Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
3 July 2008

Public hearings on Scorpions

I see public hearings will be held  at Parliament on the 5, 6, & 7 August 2008 about the draft legislation that will be abolish the Scorpions. There will also be public hearings in the provinces from Monday 11 August to Friday, 15 August 2008.

It is clear that these hearings will aim to give effect to the recent Constitutional Court judgment in the Merafong case in which the Constitutional Court confirmed again that meaningful public participation was required when Parliament passed important legislation. Parliament will therefore have to manage this process very carefully to vaccinate the legislation against a constitutional challenge.

As the majority pointed out in the Merafong case – following previous precedent – meaningful participation did not require Parliament to follow the suggestions of the public, but merely that it had to be open to be persuaded by such submissions. What was required was for the public hearings not to be “a cynical charade”, but “held in good faith”. There must be “a possibility of change” in the position of the legislature.

There is no authority for the proposition that the views expressed by the public are binding on the legislature if they are in direct conflict with the policies of Government. Government certainly can be expected to be responsive to the needs and wishes of minorities or interest groups, but our constitutional system of government would not be able to function if the legislature were bound by these views. The public participation in the legislative process, which the Constitution envisages, is supposed to supplement and enhance the democratic nature of general elections and majority rule, not to conflict with or even overrule or veto them.

When public hearings are held on the abolition of the Scorpions Parliament will therefore have to listen to a wide range of opinions and if the ANC does its work, it will ensure that some of these opinions will support the abolition of the Scorpions and when they eventually pass the legislation it will be very difficult to challenge on the grounds that there was no meaningful public participation in the adoption of this legislation.

So, farewell Scorpions. Just another institution destroyed to serve the short-term political interest of what Xolela Mangcu calls the new fascists. The only way to deal with this kind of short-sighted and destructive arrogance on the part of the ruling party is to vote them out of office. But this will not happen next year because there is no credible party to vote for.

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