Quote of the week

The unhappy fact that it is journalists, investigating organs of state and officialdom and the political class and their involvement in corrupt practices to loot the State’s resources, who, by so doing, attract the attention of powerful and influential persons who are capable of suborning the apparatus of the State to smell out their adversaries, cannot be ignored. The examples of abuse of the system have been addressed elsewhere in this judgment. Moreover, the respondents’ perspectives assume that the designated judge is not lied to and is diligent… In my view, in the absence of a rebuttal, this example illustrates a grave vulnerability in RJCA that such an apparent abuse could occur. The common cause examples of blatant lies being told to the designated judge further exacerbates the vulnerability of the system.

Sutherland J
Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others
1 August 2019

Nonsensical? How the Public Protector and others use motive to avoid talking about the facts and the law

Public Protector, Busisiwe Mkhwebane, lost yet anothercase this week when the High Court interdicted her from enforcing her remedial action contained in her report on Pravin Gordhan and the SARS investigative unit. Predictably, Mkhwebane and some of her supporters (such as the EFF’s Floyd Shivambu) attacked the judgment by calling into question the impartiality and integrity of the judge, turning findings of fact and law into a question of motive.

In her book, The Origins of Totalitarianism, HannahArendt has much to say about how authoritarian regimes deliberately destroy the distinction between (what she calls) “true and false”. Referring to Nazi Germany and Stalin’s Russia, she notes that “[o]ne of the greatest advantages of the totalitarian elites of the twenties and thirties was to turn any statement of fact into a question of motive.”

Of course, South Africa is not a totalitarian state, but as is the case in Donald Trump’s America and Boris Jonson’s United Kingdom, the tactic of questioning somebody’s motives to avoid engaging with questions of fact and law when these produce a politically inconvenient outcome is often used.

A perfect example of this phenomenon is the claim by the Public Protector’s Office that it was “outrageous” and “unbecoming of a judicial officer” to call the remedial action “nonsensical” as this did “not accord with the decorum of the court”. (It is, of course, somewhat ironic that the Public Protector complained of “unbecoming” language by using highly emotive and unbecoming language.)

There is nothing wrong with reasoned criticism of court judgments – even when this is done in intemperate or even harsh language. If you believe that a judge made incorrect findings of fact or relied on a mistaken interpretation of the law, you are entitled to say so as long as you provide reasons for your view. In fact, reasoned criticism of court judgments, along with appeals, are important ways of holding the judiciary accountable.

As long as your criticism is based on your analysis of the law and the facts, and as long as you provide a relatively logical argument about why you think the judge got it wrong,  your criticism of the judgment would not stray into the realm of contempt of court. Good faith and reasoned criticism – even if misguided – does not rise to the level of contempt of court, exactly because you have criticised in good faith and engaged with the substance of the court judgment.

However, when a judge is personally attacked by calling his or her motives into question, it is usually a tell-tale sign that the judgment was legally correct but produced a politically inconvenient result.

When you refuse to engage in a reasoned manner with the question of whether the court made the correct findings of fact and interpreted and applied the law correctly by claiming (usually without any evidence and providing only the crudest motivation) that the judge was motivated by prejudice or otherwise acted unlawfully, you are engaging in the politics of obfuscation. It is like a parent whose toddler has noticed a chocolate bar on the kitchen counter who dangles a soft toy before the toddler, knowing that it would not be possible to convince the toddler that the chocolate bar was actually a pile of dog shit. (I am using this example as an invitation to the obfuscators to object to the use of the word shit, so that they can avoid engaging with the substance of my argument.)

To be fair, in its response the Public Protector’s office raised many substantive objections – based on its reading of the law – to aspects of the High Court judgment granting the interdict requested by Minister Gordhan. The Public Protector only attempted to turn questions about the correctness of findings of fact and law into a question of motive, when responding to the most damning part of the High Court judgment.

As part of the remedial action, the Public Protector ordered the Commissioner of Police to “investigate the criminal conduct of Messrs Gordhan, Pillay and other officials” for violating section 209 of the Constitution and section 3 of the National Strategic Intelligence Act”. The court described this remedial action as “nonsensical”. This description by the court is, unfortunately, factually correct.

As the High Court pointed out, neither of these sections create a criminal offence. It is not in dispute that somebody cannot be guilty of a criminal offence for breaching a legislative provision unless that legislation explicitly states that the legislative provision creates a criminal offence. As I have pointed out several times before, the National Strategic Intelligence Act does not state that a breach of section 3 amounts to a criminal offence.

As to section 209 of the Constitution, it is not in dispute that acting in contravention of any provision of the Constitution is not a criminal offence – ever. To illustrate this point (and I am embarrassed that I need to even explain this), section 74, 75 and 76 of the Constitution prescribe certain procedures for the passing of legislation. If Parliament fails to follow these prescribed procedures, Parliament and its members cannot be prosecuted, convicted and sent to jail if it fails to abide by these procedures.

In other words, the Public Protector ordered the Commissioner of Police to do something he is not able to do and is not permitted to do. It’s akin to the Public Protector ordering the Commissioner of Police to investigate the “crime” committed by Mr Gay South Africa for being too beautiful, too intelligent, and too sexy. A nice hashtag, but not a legally plausible order to make. In fact, the order would, to describe it accurately, be “nonsensical”.

It was obviously highly embarrassing for the Public Protector that the judge pointed out that she ordered the Commissioner of Police to investigate something that is not a criminal offence. As it was not possible to dispute the accuracy of this statement by the court, the Public Protector’s office made the false claim that it was unbecoming for a judge to describe the actions of anyone as “nonsensical”. The reasoning seems to be that if it was “unbecoming”, the judge must have had an ulterior purpose for mentioning this undisputed fact.

Why is it undisputed that it is not unbecoming for a judge to describe the actions or claims of an individual as being “nonsensical”? Because South African judges regularly describe the testimony of witnesses or arguments by lawyers as “nonsensical”. On http://www.saflii.org there are 361 judgements (in fact, after the High Court judgment there are now 362 such judgments) where the court used this term. For example, in 2016 in Makate v Vodacom (Pty) Ltd(the “Please Call Me’ case) the Constitutional Court (in a judgment written by justice Jaftha and concurred in by Chief Justice Moegoeng) made the following observation:

That Court described the explanation furnished by Mr Knott-Craig for the contradiction on the origin of the idea, as nonsensical. On the contrary, the trial Court found that Mr Knott-Craig knew the true version of how the ‘Please Call Me’ service originated.

I chose that case because it is famous, but I also randomly clicked on a criminal law case in which the word was used and came up with the judgment of S v Galada handed down by the High Court in Bisho where the testimony of the accused was described as “nonsensical” in the following terms:

This resulted in him breathing through places one did not normally breathe through.  When asked to explain what this meant he again gave a nonsensical answer by saying that he had to breathe through his anus.

The anus is a wonderful orifice that gives much pleasure but no sane person acting in good faith would ever claim that one could breathe through it, thus the claim is “nonsensical”.

A third example, also chosen randomly, comes from Botswana (this is a fun game!) where the court in the case of Sebat and Another v Urban Security (Botswana) (Pty) Ltd commented as follows on the testimony of a witness:

He said that if a client hears that the security guard who is guarding their premises was suspected of armed robbery, the company may loose that client. The client will not bother to find out whether there was evidence or no evidence to substantiate it. The court finds this submission not only nonsensical but also ridiculous and has no hesitation in rejecting it.

I have now demonstrated that courts often describe statements as “nonsensical” when these are so obviously false that no person of sane mind who acts in a bona fide manner could ever have made them. The claim by the Public Protector that it is “outrageous” for a judge to use this term is therefore itself “nonsensical”. It is a rather amateurish attempt to divert attention from the fact that the Public Protector did not know, or knew but did not care, that there was no criminal offence to be investigated by the Commissioner or anyone else.

Of course, I am not naïve and know that my insistence on focusing on the facts and the law will not be welcomed by either the Public Protector or her defenders. Some will try to divert attention from the facts and the law by trying to make this about motive, accusing me of an obsession with the Public Protector, of hating her, of being “Stratcom” or, “part of a cabal”. They will not engage with the substance of my argument or attempt to show that my analysis is wrong.

This is neither here nor there. What is important is that South Africans should not be fooled by those who try to divert attention from the facts and the law, buy trying to turn these into questions of motive.

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