particularly in the rural neighbourhoods.26

Our courts have developed a proud jurisprudence on justice at the work place.27 That is a consequence of the vital choices our founding mothers and fathers have made on worker rights, the recognition and formation of trade unions and employers organisations, the resultant collective bargaining and fair labour practices. Properly so, courts have refused to sacrifice work place justice on the back of claims or promises of economic growth that a so-called open labour market will bring to us. That may, or may not, be so. But that is not for judges to decide. Courts are bound by labour laws. Just labour laws are integral to a more equal and caring society where the dignity of all, including of working people is well shielded.

Courts have been properly pre-occupied with the protection of the right to free expression, including a free press and the right to impart and receive information and art.28 Our judgments point to the intrinsic worth of free expression and the many public and private blessings of a free and open and debating society. And yet our judgments have also warned that free expression has limits particularly when it encroaches on dignity and privacy.29

However, when public interest is in issue other and perhaps more pressing considerations come to the fore. That balance is not generic; it can be properly struck only on a case by case basis.

Courts have intervened where valid allegations have been made about wrongful procurement of goods and services by government.30 This is a sequel to the important requirement of our Constitution that when all spheres of the state contract for goods and services they must do so within a system that is fair, equitable, transparent, competitive and cost-effective.31 To that end, Parliament is enjoined to legislate in order to prescribe an appropriate framework of a procurement policy. Of course, the Constitution was alive to the fact that government procurement practices would be vital in the achievement of a more equal society.

In the same breath, our constitutional project is properly inimical to and intolerant of corrupt state tender practices and all forms of public or private corruption. Courts can only deal with prosecutions that come before them and these sadly have been surprisingly few. In the last two decades no criminal prosecutions on tender irregularities, misuse of public funds or related fraud have served before our superior courts. The celebrated cases of Selebi32 and Shaik33 related to private and not public funds. This begs the question whether there was no misuse of public funds or tender fraud in the last 20 years worth prosecuting? The record shows that when the prosecuting authorities have ventured into courts, my judicial sisters and brothers have not wavered.

Competition law has found a niche in our courts. This is admirable. In the past, our economy allowed very little or real competition in the market because of structural and behavioural anti-competitiveness. Some of our manufacturing and retail business have been found by our courts to have engaged in collusive practices including price fixing. The Competition Commission and its tribunals have done much enviable to remedy or reduce commercial injustices to consumers that flow from collusive pricing.34

Trenchant challenges

I turn to look at the four trenchant challenges we would do well to heed in our further democratic journey.

(a) Land restoration, urban and rural land justice

Nearly 70 years ago, in The Wretched of the Earth35, Frantz Fanon, observed that “[F]or a colonized people the most essential value, because it is the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity.”

Fanon’s remarks were apt but not a new insight, if one remembers that the organising principle at the formation of the African National Congress in 1912 was the impending wholesale land confiscation prefigured in the 1913 Land Act. The land dispossession coupled with urban spatial apartheid led to immeasurable social devastation recorded in many invaluable studies.36

The land question was foremost at the time of the formulation of the Constitution. This is displayed in the careful formulation of the property clause which is often more maligned than carefully scrutinised.37 Let us quickly look at the scheme of the property clause. I start with land restitution. The section envisions restitution of land to victims of dispossession but does not permit arbitrary deprivation of property. A person or community dispossessed of property after June 1913 by racially discriminatory laws is entitled to either restitution or equitable redress.38 Similarly a person or community whose land tenure is insecure because of apartheid laws is entitled to a secure land title.39 Commendably, parliament passed the legislation to give effect to land restoration within 12 months of democratic rule and established a dedicated Land Claims Court.40

The property clause permits expropriation of land by a law of general application provided it is for a public purpose or in the public interest and it is against just and equitable compensation reflecting an equitable balance between the public interest and the interest of the landowner. The extent of the compensation may be fixed by agreement or by a court guided by a number of listed factors. Let’s slaughter a few shibboleths. The Constitution does not protect property it merely protects an owner against arbitrary deprivation.41 Deprivation that is not arbitrary is permissible. The property clause does not carry the phrase: “willing buyer: willing seller” which is often blamed for an inadequate resolution of the land question. The state’s power to expropriate does not depend on the willingness of the land owner. The compensation may be agreed but if not, a court must fix it. The compensation must be just and equitable and not necessarily the market value of the land. Market price is but one of five criteria the Constitution lists for a court to set fair compensation.42 The property clause is emphatic that the state must take reasonable measures, within available resources to enable citizens to gain access to land on an equitable basis.

The cutting question is whether our democratic consolidation has achieved urban or rural land equity? Although much has been done, the answer is no. Present statistics on land redistribution show very little movement away from apartheid patterns of the use and ownership of land.43 Only a small percentage of land restitution claims have been finalised44. The bulk is yet to reach the courts.45 Land claims that do reach the courts, display remarkable delays of years before reaching the courts. The claims are also beset by bureaucratic inadequacies. And there are severe difficulties for claimants in gathering evidence to back the claims and to overcome legal resistance by some owners. On other front, there is very scant evidence of the use by government of expropriation to achieve land equity.

In 20 years our Court has not resolved even one case of land expropriation under the property clause by government for a public purpose. Similarly, in the same time the courts have never been called upon to give meaning to the property clause in the context of land expropriation or to decide on what is a just and equitable compensation. One would have expected that a matter so pressing as land use, occupation or ownership would pre dominate the list of disputes in the post-conflict contestation. Sadly, urban homelessness persists. Apartheid spatial patterns remain. People in informal settlements run the risk of mass evictions such as in Lwandle in the Cape46 or Cato Crest in KZN47.

Rural land hunger stands in the way of genuine rural development. Women who till the soil and live on communal land don’t have the protection that security of land tenure provides. Communal land vests in traditional authorities who do not always act in the best interest of their communities made up mainly of women and children. In at least two cases relating to the platinum rich Limpopo and North West Provinces our Court had to intervene where the traditional leaders had concluded mining arrangements on communal land without proper consultation with the traditional community.48

It may be that the property and restitutionary provisions in section 25 of the Constitution on land have been hopelessly under worked. I want to suggest that we cannot talk about transformation or social justice and cohesion when urban and rural land injustice dominates the lives of a majority of our citizens.

Millions will continue to live in desperately undignified conditions unless we confront land inequity.

(b) Equality, non-racialism and restitution and social justice

The achievement of equality is a founding value of our Constitution49 and it is said, to be the most prominent organising principle of our democratic enterprise. And yet our reality is starkly different. Several socio- economic measures suggest that we are the most unequal society on the globe Lately a World Bank study compared us with 11 other middle income countries50 and concluded that:

“However, even with a progressive tax system, inequality in South Africa was still higher than the other 11 countries in the sample. This was because it was one of the most unequal countries in the world.

“Even though South Africa has a very effective use of its fiscal tools, the original problems in income inequality are so high that South Africa is going to need other things to help it address the problem of inequality.

“To make further progress going forward, you need to complement fiscal policy with higher more inclusive growth that essentially generates jobs, especially at the lower end of the distribution.”51

I must immediately add that the study commended our state for the way it has used fiscal tools to reduce poverty. 3.6 million people have been lifted above the poverty line. The use of social grants has also lowered the Gini co-efficient on income, which measures inequality.

The World Bank update talks about the original problem in income inequality and that South Africa is going to need other measures to help reduce inequality. That historical inequality of both income and wealth still persists and race and gender, in most instances, are markers of past exclusion or disadvantage. In order to address historical disadvantage our equality clause permits legislative and other measures to achieve equality. These are restitutionary measures sometimes inappropriately called affirmative action. The two most prominent examples of such measures are the employment equity and black economic empowerment laws.

At the turn of two decades of our democratic project there has been an increasing discourse about the appropriateness of restitutionary measures within a democratic project that prides itself on non-racial and non-sexist values. As I understand the one end of the argument, there is an inherent tension between requirements of equal protection of the law and of non- racism on the one end and affirmative action measures which are intended to benefit the previously vulnerable groups. The argument is that race or gender is not always a useful or accurate marker of past disadvantage. The further point is made that young people born in 1994 have no business to look to affirmative action measures because they did not live under racial disadvantage and in any event many middle class black youth have been as advantaged as much as or more than white youth. In certain quarters employment equity and other related matters are considered to be reverse racism.

There is indeed force in the argument that mere race or gender may not be an accurate index of social exclusion and disadvantage. We know that one of the trophies of the national democratic phase of the transition is that the African middle class has shot up from 1.8 million to 5.7 million. That may indeed appear to be indicator of a more equal society until one locates 5.7 million within a population of 52 million people. Then the black middle class peters out to a mere 10 per cent of the population.

Of course there is an inherent tension between transformative goals based on race and gender in the face of the constitutional value of non-racial and non- sexist equality. It is necessary that legislation and executive action is limited to permissible ameliorative measures that fall within the strict carve out created by the Constitution itself. It clearly permits legislative and other measures to promote the achievement of equality.52 The measures must be designed to protect or advance persons disadvantaged by unfair discrimination. The measures may not amount to quotas. They must be applied rationally and only to procure a more equal society. In the second 20 years of our democracy we will have to think carefully whether the measures continue to be justified. This is so because fewer and fewer people will be able to claim legitimately that they have been disadvantaged by unfair discrimination of the past. For now the measures would enjoy constitutional protection because the Constitution permits restitutionary measures in so many words.

The time may not be far off where the national psyche may not be able to tolerate the notion that class interest may very well supersede interests forged around race, gender and past disadvantage. A last point has to be made. The most effective way of confronting past disadvantage must lie in the broader socio-economic transformative agenda. In a non-racial way we must strive for an equal and socially just society. We must harness public resources carefully towards quality education, entrepreneurial capabilities, better health care, and access to housing. For instance fiscal interventions have funded social grants for all vulnerable people irrespective of their gender or race. To conclude, our constitutional design permits ameliorative or restitutionary measures and courts are obliged to give effect to them. As I conclude I pose the question whether a race based transformation continues to be consistent with a broader constitutional transformation. Many transformative projects in the Constitution, and in particular its socio-economic guarantees are not race or gender based and need not be.

(c) Executive power and public institutions.

Much of the glowing talk about our constitutional architecture relates to fundamental rights and freedoms. And yet the manner in which public power is allocated within it is not always optimal for advancing our democratic project. I suggest that in the next two decades we may have to revisit the dispersal of public power. Because of time and space I will limit the discussion to the national executive. Of course amending executive power may be a difficult task that calls for an amendment. Much as the Constitution is premised on principles of co-operative government53 binding the national, provincial and local spheres of government, a careful examination of the powers of the national executive in chapter 5 of the Constitution and in other legislation displays a remarkable concentration of the President’s powers of appointment. In a few instances the President exercises these powers of appointment together with Parliament and other organs of state. As for the rest, the President appoints within his exclusive discretion.

The anecdotal account is that at time of the formulation of the final Constitution, whenever there was a dispute about who should appoint a public functionary, the negotiating parties we happy to leave the power in the incumbent President, Nelson Mandela. He after all will do the right thing. In a footnote, I have rehearsed the complete catalogue of the President’s power of appointment.54

I refer to a few. Unlike other countries where the Deputy President is a running mate, here he is appointed by the President.55 This means he or she may be dismissed summarily by the President. Our own history has shown how the dismissal of a deputy president could be deleterious to the executive function. The president appoints the Ministers of the Cabinet and Deputy Ministers, leaders of government business to the National Assembly.56 He appoints all ambassadors.57 The President appoints the Chief Justice and the Deputy Chief Justice after consultation with the Judicial Service Commission and appoints the President of the Supreme Court of Appeal. 58 He is also empowered to appoint the Judge President of the Land Claims Court59 and Chairperson of the Competition Tribunal60, and the Judge President of Competition Appeal Court61. He appoints all judges on advice from the JSC and acting judges in consultation with the Chief Justice.62 The President further appoints heads of many vital public institutions; these include the National Director of Public Prosecutions, the Public Protector63, the Auditor- General members of the South African Human Rights Commission the Commission for Gender Equality and the Electoral Commission on recommendation from the National Assembly64 and may remove65 members of Chapter 9 on specified grounds. She appoints commissioners of the Public Service Commission66, the head of the Defence Force and the military command of the Defence Force67, the head of the police68, the head of the Intelligence Service69 and members of the Financial and Fiscal Commission70. Under a variety of legislative instruments the President appoints the Statistician General71, the Governor and Deputy Governor of the South African Reserve Bank 72 , the Commissioner of South African Revenue Service 73 , Members of the Tax Court 74 , members of Independent Communications Authority of South Africa75. As you would expect powers of appointment are often coupled with powers of removal albeit it subject to some prescribed process.

The vast powers of the appointment of the national executive bring to the fore the debate whether the democratic project will be best served by a powerful central executive authority. Our courts have had to adjudicate challenges against the rationality of several appointments made by the President. It is self evident that an appointment by a deliberative collective is less vulnerable to a legal challenge of rationality than an appointment by an individual functionary. The ultimate question is how best we may shield appointments of public functionaries to institutions that gird our democracy, from the personal preferences and vagary of the appointing authority. The question may be asked differently. How best must we safeguard the effectiveness and integrity of public institutions indispensible to the democratic polity? Finally, an equally important debate should be whether appointing members of the cabinet exclusively from the ranks of members of Parliament best advances the duty members of Parliament have to hold the executive to account. If their career logical advancement is within the national executive, are members of Parliament likely to rattle the executive cage? Will they fulfil their constitutional mandate by holding the national executive to account? This uncanny concentration of power is a matter which going forward we may ignore but only at our peril.

(d) Trends in conflict resolution

Adam Przeworski is a Polish scholar on politics and democracy. He says Democracy is the realm of the intermediate; the future is not written. Conflicts of values and of interests are inherent in all societies. Democracy is needed precisely because we cannot agree. Democracy is only a system for processing conflicts without killing one another; it is a system in which there are differences, conflicts, winners and losers. Conflicts are absent only in the authoritarian systems.

Statistics on the number of public protests, some of which tend to be violent, is startling. The last 12 months the police reported 11 688 service delivery or other protests in our country.76 It is fair to consider public protests as a dispute resolution mechanism which is readily available to the working and the marginalised poor people. Some protests yield the desired results and officialdom acts to appease, others not.

A trend not unlike civil protests is the contestation that occurs in the rarefied setting of a court room. Litigation, in our country too, has become a preserve of those who wield public power and purse and those who can pay for it out of available resources. The ever bulging court roll at the Constitutional Court tends to be dominated by state litigants, followed by business enterprises and labour matters. All three classes of litigants are funded by a collective purse. A trickle of disputes is prosecuted by public interest law firms for vulnerable classes of citizens.

Superior courts of our country are confronted by an avalanche of litigation from powerful interests in land. This phenomenon is known as lawfare. In the past law has played a very important role in our history. Apartheid oppression was itself a collection of laws which were harnessed to achieve unjust economic and political ends. However, in the eyes of the majority of people there was no rational divide between law and politics. Law served narrow political ends and courts were seen as mere instruments. In the process their legitimacy suffered and waned. Activists prosecuted spirited political struggles in courts and through the law. Activists too used courts and the law to proclaim their cause. This point is made rather sharply by Dennis Davis and Michelle Le Roux in Precedent and Possibility.77 They correctly observe that:

“During the long night of apartheid, courts were often sites of vigorous political struggle, being places where different visions of the country were presented to the public by competing litigants, usually the state against accused persons or applicants whose rights were at stake. Since 1994, and the advent of constitutional democracy, similarly significant contests have taken place in the courts. There is however a major difference: Litigation now takes place within the context of the Constitution which provides a vast range of rights for all who live in the country.”

Despite the advent of democracy, the tide has shot up. South African courts have, particularly of late, been confronted with a series of challenges which turn on a variety of disputes. Some are essentially of a political nature: the termination of the Scorpions and its replacement by the Hawks 78 , the extension of the term office of the Chief Justice79, the appointment of judges to the Cape High Court80, the appointment of the National Director of Public Prosecutions81, the challenge into the arms deal which has finally ended with the appointment of a Commission of Enquiry, a parliamentary dispute over a motion of no confidence82; the powers of the public protector.; appointment battles within state enterprises. The labour movement itself resorts to the Courts often to resolve internal schism and contestation. Courts adjudicate routinely on disputes arising from state tenders. Indeed a plethora of business claims land in our courts whether it is about collusive trading and price-fixing to tax of forex claims such as of Mr Shuttleworth and the Reserve Bank.83 But in the front row of litigation is our democratic state.

This excessive use of the courts speaks to the concern that democratic arrangements in our land are virtually devoid of non-litigious sites for mediation of conflict. Why would party faithful rush off to court to resolve an internecine dispute? Why is the state the chief of all litigators? How does it happen that labour federations should seek solace in court processes? It is not unusual to hear activists or senior politicians vowing to go to the Constitutional Court. Dennis Davis suggests that this trend is “primarily owing to a manifest failure, perceived or real, of the political process. When politics fail, the last (and often only) avenue left to affected parties is to proceed to court”84. The more this trend continues, the more the courts are drawn into the political arena.

But courts are not and should not be a substitute for the obligation to move our society to spaces envisioned in the Constitution. We must rethink our democratic processes in a manner that permits peaceable conflict mediation. We must find a new ethos that permits the lamb and the lion to graze together. Losers and winners should both overcome. Like Dennis Davis allow me to recall Achille Mbembe (forward to an Inconvenient Youth) who wrote of the current dangers of South Africa in these terms:

“A gradual closing of life chances for many, an increasing polarisation of the racial structure, a structure of indecision of the heart of politics itself and a re- balkanisation of culture and society. These trends clearly undermine the fragile forms of mutuality that could have painstakingly built in South Africa over a decade in half and further weaken the prospects of too non-racialism… Stuck in a field of blighted possibilities (young black youth) scavenge to live or simply to get through the day – so many bad jobs available to so few in one of the most racially unequally countries on earth so much rage and almost in the near future.”

We in the courts are going to continue manning our posts and securing rule of law and justice. But in the end a just society envisioned in our Constitution will emerge only from truly democratic and socially inclusive practices of our people.

Concluding remarks

We have not found a satisfactory solution to spatial apartheid, equitable access to land, and housing and basic services. There is no significant rural development that would have stemmed poverty stricken urbanization. The epicentre of economic power is still vested in monopoly capital. Mineral resources in the past and now do not trickle down to workers and the broader populace. Race is still a marker of social inequality. The income disparity has become bigger and starker. Only a small crust of the black middle class has advanced economically against the backdrop of nearly a third of us on social grants and another third of our youth unemployed. We must be disturbed that up to now we have not learned how to create jobs for ourselves. After all a claim to liberty is a claim for space to prosper oneself or community. It is not happening. Instead poverty is deepening. We have not skilled our children enough to be entrepreneurs and not job hunters. Quality education and health care are still only for the financially healed. I am afraid I must add and confess that proper access to justice is often a function of one’s bank balance. We have a lot to do in the next two decades.

Let me seek final refuge in two memorable quotations. Franz Fanon will have the last word: “Each generation must discover its mission, fulfill it or betray it, in relative opacity.” ― Frantz Fanon, The Wretched of the Earth

“A government or a party gets the people it deserves and sooner or later a people gets the government it deserves.” ― Frantz Fanon, The Wretched of the Earth

Foootnotes

1 New York Times, article titled “‘We the people’ Loses appeal with people around the world” published, February 6 2012.
2 Published in New York University Law Review, Vol. 87, 2012.
3 Prof David Law and Prof Mila Versteeg.

4 At p 809-29.

5 Section 1 of the Constitution of the Republic of South Africa. 6 Section 23.
7 Section 24.

8 Section 25.
9 Sections 26 and 27. 10 Section 28.
11 Section 29.

12 Section 181 – 194 of the Constitution.

13 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004); August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999); Brink v Kitshoff NO [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752.

14 Minister of Home Affairs and Another v Fourie and Another [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC); Larbi-Odam and Others v Member of the Eexecutive Council for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745.
15 Minister of Finance and Other v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) ; [2004] 12 BLLR 1181 (CC).

16 Grootboom and Others v Oostenberg Municipality and Others [1999] ZAWCHC 1 (17 December 1999) S v Baloyi and Others (CCT29/99) [1999] ZACC 19; 2000 (1) BCLR 86 ; 2000 (2) SA 425 (CC); Somali Association of South Africa and Others v Limpopo Department of Economic Development Environment and Tourism and Others (48/2014) [2014] ZASCA 143.

17 Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033.
18 Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169.

19 Zulu and 389 Others v eThekwini Municipality and Others [2014] ZACC 17; 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC).
20 Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC).

21 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others [2008] ZACC 1; 2008 (3) SA 208 (CC) ; 2008 (5) BCLR 475 (CC).
22 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC) [2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC).

23 City of Johannesburg and Others v Mazibuko and Others (489/08) [2009] ZASCA 20; 2009 (3) SA 592 (SCA); 2009 (8) BCLR 791 (SCA) ; [2009] 3 All SA 202 (SCA).

24 Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another [2009] ZACC 32; 2010 (2) SA 415 (CC) ; 2010 (3) BCLR 177 (CC).25 Section 27 and Others v Minister of Education and Another [2012] ZAGPPHC 114; [2012] 3 All SA 579 (GNP); 2013 (2) BCLR 237 (GNP); 2013 (2) SA 40 (GNP).
26 Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC).

27 National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC); South African Police Services v Nkambule and Others [2013] ZALCPE 11.
28 Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) [2005] ZACC 7, 2006 (1) SA 144 (CC), 2005 (8) BCLR 743 (CC).

29 Khumalo v Holomisa [2002] ZACC 12, 2002 (5) SA 401 (CC), 2002 (8) BCLR 771 (CC) 7

30 Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another [2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC).
31 Section 217.
32 Selebi v S (240/2011) [2011] ZASCA 249; 2012 (1) SA 487 (SCA); 2012 (1) SACR 209 (SCA); [2012] 1 All SA 332

(SCA).
33 S v Shaik and Others [2008] ZACC 7; 2008 (5) SA 354 (CC) ; 2008 (2) SACR 165 (CC) ; 2008 (8) BCLR 834 (CC).

34 Competition Commission v Engen Petroleum Ltd [2012] ZACT 14; Competition Commission v Pioneer Foods (Pty) Ltd [2010] ZACT 9 (Commission imposed unprecedented R 1 000 000 000 penalty on Pioneer for collusive price fixing, with respect to bread and flour which undoubtedly harmed the most vulnerable consumers.)
35 Originally published as Les damnés de la terre (1961, François Maspero éditeur: Paris).

36 A recent account of this can be found in We want what’s ours: Learning from South Africa’s Land Restitution Program by Prof Bernadette Atuahene (2014 Oxford University Press).
37 Section 25 of the Constitution reads:

1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application –
(a) for a public purpose or in the public interest; and

(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including –

(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section –
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).

38 Section 25(7).
39 Section 25(6).
40 This legislation is the Restitution of Land Rights Act 22 of 1994.

41 Section 25(1).
42 Section 25(3).
43 The most recent Annual Report by the Commission on Restitution of Land Rights, for the review period 01 April 2013 – 31 March 2014, provides the following information: “A total of 3.07 million hectares acquired at a cost of R17 billion and financial compensation in the amount of R8 billion has been awarded to 1,8 million beneficiaries coming from 371,140 families of which 138,456 are female headed families. In addition R4,1 billion has been awarded to those beneficiaries that have been awarded land as development assistance. The total cost of the restitution programme to date stands at R29, 3 billion.”
44 This Annual Report also reflects that to date the Commission on Restitution of Land Rights has settled 77610 claims.
45 On 01 July 2014 the Restitution of Land Rights Amendment Act 15 of 2014, came into effect which reopened the restitution claims process that closed at the end of 1998 and gives claimants five years until 30 June 2019 to lodge further claims.

46 South African National Roads Agency Limited v City of Cape Town and Others; In Re: Protea Parkway Consortium v City of Cape Town and Others [2014] ZAWCHC 125.
47 See Zulu n 19 above.
48 Pilane and Another v Pilane and Another [2013] ZACC 3; 2013 (4) BCLR 431 (CC); Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others [2010] ZACC 26; 2011 (4) SA 113 (CC) ; 2011 (3) BCLR 229 (CC).

 49 Section 1 of the Constitution.
50 SA Economic Update –The other 11 middle-income sample countries were Armenia, Bolivia, Brazil, Costa Rica, El Salvador, Ethiopia, Guatemala, Indonesia, Mexico, Peru and Uruguay. Available online at http://www.worldbank.org/content/dam/Worldbank/document/Africa/South%20Africa/Report/south-africa- economic-update-2013.05.pdf.
51 Economic Update.

52 Section 9.

53 Section 41.
54 Not included in the next paragraph: Section 84 (2)(f) of the Constitution empowers the President to appoint commissions of enquiry; Section 93(1)(a) and (b) of the Constitution enables the President to appoint any number of Deputy Ministers from among members of the National Assembly and no more than two Deputy Ministers from outside the Assembly to assist the members of the Cabinet, and may also dismiss them; Section 178(j) of the Constitution empowers the President to designate four person to the Judicial Service Commission in consultation with the leaders of parties in the National Assembly; Section 209(1) empowers the President alone to establish an Intelligence Service other than the defence and police force. Section 6(1) of the Electoral Commission Act 51 of 1966 empowers the President to appoint the five members of the Electoral Commission one of which must be a judge; Section 5(2) of the Telecommunications Act 13 of 2000 empowers the President to appoint one of the councillors as chairperson of the council; Section 22 (4) of the Restitution of Land Rights Act 22 of 1994 empowers the President to appoint additional judges to the Land Claims Court in consultation with the Judicial Service Commission.
55 Section 91(2) of the Constitution.

56 Section 91(2) and 91(4) of the Constitution.
57 Section 84 (2)(i) of the Constitution.
58 Section 174 (3) of the Constitution.
59 Section 22(3) of the Restitution of Land Rights Act 22 of 1994 as amended by the Restitution of Land Rights Act 15 of 2014.

60 Section 26(3) of the Competition Act 89 of 1998.
61 Section 36(2)(a) of the Competition Act 89 of 1998.
62 Sections 174 (4) and (6) and Section 175 of the Constitution. 63 Section 179 (1)(a) of the Constitution.
64 Section 193(4) of the Constitution.
65 Section 194(1) of the Constitution.
66 Section 196 (7) of the Constitution.
67 Section 202 (1) of the Constitution.
68 Section 207(1) of the Constitution.
69 Section 209 (2) of the Constitution.
70 Section 221 of the Constitution.

 71 Section 6(1) of the Statistics Act 6 of 1999.

72 Section 4(1)(a) of the South African Reserve Bank Act 90 of 1989. 73 Section 6(1) of the South African Revenue Services Act 34 of 1997. 74 Section 83(5)(a) of the Income Tax Act 58 of 1962.
75 Section 5(1) of the Telecommunications Act 13 of 2000.

76Available at http://www.saps.gov.za/about/stratframework/annualreports.php .

77 Davis and Le Roux Precedent and Possibility-The (Ab)use of Law in South Africa (Juta, Cape Town 2009) at p 1.
78Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC) ; 2011 (7) BCLR 651 (CC).

79 Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC)

80 Helen Suzman Foundation v Judicial Service Commission and Others (8647/2013) [2014] ZAWCHC 136
81 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC).
82 Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)

83 Shuttleworth v South African Reserve Bank and Others (864/2013) [2014] ZASCA 157.
84 Judge Dennis Davis – Supreme Court Judge @ The Pavilion, Kelvin Grove Club,Speech Transcript – Cape Town Press Clubhttp://www.capetownpc.org.za/Date: Friday, November 25, 2011
Venue: The Pavilion, Kelvin Grove Club (new venue near bowling green) THE JUDICIARY: IN THE POLITICAL STORM?TALK TO PRESS CLUB 25 NOVEMBER 2011.

Call for papers: Political parties and the party system in South Africa: the interface between law and politics

CALL FOR PAPERS

Political parties and the party system in South Africa: the interface between law and politics

Political parties are essential parts of any democratic political system. They are the vehicles through which citizens are able to compete together for power; they make a political system legitimate; they allow citizens to be represented in the state; they facilitate a degree of responsiveness and accountability; they are instruments for the recruitment of political leaders; and they act as mechanisms of political communication and education. By creating coalitions within a society, they also promote social cohesion.

The benign potential of political parties is rarely fully realized, however. Parties are often involved in political intimidation, corruption, the politicization of state institutions, the manipulation of racial and ethnic antagonisms, and the pursuit of short-term partisan advantage at the expense of the longer term interests of citizens, future generations, and the environment.

South African activists have mostly maintained the position that parties should be open, transparent and accountable. In particular, information about how parties are financed is necessary if citizens are to make informed decisions about the political parties they choose to support. Constitutional lawyers too, are quick to point to the principles that have been advanced by the Constitutional Court in defending the kind of society imagined by the Constitution. However, political scientists have frequently warned of the dangers posed by the unintended consequences of political party regulation, often sought by those who intend to protect the Constitution.

The potentially benign and malign potentials of political parties and party systems have legal, political and sociological dimensions. These can only be understood by means of interdisciplinary study and deliberation, involving dialogue between specialists in the organisational and political aspects of democratic systems, scholars of the legal and constitutional factors that shape political party operations, party political strategists, and social justice activists.

The Department of Political Studies at the University of Cape Town and the UCT School of Law, in collaboration with civil society group, My Vote Counts, would like to stimulate such a dialogue. They therefore intend to hold a conference in Cape Town on the theme “Political parties in South Africa: Legal and political considerations” on August 27 and 28 2015.

Suggestions for papers and panel themes are welcomed. These will include but not be limited to the following issues and questions:

  • To what degree and in what ways should political parties be accountable, transparent, and open, and how can such properties be realised in practice? Is it desirable for the state to oversee the operations of political parties and in what ways?
  • How should the relationship between money and politics be regulated in South Africa, in both legal and political terms?
  • Which legal and political factors will shape changes in the South African party system?
  • To what degree is it desirable or possible for political parties to be “internally democratic”?
  • What are the implications of the political rights contained in section 19 of the Constitution for political parties? What is the significance of section 19 being bestowed on citizens only?
  • Traditionally in South Africa, both in political and legal theory, political parties are commonly understood as private associations. However, in addition to receiving vast amounts of public funding, the South African Constitution places a very unique set of demands on political parties. What is the public/private nature of political parties under the Constitution and what are the associated legal and political consequences of this classification?
  • Are there tensions between the state of internal party democracy practised by South African parties and the levels of political participation demanded by citizens under the Constitution? What are the legal and political consequences for interfering with internal political party politics?
  • What comparative lessons can be learned about South Africa’s political parties from other countries?

The organisers welcome those interested in presenting a paper at this noteworthy conference to submit abstracts to Prof. Anthony Butler anthony.butler@uct.ac.za or Prof. Pierre De Vos pierre.devos@uct.ac.za.  Abstracts should be no longer than 500 words in length and must be submitted by 27 March 2015. We plan to seek publication of these papers in a book or special journal edition.