Constitutional Hill

Constitutional Court in Bapsfontein shuffle

Dec 7th, 2011
by Pierre De Vos.
53 comments

It is not surprising that section 26 of the Bill of Rights has become one of the sections most often invoked in cases being argued before the Constitutional Court. In a country in which many people do not have access to formal housing, one in which the property rights of some force many poor and destitute people to act in an unlawful manner, one in which such people often have no choice but to occupy land owned by others and build informal houses on that land to avoid absolute destitution, the right of access to housing guaranteed in section 26 will often come into play.

The situation is exacerbated by the failure of local, provincial and national governments to deal with this issue effectively and humanely and by officials whose elitist or extremely statist attitudes towards the poor and the homeless lead to often heartless and cynical attempts to force those who occupy land unlawfully to go and live elsewhere — anywhere — as long as it is “not-in-our-backyard”.

Yesterday, in Pheku and Others v Ekurhuleni Metropolitan Municipality (in a judgment authored by Justice Bess Nkabinde) the Constitutional Court once again came to the assistance of such a community. The Occupiers of Bapsfontein Informal Settlement had approached the court to challenge a High Court decision which found that where a Municipality declared an informal settlement a “disaster area” in terms of the Disaster Management Act it was permissible forcibly to relocate the residents of such an area and to demolish their homes. (Many years ago – during the apartheid era – Bapsfontein was infamous for hosting whites-only country dances in the hall depicted below. Country and Western singer Lance James regularly performed at these dances.)

The Bapsfontein informal occupiers had built their structures on land prone to develop “sinkholes”. They were then told that they would be “temporary moved” from this site, that their houses would be demolished and that no court order was required to do so as this action was taken in terms of the Disaster Management Act. The Municipality argued that such a “temporary move” was not an eviction at all. The Bapsfonetin residents were then forcibly removed from the area and their homes were then demolished. (So much for the care and compassion which the Ekurhuleni Municipality was required to show towards the informal occupiers and for the claim by the ANC politicians in that area that they always represent the best interests of the poor. These people might just as well have lived in a DA controlled municipality.)

The Court noted that section 55(2)(d) of the Disaster Management Act provides that evacuation is limited to cases where temporary action is necessary for the preservation of life and that this section had to be interpreted narrowly to ensure that it conformed to section 26 of the Constitution. Section 26(3) of the Constitution states that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.  No legislation may permit arbitrary evictions.

The Court found that properly construed, section 55(2)(d) does not authorise eviction or demolition without an order of court. It pointed out that on its wording, the Act deals with “evacuation”.  The word “evacuate” is generally used to describe what is done in a situation where people’s lives are at risk as a result of impending “disaster”.  “Evacuate” means to “remove from a place of danger to a safer place.”  The section could only be invoked where the people concerned required immediate removal to a safe temporary shelter, away from the disaster area, in order to preserve their lives.

If one reads this section carefully it had to mean that the Act ordinarily applies only to temporary removal from a disaster stricken area to a temporary shelter. It implies that those evacuated may return to their homes, if possible. This was not the case here where the Bapsfonetin Informal Occupiers were going to be removed permanently. Evacuation is not the equivalent of eviction, much less of a demolition. On the Municipality’s own admission, no purpose would have been served by removing the applicants without demolishing their homes because they would otherwise have returned to Bapsfontein. Evidently, this is not what section 55(2)(d) sanctions.

What was required was to demonstrate that there was urgency in the evacuation and that this was done in order to save lives. However, as the Constitutional Court pointed out, the facts do not suggest that there was any need for an urgent evacuation of the Bapsfontein community at all, and although the court did not say so, this suggests that the Municipality had used the sinkhole excuse to justify an eviction without obtaining a court order as required by the Constitution.

Conversely, the history of this matter shows that the Municipality never regarded the relocation of the applicants to be urgent to warrant drastic measures of unauthorised removal and demolition of shelters. This is fortified by the fact that Bapsfontein was identified as a hazardous area as early as 1986; its first sinkhole was identified in 2004; the first commissioned report was delivered in June 2005 and the second report in September 2005; no action was taken in response to these reports for four years after they were delivered, until 2009, when another report was commissioned and delivered; and only in 2010 did the Municipality finally start taking action to relocate the residents from Bapsfontein. An evacuation does not entail the demolition of peoples’ homes or an indefinite removal. The DMA does not seek to achieve this. If the purpose of the DMA were to authorise demolition and eviction without an order of court, it would have said so.  It does not.  The forcible removal of the applicants amounts to an eviction, an indefinite removal from Bapsfontein.  The deprivation is, in the circumstances, inimical to the right in section 26(3).

The High Court had therefore erred in dismissing the application for an urgent interdict preventing the eviction of the residents and the demolition of their homes as it had failed to consider the relevant circumstances. These include whether: (a) the disaster was sudden to warrant the hasty relocation; (b) Bapsfontein could be rehabilitated; (c) the Municipality had established disaster management and relocation plans and strategies as well as their implementation; (d) there was loss of life or an imminent threat to life; (e) alternative land has been made available or could reasonably be made available; and (f) the applicants are long term occupiers in Bapsfontein.

The High Court instead approached the matter on the assumption that the Disaster Management Ac was applicable and urgent removal was necessary. In the absence of evidence, the Court compared the situation of the applicants with that of people faced with sudden emergency but failed to assess whether the circumstances warranted evacuation under the Act.

In the light of the finding that the removal of the Bapsfontein Informal Occupiers and the demolition of their homes were unlawful, the Court found that the Municipality has an obligation to provide them with suitable temporary accommodation. To this end, the Municipality was ordered to identify land in the immediate vicinity of Bapsfontein for the relocation of those who had been evicted. The Municipality was also ordered to engage meaningfully with them on the identification of the land.

Furthermore, the Municipality was ordered to ensure that the amenities provided to those evicted and people resettled in terms of the court’s order are no less than the amenities and basic services provided to them as a result of the relocation of March 2011. Because these orders were quite far reaching the Constitutional Court issued what is known as a structural interdict. This happens where the Court feels that it was necessary to retain supervision over the implementation of the order to ensure that it was complied with.

The Municipality was therefore required to file a report in the Constitutional Court confirmed on affidavit by no later than 1 December 2012 regarding steps taken in compliance with the order issued by the court. The applicants would then have the right, within 15 days of the filing of the Municipality’s report, to lodge affidavits in response to the report.

This order would ensure that the Municipality implements the order of the court properly and would protect the vulnerable and marginalised applicants from exploitation and abuse.  Although the Municipality might feel aggrieved by this order, it was clearly necessary in order to protect the poor and homeless. And once again — without even having to wait for an assessment of the work done by the Constitutional Court, the cabinet has been provided with a rather graphic illustration of the way in which the Constitutional Court stands up for the poor and how its judgments protect the poor from the exploitation and heartless decision of the ANC-led Municipality.

Posted in: ANC, Constitutional Court, Housing, Social and Economic Rights.

Can the government intervene in Limpopo?

Dec 6th, 2011
by Pierre De Vos.
41 comments

The statement of the national cabinet issued yesterday announcing that the national executive is intervening in three Provinces because of concerns “about the state of financial management and governance” in those provinces, once again highlights the nature of the quasi-federal system established by our Constitution. It raises questions about the nature of the relationship between provincial governments and the national government.

More cynical observers — including the ANC Youth League - have also asked questions about the timing and the motivation of this announcement and might wonder whether it has anything to do with President Jacob Zuma’s fight back campaign to neutralise his political opponents inside the ANC. Can it be a co-incidence that the most drastic kind of intervention allowed by the Constitution was only launched in the home  province of Julius Malema?

Who knows?

Cabinet announced that it had “received reports on trends in provincial under spending, overspending and challenges with supply chain management” in Gauteng, Limpopo Province and the Free State. It has therefore decided, amongst other things, that “Limpopo Provincial Government be placed under a section 100 (1)(b) intervention of the Constitution” and that members of the National Executive will assume responsibility for the Provincial Treasury, Education, Transport & Roads, Health and Public Works of Limpopo Province.

Section 100(1)(b) of the Constitution seemingly allows for this move as it states that “[w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation,… [by] assuming responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service; maintain economic unity; maintain national security; or prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole”.

The Provincial executive of Limpopo has a constitutional duty in terms of section 125(2) of the Constitution to implement all national legislation within the functional areas listed in Schedule 4 or 5 and to co-ordinate the functions of the provincial administration and its departments. These functions include those now taken over by the national executive. One assumes the cabinet believes that the Limpopo Province is “unable to fulfil its obligations” to run the various functions now taken over by the national executive as it is allegedly experiencing a cash crisis. According to the cabinet statement:

They used up their R757,3 million overdraft facility with the Corporation for Public Deposits (CPD). The CPD is the subsidiary of the South African Reserve Bank which facilitates banking arrangements that national, provincial governments and state owned entities have with the Reserve Bank within which they inter-lend to each other with the approval of the National Treasury. Limpopo had requested that their facility should be increased  by R1 billion (to R1,7 billion)from the National Treasury for the province to pay salaries and wages on the 23 November 2011. This request was declined but alternative arrangements were made for an early transfer (2 days before the actual date of transfer) of their equitable share in order to be able to pay salaries.

If this is correct, the provisions of section 100(1)(b) quoted above (in terms of which this action was taken) is probably suitably broad to ensure that this intervention is constitutionally allowed. After all, if a Province runs out of cash and cannot pay the salary of its employees, the intervention might be said to be necessary to ensure that the province provides a minimum standard for rendering a service.

This section represents a potentially radical incursion on the autonomy of a Province and should be read narrowly so as not to empower the national government to interfere in the workings of a province merely for political reasons. This is so because an expansive reading would be in conflict with the larger scheme of the Constitution which creates provincial governments with both exclusive powers and powers it has to exercise in concurrence with the national government. Nevertheless, even on a constricted reading, the requirements of section 100(2) are probably met.

The Constitution does contain a safeguard to protect the abuse of this section for political purposes. However, this safeguard will work best where the balance of powers in the various provinces are more evenly spread. The section states that when the national executive intervenes in a province in terms of subsection (1)(b) a “notice of the intervention must be tabled in the National Council of Provinces (NCOP) within 14 days of its first sitting after the intervention began; the intervention must end unless it is approved by the Council within 30 days of its first sitting after the intervention began; and the Council must review the intervention regularly and make any appropriate recommendations to the national executive”.

The NCOP consists of ten person delegations from each province and densely populated provinces have exactly the same say in the NCOP as thinly populated provinces. In a scenario where a majority of the smaller provinces are governed by opposition parties, this section would ensure that the national government would not abuse the section for political purposes. As the ANC controls 8 of the 9 provinces and hence 8 of the 9 NCOP delegations, one assumes a vote to ratify this decision of the cabinet is a mere formality.

Interestingly, the cabinet also announced less invasive measures which will apply to the Free State Province, where (with the agreement of the Premier), directives will be issued in line with section 100 (1)(a) by the relevant members of the National Executive for the following departments: Provincial treasury; and Police/Roads & Transport. This section states that [w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations”.

This step would ordinarily precede the steps taken in terms of section 100(1)(b) and the fact that no such preliminary action was taken in the Limpopo case will add fuel to the fire of the speculations that while some kind of intervention in Limpopo was practically required, the extent of the intervention reeks of political meddling. I have absolutely no idea if this is the case or not. It might well be that the situation in Limpopo is so dire that the cabinet had no choice but to intervene in the drastic manner that it did.

But given the political ramifications of this interventions, the more suspicious among us will invariably ask questions about the motivation behind this radical interference in the autonomy of a province.

It is necessary to highlight one last issue raised by this intervention. It reminds us that where corruption thrives, efficient governance can be dramatically  derailed and can lead to disaster for the government and for the people it is supposed to serve. It might be trite to say, but it  is important to remind ourselves that corruption and maladministration may have serious consequences for service delivery and will eventually directly affect the lives of the poor. Where a provincial government dishes out tenders to well-connected politicians like Julius Malema (or the friends of Julius Malema) and where such tenders are inflated, the cash eventually runs out — with disastrous consequences for the poor.

If it is true that the Limpopo Provincial government has been milked dry by Mr Malema and his cronies – as alleged by various newspapers – then the intervention comes as a sort of acknowledgment of the deleterious effects of corruption. Somebody eventually has to pay for the cars, the houses and the expensive watches. The people who pay are seldom the well-connected and the rich. More often than not they are the very poor whose interests are supposedly being advanced by those who have abused the system.

Posted in: ANC, corruption, Jacob Zuma, Julius Malema.

Jackie Selebi is finish and klaar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted in: ANC, corruption, Jackie Selebi, Supreme Court of Appeal, Thabo Mbeki.

“No one is above the law”

Dec 1st, 2011
by Pierre De Vos.
147 comments

In commenting on the (re-)appointment by President Jacob Zuma of Mr Willem Heath as the head of the Special Investigating Unit (SIU), an editorial in Business Day this morning notes that President Jacob Zuma has acted consistently ”to draw around him an iron ring of men he relies on to keep him safe. South Africa and its interests are not part of this particular calculation. The fact that the fraud and corruption charges against him, expediently dropped before the last general election, could quite easily be resuscitated is at the centre of everything he does”.

Part of this pattern was the appointment, early in his tenure as President, of Adv. Menzi Simelane as National Director of Public Prosecution (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the President from future prosecution for taking a bribe from fraudster Shabir Shaik.

President Zuma’s recent statement that the executive ”has the sole discretion to decide policies for the government”, that the executive “must be allowed to conduct its administration and policy-making work as freely as it … can” and that the “powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”, can thus arguably be read as an expression of concern about the Constitutional Court’s decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring President Zuma had erected around himself to protect himself from prosecution for corruption.

It is against this background that today’s judgment of the Supreme Court of Appeal (SCA) declaring the appointment of Menzi Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others a unanimous court, in a judgment authored by judge Mahommed Navsa (Heher, Mhlantla, Majiedt JJA and Plasket AJA concurring) the SCA found that the President had acted irrationally and hence unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998.

Perhaps believing that it was required to provide the President with some pointers on the nature of a constitutional democracy like ours, the SCA pointed out that ours is a democratic state founded, amongst other values, on the supremacy of the Constitution and the rule of law. Section 1(d) of the Constitution commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.

This meant that  the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of President Zuma, the SCA then proceeded to make the following powerful observation:

No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The SCA pointed out that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has “awesome powers” and “that it is central to the preservation of the rule of law”, it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The SCA again reminded us that in the Certification judgment the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. “There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”

This is why the NPA Act requires that the NDPP must, inter alia “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.” This was an objective standard. The President could not decide, based on his own personal views and disregarding all the available evidence, that his choice for NDPP was “fit and proper”.

This is so because the relevant section of the NPA Act does not use the expression “in the President’s view” or some other similar expression. Qualities like “integrity” must be assessed objectively. A person would have integrity if he or she possesses characteristics like‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability.

In the light of the above the President was required to obtain sufficient and reliable information about the candidate’s past work experience and performance; to obtain sufficient and reliable information about the candidate’s integrity and independence; and in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

In this case the starting point of the President was wrong. The Minister of Justice had stated that the President told him, at the outset, before asking for his input, that the President had “firm views” on appointing Mr Simelane as NDPP. The President could not argue, as he did, that absent any firm evidence to the contrary he could conclude that Simelane was fit and proper. More was required from the President to comply with the law.

This would especially be the case in a situation like the one under review where serious findings of impropriety had been made by the Ginwala Enquiry and by a court of law against the President’s choice of NDPP.

A fundamental problem for the Minister and the President is that they both considered that the GE [Ginwala Enquiry] report was irrelevant or, based on a rigid view that the GE enquired into Mr Pikoli’s fitness for office and did not concern Mr Simelane’s integrity. It is clear from the President’s account of the discussion with the Minister and from his description of his mindset…. that he took the view that the GE report, insofar as it related to Mr Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Mr Simelane disqualified for future appointments. The President and the Minister wrongly discounted Minister Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the PSC’s [Public Service Commission's] attitude in this regard. It ought also to have been a matter of concern that the GCB had been poised to enquire into Mr Simelane’s conduct ─ it is a matter that would directly affect public perception about his candidacy. It is not unlikely that the GCB probe ground to a halt because of the ensuing litigation.

The Ginwala Enquiry report was directly relevant to the questions required to be addressed in the appointment process. They bring his integrity directly into question. They were issues of serious concern to Minister Surty, with whom the PSC agreed. There may well be answers forthcoming from Mr Simelane on the issues raised by the GE report, but at the very least they required interrogation.

The Minister and the President therefore both made material errors of fact and law in the process leading up to the appointment of Mr Simelane. This speaks to both rationality and legality. The President is required to act in good faith and must not misconstrue his powers. In failing to take the findings of the Ginwala Enquiry into account, the President took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.

It is clear that the President did not undertake a proper enquiry of whether the objective requirements of the NPA Act were satisfied. In fact, “on the available evidence the President could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience”.

The SCA concluded its judgment by responding to the view expressed by the President that he was “the choice of the people. The Constitution vests in him the power to apply his value judgment and appoint a NDPP who meets the objective criteria and is a fit and proper person to hold such office.” This view implies that because the President was democratically elected he had the right to choose anyone he wished as head of the NDPP and to determine whether the requirements for a NDPP prescribed in the NPA Act was met. It mirrors previous statements made by the President about the separation of powers doctrine. The SCA dismissed this view by quoting former Chief Justice Ishmael Mahommed.

“The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.” These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.

The judgment could therefore be read as engaging in a dialogue with the executive about the power of the judiciary vis-a-vis the executive. It reminds the President that he is not above the law and that he cannot ignore the law or the judgments of the courts enforcing the law.

I would guess that the judgment would not go down well with President Zuma and others who have launched direct or veiled attacks against the judiciary and against the very principle of a supreme Constitution enforced by the courts. How the executive responds to this judgment is therefore pivotal to the future health of our constitutional democracy. Attempts to subvert the judgment or undermine the court who made it, would send a signal that the current government opposes the notion of a constitutional democracy. A sober and considered response would go a long way to allay fears among some that the executive is indeed not committed to our constitutional project.

One further issue needs to be highlighted. For the moment Adv. Simelane is not legally prohibited from continuing in his post. Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. However, as a practical matter, it would probably be in the best interest of the administration of justice and the criminal justice system as a whole if Adv. Simelane voluntary stepped aside until the Constitution Court has either confirmed or overturned the SCA decision.

It must be recalled that we have a system of objective invalidity, which means an unconstitutional act by the President is unconstitutional from the moment it was taken. If the Constitutional Court confirms that the President had acted unconstitutionally, then the appointment of Adv. Simelane would be void and all decisions taken by him since appointment would have no force and effect unless otherwise directed by the Constitutional Court. Surely, it would be better if this legal uncertainty is not further exacerbated by the continuing presence of Adv. Simelane as NDPP.

If the Constitutional Court overturns the SCA judgment, Adv. Simelane could then resume his duties and little harm would have been done to the administration of justice. However, if that court confirms the SCA decision and Simelane had stepped aside now, it would then not be faced with the difficult issue of what to do about the legality of all the decisions taken by Simelane since the SCA had found that his appointment was unlawful. It would be understandable if the first reaction of a defiant government and an even more defiant Simelane would be to want to continue in office, but this would not be in the best interest of the government or the country. Hopefully, after considered reflection, the best interest of the country will weigh heavier than the ego’s of the personalities involved in this case with Adv. Simelane and with the government and a decision will be made for Adv. Simelane to step aside until the Constitutional Court has delivered its judgment.

Posted in: ANC, DA, Jacob Zuma, Menzi Simelane, NPA.

Should a court help to make the state’s case for secrecy?

Nov 29th, 2011
by Pierre De Vos.
157 comments

The right of every person to have access to any information held by the state is guaranteed by section 32 of the Constitution. The Promotion of Access to Information Act (PAIA) gives effect to this right. Unfortunately, many state officials (as well as private bodies) undermine respect for the Rule of Law by refusing to adhere to the provisions of PAIA, either by not responding to requests for access to information at all, or by refusing access to information where this refusal is not clearly justified by the provisions of PAIA.

Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

Posted in: ANC, democracy, Edwin Cameron, Freedom of expression, Jacob Zuma, media, Sandile Ngcobo, Thabo Mbeki.

Constitutional Court once again to the rescue of workers

Nov 28th, 2011
by Pierre De Vos.
26 comments

What happens if a parastatal like South African Airways (SAA) acts in a manner destructive of the rights of its workers and a court intervenes to protect the workers? Would the cabinet see such a move by a court as advancing the socio-economic interests of ordinary citizens and thus advancing the transformation agenda, or, alternatively, would it see the pro-worker decision by the court as unacceptable “interference” by the court in the running of SAA?

The answer is not clear. After all, in a world in which a “pro-transformation” government often acts in an “anti-transformation” manner when the financial interests of some of its donors, benefactors and family members or friends of the President or other cabinet ministers are at stake, the cabinet might well argue — in truly Orwellian manner — that a pro-transformation judicial decision is in fact anti-transformation.

These questions take on an added importance in the light of the seemingly bizarre statement recently issued by the cabinet about the need to assess the judgments of the Constitutional Court “to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

Last week the Constitutional Court, in the case of Aviation Union of South Africa and Another v SAA and Others, handed down a judgment in an appeal from the Supreme Court of Appeal (SCA) in which that court ruled that workers affected by an outsourcing agreement in which part of a business is transferred as a going concern would not be protected — despite the provisions of section 197 of the Labour Relations Act which protected workers involved in an outsourcing agreement — if the outsourcing agreement was terminated and a second outsourcing agreement entered into.

SAA had outsourced maintenance services to a company called LGM for a fixed period (and transferred that part of its business as a going concern to LGM) but this outsourcing agreement was not renewed. SAA was planning to issue tenders for the provision of the services previously provided by LGM. If the interpretation by the SCA had been endorsed by the Constitutional Court, it would have meant that the employees of SAA (and later LGM) who enjoyed protection afforded by section 197 at the stage of the first outsourcing agreement to LGM would be left with no protection if the same business was again transferred in terms of a second or further outsourcing agreement to another company.

The Constitutional Court had already interpreted section 197 in National Education Health and Allied Workers Union v University of Cape Town and Others, (NEHAWU) where it stated that the correct approach to interpreting the section was:

to construe the section as a whole and in the light of its purpose and the context in which it appears in the LRA. In addition, regard must be had to the declared purpose of the LRA to promote economic development, social justice and labour peace. The purpose of protecting workers against loss of employment must be met in substance as well as in form. And, as pointed out earlier, it also serves to facilitate the transfer of businesses. The section is found in a chapter that deals with unfair dismissal. Construed against this background, the section makes provision for an exception to the principle that a contract of employment may not be transferred without the consent of the workers.  Subsection (1) says so and it makes it possible to transfer the business on the basis that the workers will be part of that transfer.  This will occur if the business is transferred as a going concern.

Section 197 alters the common law which previously provided that the employment contract between employees and the company automatically came to an end when that company transferred a business to another company “as a going concern”. The section thus protects the job security of workers affected by the transfer of a business from one company to another company — in this case as part of an outsourcing agreement. In the Nehawu case the Constitutional Court said that in deciding whether a business has been transferred as a going concern (a prerequisite for section 197 to operate) regard must be had to the substance and not the form of the transaction.

A number of factors will be relevant to the question whether a transfer of a business as a going concern has occurred, such as the transfer or otherwise of assets both tangible and intangible, whether or not workers are taken over by the new employer, whether customers are transferred and whether or not the same business is being carried on by the new employer.  What must be stressed is that this list of factors is not exhaustive and that none of them is decisive individually.

There were two judgments in the Constitutional Court case. Both rejected the conservative and exceedingly formalistic interpretation of section 197 provided by the SCA as such an interpretation would have provided far less protection for workers caught up in such outsourcing agreements.

The minority judgment, authored by Justice Chris Jaftha (and supported by Justice Mogoeng Mogoeng and Dikgang Moseneke, amongst others) found that the facts placed before the Labour Court were insufficient to support the finding that the termination of the agreement between SAA and LGM, coupled with the performance of the relevant services by SAA, would constitute a transfer of business as a going concern. This meant that it was not possible to determine whether the protection afforded by section 197 would apply or not. The minority would therefore have referred the matter back to the Labour Court to deal with the factual issues in the light of the proper interpretation of section 197.

The majority, in a judgment written by Justice Zack Yacoob (and supported by Chief Justice Ngcobo and Justices Cameron, Froneman, Khampepe and Van der Westhuizen), differed with this approach. The majority agreed with a broader interpretation of section 197 and also rejected the narrow and legalistic approach of the SCA. However, it disagreed with the minority that a transfer must already have taken place in this case before the applicants are entitled to any relief. The majority also disagreed with the conclusion that the evidence does not justify relief being granted to the Union by the Constitutional Court itself.  It therefore found that there was no need to refer the matter back to the Labour Court for further consideration.

The implicit concern of the majority in this case was that an original employer would be able to “get rid” of employees by transferring part of their business as part of an outsourcing agreement for a fixed period, then terminating that agreement without demanding that the part of the business would be transferred back to it or doing so only at a time when workers rights had already been affected.

According to Yacoob, unless SAA or the temporary service provider decided to take over the employees, contrary to the contentions of SAA, the workers would have remained with LGM on the date of the termination of the agreement. LGM might then have had to retrench all the employees.

On the assumption that the transaction with which we are concerned, in particular its cancellation, involves the transfer of a business as a going concern, the workers would have been hard done by on 1 October 2007 [when original agreement was terminated] because they would have been left with LGM.  The interim service provider would have sourced its workers and the possibility of the workers at LGM being transferred would be reduced.  In my view, the section contemplates a seamless transfer from the old employer to the new one.  And this becomes possible only if, when there is a dispute about whether the workers are to be automatically transferred in terms of the transaction concerned, that dispute is determined before the implementation of the agreement.

The majority found that the outsourcing agreement had to be interpreted in a manner that would inevitably activate section 197 at the termination stage of the agreement. It found that LGM did indeed become obliged to assist SAA in transferring certain services to SAA or to a third party. But the agreement went further, the court found. LGM was also obliged to provide SAA with reasonable access to the services, assets and inventory of LGM. LGM became obliged to sell all fixed assets and inventory dedicated only to providing the services in terms of the agreement back to SAA and to transfer or assign all third party contracts to SAA.

In the circumstances, the majority found that the cancellation clause of the agreement contemplated a transfer of the business as a going concern. The only debate was about whether the business as a going concern was to be transferred to SAA or to an interim service provider. As long as there is a transferor, the identity of that entity or person is of no material significance. The agreement contemplates transfer by LGM to SAA or to the interim service provider.  It requires a transfer by a transferor, the old employer, to the transferee, the new employer.

The majority therefore made a declaratory order that would safeguard the rights of the employees affected by the cancellation of the outsourcing agreement. It was therefore a judgment that any reasonable person would agree impacted positively on the lives of ordinary citizens (if not on the lives of SAA executives who might receive smaller bonuses as a result of the decision). However, only time will tell whether the independent research institution tasked with assessing the work of the Constitutional Court and the cabinet, will see this judgment in this way.

Posted in: ANC, Constitutional Court, Criticism of Courts, Transformation.

Constitutional Court more pro-poor than the government

Nov 25th, 2011
by Pierre De Vos.
131 comments

Given recent statements by Gwede Mantashe, Secretary General of the ANC, and President Jacob Zuma complaining about alleged “interference” by the judiciary in the work of the elected branches of government (the legislature and the executive), it is perhaps understandable that an announcement by cabinet about a new “assessment on the transformation of the judicial system and the role of the judiciary in a developmental state” will be carried out by a “reputable research institution” created an outcry. As I wrote earlier this week, trust in the ANC government amongst the chattering classes is at an all time low, given daily reports of corruption in our media and given the passing of the Secrecy Bill by the National Assembly.

Only a few minutes after the statement was released my phone started ringing as journalists anxiously sought confirmation that this statement must be read as a full-frontal attack on the independence of the judiciary. Journalists focused especially on the announcement that cabinet agreed to an approach to the transformation of the judicial system that would include an ”assessment of the decisions of the Constitutional Court”, to be “undertaken by a research institution to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

However, on its face, this statement could be viewed as a positive development. If a truly independent and reputable research institution conducts such an assessment, it will inevitably find that the decisions of the Constitutional Court – perhaps more than the actions of the legislature and the executive — have by and large impacted positively on the lives of ordinary citizens and have facilitated socio-economic transformation. Where the Constitutional Court has handed down judgments that could be viewed as anti-poor, the decisions have almost always endorsed the policies of the government.

I am thinking, for example, of the Mazibuko judgement in which the installation of pre-paid water meters in Phiri, Soweto were unsuccessfully challenged by the residents of that area. The policy was devised and implemented by the ANC-led Metro government of Johannesburg and in my view discriminated against poor black residence of parts of Soweto. The Constitutional Court declined to intervene because the Metro’s policy was adapted over time.

However, in many other cases, the Constitutional Court has either endorsed transformative policies of the government or declared invalid anti-poor policies and laws passed by the ANC national or provincial governments. In the Grootboom case, the Treatment Action Campaign case, the Khosa case, the Jaftha case, and the Glennister case the Constitutional Court handed down judgments that had the effect of extending social and economic rights benefits to the poor, protected them from discrimination and unfair treatment or placed duties on the government to fight corruption, the very corruption that disproportionately affect the lives of the poor and the marginalised who depend on the honest and efficient state to provide it with the minimum basic goods and services required for them to survive and live a meaningful life.

The most telling case in this regard is the judgment of the Constitutional Court in the case of Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others in which the Constitutional Court struck down sections of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. This Act, passed by the ANC-led legislature in KwaZulu-Natal, represented a full frontal attack on the poor, the homeless and those living in informal settlements. It might well have been passed in an attempt to undermine Abahlali Basemjondolo and to provide the government with legal tools to harass its members. The Act would have required landlords to evict all “slum dwellers” (a term last used by the apartheid government in the 1960ties) and was thus found to breach the right of access to housing guaranteed in the Constitution.

A credible report assessing the work of the Constitutional Court will have to come to the conclusion reached above, answering the very criticism of Mantashe, Zuma and others in the ANC who have convinced themselves that the courts interfere with the abilities of the other branches of government to effect socio-economic transformation. Any other conclusion will not be credible and no academic worth his or her salt would put their name to a report that concludes differently. If the assessment is done properly, it may therefore help to silence critics of the Constitutional Court.

This does not mean that other aspects of the cabinet statement are not worrying as they suggest a complete lack of respect for the separation of powers doctrine, which is inherent in a system of checks and balances in a constitutional democracy with a supreme Constitution. Two statements in particular can be interpreted to mean that the executive wishes to meet privately (read, in secret) with members of the judiciary to “engage” judges and to try and convince them that they should stop finding that the government is in breach of the Constitution. Notably the statement says:

Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution. ….. Appropriate mechanisms be developed to facilitate for regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.

There is nothing wrong with the leadership of the judiciary engaging the executive on issues dealing with access to justice and the better running of the judicial system. The government is elected to provide better access to justice and has to ensure that the system works well. In as much as formal discussions between the branches of government can facilitate the better functioning of our court system and easier access to courts, the move should be welcomed.

However, it is absolutely inappropriate for the executive to engage judges in a way that would even give the appearance that the members of the executive are trying to persuade judges to make decisions in individual cases that are more in line with the policy choices of the government. This would represent a full frontal attack on the independence of the judiciary and the system of checks and balances put in place by our Constitution.

Judges usually do not engage anyone about their past or future judgments (no matter what Judge President John Hlophe might think). They speak through their judgements and engage in this formal sense in a dialogue with the other two branches of government who can then respond appropriately to the judgments of the courts to ensure that they comply with the Constitution. Judges do not and cannot be seen to engage with members of the executive with a view of achieving “synergy” between the views of the executive and the judiciary.

In a constitutional democracy any synergy that exists between the executive and the judiciary is imposed by the various provisions of the Constitution as interpreted by the Constitutional Court. The judiciary is in dialogue with the executive in a formal way through their judgments but they are not “interdependent” with the other branches of government in the way hinted at by the statement (in the sense that they have to meet with the executive and agree on a plan of action on how best to effect transformation without embarrassing the bumbling lawyers appointed by the President and Parliament). If this is what the statement implied, it is wrong and dangerous and the intentions expressed in it would then be proposing an unconstitutional breach of the separation of powers doctrine, which is a doctrine that is deeply entrenched in our constitutional law.

What is needed is for this statement to be clarified. As it stands it can easily lead to the conclusion that the cabinet has a particularly dangerous and unconstitutional view of the relationship between the executive and the members of the judiciary. The judiciary — unlike the legislature and the executive — is completely independent and is required to be seen to be independent from the other branches of government. Secret talks about the transformative goals of the government with a view to “pull together” (which could easily mean, pull in the same direction as the executive – even when it acts in breach of the Constitution) would therefore not be acceptable. Indeed, it would represent a shocking attack against the Constitution itself.

As I suggested, the statement could, at a stretch, be interpreted differently to mean only that the executive would like to engage the leadership of the judiciary to improve access to justice and the efficiency of the courts. If that is the case, this should be made clear. If, however, the cabinet believes that it is appropriate for them to have secret chats with members of the judiciary to ensure policy synergies between them and the judiciary so that judges would not declare invalid the bumbling actions of the legislature and the executive, then the cabinet is shockingly ignorant and is embarking on a road to destroy our constitutional democracy. No judge who respects the Constitution would be party to such talks.

Posted in: ANC, Constitutional Court, Criticism of Courts, Judiciary.

How to fix the Secrecy Bill and make it constitutionally compliant

Nov 24th, 2011
by Pierre De Vos.
90 comments

The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.

Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access  ”any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.

There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.

At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.

Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.

First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.

This must be read with section 14(3), which must also be deleted. This section states that:

Specific considerations with regard to the decision whether to classify state information may include whether the disclosure may-

(a)  expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;

(b)  clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised;

(c)  seriously and substantially impair national security, defence or intelligence systems, plans or activities;

(d)  seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;

(e)  violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or

(f)  cause life threatening or other physical harm to a person or persons.

Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.

It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.

Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.

Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.

Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.

First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it  secret.

Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.

Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.

I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.

Posted in: corruption, Freedom of expression, Jacob Zuma, media, Rule of Law.

ANC Wikipedia Page – “After the Secrecy Bill”

Nov 23rd, 2011
by Pierre De Vos.
27 comments


Posted in: ANC.

Who can we trust?

Nov 22nd, 2011
by Pierre De Vos.
166 comments

Very few people implicitly and unconditionally trust all government officials, all members of the cabinet and all the members of the intelligence services of their country. Few, surely, believe that they will always act scrupulously, honestly and in strict accordance to the law and the Constitution. (Hell, I am not even sure President Zuma fully trusts all his own ministers.)

One might well implicitly trust ministers and government officials if they belong to the politically party that one passionately supports. Thus, some DA members might blindly trust Helen Zille, while some ANC members might blindly trust Jacob Zuma. But very few of those DA supporters would blindly trust Zuma and very few of those ANC supporters would blindly trust Zille.

And whether one is a die-hard ANC supporter or a die-hard DA supporter, there cannot be too many people around who would blindly trust the members of the intelligence services (in other words the spies whose job it is to deceive, to keep secrets, and to obfuscate, all in the name of protecting national security). Given the way in which our spies have been implicated in various political plots relating to various ANC factions, only a fool will tell you that he or she believes our spies always respect the letter and the spirit of the law and always act honestly, and in the best interest of the Constitution and us citizens.

Most would worry that our spies might at some point act in the interest of one or other faction in the ruling party, in the interest of members of the police or the military (as some did in attempts to try and protect the corrupt former Police Commissioner) or merely in their own interest. After all, members of the intelligence service have often acted unlawfully and unconstitutionally over the past few years and quite a few were eventually fired as a result.

This is why a discussion of the dangers of the Protection of State Information Bill passed by the National Assembly today (and now to be discussed by the National Council of Provinces), raises difficult questions. On the one hand the Bill on its face is not nearly as draconian as members of the media keep arguing. The Bill represents a vast improvement on the truly draconian Bill first tabled in Parliament last year and — at least on paper — now contains many safeguards to protect us against the emergence of a secretive national security state or the abuse of the Bill to cover up corruption, maladministration and other kinds of criminality in government.

However, on the other hand, the Bill cannot be judged on paper only, but must be judged in the context in which spies and politicians have often been revealed over the past few years to be less than honourable and respectful of the law.

The problem with the new “improved” version of the Bill and the safeguards included in it, is that it assumes that we can blindly trust all government Ministers, state officials and spies to understand the intricacies (and seemingly contradictory aspects) of this Bill and to always apply it in accordance with this perfect understanding of the various provisions of the Bill. It also assumes that those who are empowered to classify documents and review the classification of documents will do so with one eye on the Constitution. Furthermore, it assumes rather optimistically, that the Minister of State Security (whose wife was recently convicted of drug running), other Ministers authorised to classify documents and the spies whose job it is so sow confusion, spread lies and generally to deceive others while hiding behind a cloak of secrecy, will not abuse their powers and will only act in accordance with the letter and spirit of the Bill.

Of course we know that a number of Ministers, including Defence Minister Lindiwe Sisulu and State Security Minister Siyabonga Cwele, have refused to answer questions about their travel costs and hotel stays on the grounds that this would compromise their personal security, displaying a rather authoritarian view on keeping secrets in the interest of so called “security” and abusing the excuse of security to evade accountability for possible wasteful expenditure  (or worse). One will therefore have to be an eternal optimist to believe that Ministers, spies and other officials authorised by this Bill to classify documents as secret or top secret will not abuse that power at some point or another.

(And even if one is such an optimist as well as a member of the ANC, one should remember that no government remains in power for ever and that this Bill will one day also be applied by people who are not ANC members.)

Having said that, it is clear that the main aim of the Bill is not to protect Ministers or the government more generally from exposure for corrupt and other nefarious activities. Section 3(2) of the Act states that the classification, reclassification and declassification provisions of the Bill apply to the security services of the Republic (in other words, the Army, the Police and the Intelligence Services).

However Section 3(2)(b) also allows any organ of state (including any government ministry) to ask the Minister of State Security to empower them to classify documents that could supposedly threaten “national security”. If the Minister exercises this power prudently, the scope of the Bill will be much reduced. However, given the paranoid and defamatory statements by the Minister that those who oppose passage of the Bill are being funded by foreign spy agencies, and given that there is a serious question mark over the Minister’s probity and judgment, it is not clear that he will not abuse this power.

Section 12 of the Act states that state information may be classified as confidential “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause demonstrable harm to national security of the Republic”. State information may be classified as secret “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to national security of the Republic”, while state information “may be classified as top secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to demonstrably cause serious or irreparable harm to the national security of the Republic”.

‘‘National security’’ is defined as including (and one therefore presumes, is not limited to) the protection of the people of the Republic and the territorial integrity of the Republic against the threat of use of force or the use of force; as well a hostile acts of foreign intervention directed at undermining the constitutional order of the Republic; terrorism or espionage; exposure of a state security matter with the intention of undermining the constitutional order of the Republic; and exposure of economic, scientific or technological secrets vital to the Republic. It explicitly excludes lawful political activity, advocacy, protest or dissent.

With the exception of the subsection dealing with economic or technological secrets, this list looks innocuous. But the list is not a closed list, which opens the door wide for any crook or authoritarian to abuse the provisions of this Bill to keep secrets relating to the undermining of democracy or the hiding of corruption. Moreover, this definition must be read together with section 14(3) of the Bill which states that those classifying Bills as secret must consider whether the disclosure may

    • expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;
    • clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security,are authorised;
    • seriously and substantially impair national security, defence or intelligence systems, plans or activities;
    • seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;
    • violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or
    • cause life threatening or other physical harm to a person or persons.19

If a spy (or a Minister who wishes to hide the fact that he or she has been living it up at the Mount Nelson or has visited a girlfriend in a Swiss jail) read section 14(3) in isolation, he or she may well classify information that would clearly have very little to do with national security. What is therefore limited by the definition of “national security” might well be smuggled back into the act via the back door in section 14(3) of the Bill.

I can already imagine Minister Lindiwe Sisulu from pointing to the second bullet point above to justify the classification of all sorts of documents that might embarrass Ministers or might expose the corruption they have been involved in. Because the Bill is so complicated, it would be difficult to make plausible arguments in the public domain that the Minister is abusing the Bill. Some executive minded judges might even agree with the interpretation by a Police Chief (remember the two most recent ones have both fallen under the bus because of corruption), a Minister or a spy relying on section 14(3).

But this is not the end of the matter. Section 32(1) does provide a safeguard which could in certain circumstances be effective. It states that a person who wants to gain access to a classified document may apply to a court for appropriate relief after the requester has exhausted the internal appeal procedure against a decision of the relevant Minister of the organ of state in question. If one has every reason to know that a document exists (for example, that a document exists which sets out the cost of a Minister’s travel and Hotel stays) , this avenue will be costly but mostly effective (unless one is unlucky enough to have to argue one’s case before a slavishly pro-executive judge).

The problem arises where one receives a document that is classified and the only way one would have known of its existence is if one had been leaked the document. One must then immediately hand back the document to the Police before one can challenge the wrongful classification. If one fails to do so, one could be prosecuted and sentenced to jail. If one  holds on to the document, the Minister might say that such a document does not exist and one would not be able to contradict him or her as this would amount to an admission of committing a crime. Moreover, how one would convince a court that a document should be declassified if one does not have access to the document, is not clear.

In short, on paper the Bill that was passed today is not as bad as many in the media argue. But in practice it might be devastating as it might protect our spies and our politician from scrutiny, the very scrutiny required to keep them on the strait and narrow. It might set us on the slippery slope towards a secretive national security state — as Steven Friedman argued today in Business Day. As an afterthought, it might also help to protect the venal and the corrupt.

Although safeguards do exist in theory, in practice these safeguards will often be illusory (especially for anyone without access to very clever lawyers and pots of money) unless those entrusted with applying the law will always act absolutely honestly, with brilliant insight into the law and with one eye towards the Constitution. The  chances of this happening is about as slim as the chances of me winning the Miss World Competition.

This means, for example, that where activists of Abahlali baseMjondolo or the Landless People’s Movement are illegally targeted by the security services because they are perceived to be a threat to the ANC government and their phones are bugged, their houses attacked or their leaders tortured and murdered, it would be almost impossible for the organisation to prove this when all the documents that could do so are classified. Ironically, only the media will have the resources to expose such abuse of power, but this would require the media (targeted at middle class readers) to display far more concern for the well-being of these social movements whose interests do not always align with the interests of the middle classes served by the serious media.

In a state in which trust has been eroded, a Bill like the one passed today becomes even more scary than it otherwise would have been. The strong reaction of civil society to the Bill therefore says just as much about the specific provisions of the Bill than it says about the fact that the governing party and state institutions have squandered the trust and goodwill it had acquired over many years of struggle. No wonder the ANC politicians are so upset.

Posted in: ANC, corruption, Freedom of expression, media, Uncategorized.

← Earlier Posts Newer Posts →