Constitutional Hill

CASAC submission to Parliament on work of its Nkandla committee

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SUBMISSION TO PARLIAMENT 

BY THE COUNCIL FOR THE ADVANCEMENT 

OF THE SOUTH AFRICA CONSTITUTION (CASAC) 

23 APRIL 2014 

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INTRODUCTION 

1. On 9 April 2014 the Speaker of the National Assembly made the following Announcement:

On 2 April 2014, the President of the Republic of South Africa submitted the following documents which were tabled on the same day – 

a) Letter in response to Public Protector’s report [Report No. 25 of 2013/14]; 

b) Proclamation by the President of the Republic of South Africa (Proclamation No. R59, 2013); and 

c) Copy of the Public Protector’s report.

After consultation with the Chief Whip of the majority party and senior whips of the other parties, I have decided in terms of Rule 214(1)(b) to appoint an ad hoc committee, the committee to – 

a) consider the submissions by the President of the Republic of South Africa in response to the Public Protector’s report and make recommendations, where applicable; 

b) exercise those powers as set out in Rule 138 that are necessary in carrying out this task; 

c) consist of twelve members, as follows:- 

ANC 7 

DA 2 

COPE 1 

IFP 1 

Other parties 1; and 

d) report no later than 30 April 2014.

2. The Committee has since been established. From the reports of the media, other than the Congress of the People, all other political parties have taken up their positions in the Committee.

3. In terms of its constitution, the Council for the Advancement of the South African Constitution (CASAC) stands for several founding values. These include:-

3.1 the idea of progressive constitutionalism;

3.2 the protection and advancement of the founding values of the Constitution which include a deliberative, participatory and inclusive democracy;

3.3 the notion that the Constitution is a living, not a static, document and must evolve to deepen democracy;

3.4 the rule of law must be used as an important foundational block in advancing constitutionalism;

3.5 the notion that private and public power should be exercised within the law and must enhance a culture of responsibility and accountability to guard against arbitrary use and abuse of power and authority;

3.6 in advancing its mission, CASAC acknowledges that there is a gap in the living reality of many South Africans who do not have access to the constitutional promises embodied by the notions of equality, human dignity and socio-economic rights. For this gap to be closed, on a progressive basis, public resources ought to be used in the interests of the majority of the people, rather than to benefit a few.

4. It is with these considerations in mind that CASAC welcomes the decision by the Speaker to appoint an ad hoc committee to conduct an investigation into the report of the Public Protector and the President’s response, and make appropriate recommendations. We note, however, that the ad hoc committee has not been provided with specific terms of reference. In terms of Rule 138 the Committee will exercise the same powers as those conferred on any other committee of the National Assembly, an aspect to which we revert below.

5. Furthermore, the time limit provided for the committee to undertake its assignment is extremely short, bearing in mind the complexity and length of the report under consideration. These factors may ultimately challenge the forensic ability of the ad hoc committee and place a question mark over the reliability of its findings or recommendations. Nevertheless, we make these submissions on the basis of what we consider to be the important findings made by the Public Protector, which require answers from the President.

6. It is worth recalling, briefly, some important provisions of the Constitution.

RELEVANT CONSTITUTIONAL PROVISIONS 

7. South Africa is founded on several values, articulated in Section 1 of the Constitution. They include human dignity, the achievement of equality and the advancement of human rights and freedoms, the supremacy of the Constitution and the rule of law, and a multi-party system of government to ensure accountability, responsiveness and openness.

8. Section 83 establishes the office of the President. The President is, under Section 83(1) the head of the State and the head of the National Executive. He is obliged to uphold, defend and respect the Constitution as the supreme law of the Republic. The President is also required to promote the unity of the nation and that which will advance the Republic.

9. In terms of Section 89 of the Constitution, the President can be removed from office by the National Assembly. Section 89 provides as follows:

(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of – 

a) a serious violation of the Constitution or the law; 

b) serious misconduct; or 

c) inability to perform the functions of office. 

(2) Anyone who has been removed from the office of President in terms of sub-section (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

10. The National Assembly is responsible for holding the National Executive accountable. Section 55 of the Constitution sets out the oversight powers of the National Assembly. In Section 55(2) the National Assembly is required to provide mechanisms “to ensure that all executive organs of State in the national sphere of government are accountable” to Parliament. Furthermore, the National Assembly is required to maintain oversight of the exercise of National Executive  authority, including the implementation of legislation and the oversight over any organ of State.

11. Section 181 provides for the establishment of six institutions which support constitutional democracy. They include the Public Protector, whose report is the subject of examination by the present committee. Section 181(2) provides that Chapter 9 institutions are independent and subject only to the Constitution and the law. These institutions should be impartial and exercise their powers and perform their functions without fear, favour or prejudice. In Section 181(3) it is provided that other organs of State through legislative and other measures “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” No person or organ of State may interfere with the functioning of Chapter 9 institutions. (Section 181(4)). Under Section 181(5), Chapter 9 institutions are accountable to the National Assembly.

THE FINDINGS AGAINST THE PRESIDENT 

12. The Public Protector has made several findings in her report. We do not wish to focus on each and every finding made in the report. Our interest is limited to the findings made against the President and to making submissions pertaining to how Parliament should hold the President accountable for the findings made by the Public Protector.

13. The findings appear from page 427 onwards in the Report of the Public Protector. An extract of the relevant findings is the following:-

(4) It is my considered view that the President, as the head of South Africa Incorporated, was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and State resources, but failed to discharge his responsibilities in terms of the latter. I believe the President should have ideally asked questions regarding the scale, cost and affordability of the Nkandla Project. He may have also benchmarked with some of his colleagues. He also may have asked whose idea were some of these measures and viewed them with circumspection, given Mr Makhanya’s non-security background and the potential of misguided belief that his main role was to please the President as his client and benefactor.

(5) It is also not unreasonable to expect that when the news broke in December 2009 of alleged exorbitant amounts, at the time R65 million on questioned security installations at his private residence, the dictates of sections 96 and 237 of the Constitution and the Executive Ethics Code required of President Zuma to take reasonable steps to order an immediate enquiry into the situation and immediate correction of any irregularities and excesses. 

(6) His failure to act in protection of State resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by Section 96 of the Constitution.

IMPLICATIONS OF THE FINDINGS 

14. Section 96(2)(b) of the Constitution provides that members of the Cabinet (including the President) may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

15. The section sets a very high standard. It does not prohibit only actual conflict of interest. It also prohibits the President from putting himself in a position where there is a “risk of a conflict”. This requires far more from members of the Cabinet than the Constitution requires from ordinary public servants.

16. The rationale for this stringent requirement for members of Cabinet is clear: members of the Cabinet exercise immense power and they must be above suspicion that they have abused their powers. In a democracy, people agree to grant the power to govern them to others on condition that those who exercise the power do so fairly, lawfully, honestly and in the public interest. That is even truer of the office of the President.

17. When a member of cabinet places herself in a position where a decision in the public interest will may be in her private interest, it undermines public trust not only in the individual, but in the office itself. Any situation that can be said to undermine public trust or faith in the office or its occupant must be said to be contrary to s 96(2)(b).

18. The findings of the Public Protector with regard to President Zuma clearly meet that threshold. When the President addresses the question of public spending on his residence at Nkandla, he inevitably affects his own private interests. In other words, there is “the risk of a conflict between” his official responsibilities and his private interests: the public interest is to prevent unnecessary or wasteful expenditure; his private interest is to secure a more lavish or comfortable home. That conflict of interests will inevitably lead to a loss of trust in President Zuma, and the office of President.

19. Section 89 states that Parliament “may” remove the President on the grounds of “a serious violation of the Constitution or the law” or “serious misconduct”. The purpose of the provision, unlike the motion of no confidence provision in s 102, is to ensure that the President does not abuse his position. It is not linked, like s 102 is, to a President’s popularity or performance. There are specific instances that can justify a removal under s 89: violations, misconduct and inability. The section exists to protect the office, and to protect the Republic form those who cannot exercise the powers of the office faithfully.

20. The use of the adjective “serious” indicates that there are some constitutional violations and some forms of misconduct that are not serious enough to justify removing the President. Where is the line between “serious” and non-serious violations or misconduct? This, in CASAC’s view, is an issue that must primarily be dealt with by Parliament. While courts may in some situations be required to rule on the issue,1 s 89 affords the power to Parliament as a legislative and political body to determine when misconduct is so serious that it warrants the President’s removal.

21. However, while the ultimate determination of how to act under s 89 is, by its nature, a principally political matter, Parliament is obliged to act rationally in reaching that decision. The Constitutional Court has repeatedly made clear that not only must decisions be rational, the process that is followed in reaching those decisions must also be rational.2 In the words of Justice Yacoob: “[B]oth the process by which the decision is made and the decision itself must be rational.”3

22. The Public Protector found that President Zuma knowingly benefitted from the upgrades to the Nkandla residence, and failed to take any steps to curb out of control spending that redounded to his benefit. Those are serious findings. Depending on the exact facts, it could legitimately be treated as serious misconduct, or a serious constitutional violation.

23. For the National Assembly to make a rational determination of whether President Zuma’s conduct warrants removal, it must make sure it has all the relevant facts before it. What did the President know and when? Why did he fail to act to prevent the uncontrolled spending? Was his misleading of Parliament indeed bona fide as the Public Protector concluded? Were the costs related to private renovations separated from state expenditure? The Public Protector made findings on these issues, and was unable to make findings on others. Some of her findings depart from those of the task team established by Government to investigate the issue.

24. The Assembly has the power under s 56 of the Constitution to summon any person to “give evidence under oath” and to require them to produce documents. In order to make a rational decision on whether or not the President is guilty of serious misconduct or serious violations of the Constitution, it must not merely consider the Public Protector’s Report; it must obtain additional information to address the unanswered questions in the Report. The Public Protector’s Report makes many negative findings, but also raises many questions. In order to determine whether the President’s established misconduct and violations of the Constitution are indeed “serious”, he needs to be questioned by Parliament.

THE BREACH OF THE CODE OF ETHICS FOR MEMBERS OF THE EXECUTIVE 

25. The Public Protector has also found that the President has breached paragraph 2 of the Code of Ethics.

26. Paragraph 2 of the Code of Ethics provides for “general standards” to be observed by members of the Executive. Consistently with the finding that the President failed to uphold the provisions of section 96 and 237 of the Constitution, it is submitted that the Committee can probe the issue of whether the President acted in breach of paragraph 2.1(b) and 2.1(d).

27. The above provisions (i) impose an obligation on the President to fulfil the obligations imposed; and (ii) require the President to act in a manner which safeguards the integrity of the office of the President or the government.

28. The factual finding of the Public Protector is that in December 2009, the President became personally aware of the expenditure at his property, which at that stage was estimated at R65 million. Despite this awareness, he failed to take action to prevent further expenditure, thereby placing his personal interest in conflict with those of his office. Furthermore, the finding of the Public Protector shows that the failure by the President to take steps in December 2009 in effect allowed further unchecked expenditure, resulting in more than R200 million by the time the matter came to be investigated by the Public Protector.

29. When considering the implications of the violations of the Ethics Code, as found by the Public Protector, the Committee must take into account that the President, as Head of the National Executive, is required to exercise executive oversight over other members of National Executive. That creates a responsibility that he must lead by example.

THE ISSUE OF THE SPECIAL INVESTIGATING UNIT INVESTIGATION 

30. Before the establishment of the Ad Hoc Committee, it was reported that the President had decided that he would respond to the Report of the Public Protector, after certain further investigations had been conducted by the Special Investigating Unit (SIU). The President confirmed this in his letter to the Speaker dated 01 April 2014. 16

31. This stance by the President should not be entertained for the following reasons:

31.1 In terms of section 55 of the Constitution, it is clear that the President is accountable to the National Assembly, in his capacity as Head of the Executive. He is unable to dictate the terms of his engagement with the National Assembly.

31.2 In terms of section 181 of the Constitution, all organs of state, including the executive must assist chapter 9 institutions to ensure their effectiveness, impartiality and independence. The view taken by the President, effectively to equate the report of the Public Protector with a report prepared by members of the President’s Cabinet, diminishes the status of the report of the Public Protector. Furthermore, the failure to act in terms of the report – without challenging the report in any court of law – effectively undermines the effectiveness and the independence of the Public Protector.

31.3 The SIU investigation is limited to the matters outlined in the Proclamation by the President (No. R. 59, 2013) which focus on the Department of Public Works. The SIU is not competent to investigate the findings of the Public Protector, namely that the President acted in breach of the Constitution and the Code of Ethics. Any investigation by the SIU will not address those issues. Under the Constitution and the Executive Members Ethics Act, that is the responsibility of Parliament.

32. It is therefore submitted that the investigation by the National Assembly cannot be made subject to the report of the SIU. The National Assembly is not subservient to the SIU. If (as we submit) the President must answer certain questions, there is no legal or constitutional impediment to such course of action.

Lawson Naidoo

Executive Secretary

CASAC

Endnotes

1 For example, if a President is removed and challenges his removal on the ground that his misconduct was trivial.

2 See, for example, Albutt v Centre for the Study of Violence and Reconciliation and Others [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC); and Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC).

Democratic Alliance (above) at para 34.

Oscar’s ‘involuntary action’: Thin ice, Mr Pistorius

Gerrie Nel this week accused Oscar Pistorius of changing his legal defence from “putative self-defence” to one of “involuntary action”. This was because Pistorius seemed to suggest that he could not remember pulling the trigger of his gun and pumping four shots into his toilet door. Instead he suggested that the discharge of his firearm was an accident or, at the very least, that his conduct was not under the control of his mind.

Until his testimony and cross-examination, Oscar Pistorius’ defence was that he mistakenly thought his life was in danger and (wrongly) believed that he was entitled to act in self-defence when he pumped four bullets through his toilet door at Reeva Steenkamp. This is a valid defence. If successful, it negates the intention of the accused to commit an unlawful act.

Yet under cross-examination Pistorius seemed to suggest that the gun had gone off in his hands, but that he had nothing to do with it. This defence – if it was indeed the defence offered by Pistorius – is not easy to sustain. However, if it is sustained, the accused is acquitted of all charges. This is so because it is a trite principle of our law that a voluntary act is an essential element of criminal responsibility.

A similar defence was recently offered by Mr Jacob Humphreys in his murder trial. However this defence was rejected by the High Court as well as the Supreme Court of Appeal (SCA).

Mr Humphreys had been convicted in the Western Cape High Court on ten counts of murder and four counts of attempted murder. The convictions arose from a widely reported incident when a minibus, driven by Mr Humphreys, was hit by a train on a railway crossing near Blackheath on the outskirts of Cape Town.

There were fourteen children in the minibus, ranging in ages between seven and sixteen years. Ten of the children were fatally injured in the collision, which gave rise to the ten murder convictions in the High Court.

Although the SCA set aside the murder convictions and replaced them with convictions for culpable homicide (because it found that Mr Humphreys did not have the requisite intention to be found guilty of murder), it rejected Mr Humphreys’ contention that he had acted involuntary and should therefore be acquitted of all charges.

In a judgment authored by Brand JA, the SCA pointed out that when an accused is not conscious of his actions, the defence available to him would be that he did not act voluntarily.

If an accused person does not act voluntary he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”.

Brand pointed out that this type of involuntary behaviour “is more reminiscent of the activities of an automaton rather than a human being”, which is the reason this defence has become known as one of automatism.

It is important to note that when the defence of automatism is raised, the onus remains on the State to establish the element of voluntariness beyond reasonable doubt. However, a court will not merely assume – based on the claims made by the accused – that he had acted involuntarily.

The problem is that when an accused raises the defence of having acted involuntarily, only the accused person can give direct evidence as to his or her level of consciousness at the relevant time. But an accused would obviously have a vested interest in telling the court that he or she acted involuntarily.

As the SCA pointed out:

If the mere say-so of the accused person that the act was unconsciously committed were to be accepted without circumspection, it would tend to bring the criminal justice system into disrepute. After all, an accused person who has no other defence is likely to resort to this one in a last attempt to escape the consequences of his or her criminal behaviour. Hence it has been emphasised in earlier cases that the defence of automatism must be carefully scrutinised.

In this regard the State is assisted (in discharging the onus):

by the inference dictated by common experience that a sane person who becomes involved in conduct which attracts the attention of the criminal law ordinarily does so consciously and voluntarily. In order to disturb this natural inference, an accused person who seeks to rely on the defence of automatism is thus required to establish a factual foundation, sufficient at least to raise reasonable doubt as to the voluntary nature of the alleged criminal conduct.

In a case like the one involving Oscar Pistorius the court will require some indication of an “emotional stimulus” that could serve as a “trigger mechanism” which led to the sudden and unusual absence of control. In the past our courts – controversially – had found such a trigger in circumstances giving rise to stress, provocation, frustration and fatigue.

However, in 2002 in S v Eadie the SCA criticised courts that previously had too easily assumed that the accused had acted involuntarily. What was required in such cases, said the court in Eadie, was to carefully consider the accused’s actions before, during and after the event and to determine whether there was “planned, goal-directed and focused behaviour” involved. The court also emphasises that a detailed recollection of events by an accused militates against a claim of loss of control over his actions.

The difficulty of invoking involuntary action as a defence is illustrated by the reasoning of the SCA in the Humphrey case. Brand JA found that Mr Humphreys “did not even come close to establishing a factual basis for any doubt about the voluntariness of his conduct”.

He had not tendered any expert medical evidence on his behalf. On Mr Humphreys’ own evidence there was a glaring absence of any suggestion as to what could have triggered the rare condition of sudden unconsciousness. It could at best be inferred, said the court, that Mr Humphreys was suffering from “retrograde amnesia, which is no defence in itself”.

This means that if Oscar Pistorius is indeed now changing his defence to one that he acted involuntarily, the defence would have to tender expert evidence as to his state of mind.

Given the fact that a sane person who pumps four shots into a door and who can later recall – in great detail – much of what happened before and after the shots were fired would usually be assumed to have done so consciously and voluntarily, something more than a mere assertion that he was under extreme stress would probably have to be offered by Pistorius for a court to accept a defence of involuntary action.

That Nkandla SMS: why it is (legally) complicated

Courts are often not well placed to act as mediators in highly charged political disputes. The ANC’s attempt to use the court to deal with the DA’s claim that the Public Protector’s Report “showed that Zuma stole your money to build his R246 home” is a case in point.

Election campaigns tend to get extremely heated and the rhetoric overblown. Leaders of political parties do not only make wild promises they know they can never keep (we all know there won’t be 6 million jobs – or even job opportunities – after the election), they also hurl insults and accusations at their opponents that might ring true for some voters but – from a legal perspective – are difficult or impossible to prove.

When ANC politicians claim that the DA is a racist party, that it does not care about the poor or that it will bring back Apartheid if elected, we all know that these claims are part of the ANC’s election rhetoric. Some voters will take it seriously and some will not. The best way the DA could counter such claims is to demonstrate, through their words and action, that the claims are untrue.

Similarly, when the DA claims that President Jacob Zuma has stolen taxpayers’ money, that ANC leaders are all corrupt or that the ANC will undermine the Constitution, we all know that this is part of the DA’s election rhetoric. Some voters will believe the claims and some will not. Surely the best way for the ANC to counter such claims would be to show, through words and deeds, that the claims are untrue.

The ANC chose not to follow this route to challenge the accuracy of the SMS sent by the DA that the Public Protector Report shows that President Zuma has stolen taxpayers’ money. Perhaps because it thought it would not be able to win the argument or because it feared that the damage done to the ANC brand by the Nkandla scandal could not be repaired through reasoned debate and argument alone, it approached the court to try and stop the DA from making these claims.

The ANC relied on section 89(2)(c) of the Electoral Act which prohibits any person from publishing any false information with the intention of influencing the conduct or outcome of an election and on item 9(1)(ii)(b) of the Electoral Code which prohibits any registered party or candidate from publishing false or defamatory allegations in connection with an election in respect of a candidate or that candidate’s representatives.

If a court were to interpret these provisions strictly, it would have a drastic effect on what could and could not be said during an election campaign. It would then become illegal to make accusations about a political party or its candidates unless it could easily be shown that the accusations are true.

A large amount of statements made by ANC politicians about opposition parties and quite a number of statements made by opposition parties about the ANC would immediately be rendered illegal during an election campaign.

It will always be very difficult, if not impossible, to show that many of the accusations made during an election campaign are indeed true. A strict interpretation of the Electoral Act would therefore impose a drastic limit on what could be said during an election campaign and would impoverish political debate and contestation.

As the distinction between facts and opinion based on those facts can be very difficult to maintain, politicians would have to curb their exuberance when making claims about opposition parties and their candidates.

As a result, those taking part in the election campaign would be unable to raise many critical questions about their opponents and voters would be deprived of opinions about political parties and their candidates that may otherwise have played a pivotal role in their decision who to vote for.

A narrow, literal, interpretation would therefore leave the relevant sections of the Electoral Act open to constitutional challenge.

It may be for this reason that the High Court reinterpreted the relevant sections of the Electoral Act in line with section 39(2) of the Constitution. This section requires a court when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights”.

If words in legislation are reasonably capable of an interpretation in line with the provisions of the Bill of Rights, a court must give those words the constitutionally valid meaning.

The court thus rejected the argument, advanced on behalf of the ANC, that section 89(2) created strict liability and prohibited false statements even where those who made them believed them to be correct.

Instead it interpreted the section in the light of the right to freedom of expression and in the light of section 1 of the Constitution, which states, inter alia, that ours is a state based on the values of a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

The judgment thus, somewhat controversially, introduced the principles developed in law of defamation regarding fair comment when interpreting the relevant provisions in the Electoral Act.

In effect, the court found that you would not be in breach of the Electoral Act every time you make what turns out to be a false statement about a candidate or political party. You will only be in breach of the Act if your statement is false and does not amount to “fair comment”.

The court noted that in the law of defamation regard must be had to who is being targeted. Politicians and public figures must not be too thin-skinned about comments made about them. What may be defamatory of a private person may not necessarily be defamatory of a politician or a judge. This is so because right-thinking people will probably not likely greatly be influenced in their esteem of a politician by derogatory statements made about him or her.

Interpreted in the light of the law of defamation, a comment based on facts need not commend itself to the court, nor need it be impartial and well-balanced. Fair comment requires only that the view must – objectively speaking – be an honest and genuine expression of opinion about a set of facts and must not disclose malice.

The idea is that divergent views should be aired in public and subjected to debate and scrutiny because it is through such debate that bad ideas will be exposed and shown to be wrong-headed. Untrammeled debate enhances truth-finding. If the relevant sections of the Electoral Act were interpreted too strictly, it would make untrammeled debate very difficult, if not impossible.

Given this expansive interpretation of the relevant provisions of the Electoral Act, the court found that the comments made by the DA in its SMS constituted fair comment.

This was so because the DA SMS did not state as fact that the Public Protector Report found that President Jacob Zuma stole money. Instead the SMS claimed that the Report “show[ed]” that he did so.

In this regard the court noted that the Public Protector’s Report found that government created a license to loot situation during the Nkandla construction. It also noted that the president was aware of the upgrades but never raised any concerns as to the scale and cost of the upgrade, that he thus tacitly accepted the upgrades and that he improperly benefited in the process.

The court thus found that the SMS expressed a conclusion which could be fairly reached by a person reading the report.

Although the judgment wisely attempted to narrow the scope of section 89(2)(c) of the Electoral Act and item 9(1)(ii)(b) of the Electoral Code in order to preserve a space in which robust free and fair campaigning could occur, another court may well find that the wording of the Electoral Act could not reasonably be interpreted in the way the court interpreted it.

However, I would guess that if another court declined to follow the reasoning of the High Court, and instead interpreted the relevant sections to prohibit all claims made about a political party or its candidates that cannot be shown to be true, it would render these sections of the Electoral Act unconstitutional for breaching the right to freedom of expression.

There is therefore a possibility that an appeal of the judgment by the ANC may be successful. If it is successful, then it would leave the relevant sections open to constitutional attack.

It may therefore well be that after a lengthy legal battle, more or less the same outcome reached by the High Court is reached by another court – but based on different grounds, namely that the sections invoked by the ANC are unconstitutional.

The unbearable lightness of being a Nkandla Report critic

Like any judgment in a court of law, a report of the Public Protector is not above criticism. Although it is a criminal offence to insult the Public Protector or to say anything about an investigation that would have constituted contempt of court if it had been said of court proceedings, criticism of the findings of the Public Protector should be welcomed. However, some of the criticism levelled at the Public Protector’s Nkandla Report is so far off the mark that no rational person, acting in good faith, could possibly have made it.

The investigation and report of the Public Protector into the use of public funds for large-scale construction at President Jacob Zuma’s private homestead near Nkandla, and into Zuma’s denials about this to the National Assembly, can indeed be faulted.

This is illustrated by the failure of the Public Protector to use her extensive legal powers to try to prevent the president from thwarting the investigation and her failure to act more decisively to try and force him to comply with his legal duties.

Section 7(4) (read with section 9(3)) of the Public Protector Act renders it a criminal offence for any person to refuse or fail to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated. It also renders it a criminal offence to refuse to answer questions duly put to that person by the Public Protector about an investigation.

However, when the president failed to answer most of the relevant questions put to him by the Public Protector and further failed to provide evidence of the alleged bond (as he was legally required to do), the Public Protector did not force him to comply with the law.

Neither did she refer the president’s failure to answer most of her questions and to furnish her with information about the alleged bond to the police or the National Prosecuting Authority for further investigation and possible criminal prosecution.

The Public Protector also did not make use of section 7A of the Act to obtain a search and seizure warrant allowing her office to search the private home and the office of the president for documents relating to the investigation which the president had illegally refused to hand over to her office.

Furthermore, the Public Protector found that the claim made by President Zuma to the National Assembly that his family had built its own houses and the state had not built any for it or benefited them was not true. However, curiously, she found that this false statement could have been a bona fide mistake.

This finding is almost certainly wrong. Given the extensive evidence of the president’s knowledge of (and involvement in) the project, it is not credible to believe that the president did not intend misleading the NA when he made this false statement.

After all, her report contains evidence that the president was shown designs for the swimming pool for his approval. How could he then in good faith have told the National Assembly that he and his family had paid for all non-security related construction at Nkandla?

But those who have been criticising the Nkandla Report have not done so because they are worried that the president’s involvement in the scandal was not investigated as vigilantly as it could have been. Instead, they have bizarrely criticised the Report for making any findings of wrongdoing against the president and for requiring him to repay a small part of the amount with which he and his family had unlawfully been enriched.

A good example of this flawed and entirely biased reasoning can be found in an article penned by attorney Krish Naidoo, and published in The New Age.

It is clear from the article that Mr Naidoo did not read the Public Protector’s Report.

He claims that the Public Protector had
invoked section 140 of the Constitution in justifying her finding that the president had not complied with the Executive Members Code of Ethics. A quick word search of the Report confirms that section 140 is not mentioned in the Report at all. In fact, the Public Protector correctly cited section 96 of the Constitution in support of her findings.

It is unclear why Mr Naidoo would claim otherwise.

Although the argument is difficult to follow, Mr Naidoo also seems to claim that the president’s Oath of Office in Schedule 2 of the Constitution does not contain words to the effect that the president must “protect and promote the rights of all people within the republic”. This is a curious claim as a quick perusal of Schedule 2 immediately reveals that these exact words are contained in the Schedule.

Why Mr Naidoo would make such a clearly untrue statement is not clear.

Mr Naidoo also claimed that the Public Protector plagiarised a statement that “Our government is the potent, the omnipresent teacher.” However, on page 4 of her Report this statement – serving as one of the mottos to the Report – is clearly attributed to Justice Louis D Brandeis, US Supreme Court Justice.

Once again it is unclear why this false claim of plagiarism was made at all. Even if Mr Naidoo had only read up to page 4 of the Report, he would have discovered that the claim of plagiarism couldn’t be sustained.

In disputing the Public Protector’s finding that the president was in breach of section 2 of the Executive Members Ethics Code, Mr Naidoo argued that the Code only applied in cases where the president had failed to comply with a constitutional duty and that no such duty to protect state resources can be derived from the Constitution.

This is not true as section 2 of the Code places a wide-ranging set of legal duties on, amongst others, the president to:

“(a) perform their duties and exercise their powers diligently and honestly;

(b) fulfill all the obligations imposed upon them by the Constitution and law; and

(c) act in good faith and in the best interest of good governance, and

(d) act in all respects in a manner that is consistent with the integrity of their office or the government.”

This means, even where no constitutional or other legal duty is imposed on the president to protect state resources, the Code – imposing a broad ethical duty that can be legally enforced – requires him at all times to act in good faith and in the best interest of good government.

Recall that the Executive Members Ethics Act, which gives effect to section 96 of the Constitution, authorises the Public Protector to investigate breaches of the Executive Members Ethics Code. In fact this Act places a legal duty on her to do so.

In other words, the Executive Members Ethics Act, read with the Code, place a legal duty on the president to act ethically to pursue what is in the best interest of good government.

Where the president fails to stop unlawful action which has the effect of financially benefitting him in ways that go far beyond security related upgrades, it can surely not be said that he had acted in good faith in the best interest of good government.

But this is not the end of the matter. Even if – like Mr Naidoo – one wrongly focused only on the sub-section of the Code that requires a constitutional or legal duty to have been breached before there can be any finding of wrongdoing by the president, it is clear that the various sections of the Constitution (read together) impose a constitutional duty on the president to protect state resources.

This is so because section 83(b) of the Constitution states that the president “must uphold, defend and respect the Constitution as the supreme law of the Republic”. Section 96(2)(b) further states that the president – as is the case with other members of Cabinet – may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Section 195(b) of the Constitution furthermore places a legal duty on the public administration to promote the “[e]fficient, economic and effective use of resources”.

All these sections, read together, clearly place a constitutional duty on the president to prevent a situation where his public duties as president and his private interests collide, as was clearly the case here.

Moreover, where state resources are used improperly to benefit the president and his family in ways that have nothing to do with his security, where he clearly is aware that the resources have been spent in this way and where he fails to halt this, he is clearly in breach of his constitutional obligations as set out above. This is so because he has then not promoted efficient, economic and effective use of resources as he is constitutionally obliged to do.

This is underscored by the fact that the president is the head of the cabinet and the executive authority of the Republic is vested in him. As a cabinet member he is individually and collectively accountable for the actions of the government.

But as head of the executive, ultimate responsibility for the use of state resources rests with the president. In the terminology of the American Presidency, our constitution clearly enforces the principle that: “the buck stops with the president”. To hold otherwise would be to ignore the fact that the executive authority of the Republic vests in him.

While the Public Protector Report is not perfect, the bizarre and sometimes completely untrue claims made with the aim of discrediting the Report are worrying. It suggests either that critics have not read the Report or are unwilling or unable to understand the most basic arguments contained in the Report, or that they are willfully trying to mislead the public by making claims that they know are untrue.

Nkandla – unlawful to the last

The Report of the Public Protector on the use of public funds on lavish construction at President Jacob Zuma’s private home near Nkandla found that there was no legal authority for the spending of R246 million on the Nkandla Project. Despite suggestions to the contrary, neither the applicable Cabinet Policy nor the National Key Points Act were complied with by the various state actors involved in the project.

Although the Public Protector (circumspect to a fault) did not make a conclusive finding on this, her Report suggests that those involved in the Nkandla scandal were at first unconcerned about whether they were legally authorised to spend public funds on the construction at President Zuma’s private home.

Because it was the president’s house, the legal niceties seemed to have been of little or no concern to them. It only seemed to have become a concern when they had to account for their actions and when they realised that the president, unsurprisingly, was not going to take responsibility for the project and was not going to protect them against the fall-out from the scandal.

The Report found that most of those involved in the implementation of the Nkandla Project had no knowledge of the relevant legal provisions applicable to the project. Most of them invoked the Ministerial Handbook (which the Public Protector found was not applicable to the project) as legal authority for the project.

Instead, two other legal documents (had they been complied with) would have authorised some (but not all) of the cost of the construction at President Zuma’s private home.

First, the “Cabinet Policy: Security Measures at the Private Residences of the president, Deputy President and former Presidents and Deputy Presidents”, which was approved on 20 August 2003, allows for the spending of public funds on security measures at private properties that are owned and regularly used by the president.

This Policy provides that at the request of the president or the Presidency, the SAPS, together with the National Intelligence Agency (NIA) (now the State Security Agency) must evaluate the security situation of such a property, based on a threat analysis conducted by the NIA.

The SAPS and the NIA then have to formulate a proposal on appropriate security measures that should be put in place by the State after which the Department of Public Works (DPW) has to prepare cost estimates of implementing these measures.

Thereafter, the SAPS have to advise the Minister of Police on the proposed safety measures, including the cost thereof. Whatever measures are accordingly approved by the Minister of Police shall be communicated to the president for his or her consent. The SAPS then has to submit the measures, as approved by the president to the Minister of Public Works for approval of the structural components.

However, the Public Protector found that none of these requirements were complied with (apart from two security evaluations that were conducted by the SAPS). There was no indication that the evaluations were conducted jointly with NIA (SSA), casting doubt on the intelligence estimates on which the SAPS recommendations for security upgrades were made.

It is unclear why – if the security of the president and indeed the Republic was at stake – the NIA was not at all involved in the evaluation of the security risk faced by President Zuma at his private home.

Regarding the flouting of the Cabinet Policy, the Public Protector further found that:

The Minister of Police probably did not inform the president and requested his consent, as he was required to have done in terms of the Policy, because he was not advised accordingly by the SAPS.

The Public Protector consequently found that the Cabinet Policy was not complied with “and therefore did not constitute legal authority for the expenditure incurred by the DPW in respect of the Nkandla Project”.

The failure to follow the processes outlined in the Cabinet Policy and the deviation from the security measures that were recommended in the security evaluation done by SAPS was thus found to constitute “improper conduct and maladministration”.

Curiously, halfway through the project, on 8 April 2010, the president’s private residence was declared a National Key Point in terms of the National Key Points Act by the Minister of Police.

No finding was made about why the Nkandla residence was declared a National Key Point at this late stage and whether this was done in an attempt to draw a veil of secrecy over the construction project. (Recall that Ministers in the Security Cluster initially refused to answer questions about the project by invoking the National Key Points Act.)

The relevant Declaration Certificate issued by the Minister of Police on 8 April 2010 in terms of the National Key Points Act declaring the president’s private residence at Nkandla a National Key Point informed the president that he was obliged to take measures at his own cost and to the satisfaction of the Minister “to prevent or counter subversion, espionage and sabotage”.

As the Cabinet Policy was not complied with and therefore did not constitute legal authority for the expenditure incurred by the DPW in respect of the Nkandla Project, the declaration of the president’s private residence as a National Key Point on 8 April 2010 therefore had the result that as from that date, he was required to secure his private residence at his own cost. “His failure to do so without reasonable cause would have constituted a criminal offence” in terms of the Key Point Act.

Curiously, the acknowledgement of receipt of this declaration in the Presidency is dated 7 April 2011, exactly a year after it was sent. Whether this delay speaks to administrative chaos inside the Presidency or to a more nefarious motive to delay incurring a formal legal obligation to pay for the cost of security upgrades in terms of the Act, is not answered in the Report.

The Declaration sent by the Minister of Police was in line with Section 3 of the National Key Points Act, which provides that on receipt of the notice, the owner, after consultation with the Minister of Police, has to take steps at his/her own expense and to the satisfaction of the Minister in respect of the security of the place.

It is common cause that the president did not implement any security measures in respect of his private residence, as was required of him in terms of section 3 of this Act. This means that the legal position is therefore that the National Key Points Act was not complied with. The expenditure incurred by the DPW in respect of the Nkandla Project – in as far as the National Key Points Act was applicable – was accordingly irregular.

The Public Protector did not make any finding on whether the president was prima facie guilty of a criminal offence for failing to secure the National Key Point as required by the Act.

It must however be noted that in terms of the Act the Minister of Police could, in terms of section 3A of the National Key Points Act, have taken over the duties of the president to secure his residence as a National Key Point, on his behalf and with his consent. In such a case, the president was liable for the cost of the steps taken, to the extent determined by the minister.

This was never done. As the Public Protector points out:

I requested the Minister of Police on several occasions during the investigation to submit the relevant documents and/or correspondence indicating that the president was informed of the actions taken by the Minister as far as securing his private residence was concerned, that he consented to it, that a decision was taken accordingly and that he was informed of his liability for the costs involved.

No such documents and/or correspondence could be provided and I could find no evidence or indication that the minister invoked the provisions of section 3A of the National Key Points Act at any time.

There was also no explanation of why the Minister of Police’s order, issued with the declaration of President Zuma’s private home as a National Key Point, that the president himself had to pay for security upgrades at Nkandla was ignored.

It may be that after the order was made, the president refused to obey the law and to carry the cost. It may also be that the order was never meant to be taken seriously but was merely issued to provide a smokescreen, creating the impression that the president would pay for all security related upgrades. It may also be that all concerned had forgotten about the order or discovered after it was made that the construction at Nkandla may legally be justified by invoking the Cabinet Policy discussed above.

As I tried to make clear, the Report of the Public Protector does not answer all the questions relating to the unlawful and unauthorized expenditure of R246 million on President Zuma’s private home. Most of the unanswered questions can only be answered by the president or by his closest allies in the Cabinet. If the president and Ministers in the Security Cluster were to take their constitutional obligation to account for their actions seriously, they would attempt to answer these questions.

But they probably never will.

Extract from Nkandla Report: How Zuma stymied investigation

This is an extract from the Public Protector Report on the Nkandla scandal, setting out in detail how President Jacob Zuma delayed the investigation and failed to answer many of the questions posed to him. It seems that it is partly because of this failure that the Public Protector, being cautious to a fault, found that although President Zuma lied to Parliament he may not have had the intention to do so.

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PART G: THE RESPONSES SUBMITTED BY THE PRESIDENT IN REPLY TO QUESTIONS PUT TO HIM DURING THE INVESTIGATION 

6.77. On 29 January 2013, I wrote to the President to inform him of my investigation of the complaints referred to in paragraph 2 above. I specifically stated the details of the complaint lodged by Prof De Vos in connection with the statement that the President allegedly made to the National Assembly on 15 November 2012 that the development of the first phase of his private residence was financed by a commercial bank that secured a mortgage bond in respect of the property.

6.78. My letter also stated that:

You will be afforded an opportunity to respond in full to the allegations, once I am in a position to provide you with more detailed information regarding the matters concerned. 

It would be of assistance to me to consider the merits of the complaint lodged by Prof De Vos, if you could request the Presidency to provide me with a copy of the registered bond relating to your private residence and any other relevant documentation and/or information pertaining to the funding thereof. Such documentation and information will, due to the nature thereof, be kept secure and handled with the appropriate discretion and confidence.

6.79. I received no response from the Presidency in respect of my request for information, despite having approached it again in this regard on 11 April 2013, 21 June 2013 and 19 August 2013. I also wrote to the President directly in this regard again on 29 July 2013, but received no response.

6.80. Eventually, I personally met with the President in connection with my investigation on 11 August 2013, a day before my inspection of the works implemented by the DPW at his private residence at Nkandla. I have made reference to my discussions with the President on certain aspects of the Nkandla Project under different headings in this report.

6.81. During our meeting, I also provided the President with a set of written questions that related to my investigation and in respect of which I required his response. The President undertook to provide me with a written response.

6.82. As no response to my questions was forthcoming, I approached Dr Lubisi, the Director-General in the Presidency, again requesting his assistance in this regard, on 26 August 2013.

6.83. A copy of my written questions with annexures had to be provided to the Presidency, at its request, on 27 August 2013.

6.84. Eventually, I had to write to the President directly on 16 September 2013 to again request his response to my set of questions.

6.85. My questions were as follows:

1. Did you or the Presidency request that security measures be installed at your private residence at Nkandla after you were appointed as the President in May 2009, as provided for in the Cabinet Policy on Security Measures at the Private Residences of the President, Deputy President and former Presidents and Deputy Presidents, dated 20 August 2003? If so, kindly indicate who made the request, when and how. 

2. Were the measures that the Department of Public Works intended to implement at your private residence communicated to you by the Minister of Police, as contemplated by the Cabinet Policy? If so, what were your impressions of the proposed measures and did you formally consent thereto? 

3. Where you at any stage informed of the cost of the proposed security measures? If so, who presented the cost to you, what was the amount, and how did you respond to it? 

4. Your private residence was declared a National Key Point by the Minister of Police, in terms of the National Key Points Act, on 8 April 2010. According to the evidence obtained during the investigation you were notified accordingly by means of a notice (Annexure A) signed by the Minister of Police. Can you kindly confirm that this notice was served on you? 

5. What was you understanding of the declaration of your private residence as a National Key Point in terms as your responsibilities as the owner? 

6. Did you at any stage respond in terms of the notice by taking measures to secure your private residence, as required by the National Key Points Act and the notice? If so, what measures were taken? 

7. From the evidence it appears that the Minister of Police acted on your behalf, as contemplated by section 3A of the National Key Points Act, when he had your private residence secured. Were you notified of this, as is required by the Act and if so how? 

8. Were you ever advised by the Minister of Police that any part of the cost of securing your private residence as a National Key Point would be recovered from you? If so, when and how? 

9. According to the evidence, you met with representatives of the Department of Public Works and the South African Police Service at you private residence on 12 August 2009, where you were briefed on the security measures that were to be installed in the three new dwellings that you were constructing. Is this correct, and if so can you kindly explained what transpired at this meeting. 

10. The evidence obtained during the investigation also indicates that you complained on several occasions about the slow progress made with the implementation of the security project. Is this correct, and if so can you kindly explain the reasons for your concerns and how it was addressed? 

11. According to the evidence, you requested the former Minister of Public Works, Mr G Doidge, to look into the delay. Is that correct? If so, did he report back to you and what were the nature of his reports? 

12. Mr M Makhanya, the architect that you appointed in respect of your private construction on the premises, was also appointed by the Department of Public Works as the Principal Agent for the security project. Did he present you with the designs of the Department of Public Works’ security project? If so, can you recall which designs were presented to you and how you responded to it? 

13. According to the documentation obtained during the investigation, former Minister of Public Works, Ms G Mahlangu-Nkabinde, informed you in writing of the progress made with the implementation of the security project, shortly after she was appointed, on 5 November 2010. (Annexure B) Can you kindly look at the copy of this letter and indicate whether you received it and how you responded to it. 

14. Former Deputy Minister of Public Works, Ms H Bogopane-Zulu indicated during the investigation that she discussed the security measures with you. She also raised the possible apportionment of costs of the security measures between you and the state with you and requested a document to be prepared by the project team in this regard. The document was prepared and delivered to the Ministry of Public Works. (Annexure C) Can you please look at this document and indicate whether it was presented to you, and if so what your response was? 

15. If the document was not presented to you, was the apportionment of costs ever discussed with you? If so when and by whom? 

16. Did you ever enquire into it, and if so what was the response that you received? 

17. Deputy Minister Bogopane-Zulu also indicated that she discussed the conversion of the fire-pool on the premises into a swimming pool with you and that you supported the idea that it could be used to teach children of the village to swim. Is this correct? 

18. Kindly indicate whether you are aware of the reasons why the fire-pool was converted into a swimming pool and whether the additional and apportionment of such costs were discussed with you. If so, who discussed it with you, and what was your response? 

19. The implementation of the security project resulted in the relocation of four households that were living on the site. Were you consulted in connection with the relocation and, if so, what was your response? Did you issue any instructions in this regard? 

20. According to the evidence, you apparently indicated that you were opposed to more contractors working on the site when Phase 2 of the project commenced, that is the construction of staff housing, etc. Is this correct and if so why were you opposed to more contractors? Did you issue any instructions in this regard? 

21. Deputy Minister Bogopane-Zulu further indicated during the investigation that you supported her idea that the military clinic should be designed in such a way that it could also be used by members of the community. What is your response to that? 

22. It was also indicated during the investigation that you raised concerns about the bullet resistant glass that was installed in your houses. Is this correct and if so, can you kindly explain 

23. A newspaper report alleged that two of your brothers, Messrs Joseph and Mike Zuma improperly benefitted from the security project when items that were destined for it were delivered at their houses. What is you comment on this allegation? 

24. As indicated in my letter addressed to you on 29 January 2013 (Annexure D), I have also received a complaint in connection with a statement that you made to Parliament about the bond on the property concerned. I have repeatedly requested to be provided with the relevant documents to enable me to deal with this complaint. Are you now in a position to provide these documents? 

25. Would you be willing to disclose the amount that you paid for the construction of the three new dwellings? 

26. How often do you use your private residence at Nkandla for official purposes? 

27. Is there any particular reason why you would prefer to use your private residence for official business rather than any one of the official residences that are available to you? 

28. Did you at any stage enquire into the cost of the security project, which was obviously extensive? If not, did you not feel obliged to do so as the head of state and as a substantial amount of public money was obviously being spent? 

29. How would you describe your involvement in the security project that was implemented by the Department of Public Works at your private residence?” 

6.86. The President provided me with a response under a covering letter from the Acting Secretary of the Cabinet, dated 1 October 2013. His response was in the form of a statement, signed by him on 30 September 2013.

6.87. In the opening paragraphs of his statement, the President denied that he was ever apprised of the fact that his conduct formed part of my investigation.

6.88. He proceeded by explaining the location of his family homestead at Nkandla and the history of his occupation of the property. Of particular significance to the subject of my investigation, is the following extract of the President’s statement:

12 As the political environment stabilized in the coming years with the advent of our new democracy, I now felt more confident to effect improvements to the family homestead in order that it could cater for our needs more adequately. 

13 I proceeded to engage a building contractor to effect the improvements to my homestead. Several new rondavels, each self-contained, were constructed. 

14 These improvements were financed by a home loan obtained from one of the four largest commercial banking institutions in the Republic upon satisfaction of their collateral requirements. The property is still subject to a mortgage and I continue to meet my financial commitments in terms thereof. 

15 In the ensuing years and as I began to play a leading role in government, I had to submit to the security protocols which senior government officials are subjected to. Static security was provided from the South African Police Services (SAPS), (sic) Ulundi, while protection services were provided from SAPS Eshowe. 

16 This meant that additional rondavels were constructed on my homestead in order to cater for the accommodation of those police officials assigned for my protection, given the lack of infrastructure in Nkandla. In addition, a car port and storerooms were also constructed. 

17  In 1999 I was appointed as the Deputy President of the Republic. As a consequence of my increased responsibilities in government I received a higher volume of frequent guests at my home in Nkandla. This, coupled with the fact that my family had grown over the years, my family and I decided to embark on fairly extensive and modern improvements to the property. 

18  To this end we engaged contractors and commissioned the building of three new houses which would be developed in phases over additional neighbouring land which we acquired with the consent of the local chief. 

19 The construction of the houses commenced under the direction of Minenhle Makhanya Architects. 

20 In 2009 I was appointed as President of the Republic. Immediately upon my inauguration, members of the security cluster informed me regarding the result of the security assessment which attached to the office that I now hold, including my residence at Nkandla. 

21 As President of the Republic I have the benefit of residences at Mahlambhandlophu in Pretoria, Genadendal in Cape Town and John Dube House in Durban, all of which I make extensive use of. Equally, I maintain my private residence at Nkandla. 

22 Like most South Africans, I am particularly proud of my community and never miss an opportunity to go home to Nkandla-the demands of my work schedule permitting. I sometimes wish it otherwise, but I do not shed my status as President when I am at home in Nkandla. People continually visit me, seek my advice, support and counsel on a whole range of matters. Similarly, matters of government do not grind to a halt during these all too in-frequent visits to my homestead. 

23 In the course of the engagements with the security cluster, I initially met with then Minister Doidge, senior SAPS officials and other government officials at my homestead in a consultative process regarding improved security due to my occupying the office of President of the Republic. 

24 I thereafter facilitated a meeting between the same grouping of persons and Minenhle Makhanya Architects, the consultant who was already engaged with building work at my home so that there would be as little disruption as possible to the work already commissioned. Secure In Comfort A Report of the March 2014 Public Protector 

25 From time to time I received briefings both formally and informally from the various Ministers engaged with the security enhancements although I was not intimately involved with the finer details. 

26 At these briefings I expressed concern with what appeared to be inordinately lengthy delays which impacted on my family. Equally, I found some of the security features like the bullets-proof (sic) windows an excessive encroachment on my use and enjoyment of my property. 

27 Regarding the rationale for the adoption of particular security features, I deem it neither prudent nor proper for me to comment, particularly where the Public Protector has had access to a range of Ministers and officials properly tasked with this responsibility. 

28 The security upgrades are to be distinguished from the construction of buildings which provide infrastructural support for security personal (sic). 

29 I take exception to the continued conflation of the security upgrades with the construction of buildings for the benefit of security personnel. Whilst neither were at my behest, the latter is directly attributable to the fact of my residence being located in a rural area with all the attendant challenges. Even people drawn from rural communities can play a role in the development of our constitutional democracy.

30 With regard to my address to parliament, I submit with respect, that insofar as it is alleged that I have misled parliament on the existence of my bond over the Nkandla Property, parliament is best placed to enquire into this matter should it so desire. 

31 Likewise, it is not proper for me to account for alleged conduct of members of my family who are not dependents of mine. Transgressions of the law by whomsoever should be reported to the appropriate authorities.

6.89. As the President’s statement did not provide answers to most of my written questions listed above I replied to him on 8 October 2013, listing the outstanding responses that were required and stated that:

 I regarded it as prudent to provide you with an opportunity to respond to these matters as part of my investigation and it would be appreciated if you could still consider doing so, to enable me to include your version of the events in my report.

As far as your response in respect of my investigation into the complaint relating to the statement that you reportedly made to Parliament pertaining to the existence or not of a bond over your property is concerned, you will recall that I raised this with you when I informed you of my investigation, in my letter dated 29 January 2013. 

I indicated in my said letter that the concern raised by the complainant is the impression that you might have violated the provisions of the Executive Ethics Code by misleading Parliament. I also referred you to the public statement of the Presidency of 20 November 2012 that the information pertaining to your bond would be made available to “an authorized agency or institution empowered by the law of the land”. You will respectfully agree with me that this includes the Public Protector. 

In addition to the normal manner in which I approach investigations, I relied on the commitment in the Presidency’s statement when I approached you with the request on this aspect of my investigation. 

I accordingly wish to appeal to you to provide me with the relevant documents pertaining to the bond that you referred to. The information contained in these documents will be handled discreetly as it relates to your private affairs. All that I really need to verify in this regard is that the bond exists and that it relates to your private residence at Nkandla. Providing me access to the documents in the presence of your legal advisors or the Secretary to the Cabinet will also suffice in this regard.

6.90. In his reply, dated 24 October 2013, the President indicated that he required copies or excerpts of evidence, reports and documents that were referred to in my questions, before he could respond. He further stated that:

Regarding your request that I make available my personal bond documents for your perusal, I attach hereto the relevant transcript extracted from Hansard which bears out the following: 

The Zuma family has built their own home; 

The home has been there for a long time; 

I engaged the banks and am still paying a bond on the first phase of my home; 

I am still paying a bond this day. 

Having regard to the content and context, it becomes abundantly clear that such bond relates to the first phase of the development and well before I assumed the office of President. As I understand, it does not relate to the period of your investigation nor does it shed light on any aspect thereof. 

Accordingly, I hold the view that the disclosure you seek would be unnecessary. 

6.91. I again regarded it as necessary to respond to the President to clarify my earlier requests. In my letter addressed to him on 29 October 2013, I reiterated that the complaint that I received in respect of the bond does not relate to the security measures that were installed and implemented at his private residence, but to the statement that he made in the National Assembly on 15 November 2012, the contents of which are contested. I explained that:

It was in order to clarify this issue that I requested you to provide me with access to the bond documents. As matters stand at the moment, I am not in any position to make a finding on the merit of this complaint and would therefore urge you to reconsider my request in this regard.

6.92. The President was also referred to the fact that a number of my questions do not refer to any evidence, reports or documents. In respect of questions that did relate to documents, I provided him with copies of such, which were also attached to my original questions and later resubmitted to his office. As far as the references to “evidence” were concerned, which only related to three of my questions, I indicated that it would be covered extensively in this Provisional Report, a copy of which will be presented to him for his comments. The President’s reply is still awaited.

6.93. The following excerpt of the Hansard that I was referred to by the President in his letter of 24 October 2013 is of particular significance to the matters considered during the investigation:

When I became the President, all of us in the family agreed to extend our home, as I was extending it. Then government came and said that it had to install security features at my residence. By the time government came, the contractors were on site that had been enlisted by the family and not by the government or Public Works. Government had a plan regarding what it wanted to do. Government wanted to improve the fence, etc. I told government that I had my own plan-which was a comprehensive plan- to extend my home. What then happened was that I allowed government to meet with the contractors who were already on site because government, from a security point of view, insisted that they needed to participate. 

So, even the manner in which the question was asked-the question being: have you instructed the Minister to tell the contractors to stop working- suggests that the contractors were brought by Public Works. Public Works found those contractors constructing my home. 

They had to agree to what government wanted them to do at my home. The government had specific things they wanted to do to my houses, not build houses for me. A wrong impression has been created in the country, that the government has built a home for me. That is not true.

6.94. I never received a further response from the President to the questions posed to him.

Nkandla Report exposes President Zuma’s personal involvement in the project

President Jacob Zuma has consistently claimed to know little about the taxpayer-funded aspects of the construction at his homestead near Nkandla. As the Public Protector Report on Nkandla makes abundantly clear, the President was intimately involved in (and had extensive knowledge of) the state-sponsored aspects of the construction at his private home. Claims to the contrary are therefore untrue.

The full extent of the Nkandla scandal only becomes apparent when you carefully read all 447 pages of the Public Protector’s Report. Although the Public Protector made damaging findings in her Report about the unconstitutional and unlawful actions of President Jacob Zuma and about the improper benefits derived from the Nkandla construction by President Zuma and his family, it is only when you study the full Report that it becomes apparent to what extent the President was directly involved in the scandal.

One aspect that bears scrutiny is the extensive evidence contained in the Report of President Zuma’s personal involvement in (and knowledge of) the taxpayer-funded aspects of the construction at Nkandla.

In February this year President Jacob Zuma, in an interview with ENCA – partially aimed at distancing himself from the state’s Nkandla construction project — claimed that as president, one did not ask about or debate matters relating to one’s personal security.  “You don’t,” he said. “No president asks that question…. I can tell you sitting here — there are things that they have done that I don’t know. In fact, they will tell you [that you are] not supposed to know.”

In an interview in the same week with Independent newspapers he again denied any involvement in the state-sponsored construction at Nkandla, seeking to draw (what now appears to be an artificial) distinction between security upgrades and the building of private houses for him and his family.

The government came very late to introduce security features at the level that they were being introduced before Zuma became the president. It was their confidential things. They never discussed with anyone of the family. So even if you wanted to talk, the family didn’t know. The very government… they are the ones who know better.

As the Public Protector’s Report on the Nkandla scandal makes clear, these statements create the wrong impression. Although it may have been possible to argue that one or two references relating to President Zuma’s involvement in the Nkandla project can be misinterpreted or may be based on lies told by those involved, the many references of President Zuma’s involvement in the project which are contained in the Report provide striking evidence of President Zuma’s intimate involvement in (and knowledge of) the Nkandla project, which was paid for from public funds.

I list some of this evidence contained in the Public Protector’s Report here in order for readers to make up their own minds and to ask themselves to what extent President Zuma had knowledge of (and was involved in) the construction project paid for by taxpayers money.

Paragraph 6.10.5 of the Report contains an extract from a letter from the SAPS Divisional Commissioner: Supply Chain Management (written on 23 October 2009), informing the Director-General of the Department of Public Works:

By instruction of the State President, President Zuma the existing house at Nkandla currently accommodates SAPS members, (sic) must be converted as part of the President’s household. To cater for the needs of the members currently accommodated in the house as referred to above, additional bachelor flats need to be added to the needs assessment previously provided to your department.

Paragraph 6.19.2 indicates that much pressure was applied on various officials involved in the implementation of the Nkandla Project “due to the fact that the President had complained about the slow progress made and the negative impact it had on the finalisation of the construction of his private dwellings”.

In the minutes of a Progress Meeting (quoted in paragraph 6.22.2 of the Report) it was recorded that the architect (who was also Mr Zuma’s private architect for the residential dwellings built at Nkandla) “would discuss the road surface required for the driving of tractors with the principal (the President)”.

The minutes of a meeting held on 19 August 2010 (discussing the landscaping at Nkandla the Report) contains the following telling passage (at paragraph 6.24.2):

After discussions on the progress made in respect of a number of items, Mr Rindel suggested that Mr Makhanya meet with the President, “for signing off of documents.” He indicated during the investigation that both Mr Makhanya and the appointed Landscape Architect were tasked at the meeting to obtain approval of the landscape design from the President…. No further evidence was provided indicating that the President was indeed consulted in this regard.

Mr Zuma was also apparently kept abreast by his cabinet colleagues about progress with the Nkandla Project. As paragraph 6.32.1 of the Report makes clear, on 5 November 2010 then Minister Mahlangu-Nkabinde addressed a letter to President Zuma providing him with a detailed progress report on the cattle culvert; perimeter fence; inner high security fence; Guard House, Tuck Shop, Refuse and electrical rooms; electrical supply; sewer treatment plant; relocation of families; upgrade of water supply; helipad; excavation for clinic; entrance by-pass; services to park homes and the bunker.

In minutes of a further progress meeting held on 16 November 2010 (and reported on in paragraph 6.35.1 of the Report), it is noted that the architect “indicated that he was advised by the President that the households to be relocated ‘is waiting for a family member to arrive before relocation can take place’”. And in the next paragraph it is noted that:

At the progress meeting held on 23 November 2010, it was recorded that the President had requested to be informed about the delay in their relocation from the site.

It appears that the President was also well aware of the construction of a swimming pool at state expense at Nkandla. In paragraph 6.44.3 of the Report (reflecting a progress meeting held o 1 April 2011) it is noted that the then Deputy Minister stated that she would discuss the use of the swimming pool by surrounding schools with the President.

At a subsequent meeting on 11 May 2011 it was reported that the construction of the swimming pool was put on hold “due to uncertainty about the apportionment of costs in respect thereof”. The architect “confirmed that the design of the fire-pool was presented to the President”. In paragraph 6.45.7 of the Report it is again noted that at a meeting on 25 May 2011the architect was requested to discuss the swimming pool with the President.

The swimming pool again came up at a meeting held on 4 July 2011. In paragraph 6.45.14 it is noted that at the meeting it:

was further recorded that the fire-pool submission was with the Bid Committee for approval and that all outstanding matters discussed between the Deputy Minister and the President had been resolved. No details were provided in this regard. This confirms the evidence of Deputy Minister Bogopane-Zulu that the matter of the swimming pool was discussed with the President.

At a meeting held on 11 May 2011 it was recorded (as reported in paragraph 6.45.2 of the Report) “that the implementation of landscaping had not been approved and that the Deputy Minister had discussions with the President in regard thereto”.

The minutes of this meeting noted that the architect “was requested to submit the landscaping changes that were made by the DPW to the President for his approval”. In paragraph 6.45.5 it is confirmed that at a meeting of 25 May the architect confirmed that he had discussed the landscaping with the President. In paragraph 6.45.10, based on minutes from a meeting held on 22 June 2011, it is recorded that the architect:

was to have further discussions with the President on infrastructure requirements. Mr Rindel indicated that the Landscape Architect was in the process of updating the design on what had been agreed with the President.

The Minutes of a meeting held on 28 September 2011 indicate that the architect once again reported that the President was concerned about the progress made on the site and that it might not be available for him to use during December 2011 (see paragraph 6.48.4 of the Report).

The President himself, in an interview with the Public Protector held on 11 August 2013, indicated that he (President Zuma) had requested the building of the kraal “as the number of his cattle had increased. He also stated that he would be willing to refund the state for the cost incurred in this regard” (see paragraph 6.63.2 of the Report).

Witnesses also indicated (according to paragraph 6.65.6 of the Report) that the then Deputy Minister had discussed the matter of the removal of adjacent families with President Zuma.

Evidence also emerged that the President was aware that a clinic would be built at Nkandla. According to the Report, the Deputy Minister discussed the matter with the President to determine whether the President “would be okay that the clinic also serves the community”. Paragraph 6.69.1.19 of the Report then notes that:

Lt Gen Ramlakan was opposed to the idea. However, she discussed it with the President. He stated that he wanted the community to benefit. According to her, President Zuma said: ‘If they give you grief, tell them they must come and talk to me.’

From this evidence it appears that the President was aware of various aspects of the lavish Nkandla construction.

Yet, there is no evidence that he questioned the expenditure (as some officials, to their credit, did) and took no steps to reduce the lavish expenditure on various features of the building programme. Some of these features were security related but had not originally been proposed as necessary to protect the President by the security team. Some of the features related purely to the personal enhancements of the Nkandla homestead.

The preliminary question that every South African may ask is why the President allowed himself and his family improperly to benefit from the Nkandla project. A subsequent question would be whether, given this lack of concern for the spending on public funds for his own benefit, the President can be trusted to head the government.

The Public Protector’s Report: Who’s got the power and what is at stake

The Public Protector is about to release the long awaited Report investigating the alleged “security upgrades” at President Jacob Zuma’s private homestead near Nkandla as well as whether the President was truthful when he claimed to the National Assembly that he and his family had paid for all non-security related upgrades of his home. But what are the powers of the Public Protector and why was the institution created in the first place?

In law there is a long standing principle that no person can be a judge in his or her own cause (in Latin it sounds even sexier: nemo iudex in sua causa). Underlying this principle is the assumption that a person will not be able to make an impartial finding about a specific matter (or will not be perceived by others of being capable of making an impartial finding) if he or she has a direct interest in the outcome of that matter.

This means that when a large company is alleged to have acted improperly by, say, bribing a foreign government in order to receive a tender, an investigation by employees of the accused company will have little credibility. Neither will it be appropriate for a family member of Oscar Pistorius to sit as the trial judge in his murder case as an acquittal of the accused will carry little or no credibility due to the (real or perceived) lack of impartiality of the presiding judge. Only an impartial person or body with no direct interest in the outcome of the matter will be able to reach a credible finding on such matters.

Similarly, when allegations are made that the government misused funds to enrich the head of the government or that the head of the government mislead Parliament when he or she denied that he or she was personally enriched by the misuse of government funds, an investigation by members of the government will not be credible as those government Ministers or officials are in effect employees of the President and therefore will have a direct interest in the outcome of the investigation.

This is why a Report by the security cluster into the Nkandla “security upgrades” will – in legal terms – have far less credibility than any report prepared by an independent institution such as the Public Protector.

If there are any discrepancies between the government report and the report of the Public Protector, it would be difficult to argue that the former should be believed above the latter, given that individuals prepared the former with a direct interest in the outcome of their own investigation.

It is party because of such difficulties with the credibility of internal investigations that the South African Constitution created the office of the Public Protector. Because any investigation by state officials or government Ministers of maladministration or misuse of funds by fellow officials, Ministers or the President would be tainted because of the nemo iudex in sua causa principle, the Constitution created an independent and impartial body to do credible investigations into such matters and – if breaches were to be found – to make recommendations for remedial action to be taken.

Section 181 of the Constitution reminds us that – as is the case with other Chapter 9 institutions – the Public Protector is independent and impartial and must exercise her powers and perform their functions without fear, favour or prejudice.

Other organs of state have a duty to assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of these institutions. This section of the Constitution also prohibits any person or organ of state from interfering with the functioning of the Public Protector.

Section 9 of the Public Protector Act underscores the impartiality of the Public Protector and indicates that her status is similar to that of a High Court judge.

In terms of this section it is a criminal offense to insult the Public Protector or the Deputy Public Protector. It is also a criminal offense for any person to do anything in connection with an investigation, which, “if the said investigation had been proceedings in a court of law, would have constituted contempt of court”.

Any person convicted of such an offence will be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.

These sections do not prohibit anyone from criticizing a specific finding of the Public Protector on sounds factual or legal grounds. Just as we may all criticize a court judgment on the grounds that we disagree with a judge’s interpretation of the facts or application of the legal principles, we are also entitled to criticize a Public Protector report on such grounds.

To use a purely imaginary example, challenging a finding of the Public Protector that a pool constructed at the President’s private home was indeed a swimming pool and not a fire fighting feature (on the basis that several buckets have been placed next to the pool to dip into the water in case of fire) would be perfectly legitimate.

But where an individual politician or member of the public wishes to discredit a report by the Public Protector he or she may not question the impartiality or integrity of the Public Protector and may not allege that the Public Protector made a finding animated by political considerations, corruption or malice as this would constitute a criminal offense in breach of section 9 of the Public Protector Act.

The powers of the Public Protector are far reaching. Section 182 of the Constitution empowers the Public Protector to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action.

The Public Protector Act elaborates on this and makes clear that the Public Protector has wide powers to investigate conduct by organs of state, politicians and other public bodies. She also has wide powers to obtain a warrant to search premises and to seize documents needed for an investigation.

Section 7 of the Act states that the Public Protector may investigate corruption, improper or unlawful enrichment, maladministration in connection with the affairs of government at any level; abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function; or improper or dishonest conduct.

In terms of the Executive Members’ Ethics Act of 1998 the Public Protector is also empowered to investigate breaches of the Executive Ethics Code passed in terms of the Act.

Section 2.3 of the Code of Ethics state that Members of the Executive (which includes the President and any other member of the cabinet) may not wilfully mislead the legislature to which they are accountable; act in a way that is inconsistent with their position; use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests; or receive remuneration for any work or service other than for the performance of their functions as members of the Executive.

Once the Public Protector has concluded an investigation she has to draft a report with her findings and any recommendations relating to those findings.

If the Public Protector is of the opinion that the facts disclose the commission of an offence by any person, she must bring the matter to the notice of the prosecuting authority.

She is also empowered to refer a report to the National Assembly if she deems it necessary; or she deems it in the public interest.

Of course, as far as possible breaches of the Executive Members Ethics Code by members of the Cabinet are concerned she is required to submit her report to the President for action.

As the Public Protector pointed out when she previously found President Zuma in breach of the Code, there is a lacuna in the Executive Members Ethics Act, as it does not provide for a situation where the President himself has been found in breach of the Code. Unfortunately this gap in the Act has not been corrected as requested by the Public Protector.

This means that in the event of the Public Protector finding that the President himself is in breach of the Code (and I am not making any assumptions in this regard), the Act requires him to received and act on the Report against himself. Given the absurdity of this situation I would assume that the Public Protector would be entitled in terms of the Public Protector Act to also submit this aspect of any report to the National Assembly for possible action against the President.

It is important to keep these general principles in mind when perusing the Public Protector’s report on the Nkandla security upgrade. Whatever the report may contain – and I have not seen the report and do not in any way wish to pre-empt any of its findings, those of us who comment on the report may do well to keep in mind that when we comment we are not allowed to insult the Public Protector or act in contempt of her office.

Why EFF election challenge will not fly

This week the North Gauteng High Court dismissed an urgent application by the Economic Freedom Fighters (EFF) to remove (or greatly reduce) the requirement for political parties to pay a sizeable deposit before they could contest the election. This requirement limits the number of political parties who are entitled to contest the election and thus potentially limits the right of individuals to vote for the party of their choice. Constitutionally the question is whether such a limitation is justifiable or not.

There are currently more than 200 political parties registered on the Independent Electoral Commission’s database. Many of these registered political parties are not credible entities, have little political support and have absolutely no chance of gaining seats in the National Assembly. It would make elections almost impossible to administer if all these parties were allowed to take part in the election.

In the previous national election only 26 of the parties contested the election. This is partly due to the fact that the Electoral Act at the time required a political party to pay a deposit of R180,000 to appear on the national ballot paper and R40,000 to appear on the ballot paper for the election to a provincial legislature. (This has now been raised to R200, 000 and R45,000 respectively.)

In 2009, only half of the parties on the ballot paper obtained any seats in the National Assembly (NA). Nine of the parties whose names appeared on the national ballot paper (and had thus been able to pay the R180,000 deposit) could not even muster 10,000 votes. Thirteen of the parties lost their deposits while the other thirteen parties had their deposits refunded in terms of section 106 of the Electoral Act, because they had obtained at least one seat in the legislature.

The right to vote is guaranteed in section 19 of the Constitution. In August and Another v Electoral Commission and Others the Constitutional Court emphasised the importance of the right to vote – especially in the South African context in which the vast majority of citizens were denied the right to vote until 1994. In that judgment, Sachs J remarked that:

the universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.

The court remarked that given our history, it would carefully scrutinise any law that placed limitations on the exercise of the right to vote and that such limitations should not be easily countenanced.

It is important to remember that in South Africa at national and provincial level only political parties can contest elections. Political parties – and not individual voters nor individual candidates representing a political party – are required to pay a deposit to contest an election. The fact that some or many of the supporters of a political party may be poor, is therefore not directly relevant when deciding whether the deposit requirement limits the right to vote.

(The situation would have been dramatically different if individual candidates had been required to pay deposits before they could stand in elections as this would have had a clear and obviously unconstitutional discriminatory effect on poor potential candidates for elected office who often would not have been able to pay the requisite deposit.)

In national and provincial elections in South Africa, the question is whether the deposit requirement will preclude a political party with any electoral support from contesting an election. For example, if the deposit requirement had in fact prevented the EFF from registering for the election because the EFF did not have the funds to pay the various deposits, this would have constituted a catastrophic infringement on the right to vote of a sizeable section of the electorate.

I am almost certain that if the deposit had been set so high that a credible party such as the EFF had been unable to afford the deposits, it would have constituted an unconstitutional limitation on the right to vote. This is because a legal provision that in fact disbars a credible political party form taking part in the election would almost certainly be unconstitutional.

That was not the case with the EFF. Nor was it ever likely to be the case. This is so because it is difficult to imagine that any credible political party in South Africa with a good chance of gaining several seats in the NA would not be able to afford to pay the (refundable) deposit required by the Act.

Even smaller political parties require substantial funds to run election campaigns. While large parties like the ANC may spend more than R100 million on the election campaign, even insurgent parties like the EFF will have to spend several million Rand on an election campaign to stand a chance of receiving a sizeable portion of the vote.

Arguably, the more funds a political party has at its disposal, the more effective the campaign it can run. This place new entrants to the political scene at a disadvantage because they do not qualify for election funding as they do not have any seats in the legislature. Moreover, if a party emerges in South Africa one day that is unable to attract any private funding (because of their pro-poor policies or because of their perceived incorruptibility), that party will also be at a distinct disadvantage to compete fairly in the election.

But it is unlikely that even such a party of principle with substantial support will be so cash-strapped that it will ever be unable to pay the refundable deposit to allow it to contest the election.

Nevertheless, this does not mean that the deposit requirement does not limit the right to vote as it is conceivable – if unlikely – that a political party who could garner enough support to gain at least one seat in the NA may not be able to pay the required deposits.

As the deposit requirement limits the right to vote (although the extent of the limitation may be less dramatic than it would at first appear) the question then arises whether this limitation would be justifiable in terms of the limitation clause found in section 36 of the Constitution.

In terms of section 36, we have to look at the purpose of the law that imposes a limit on the right, ask what interests are being served by the limitation and how important these interests are. We then have to look at the interest of those whose right is being limited and ask how severe the limitation on their rights might be. We must then balance these interests against one another by asking whether the limitation could be viewed as reasonable and justifiable in an open and democratic society based on dignity, equality and freedom.

The deposit requirement clearly serves an important purpose. It provides an easy to administer and difficult to manipulate procedure to ensure that there are not too many frivolous and unserious political parties on the ballot paper. It also provides absolute legal certainty to political parties about whether they qualify to be on the ballot paper.

In the absence of such a measure the ballot paper may well be several metres long, making the process of voting more cumbersome and slow and potentially disadvantaging illiterate voters who may have to ask for assistance to find the party of their choice on the paper (thus ensuring that their vote would not be secret). Such a ballot paper containing the details of more than 200 parties would also be very difficult to count and would greatly increase the time needed to count the vote. It would also increase the possibility of mistakes being made during the counting process.

There are, of course, other mechanisms available to ensure that only the names of credible parties appear on the ballot. The law could, for example, require each political party to submit a list of names of registered voters (anything from 10,000 to 50,000 names have been mentioned by the EFF) to demonstrate support for the party.

However, this mechanism is administratively onerous and time-consuming as each name will have to be checked by IEC officials to ensure its authenticity and to prevent fraud. This mechanism also provides for far less legal certainty and is therefore more open to manipulation. For example, a rogue IEC official may apply an overly formalistic standard when verifying all the names on the list with the aim of disqualifying many of the names to prevent the political party from qualifying to take part in the election.

Given the advantages of the deposit system, given the fact that it is not likely to prevent any credible political party from competing in an elections, and given the disadvantages of other systems that could be used to prevent frivolous parties from contesting the election, I suspect that the court would almost certainly find that if the system indeed presents a limitation on the right to vote, that this limitation is justifiable in terms of the limitations clause in the Bill of Rights.

Of course, I have no idea on what basis the IEC set the deposits at the rates it did. It might be that a lower deposit would have been equally effective. But because of separation of powers concerns (in the absence of incontestable data) I doubt very much whether any court would intervene and would replace its own view of what a reasonable deposit amount is – unless the deposit were so high that it would indeed have the effect of disqualifying one or more credible parties with a real chance of obtaining seats in the NA.

PS: The High Court did not decide the EFF case on these principles. Intstead it decided that the matter was not urgent, presumably because the deposit requirement had been in place for many years.

Pistorius and the controversial Twitter ruling: questionable at best

The ruling by Judge Thokozile Masipa on Monday that evidence given by Professor Gert Saayman, the pathologist testifying in Oscar Pistorius’s murder trial, could not be broadcast live on radio or TV and that journalists were prohibited from live tweeting the testimony was both unwise and legally problematic. Here is why.

In his groundbreaking (and in, certain circles, controversial) decision to grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television, judge Dunstan Mlambo made a curious but telling observation.

In a country like ours, Judge Mlambo observed, perceptions continue to persist in the large sections of South African society, “particularly [among] those who are poor and who have found it difficult to access the justice system”, that the justice system treats the “rich and famous with kid gloves whilst being harsh on the poor and vulnerable”.

Judge Mlambo cautiously avoided the fact that the perception also persists among a large section of society that black criminal defendants and black victims of crime are often treated with less care and concern by the criminal justice system than white criminal defendants and white victims of crime. He also avoided mentioning the fact that many South Africans have the perception that politically well-connected criminal suspects receive preferential treatment.

Nevertheless, few observers would dispute the observation by judge Mlambo that many people in South Africa do harbour the perception that all criminal defendants and all victims of crime are (for various reasons) not always treated equally. Judge Mlambo’s remark in this regard was therefore uncontroversial.

However, he proceeded to make the following observation:

Enabling a larger South African society to follow first-hand the criminal proceedings which involve a celebrity, so to speak, will go a long way into dispelling these negative and unfounded perceptions about the justice system, and will inform and educate society regarding the conduct of criminal proceedings.

It may well be true that the broadcasting of the trial will do much to inform and educate South Africans about the conduct of criminal proceedings.

More people may now understand that the state has to prove its case beyond reasonable doubt and that an accused does not have to prove his or her innocence. The important role that cross-examination can play in our adversarial system in order to test the veracity of evidence and the credibility of witnesses, has also become apparent.

But it is far from certain that the broadcasting of the trial will dispel perceptions about possible inequalities in our criminal justice system.

Most criminal defendants are tried in magistrates’ courts or in high courts far away from the media spotlight and trials are often delayed or postponed, sometimes for many years. Justice is often delayed and sometimes completely denied.

In an adversarial system criminal defendants who can afford to hire excellent lawyers may also well have an advantage over undefended or badly defended accused persons. In the absence of a skilled lawyer to cross-examine state witnesses it is less likely that any inconsistencies in testimony will be exposed and that the credibility of witnesses will be properly tested.

The Oscar Pistorius trial is therefore not a typical criminal case. This is so not only because of the intense media attention on the trial, but also because of the fact that both the state prosecution team and the lawyers for the defence are some of the best our system has to offer. In this regard, the trial is something of a showcase for the criminal justice system in South Africa. (However, the less said about the quality of court interpreters, the better.)

Given this larger context, it is not only imperative that the trial be conducted in a scrupulously fair manner. It is also vital that no decisions should be taken by the trial judge that could create the perception among sections of the South African population that the accused or the relatives of the deceased are given special treatment.

The principle of open justice requires that a trial be conducted in public – except in exceptional circumstances, where the interest of a vulnerable victim or witness needs to be protected. Members of the media are usually allowed to report fairly and accurately on a trial and since the inception of Twitter – bar one or two exceptions – journalists have also been allowed to live tweet the evidence of all witnesses who testify in a trial.

The initial ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence, was therefore at best ill-advised.

The ruling immediately raised the question in the minds of many South Africans about whether the case was being handled differently because the accused was a famous and rich white man or because the deceased was a blonde middle class woman.

Lay-observers and some lawyers immediately drew comparisons with the trial of the man convicted of raping and murdering Anene Booysen. In that case, journalists were allowed to live tweet extremely graphic testimony about Booysen’s injuries. Booysens was poor and black and, of course, not famous. The possible sensibilities of Anene Booysen’s family were never raised and therefore never considered.

It matters not whether such comparisons are unfair or whether – unlike in the Booysen case – the pathologist requested his evidence not to be reported in this manner. What matters is the perception created by the seemingly different treatment of the two cases (and many others besides) where there are such stark differences in the social status of the victims (based on the class and/or the race of the victims).

After all, justice must not only be done, but must also be seen to be done.

Judge Masipa wisely reversed the decision to prohibit live tweeting of the pathologist’s evidence in the Oscar Pistorius trial this morning, restoring the default position that currently applies in criminal trial across South Africa. This decision will go some way to address perceptions – whether correct or not – that our courts do not always value the bodies of poor black people and those of rich white people equally.

However, the further decision not to allow audio or audio-visual broadcasting of Professor Saayman’s testimony due to the possible graphic nature of the evidence (a decision which was not reversed this morning), raises further questions.

The judgment by Judge Mlambo made a distinction between broadcasts of audio recordings of the trial and broadcasts of audio-visual recordings of the trial.

Judge Mlambo ruled that MultiChoice and Primedia were permitted to broadcast the audio recording of the entire trial in live transmissions, delayed broadcasts and/or extracts of the proceedings.

The order therefore allows for the audio broadcast of the testimony by all witnesses – including those of expert witnesses for the state as well as that of the accused – regardless of whether the witnesses want audio recording of their testimony to be broadcast or not.

It also permitted the media houses to broadcast the audio-visual recording (that is, TV pictures) of portions of the trial under certain conditions. This includes permission to broadcast the audio-visual recordings of the evidence of all experts called to give evidence for the state, as well as the evidence of any police officer or former police officer in relation to the crime scene. The order does not provide for expert witnesses of the state or police officers to decline to have either audio recordings or audio-visual recordings broadcast.

However, the order does allow other witnesses for the state to decline to consent to have audio-visual recordings of their testimony broadcast. It also allows witnesses whose testimony is to be broadcast audio-visually to request that certain reasonable restrictions are imposed on such broadcasts.

The order does provide for an exception to this general rule that not only audio recordings but also audio-visual recordings of all evidence by expert witnesses of the state and all police officers could be broadcast. This exception is couched in the following terms:

“Notwithstanding the above, the presiding judge shall retain a discretion to direct that, in the event that it becomes apparent that the presence of the cameras or the recording and/or transmitting and/or broadcasting is impeding a particular witness’s right to privacy, dignity and/or the accused’s right to a fair trial, MultiChoice and Primedia and the print Media 24 applicants will be directed to cease recording and/or transmitting and/or broadcasting and/or photographing of the testimony.”

In the instance of the testimony of Prof Saayman, there was no indication that allowing either audio recordings or audio-visual recordings of the testimony of would have impeded his dignity or privacy or would have impacted on the fairness of the trial. It is therefore unclear on what legal basis the decision was made not to allow audio recordings and audio-visual recordings of this testimony to be broadcast.

As Judge Mlambo indicated in his judgment, the decision to allow audio recordings of the entire trial to be broadcast and to allow audio-visual recordings of certain parts of the trial to be broadcast is something of an experiment.

Some trial lawyers and procedural law academics I have spoken to expressed some concern that the ruling could impact on the fairness of the trial. This is so, they argue, because future witnesses may listen to or watch the testimony and cross-examination of other witnesses and may be tempted to adjust their testimony accordingly.

Whether this concern is valid in the age in which detailed reporting on the evidence and cross-examination of witnesses are reported on Twitter, is far from clear.

But this is not the point here. The point is that the original order ruled that the trial judge would retain a discretion to prohibit either audio recordings or audio-visual recordings of the testimony of a witness only in cases where the privacy or dignity of the witnesses had to be protected or where the fairness of the trial would be affected.

As none of these concerns clearly applied to the testimony of Prof Saayman, and given that the testimony of many other witnesses are being broadcast live, the decision by the trial judge not to allow either audio or audio-visual recordings of this expert witness of the state to be broadcast is questionable at best.

It may be that in future, courts will rule that the open justice experiment launched in the Oscar Pistorius trial poses too many risks. But as the experiment is in full swing, the trial judge must ensure that the rules (as laid down by Mlambo J) are scrupulously and even-handedly applied to ensure that the trial indeed helps to dispel some (if not all) of the concerns many South Africans have over the fairness of the criminal justice system.