Judiciary under attack from the ruling party, but holding firm
Dr Anthea Jeffery, head of special projects at the SA Institute for Race Relations, argues that South Africa's constitutional guarantees are being eroded by the ruling party, and new threats have appeared on the horizon. The following is the text of a talk entitled "Individual freedom and civil rights under the rule of law" presented last week at the Freedom Seminar, hosted in Johannesburg by the Friedrich Naumann Foundation.
Constitutional guarantees
South Africa has comprehensive guarantees of individual freedom and fundamental civil liberties in its Constitution. Some of these have been eroded since the political transition, while others face new threats. However, none will retain much practical significance if the rule of law is not upheld. For the rule of law requires (among other things) an independent judiciary capable of upholding guaranteed rights and an independent prosecution service sedulous in upholding equality before the law in the criminal courts. It also requires laws that are clear and certain, thus leaving little scope for their arbitrary or unequal application.
According to our Constitution, the rule of law is one of the founding values of our new constitutional order, and must be upheld by all branches of Government at all times. Instead, however, key aspects of the rule of law are coming under increasing threat.
Judicial independence - the mindset of the ruling party
Almost 20 years after the political transition, the ruling African National Congress (ANC) still sees itself as a liberation movement committed to a national democratic revolution (NDR) which is fundamentally at odds with core provisions of the Constitution. The ANC has also identified the Judiciary as one of the key levers of state power it seeks to control in order to advance the NDR. As President Thabo Mbeki put it in 2005, the ANC wants to ‘transform the collective mindset of the Judiciary’, presumably so as to bring this into line with NDR goals.
Since 2007, when the campaign to replace Mr Mbeki with Jacob Zuma accelerated, the ruling party has grown increasingly impatient with the capacity of the courts to enforce the criminal law and strike down unconstitutional legislation and executive decisions. This had led to unbridled ANC criticisms of the courts, coupled with a growing rejection of the very concept of judicial review.
In July 2011 Mr Zuma said: ‘The powers conferred on the courts cannot be superior to the powers resulting from the political…mandate resulting from popular democratic elections.’ The following month the secretary general of the ANC, Gwede Mantashe, rebuked the courts for ‘acting as if they were the political opposition’ and seeking to ‘arrest the functioning of Government’. Three months later Blade Nzimande, general secretary of the South African Communist Party (SACP), said South Africa was in danger of becoming a ‘judicial dictatorship’ and that it faced ‘a co-ordinated liberal offensive…to challenge almost any decision by the president and the executive’. In March 2012 Mr Zuma stated: ‘We are a Government,… and the Judiciary is not a government and it cannot simply review all government policies. They cannot be elevated to do something they are not supposed to do.’ [Business Day 12 July, Mail & Guardian 19 August, The Times 2 November, City Press 18 December 2011, Business Day, The Times 16 March, The New Age 27 March 2012]
In September 2011 the deputy minister of correctional services, Ngoako Ramatlhodi, added that the ANC had made ‘fatal concessions’ at the time of the political transition. Given the balance of forces prevailing at the time (including the collapse of the Soviet Union), it had accepted a Constitution which ‘emptied the legislature and executive of real political power’ and ‘immigrated (sic) the little power left [to them] to civil society and the Judiciary’. [The Times 1 September 2010]
Soon afterwards a leaked version of an ANC discussion document said the time had come for a shift to a ‘second transition’. It called for changes to the Constitution to rid it of ‘sunset’ and other clauses ‘inappropriate’ for the ‘social and economic transformation’ now needed. However, the Constitution contains no ‘sunset’ clauses. With media criticism accelerating, these statements were removed from the document as officially released. [Sunday Times 4 March 2012] Questions about the ANC’s intentions nevertheless remained, and have been further fuelled by legislation on the Judiciary.
Judiciary legislation - Is SA's judiciary becoming like East Germany's?
Various judiciary bills published in 2005 posed a significant threat to judicial independence because they sought, among other things, to subject the Bench to the authority of the justice minister as regards ‘the administration and budget of all courts’.
The two judiciary statutes signed into law this year by Mr Zuma are better in many respects and have generally been welcomed by commentators. [Business Day 22 November 2012, 11 January 2013; Mac Maharaj, Statement issued by The Presidency, 13 August 2013; The New Age 21 August 2013] However, the Superior Courts Act of 2013 and the Constitution Seventeenth Amendment Act of 2012 still give the minister of justice and constitutional development, Jeff Radebe, significant control over court budgets and administration. They also allow him to appoint acting judges to the high court largely at his discretion, a power which could be misused to appoint civil servants to the Bench (as happened in 2010 with a serving prosecutor, Mokotedi Mpshe). [Anthea Jeffery, ‘The Rule of Law’, Fast Facts, April 2010]
In addition, the Acts make the Constitutional Court the ‘apex court’ and turn the chief justice into ‘the head of the Judiciary’. They thus empower the chief justice (with the support of a majority of heads of court) to ‘establish and monitor norms and standards’ for all judges, raising questions (comments Business Day) as to whether ‘he who controls the chief justice in effect controls the Judiciary’. In addition, the Acts give the ‘office of the chief justice’ (established in September 2010 by brief presidential proclamation in the Government Gazette) the task of assisting the chief justice in carrying out his new functions. [Business Day 11 January, 8 May 2013]
According to Loammi Wolf, a legal academic who has written extensively on South Africa’s Judiciary and is now based at the Democracy & Peace Institute in Germany, [Financial Mail 20 April 2012] the Acts reflect the East German judicial model in which Mr Radebe was trained at Karl Marx University, in the former German Democratic Republic (GDR), in the early 1980s. [Loammi Wolf, ‘Jeff Radebe, the judiciary and the East German model’, 17 April 2012, politicsweb.co.za, p1]
In the GDR, the Judiciary was seen as ‘an instrument of power to enforce socialist transformation’. Judges were expected to ‘take note of the political and economic policies of the [ruling party] and adjudicate accordingly’. Judicial review of legislation or executive action was not permitted, as this reflected a ‘Western’ notion of the separation of powers. Instead, the East German system required ‘mutual co-existence and inter-dependence’ between the three branches of government.
The East German model was also based on a hierarchy of courts in which subordinate courts were not merely bound by precedent (as in Western legal systems) but also had to adjudicate according to the directives issued by the most senior court. This could give a particular significance to provisions making the Constitutional Court the country’s ‘single apex court’. (In the past, the Constitution reflected a ‘twin peaks’ approach, in which the Constitutional Court was the highest court in constitutional matters but the Supreme Court of Appeal was the highest court in all others.) The change could also overload the Constitutional Court and reduce its capacity for constitutional review. [Wolf, p5]
The East German model may also underpin the directive powers given to the chief justice in his new capacity as head of the Judiciary. In addition, the Acts may increase ANC influence over the chief justice via the office of the chief justice, which (as Mr Radebe has said) is ‘directly accountable to the Cabinet’.
The East German model seems also to explain the ANC’s criticisms of judicial review, and its insistence that the courts must in future work together with the other arms of state. This perspective also permeates an ANC discussion document on the Judiciary, released in February 2012, which repeatedly urges the three branches of government to ‘act in concert with each other’ and to ‘co-operate and act interdependently… to realise the transformation goals of the Constitution’.
This co-operative approach also seems evident in a recent majority judgment, handed down by Chief Justice Mogoeng Mogoeng, in a case brought by Agri SA calling for the payment of compensation for a mining right allegedly expropriated under the Mineral and Petroleum Development Resources Act (MPRDA) of 2002.
The Agri SA case and expropriation by the State
The matter began in 2001, when a company called Sebenza (Pty) Ltd bought an unused old-order coal mining right for some R1m. When the MPRDA came into effect in 2004, the statute gave Sebenza a year to convert its unused right into a new-order one. However, since the company could not afford the R1.5m application fee, its old-order right ‘ceased to exist’ a year later under the terms of the MPRDA. Sebenza claimed compensation from the State for the expropriation it had allegedly suffered, and Agri SA, a lobby group for commercial farmers (many of whom had owned unused old-order rights to the minerals beneath their land) took over the claim and brought it before the courts as a test case on expropriation under the MPRDA. [Agri South Africa v Minister for Minerals and Energy, Case CCT51/12, judgment of the Constitutional Court of South Africa, 18 April 2013, paras 13-16; Business Day 19 April 2013]
The DMR denied that the MPRDA had resulted in the expropriation of old-order mining rights, arguing that the Act merely ‘regulated the use’ of the mineral rights it placed under state custodianship. But the Pretoria high court rejected this view, finding that the old-order mining rights in issue had been ‘legislated out of existence’ under the MPRDA. Sebenza had lost all the competencies of ownership it had previously enjoyed, while the minister had been given substantially similar rights. The State had thus acquired ‘the substance of the property rights of the erstwhile holder’, and it made no difference that the State’s competencies were termed ‘custodianship’ rather than ‘ownership’. Expropriation had thus taken place, for which the former owner was entitled to R750,000 in compensation. [Business Day 4 May 2011]
The DMR appealed against this ruling to the Supreme Court of Appeal, which overruled the high court ruling in a poorly reasoned judgment. Agri-SA then appealed to the Constitutional Court, but lost there too in April 2013.
Judge Mogeng’s majority ruling began by stressing that the property clause (Section 25) had to be interpreted ‘with due regard to the gross inequality in relation to wealth and land distribution in this country’. This meant that ‘a sensitive balance’ had to be maintained between ‘existing private property rights and the pursuit of transformation’, and that the decision on whether expropriation had occurred ‘could not be merely surgical or mechanical’. [Business Day 19 April 2013]
Judge Mogoeng also said it was not enough for a claimant merely to show that he had suffered a deprivation of property at the hands of the State. He also had to demonstrate that ‘the State had acquired the substance or core content’ of what he had lost. In this instance, Sebenza had suffered a ‘compulsory deprivation’ of its coal right, while ‘the custodianship’ of this resource was now ‘vested in the State on behalf of the people of South Africa’. However, the State had not acquired ownership of the right. As custodian of all mineral resources, it was simply ‘a facilitator or conduit through which… equitable access to mineral…resources could be realised’. Since the Government had not acquired ownership of the right which Sebenza had lost, it followed that no expropriation had taken place and no compensation could be payable. (Judge Mogoeng thus dismissed Agri SA’s appeal, while leaving open the question whether expropriation under the MPRDA could ‘ever be established’.) [Business Day 19 April, 25 July 2013; Judgment, paras 58, 68, 71, 76]
In a separate judgment, Judges Froneman and Van der Westhuizen warned against the implications of Judge Mogoeng’s approach, saying it could lead to ‘the abolition of the private ownership of…all property’ without any compensation being payable. ‘Any legislative transfer of property from existing property holders’ would no longer be ‘recognised as expropriation’ if it was ‘done by the State as custodian of the country’s resources’, they said. [Ibid, para 105]
The two judges instead found that expropriation had indeed occurred, but ruled that the MPRDA had already provided ‘just and equitable’ compensation for this taking by allowing Sebenza to apply for the conversion of its old-order right. That Sebenza had been unable to do so was the result of its own financial problems, and not because the MPRDA’s provision for ‘compensation-in-kind’ was inadequate. [Ibid, para 109] No further compensation was thus payable to Sebenza.
Judge Mogoeng’s interpretation would clearly drive a coach and horses through the property clause in the Constitution. Hence, if Judge Mogoeng’s ruling is indeed an example of the co-operative approach the ANC seeks from the Judiciary, the implications for the enforcement of other guaranteed rights are profound.
Judicial appointments
Mr Zuma’s decision in August 2011 to appoint Judge Mogoeng as chief justice was itself controversial, for Judge Mogoeng (especially compared with deputy chief justice Dikgang Moseneke) had little experience on the Constitutional Court and a poor record as a high court judge. (In his short time on the Constitutional Court, he had failed to give reasons for his dissenting judgment in one case while, as a high court judge, he had ‘irregularly’, said the SCA, failed to recuse himself from a case in which his wife was the prosecutor.)
Opposition parties objected to the nomination, but the Judicial Service Commission (JSC) endorsed it by a significant majority. This was after a public hearing in which, as The Star reported, Mr Radebe and others on the commission showed an ‘almost palpable hostility’ to Judge Moseneke and a ‘contrasting geniality’ towards Judge Mogoeng.
The JSC’s conduct in this instance reinforced long-standing concerns about the commission’s close ties to the ANC. These concerns have since been further fuelled by:
Soon afterwards, Judge Mogoeng strongly criticised this intervention (though without identifying the HSF by name). Said the chief justice: ‘A deliberate attempt is being made to delegitimise the JSC and through some scare tactics intimidate or mock the JSC into recommending…certain white men… These developments seem to suggest that war has been declared against transformation…. This illegitimate neoliberal campaign to have certain people appointed must be strongly opposed.’ [The Citizen 30 July, Business Day 7 August 2013]
In response, Paul Hoffman SC, director of the Institute for Accountability in South Africa (Ifaisa), lodged a complaint against the chief justice with the JSC. Mr Hoffman said Judge Mogoeng had brought the Judiciary and his own high office into disrepute by ‘descending into the arena of contestation…in respect of issues which were pending in the high court and…were likely to require final determination in the Constitutional Court’. However, the JSC dismissed his complaint in September 2013. [Business Day 7, 23 August, City Press 7 September 2013]
Again, the threat to the rule of law is again significant, for guaranteed rights mean little if judges are not visibly independent and committed to upholding the law without regard to the policies of the ruling party.
Independence of the legal profession
In May 2012 the justice minister said that ‘the transformation of the…Judiciary…will be incomplete without the transformation of the legal profession, [for] they are two sides of the same coin’. This provides the background to the Legal Practice Bill of 2012, which seeks to put an end to the country’s independent bar councils and law societies and place the legal profession under a new ‘legal practice council’ operating under significant ministerial control. [SAIRR, Executive Summary, Submission to the Portfolio Committee on Justice and Constitutional Development, 27 July 2012]
The Bill will put an end to the long-standing self-regulation of the legal profession. It will also empower the new council to specify maximum legal fees, as well as the extent of the unpaid community service required of all lawyers. The council will also control the ‘transformational’ legal training all lawyers will have to undergo. According to the Bill’s explanatory memorandum, this training is needed because ‘legal practitioners are the main source of candidates for the Judiciary, the transformation of which is of paramount importance’. [Ibid]
Once all legal practitioners are regulated by a council answerable to the justice minister, it could become much harder to find lawyers willing to take up contentious cases against the State. As John Kane-Berman, chief executive of the South African Institute of Race Relations, has written: ‘By undermining the long-standing independence of the legal profession, Mr Radebe will have struck at all the rights and freedoms guaranteed by the Constitution, including the right of due process. Defence of these rights and freedoms, and their enforcement, depends not only on independent courts but also on independent legal practitioners willing to take on cases without fear or favour.’ [Ibid]
Independent prosecution service
The rule of law also requires an independent prosecution service. Instead, the independence of the National Prosecuting Authority (NPA) has been profoundly undermined in recent years and mainly, it seems, to serve the interests of Mr Zuma.
In 1992 the Attorneys General Act gave the country’s various attorneys general increased security of tenure and autonomy from ministerial control. However, at the ANC’s insistence, the 1996 Constitution then provided for them to be placed under the control of a ‘super attorney general’, or national director of public prosecutions (NDPP), to be appointed directly by the president. [Anthea Jeffery, Chasing the Rainbow: South Africa’s Move from Mandela to Zuma, SAIRR, Johannesburg, 2010, pp63-65]
The first NDPP, Bulelani Ngcuka, reportedly acted at Mr Mbeki’s behest in deciding not to prosecute Mr Zuma at the same time as he charged Schabir Shaik with corruption for having made numerous payments to Mr Zuma in return for the latter’s help in securing contracts for his Nkobi company). [Jeffery, Chasing the Rainbow, p68]
The second NDPP,Vusi Pikoli was suspended by Mr Mbeki for trying to prosecute the national commissioner of police, Jackie Selebi, for corruption. However, a commission of inquiry chaired by Frene Ginwala, a former speaker of the National Assembly, rejected the allegations made against Mr Pikoli and found him fit to retain his office. He was nevertheless dismissed in February 2009 by President Kgalema Motlanthe. Had Mr Pikoli remained in office, he might have proved as determined to prosecute Mr Zuma as he had been to bring Mr Selebi to justice.
Following Mr Pikoli’s dismissal, Mokotedi Mpshe continued to serve as acting NDPP, a position which gave him no security of tenure. In April 2009 Mr Mpshe withdrew all corruption and other charges against Mr Zuma on flimsy grounds. In doing so, he ignored a relevant ruling by the SCA and based his decision on an obscure Hong Kong judgment that had already been overturned on appeal, a fact he did not disclose.
Mr Zuma later appointed Menzi Simelane, a former director general of justice, as the new NDPP. Yet Dr Ginwala had described Mr Simelane’s testimony to her commission as often ‘inaccurate or without basis in fact or in law’, while his conduct, she said, had been ‘highly irregular’.
In December 2011 the SCA set aside Mr Simelane’s appointment, saying Dr Ginwala’s views were ‘directly relevant’ to his suitability and that Mr Zuma had acted ‘irrationally’ in appointing him. In November 2012 the Constitutional Court upheld this decision.
Mr Simelane was replaced by another acting NDPP, Nomgcobo Jiba. But Ms Jiba had earlier been suspended from the NPA and charged with dishonesty and unprofessional conduct for her role in bringing about the wrongful arrest of a fellow prosecutor, Gerrie Nel. (Mr Nel had earned her enmity by prosecuting her husband, Booker Nhantsi, an attorney, for stealing R193 000 out of his firm’s trust account. In September 2010 Mr Zuma had used his presidential powers to expunge Mr Nhantsi’s criminal record, making Ms Jiba beholden to him.) [City Press 2 June 2013]
Ms Jiba has been much criticised for:
Withdrawal of charges against General Mdluli
In September 2013 the NPA’s decision to withdraw charges against General Mdluli was set aside as irrational and unlawful by the North Gauteng High Court. Judge John Murphy criticised Ms Jiba and her subordinates, saying:
However, Judge Murphy’s decision has now been placed on hold via the decision of the country’s new NDPP, Mxolisi Nxasana, to appeal against the judgment. Mr Nxasana, a little known Durban attorney, was appointed NDPP by Mr Zuma at the end of August 2013. Early in October, he told MPs that he was still thinking about how to proceed on the Mdluli matter and did not want to rush into any decision, as he was still so new to the job. By that same afternoon, however, he had changed his mind, announcing that he intended to appeal against Judge Murphy’s ruling. According to the new NDPP, ‘a decision to withdraw charges is by its nature provisional and not susceptible to judicial review’. In addition, ‘courts all over the world are reluctant to interfere with a prosecuting authority’s bona fide exercise of its discretion to prosecute or not’, while Judge Myburgh had ‘failed to take the practical implications of his order into consideration, including the effect on the daily functioning of the office of the NDPP’. [City Press 1 September, Business Day, The Star 9, 14 October 2013]
Meanwhile, all 15 charges levelled against Glynnis Breytenbach in support of her suspension from duty were dismissed in May 2013 by Selby Mbenenge SC, chairman of an internal disciplinary hearing into her alleged misconduct. But a day later the NPA responded that it planned to challenge Mr Mbenenge’s findings in court as they were ‘factually incorrect and legally unsustainable’. Ms Jiba refused to allow Ms Breytenbach to return to her job as head of the Pretoria branch of the specialised commercial crimes unit within the prosecution service, as the NPA was investigating a number of fresh charges against her and that there had been a breakdown of trust between her and her superiors. [The Times 29 May, City Press 23 June, The New Age 22 July 2013]
Ms Breytenbach applied to the Labour Court for an order compelling her reinstatement, saying the fresh charges ‘smacked of a witch hunt’ and that the NPA appeared to be ‘willing to do anything to prevent her from going back to her post and the prosecutions she was handling’. However, in July 2013 the Labour Court dismissed Ms Breytenbach’s application. Two months later, the NPA claimed it now had evidence that Ms Breytenbach was a spy for the Israeli intelligence agency, Mossad, and was pursuing criminal charges against her. According to her attorney, the letter allegedly proving her connection to Mossad (which neither he nor she has seen) is a forgery. [City Press 23 June, Business Day, The New Age 22 July, City Press 15, Business Day 26 September 2013]
Withdrawal of charges against Mr Zuma
Meanwhile, the Democratic Alliance (DA) is seeking to obtain judicial review of Mr Mpshe’s decision to withdraw all charges against Mr Zuma in April 2009 to judicial review. However, despite two key judgments in the party’s favour, it is still battling to obtain the essential foundation for such a review – a written record of the information on which Mr Mpshe based his decision.
The first set-back the DA confronted was a Pretoria high court ruling in February 2011 that the party lacked locus standi to bring its intended court application. However, in March 2012 the SCA upheld the DA’s appeal on this point. The SCA also ordered the NPA to provide the DA with all relevant documents (other than Mr Zuma’s confidential representations) within 14 days. But by September 2012 the NPA had yet to do so, obliging the DA to seek a further court order compelling it to give effect to the SCA’s ruling. [The Star 28 September 2013]
The DA is seeking, in particular, to obtain transcripts of the ‘spy tapes’ on which Mr Mpshe relied in deciding to withdraw the charges. These gave details of secretly recorded telephone calls between Mr Ngcuka and Leonard McCarthy, head of the Directorate of Special Operations (DSO), commonly known as the Scorpions, in which the two men talked about whether it would be better or worse for Mr Mbeki if Mr Zuma, his rival for the ANC presidency, were charged with corruption and other crimes before or after the ANC’s national conference at Polokwane (Limpopo) in December 2007. The two seemed to agree that ‘after’ would be better, and this is what then occurred. According to Mr Mpshe, these discussions constituted ‘an intolerable abuse…which compelled a discontinuation of the prosecution’. He also made some four pages of the transcript of these tapes available to the media to show that there had indeed been political interference in the timing of the charges. [City Press 18 August 2013]
When the DA’s application came before the North Gauteng High Court in 2013, Mr Zuma argued that the spy tapes were part of the confidential representations he had made to the NPA, and so did not have to be released in terms of the SCA judgment. [City Press 18 August 2013] But a number of legal experts disagreed, saying Mr Mpshe had obtained a transcript from the National Intelligence Agency, not Mr Zuma. [Mail & Guardian 9 November 2012]
Handing down his judgment on the DA application in August 2013, Judge Rammako Mathopo lambasted Mr Zuma’s lawyers for claiming that the spy tapes were confidential, and gave the NPA five days to hand over an electronic version thereof, plus transcripts. He said he ‘failed to understand Mr Zuma’s assertion that the disclosure of the transcripts would affect his right to confidentiality’. Added Judge Mathopo: ‘Mpshe, together with his team, rightly or wrongly came to the conclusion that the integrity of the prosecution was compromised… It is desirable that the transcripts be produced to contextualize whether the decision of Mpshe was based on rational grounds or not.’ He also ruled that internal NPA documentation – including a memorandum by chief prosecutor Billy Downer urging that the prosecution of Mr Zuma should proceed – should be made available to the DA’s lawyers on a confidential basis. [City Press 18 August 2013]
James Selfe, chairman of the DA’s federal executive, said the party was ‘very relieved and very excited’, especially as Judge Mathopo had also questioned the validity of Mr Mpshe’s decision, saying he could not understand how ‘the discussion on the timing of the charges would impact on the integrity of the charges’. Mr Selfe said it had been ‘a very long battle’ in which ‘incredible hurdles had been put up at every point’, adding: ‘Now we can hopefully get down to the business of finding out if this was a valid legal decision or one of absolute political expediency.’ [City Press 18 August 2013]
However, further delay is now inevitable for Mr Zuma failed to hand over the documents in time. Instead, he has lodged an appeal against Judge Mathopo’s ruling, so putting its enforcement on hold. [Business Day 23 August 2013] Mr Hoffman comments that the case has already been dragging on for four years and predicts it will take at least another four years to reach finality. [Business Day 4 June 2013]
Other contentious decisions on prosecution
A fortnight after the police shot dead 34 striking miners and other demonstrators at Lonmin’s Marikana mine in Rustenburg (North West) in August 2012, the NPA under Ms Jiba charged 270 of the surviving demonstrators with the ‘planned and premeditated murder’ of the 34 people killed by the police. It based this on the common-law doctrine of ‘common purpose’, on the supposition that the demonstrators had made common cause with the police to bring about the fatal shootings of 34 of their colleagues. This decision triggered so much outrage that Ms Jiba was soon forced to withdraw it. However, since there was never any reasonable prospect of attaining convictions, the charges were an abuse of the criminal process.
In August 2012 the NPA (in the so-called ‘Amigos’ case) withdrew corruption charges against the speaker of the KwaZulu-Natal provincial legislature, Peggy Nkonyeni, and the MEC for economic development, Mike Mabuyakhulu – both of whom were rumoured to be important to Mr Zuma’s re-election prospects at Mangaung. (The charges arose out of the awarding of a contract for water purification and oxygen plants in provincial hospitals to Uruguayan businessman Gaston Savoi, who had allegedly paid a R1m bribe to the ANC.) This decision was made by a new acting Director of Public Prosecutions in KwaZulu-Natal, Moipone Noko, within a fortnight of her being deployed to the post. She said she had perused and evaluated the evidence in the case – which included a 112 000-page forensic report into sums amounting to some R144m– and had found it was insufficient to proceed. Mr Pikoli commented that ‘political influence in the NPA, which is constitutionally supposed to be independent, had become glaring’. The DA is taking court action to compel Ms Noko to release the reasons for her decision. [The Star 2 October 2012, The New Age 7 May, City Press 2 June, 13 October 2013]
Since then several more of the accused in the Amigos case – again those with clear links to the ANC – have also had the charges against them withdrawn. [The Star 2 October 2012] However, Mr Zuma’s most outspoken critic, Julius Malema (a former president of the ANC Youth League) has been charged with money laundering, corruption, and fraud. The contrast points again to political pliability on the part of the NPA. [Business Day 25 September 2012]
Clear and certain law
This aspect of the rule of law is important because people need to have reliable guidance in advance as to what is legally required, permitted, or prohibited. Otherwise, it becomes impossible to act within the law. In addition, if laws are unclear, this opens the way for officials to apply them on an arbitrary and unequal basis, eroding the principle of equality before the law.
No comprehensive evaluation of how well this aspect of the rule of law has been upheld is possible, given the great volume of post-1994 legislation. However, a number of ‘transformation’ laws are clearly vague and uncertain in their wording, allowing for their selective interpretation and enforcement. Only a few examples can be provided here.
One such transformation law is the Employment Equity of 1998, which requires employers of 50 people or more to make ‘reasonable’ progress towards ‘employment equity’ for the benefit of ‘suitably qualified’ black people, ie those with ‘the capacity within a reasonable time to acquire the ability to do the job’. Maximum fines for failure to meet this vague obligation currently range from R500,000 to R900,000 and are soon to be trebled (at minimum) under the Employment Equity Amendment Bill of 2012.
Another key transformation statute is the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, which requires applicants for mining rights to have ‘prescribed social and labour plans’, but provides no guidance as to what these should incorporate. This has opened the way to selective application and other abuses of power – including demands by officials of the Department of Mineral Resources (DMR) that particular ANC luminaries must be included in BEE deals before the MPRDA’s requirements will be accepted as having been fulfilled. Such pressure, it seems, compelled Gold Fields to increase the stake in a 2010 deal that was given to ANC chairperson Baleka Mbete from R2.2m to R28.6m, as otherwise its application for a key mining right would not have been accepted. [Sunday Times 10, Business Day 28 March, 16 September, Mail & Guardian 1, 6 September 2013]
Uncertainty about what should be included in social and labour plans also makes it possible for the mining minister to threaten mining companies with the loss of their mining rights. This became evident in September 2011 when the minister, Susan Shabangu, announced the cancellation of the mining right earlier accorded Central Rand Gold (CRG), as CRG had allegedly spent too little on its social and labour plan. The plan called for spending of R33m, against which CRG had spent only R19m. But the company had also spent R35m on pumps against rising acid water, which benefited all mining companies and should (so CRG argued) have counted as part of its social expenditure as well. Though the minister recanted after CRG applied for judicial review of her conduct, the incident highlighted the vulnerability of mining companies to such arbitrary decision-making. [Business Day 29 Sept 2011, Finweek 13 Oct 2011, Financial Mail 14 Oct 2011]
In addition, the MPRDA is silent as to whether a mining right for platinum covers ‘associated’ minerals (such as nickel and chromium), which form part of the same ore body and must perforce be extracted in mining for platinum. Lonmin omitted to apply for the right to mine associated minerals at its Marikana platinum mine as it thought it unnecessary to do so – and the DMR seemed initially to agree. But the DMR later changed its mind, requiring Lonmin to apply for the rights to mine the associated minerals. But a BEE company called Keysha Investments got in first and was awarded the prospecting rights to these associated minerals. The DMR rejected Lonmin’s appeals against this decision, compelling Lonmin to pay Keysha $4m for the surrender of these prospecting rights. [BDlive, 12 October 2012]
Also relevant in this context is the Broad-Based Black Economic Empowerment Amendment Bill of 2012, which criminalises ‘fronting’ or the over-statement of BEE credentials. The Bill defines fronting in so extraordinarily broad a way that it could include, for example, the failure to give an inexperienced black manager the same responsibilities as a seasoned white one, or the failure to turn a BEE start-up into a successful small enterprise. This vagueness also opens the way for selective and arbitrary enforcement. This could have great practical impact too, as the Bill’s penalties for fronting include jail terms of up to ten years.
Further examples of unclear law are to be found in the Mineral and Petroleum Resources Development Amendment Bill of 2013 (the Mining Bill). This introduces large fines (of up to 10% of annual turnover, plus 10% of the value of the previous year’s exports) and/or a maximum four-year prison term for such vague offences as failing ‘substantially and meaningfully’ to promote the participation of black South Africans in the mining industry, or failing to ‘promote economic growth’. [Sections 2(d) and (e), amended MPRDA]
Also relevant in this regard are various ‘framework’ laws: statutes which themselves contain few rules but instead empower the relevant minister to lay down detailed requirements by means of regulations (or codes of conduct) published in the Government Gazette. This also allows the executive to stipulate, or change, the relevant rules with minimal, if any, parliamentary debate or endorsement.
A key example here is the Broad-Based Black Economic Empowerment Act of 2003, under which the minister of trade and industry is able to gazette codes of good practice laying out the BEE requirements the private sector is expected to fulfil. Many of the requirements in the codes, together with the way in which compliance is to be measured, are inherently vague. Moreover, the 2008 codes have now been replaced by new codes, gazetted on 11th October 2013, which have substantially changed the relevant rules by introducing many new and also vaguely phrased requirements.
Then there is the Employment Equity Amendment Act of 2012, which gives the labour minister the power to decide by regulation the crucial question whether designated employers are to use national or regional figures in seeking to match their workforces to the economically active population (EAP). This makes a big difference to coloured people, who make up 55% of the EAP in the Western Cape but only 11% of the national EAP. If the national EAP is to govern, then a million or more coloured people in the Western Cape will find it difficult to gain employment or promotion in the province.
Also relevant here is the Employment Services Bill of 2012, which empowers the labour minister to issue regulations on the right of private employment agencies to engage in labour broking. Though the Government says it seeks merely to regulate this practice, the wording of the Bill is broad enough to allow the minister to impose a total ban on labour broking by means of regulation.
Particularly important here is, again, the Mining Bill of 2013, which empowers the mining minister ‘from time to time by notice in the Gazette, to determine such percentage per mineral commodity…as may be required for local beneficiation, after taking into consideration the national interest’. It further allows her to determine ‘the developmental pricing conditions’ which are to apply ‘in respect of such percentage’ after considering ‘the national interest’. In addition, ‘every producer will have to offer local beneficiators a certain percentage of its raw mineral production, as prescribed by the minister’. The Bill also gives the minister similar powers to require the local beneficiation of petroleum products.
Mining and oil companies thus have no certainty at all as to what beneficiation requirements or price controls may be imposed on them in the future. The relevant requirements may also be changed at ministerial will, simply by notice in the Gazette.
The Mining Bill also gives the State the right to a ‘free carried interest’ in all new oil and gas exploration and production rights, with an option to acquire a further interest on specified terms through a designated organ of state or a state-owned entity, as determined by the minister in the Gazette’. A free carried interest is defined as ‘a share in the annual profits derived from the exercise of an exploration right or production right…despite the State not contributing to the capital expenditure’. On 10th October 2013, the minister announced that the State’s initial free-carried interest n all new exploration and production ventures will be 20%, and that it reserves the right to buy a further 30% at ‘market-related rates’, [Business Day 11 October 2013] which may be different from market values. There is nothing in the Bill to prevent the minister from increasing these percentages, by means of regulation, as she thinks fit.
The 2013 Mining Bill also abolishes the present ‘first-in, first-assessed’ rule, under which applications for mining rights must be dealt with (and approved or disapproved) in the order in which they are received. Instead, the minister will be empowered to ‘invite’ applications for mining rights by notice in the Gazette. In doing so, she may ‘prescribe the period within which any application may be lodged….and the terms and conditions subject to which such rights…may be granted’. Again, this makes for great uncertainty as to what the relevant criteria might be, or how much they might be changed in the future.
Conclusion
South Africa has a long tradition of independence in the Judiciary, the legal profession, and the prosecution service. Many court decisions have gone against the Government and/or Mr Zuma, which is why the ANC now speaks of curtailing, or reinterpreting, the principle of judicial review. In all the instances which have so evoked the ruling party’s ire, judges have visibly maintained their independence. There are also many decisions on prosecution which have doubtless been taken without fear or favour. However, there are also enough instances where political interference seems overt to taint the system as a whole.
Though there is still much to celebrate in our legal system, our Constitution, and our justiciable Bill of Rights, a number of worrying developments are evident too. The ANC has successfully white-anted several key constitutional provisions, and this trend could well continue in this ‘second phase’ of the NDR. Much will also depend on whether the moderates in the ANC can temper the interventions of the radicals. All of which underscores the point that constitutional guarantees of individual freedom and civil rights, though vital in promoting political freedom, are not enough. The political will to uphold them must also be in place. Where that political will is visibly faltering, as in South Africa today, civil society must continually step in to defend the rule of law in all its aspects.
Constitutional guarantees
South Africa has comprehensive guarantees of individual freedom and fundamental civil liberties in its Constitution. Some of these have been eroded since the political transition, while others face new threats. However, none will retain much practical significance if the rule of law is not upheld. For the rule of law requires (among other things) an independent judiciary capable of upholding guaranteed rights and an independent prosecution service sedulous in upholding equality before the law in the criminal courts. It also requires laws that are clear and certain, thus leaving little scope for their arbitrary or unequal application.According to our Constitution, the rule of law is one of the founding values of our new constitutional order, and must be upheld by all branches of Government at all times. Instead, however, key aspects of the rule of law are coming under increasing threat.
Judicial independence - the mindset of the ruling party
Almost 20 years after the political transition, the ruling African National Congress (ANC) still sees itself as a liberation movement committed to a national democratic revolution (NDR) which is fundamentally at odds with core provisions of the Constitution. The ANC has also identified the Judiciary as one of the key levers of state power it seeks to control in order to advance the NDR. As President Thabo Mbeki put it in 2005, the ANC wants to ‘transform the collective mindset of the Judiciary’, presumably so as to bring this into line with NDR goals.
Since 2007, when the campaign to replace Mr Mbeki with Jacob Zuma accelerated, the ruling party has grown increasingly impatient with the capacity of the courts to enforce the criminal law and strike down unconstitutional legislation and executive decisions. This had led to unbridled ANC criticisms of the courts, coupled with a growing rejection of the very concept of judicial review.
In July 2011 Mr Zuma said: ‘The powers conferred on the courts cannot be superior to the powers resulting from the political…mandate resulting from popular democratic elections.’ The following month the secretary general of the ANC, Gwede Mantashe, rebuked the courts for ‘acting as if they were the political opposition’ and seeking to ‘arrest the functioning of Government’. Three months later Blade Nzimande, general secretary of the South African Communist Party (SACP), said South Africa was in danger of becoming a ‘judicial dictatorship’ and that it faced ‘a co-ordinated liberal offensive…to challenge almost any decision by the president and the executive’. In March 2012 Mr Zuma stated: ‘We are a Government,… and the Judiciary is not a government and it cannot simply review all government policies. They cannot be elevated to do something they are not supposed to do.’ [Business Day 12 July, Mail & Guardian 19 August, The Times 2 November, City Press 18 December 2011, Business Day, The Times 16 March, The New Age 27 March 2012]
In September 2011 the deputy minister of correctional services, Ngoako Ramatlhodi, added that the ANC had made ‘fatal concessions’ at the time of the political transition. Given the balance of forces prevailing at the time (including the collapse of the Soviet Union), it had accepted a Constitution which ‘emptied the legislature and executive of real political power’ and ‘immigrated (sic) the little power left [to them] to civil society and the Judiciary’. [The Times 1 September 2010]
Soon afterwards a leaked version of an ANC discussion document said the time had come for a shift to a ‘second transition’. It called for changes to the Constitution to rid it of ‘sunset’ and other clauses ‘inappropriate’ for the ‘social and economic transformation’ now needed. However, the Constitution contains no ‘sunset’ clauses. With media criticism accelerating, these statements were removed from the document as officially released. [Sunday Times 4 March 2012] Questions about the ANC’s intentions nevertheless remained, and have been further fuelled by legislation on the Judiciary.
Judiciary legislation - Is SA's judiciary becoming like East Germany's?
Various judiciary bills published in 2005 posed a significant threat to judicial independence because they sought, among other things, to subject the Bench to the authority of the justice minister as regards ‘the administration and budget of all courts’.
The two judiciary statutes signed into law this year by Mr Zuma are better in many respects and have generally been welcomed by commentators. [Business Day 22 November 2012, 11 January 2013; Mac Maharaj, Statement issued by The Presidency, 13 August 2013; The New Age 21 August 2013] However, the Superior Courts Act of 2013 and the Constitution Seventeenth Amendment Act of 2012 still give the minister of justice and constitutional development, Jeff Radebe, significant control over court budgets and administration. They also allow him to appoint acting judges to the high court largely at his discretion, a power which could be misused to appoint civil servants to the Bench (as happened in 2010 with a serving prosecutor, Mokotedi Mpshe). [Anthea Jeffery, ‘The Rule of Law’, Fast Facts, April 2010]
In addition, the Acts make the Constitutional Court the ‘apex court’ and turn the chief justice into ‘the head of the Judiciary’. They thus empower the chief justice (with the support of a majority of heads of court) to ‘establish and monitor norms and standards’ for all judges, raising questions (comments Business Day) as to whether ‘he who controls the chief justice in effect controls the Judiciary’. In addition, the Acts give the ‘office of the chief justice’ (established in September 2010 by brief presidential proclamation in the Government Gazette) the task of assisting the chief justice in carrying out his new functions. [Business Day 11 January, 8 May 2013]
According to Loammi Wolf, a legal academic who has written extensively on South Africa’s Judiciary and is now based at the Democracy & Peace Institute in Germany, [Financial Mail 20 April 2012] the Acts reflect the East German judicial model in which Mr Radebe was trained at Karl Marx University, in the former German Democratic Republic (GDR), in the early 1980s. [Loammi Wolf, ‘Jeff Radebe, the judiciary and the East German model’, 17 April 2012, politicsweb.co.za, p1]
In the GDR, the Judiciary was seen as ‘an instrument of power to enforce socialist transformation’. Judges were expected to ‘take note of the political and economic policies of the [ruling party] and adjudicate accordingly’. Judicial review of legislation or executive action was not permitted, as this reflected a ‘Western’ notion of the separation of powers. Instead, the East German system required ‘mutual co-existence and inter-dependence’ between the three branches of government.
The East German model was also based on a hierarchy of courts in which subordinate courts were not merely bound by precedent (as in Western legal systems) but also had to adjudicate according to the directives issued by the most senior court. This could give a particular significance to provisions making the Constitutional Court the country’s ‘single apex court’. (In the past, the Constitution reflected a ‘twin peaks’ approach, in which the Constitutional Court was the highest court in constitutional matters but the Supreme Court of Appeal was the highest court in all others.) The change could also overload the Constitutional Court and reduce its capacity for constitutional review. [Wolf, p5]
The East German model may also underpin the directive powers given to the chief justice in his new capacity as head of the Judiciary. In addition, the Acts may increase ANC influence over the chief justice via the office of the chief justice, which (as Mr Radebe has said) is ‘directly accountable to the Cabinet’.
The East German model seems also to explain the ANC’s criticisms of judicial review, and its insistence that the courts must in future work together with the other arms of state. This perspective also permeates an ANC discussion document on the Judiciary, released in February 2012, which repeatedly urges the three branches of government to ‘act in concert with each other’ and to ‘co-operate and act interdependently… to realise the transformation goals of the Constitution’.
This co-operative approach also seems evident in a recent majority judgment, handed down by Chief Justice Mogoeng Mogoeng, in a case brought by Agri SA calling for the payment of compensation for a mining right allegedly expropriated under the Mineral and Petroleum Development Resources Act (MPRDA) of 2002.
The Agri SA case and expropriation by the State
The matter began in 2001, when a company called Sebenza (Pty) Ltd bought an unused old-order coal mining right for some R1m. When the MPRDA came into effect in 2004, the statute gave Sebenza a year to convert its unused right into a new-order one. However, since the company could not afford the R1.5m application fee, its old-order right ‘ceased to exist’ a year later under the terms of the MPRDA. Sebenza claimed compensation from the State for the expropriation it had allegedly suffered, and Agri SA, a lobby group for commercial farmers (many of whom had owned unused old-order rights to the minerals beneath their land) took over the claim and brought it before the courts as a test case on expropriation under the MPRDA. [Agri South Africa v Minister for Minerals and Energy, Case CCT51/12, judgment of the Constitutional Court of South Africa, 18 April 2013, paras 13-16; Business Day 19 April 2013]
The DMR denied that the MPRDA had resulted in the expropriation of old-order mining rights, arguing that the Act merely ‘regulated the use’ of the mineral rights it placed under state custodianship. But the Pretoria high court rejected this view, finding that the old-order mining rights in issue had been ‘legislated out of existence’ under the MPRDA. Sebenza had lost all the competencies of ownership it had previously enjoyed, while the minister had been given substantially similar rights. The State had thus acquired ‘the substance of the property rights of the erstwhile holder’, and it made no difference that the State’s competencies were termed ‘custodianship’ rather than ‘ownership’. Expropriation had thus taken place, for which the former owner was entitled to R750,000 in compensation. [Business Day 4 May 2011]
The DMR appealed against this ruling to the Supreme Court of Appeal, which overruled the high court ruling in a poorly reasoned judgment. Agri-SA then appealed to the Constitutional Court, but lost there too in April 2013.
Judge Mogeng’s majority ruling began by stressing that the property clause (Section 25) had to be interpreted ‘with due regard to the gross inequality in relation to wealth and land distribution in this country’. This meant that ‘a sensitive balance’ had to be maintained between ‘existing private property rights and the pursuit of transformation’, and that the decision on whether expropriation had occurred ‘could not be merely surgical or mechanical’. [Business Day 19 April 2013]
Judge Mogoeng also said it was not enough for a claimant merely to show that he had suffered a deprivation of property at the hands of the State. He also had to demonstrate that ‘the State had acquired the substance or core content’ of what he had lost. In this instance, Sebenza had suffered a ‘compulsory deprivation’ of its coal right, while ‘the custodianship’ of this resource was now ‘vested in the State on behalf of the people of South Africa’. However, the State had not acquired ownership of the right. As custodian of all mineral resources, it was simply ‘a facilitator or conduit through which… equitable access to mineral…resources could be realised’. Since the Government had not acquired ownership of the right which Sebenza had lost, it followed that no expropriation had taken place and no compensation could be payable. (Judge Mogoeng thus dismissed Agri SA’s appeal, while leaving open the question whether expropriation under the MPRDA could ‘ever be established’.) [Business Day 19 April, 25 July 2013; Judgment, paras 58, 68, 71, 76]
In a separate judgment, Judges Froneman and Van der Westhuizen warned against the implications of Judge Mogoeng’s approach, saying it could lead to ‘the abolition of the private ownership of…all property’ without any compensation being payable. ‘Any legislative transfer of property from existing property holders’ would no longer be ‘recognised as expropriation’ if it was ‘done by the State as custodian of the country’s resources’, they said. [Ibid, para 105]
The two judges instead found that expropriation had indeed occurred, but ruled that the MPRDA had already provided ‘just and equitable’ compensation for this taking by allowing Sebenza to apply for the conversion of its old-order right. That Sebenza had been unable to do so was the result of its own financial problems, and not because the MPRDA’s provision for ‘compensation-in-kind’ was inadequate. [Ibid, para 109] No further compensation was thus payable to Sebenza.
Judge Mogoeng’s interpretation would clearly drive a coach and horses through the property clause in the Constitution. Hence, if Judge Mogoeng’s ruling is indeed an example of the co-operative approach the ANC seeks from the Judiciary, the implications for the enforcement of other guaranteed rights are profound.
Judicial appointments
Mr Zuma’s decision in August 2011 to appoint Judge Mogoeng as chief justice was itself controversial, for Judge Mogoeng (especially compared with deputy chief justice Dikgang Moseneke) had little experience on the Constitutional Court and a poor record as a high court judge. (In his short time on the Constitutional Court, he had failed to give reasons for his dissenting judgment in one case while, as a high court judge, he had ‘irregularly’, said the SCA, failed to recuse himself from a case in which his wife was the prosecutor.)
Opposition parties objected to the nomination, but the Judicial Service Commission (JSC) endorsed it by a significant majority. This was after a public hearing in which, as The Star reported, Mr Radebe and others on the commission showed an ‘almost palpable hostility’ to Judge Moseneke and a ‘contrasting geniality’ towards Judge Mogoeng.
The JSC’s conduct in this instance reinforced long-standing concerns about the commission’s close ties to the ANC. These concerns have since been further fuelled by:
- an SCA ruling in September 2012 confirming that the JSC acted ‘irrationally’ in April 2011 in leaving judicial posts in the Western Cape High Court vacant when well-qualified white applicants were available to fill them; [Business Day 8 April 2013]
- the commission’s decision in October 2012 to appoint Mokgoatji Dolamo, an inexperienced black attorney against whom 26 complaints of misconduct had been lodged, to the high court in the Western Cape while (for the fourth time) passing over an application from Jeremy Gauntlett SC, one of the country’s most distinguished silks; [Business Day 26, 30 October, 8, 13 November 2012]
- the resignation from the JSC in April 2013 of Izak Smuts, an advocate, because of what Mr Smuts described as the commission’s ‘unlawful’ practice of generally rejecting white males for judicial appointment, ‘so leaving a trail of wasted forensic talent in its wake’; [The Citizen 15, Business Day 16 April 2013] and;
- the JSC’s insistence on giving more weight to affirmative action than competence in deciding on judicial appointments, when the Constitution indicates that competence is the priority and the need for a ‘broadly representative’ Bench need only be ‘considered’. [The Times 10, City Press 14 April 2013]
Soon afterwards, Judge Mogoeng strongly criticised this intervention (though without identifying the HSF by name). Said the chief justice: ‘A deliberate attempt is being made to delegitimise the JSC and through some scare tactics intimidate or mock the JSC into recommending…certain white men… These developments seem to suggest that war has been declared against transformation…. This illegitimate neoliberal campaign to have certain people appointed must be strongly opposed.’ [The Citizen 30 July, Business Day 7 August 2013]
In response, Paul Hoffman SC, director of the Institute for Accountability in South Africa (Ifaisa), lodged a complaint against the chief justice with the JSC. Mr Hoffman said Judge Mogoeng had brought the Judiciary and his own high office into disrepute by ‘descending into the arena of contestation…in respect of issues which were pending in the high court and…were likely to require final determination in the Constitutional Court’. However, the JSC dismissed his complaint in September 2013. [Business Day 7, 23 August, City Press 7 September 2013]
Again, the threat to the rule of law is again significant, for guaranteed rights mean little if judges are not visibly independent and committed to upholding the law without regard to the policies of the ruling party.
Independence of the legal profession
In May 2012 the justice minister said that ‘the transformation of the…Judiciary…will be incomplete without the transformation of the legal profession, [for] they are two sides of the same coin’. This provides the background to the Legal Practice Bill of 2012, which seeks to put an end to the country’s independent bar councils and law societies and place the legal profession under a new ‘legal practice council’ operating under significant ministerial control. [SAIRR, Executive Summary, Submission to the Portfolio Committee on Justice and Constitutional Development, 27 July 2012]
The Bill will put an end to the long-standing self-regulation of the legal profession. It will also empower the new council to specify maximum legal fees, as well as the extent of the unpaid community service required of all lawyers. The council will also control the ‘transformational’ legal training all lawyers will have to undergo. According to the Bill’s explanatory memorandum, this training is needed because ‘legal practitioners are the main source of candidates for the Judiciary, the transformation of which is of paramount importance’. [Ibid]
Once all legal practitioners are regulated by a council answerable to the justice minister, it could become much harder to find lawyers willing to take up contentious cases against the State. As John Kane-Berman, chief executive of the South African Institute of Race Relations, has written: ‘By undermining the long-standing independence of the legal profession, Mr Radebe will have struck at all the rights and freedoms guaranteed by the Constitution, including the right of due process. Defence of these rights and freedoms, and their enforcement, depends not only on independent courts but also on independent legal practitioners willing to take on cases without fear or favour.’ [Ibid]
Independent prosecution service
The rule of law also requires an independent prosecution service. Instead, the independence of the National Prosecuting Authority (NPA) has been profoundly undermined in recent years and mainly, it seems, to serve the interests of Mr Zuma.
In 1992 the Attorneys General Act gave the country’s various attorneys general increased security of tenure and autonomy from ministerial control. However, at the ANC’s insistence, the 1996 Constitution then provided for them to be placed under the control of a ‘super attorney general’, or national director of public prosecutions (NDPP), to be appointed directly by the president. [Anthea Jeffery, Chasing the Rainbow: South Africa’s Move from Mandela to Zuma, SAIRR, Johannesburg, 2010, pp63-65]
The first NDPP, Bulelani Ngcuka, reportedly acted at Mr Mbeki’s behest in deciding not to prosecute Mr Zuma at the same time as he charged Schabir Shaik with corruption for having made numerous payments to Mr Zuma in return for the latter’s help in securing contracts for his Nkobi company). [Jeffery, Chasing the Rainbow, p68]
The second NDPP,Vusi Pikoli was suspended by Mr Mbeki for trying to prosecute the national commissioner of police, Jackie Selebi, for corruption. However, a commission of inquiry chaired by Frene Ginwala, a former speaker of the National Assembly, rejected the allegations made against Mr Pikoli and found him fit to retain his office. He was nevertheless dismissed in February 2009 by President Kgalema Motlanthe. Had Mr Pikoli remained in office, he might have proved as determined to prosecute Mr Zuma as he had been to bring Mr Selebi to justice.
Following Mr Pikoli’s dismissal, Mokotedi Mpshe continued to serve as acting NDPP, a position which gave him no security of tenure. In April 2009 Mr Mpshe withdrew all corruption and other charges against Mr Zuma on flimsy grounds. In doing so, he ignored a relevant ruling by the SCA and based his decision on an obscure Hong Kong judgment that had already been overturned on appeal, a fact he did not disclose.
Mr Zuma later appointed Menzi Simelane, a former director general of justice, as the new NDPP. Yet Dr Ginwala had described Mr Simelane’s testimony to her commission as often ‘inaccurate or without basis in fact or in law’, while his conduct, she said, had been ‘highly irregular’.
In December 2011 the SCA set aside Mr Simelane’s appointment, saying Dr Ginwala’s views were ‘directly relevant’ to his suitability and that Mr Zuma had acted ‘irrationally’ in appointing him. In November 2012 the Constitutional Court upheld this decision.
Mr Simelane was replaced by another acting NDPP, Nomgcobo Jiba. But Ms Jiba had earlier been suspended from the NPA and charged with dishonesty and unprofessional conduct for her role in bringing about the wrongful arrest of a fellow prosecutor, Gerrie Nel. (Mr Nel had earned her enmity by prosecuting her husband, Booker Nhantsi, an attorney, for stealing R193 000 out of his firm’s trust account. In September 2010 Mr Zuma had used his presidential powers to expunge Mr Nhantsi’s criminal record, making Ms Jiba beholden to him.) [City Press 2 June 2013]
Ms Jiba has been much criticised for:
- allowing the withdrawal of murder, corruption, and fraud charges against Richard Mdluli, a former head of police intelligence, who had earlier pledged to help Mr Zuma win a second term as ANC president at the organisation’s national conference at Mangaung (Bloemfontein) in December 2012; and;
- suspending a commercial crimes prosecutor, Glynnis Breytenbach, who had objected to the withdrawal of the charges against General Mdluli and urged Ms Jiba to reinstate them. [City Press 2 June, The Citizen 25 September 2013]
Withdrawal of charges against General Mdluli
In September 2013 the NPA’s decision to withdraw charges against General Mdluli was set aside as irrational and unlawful by the North Gauteng High Court. Judge John Murphy criticised Ms Jiba and her subordinates, saying:
- of Ms Jiba: ‘Her stance has been technical, formalistic and aimed solely at shielding the illegal and irrational decisions [to withdraw the charges] from judicial scrutiny’. [Mail & Guardian 27 September 2013]
- of Lawrence Mrwebi, head of the Specialised Commercial Crime Unit within the NPA: His decision on the withdrawal of the fraud and corruption charges was ‘illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it’; [The Citizen 25, Mail & Guardian 27 September 2013]
- of Andrew Chauke, director of public prosecutions for South Gauteng, who withdrew the murder charges because an inquest had found no proof of General Mduli’s culpability: ‘A senior member of the NPA should have known that an inquest is an investigatory process directed primarily at establishing a cause of death and is not aimed at determining the guilt of a person’. Moreover, ‘there was indeed a prima facie case against Mdluli on the murder-related charges. Chauke failed to deal properly with this incriminating evidence against Mdluli and had offered no evaluation of the cogency of the circumstantial evidence against him’. In addition, Chauke had withdrawn charges of assault and intimidation even though these had not been dealt with by the inquest. This suggested that Chauke had ‘not properly applied his mind to those charges’ or was ‘acting capriciously and with an ulterior purpose’. [Mail & Guardian 27 September, 4 October 2013]
- Noting that the NPA had shown little capacity to ‘pursue the matter without fear or favour’ Judge Murphy ordered the reinstatement of the charges so as to ensure that the NPA now prosecuted Mdluli ‘diligently and expeditiously’. [Mail & Guardian 4 October 2013]
However, Judge Murphy’s decision has now been placed on hold via the decision of the country’s new NDPP, Mxolisi Nxasana, to appeal against the judgment. Mr Nxasana, a little known Durban attorney, was appointed NDPP by Mr Zuma at the end of August 2013. Early in October, he told MPs that he was still thinking about how to proceed on the Mdluli matter and did not want to rush into any decision, as he was still so new to the job. By that same afternoon, however, he had changed his mind, announcing that he intended to appeal against Judge Murphy’s ruling. According to the new NDPP, ‘a decision to withdraw charges is by its nature provisional and not susceptible to judicial review’. In addition, ‘courts all over the world are reluctant to interfere with a prosecuting authority’s bona fide exercise of its discretion to prosecute or not’, while Judge Myburgh had ‘failed to take the practical implications of his order into consideration, including the effect on the daily functioning of the office of the NDPP’. [City Press 1 September, Business Day, The Star 9, 14 October 2013]
Meanwhile, all 15 charges levelled against Glynnis Breytenbach in support of her suspension from duty were dismissed in May 2013 by Selby Mbenenge SC, chairman of an internal disciplinary hearing into her alleged misconduct. But a day later the NPA responded that it planned to challenge Mr Mbenenge’s findings in court as they were ‘factually incorrect and legally unsustainable’. Ms Jiba refused to allow Ms Breytenbach to return to her job as head of the Pretoria branch of the specialised commercial crimes unit within the prosecution service, as the NPA was investigating a number of fresh charges against her and that there had been a breakdown of trust between her and her superiors. [The Times 29 May, City Press 23 June, The New Age 22 July 2013]
Ms Breytenbach applied to the Labour Court for an order compelling her reinstatement, saying the fresh charges ‘smacked of a witch hunt’ and that the NPA appeared to be ‘willing to do anything to prevent her from going back to her post and the prosecutions she was handling’. However, in July 2013 the Labour Court dismissed Ms Breytenbach’s application. Two months later, the NPA claimed it now had evidence that Ms Breytenbach was a spy for the Israeli intelligence agency, Mossad, and was pursuing criminal charges against her. According to her attorney, the letter allegedly proving her connection to Mossad (which neither he nor she has seen) is a forgery. [City Press 23 June, Business Day, The New Age 22 July, City Press 15, Business Day 26 September 2013]
Withdrawal of charges against Mr Zuma
Meanwhile, the Democratic Alliance (DA) is seeking to obtain judicial review of Mr Mpshe’s decision to withdraw all charges against Mr Zuma in April 2009 to judicial review. However, despite two key judgments in the party’s favour, it is still battling to obtain the essential foundation for such a review – a written record of the information on which Mr Mpshe based his decision.
The first set-back the DA confronted was a Pretoria high court ruling in February 2011 that the party lacked locus standi to bring its intended court application. However, in March 2012 the SCA upheld the DA’s appeal on this point. The SCA also ordered the NPA to provide the DA with all relevant documents (other than Mr Zuma’s confidential representations) within 14 days. But by September 2012 the NPA had yet to do so, obliging the DA to seek a further court order compelling it to give effect to the SCA’s ruling. [The Star 28 September 2013]
The DA is seeking, in particular, to obtain transcripts of the ‘spy tapes’ on which Mr Mpshe relied in deciding to withdraw the charges. These gave details of secretly recorded telephone calls between Mr Ngcuka and Leonard McCarthy, head of the Directorate of Special Operations (DSO), commonly known as the Scorpions, in which the two men talked about whether it would be better or worse for Mr Mbeki if Mr Zuma, his rival for the ANC presidency, were charged with corruption and other crimes before or after the ANC’s national conference at Polokwane (Limpopo) in December 2007. The two seemed to agree that ‘after’ would be better, and this is what then occurred. According to Mr Mpshe, these discussions constituted ‘an intolerable abuse…which compelled a discontinuation of the prosecution’. He also made some four pages of the transcript of these tapes available to the media to show that there had indeed been political interference in the timing of the charges. [City Press 18 August 2013]
When the DA’s application came before the North Gauteng High Court in 2013, Mr Zuma argued that the spy tapes were part of the confidential representations he had made to the NPA, and so did not have to be released in terms of the SCA judgment. [City Press 18 August 2013] But a number of legal experts disagreed, saying Mr Mpshe had obtained a transcript from the National Intelligence Agency, not Mr Zuma. [Mail & Guardian 9 November 2012]
Handing down his judgment on the DA application in August 2013, Judge Rammako Mathopo lambasted Mr Zuma’s lawyers for claiming that the spy tapes were confidential, and gave the NPA five days to hand over an electronic version thereof, plus transcripts. He said he ‘failed to understand Mr Zuma’s assertion that the disclosure of the transcripts would affect his right to confidentiality’. Added Judge Mathopo: ‘Mpshe, together with his team, rightly or wrongly came to the conclusion that the integrity of the prosecution was compromised… It is desirable that the transcripts be produced to contextualize whether the decision of Mpshe was based on rational grounds or not.’ He also ruled that internal NPA documentation – including a memorandum by chief prosecutor Billy Downer urging that the prosecution of Mr Zuma should proceed – should be made available to the DA’s lawyers on a confidential basis. [City Press 18 August 2013]
James Selfe, chairman of the DA’s federal executive, said the party was ‘very relieved and very excited’, especially as Judge Mathopo had also questioned the validity of Mr Mpshe’s decision, saying he could not understand how ‘the discussion on the timing of the charges would impact on the integrity of the charges’. Mr Selfe said it had been ‘a very long battle’ in which ‘incredible hurdles had been put up at every point’, adding: ‘Now we can hopefully get down to the business of finding out if this was a valid legal decision or one of absolute political expediency.’ [City Press 18 August 2013]
However, further delay is now inevitable for Mr Zuma failed to hand over the documents in time. Instead, he has lodged an appeal against Judge Mathopo’s ruling, so putting its enforcement on hold. [Business Day 23 August 2013] Mr Hoffman comments that the case has already been dragging on for four years and predicts it will take at least another four years to reach finality. [Business Day 4 June 2013]
Other contentious decisions on prosecution
A fortnight after the police shot dead 34 striking miners and other demonstrators at Lonmin’s Marikana mine in Rustenburg (North West) in August 2012, the NPA under Ms Jiba charged 270 of the surviving demonstrators with the ‘planned and premeditated murder’ of the 34 people killed by the police. It based this on the common-law doctrine of ‘common purpose’, on the supposition that the demonstrators had made common cause with the police to bring about the fatal shootings of 34 of their colleagues. This decision triggered so much outrage that Ms Jiba was soon forced to withdraw it. However, since there was never any reasonable prospect of attaining convictions, the charges were an abuse of the criminal process.
In August 2012 the NPA (in the so-called ‘Amigos’ case) withdrew corruption charges against the speaker of the KwaZulu-Natal provincial legislature, Peggy Nkonyeni, and the MEC for economic development, Mike Mabuyakhulu – both of whom were rumoured to be important to Mr Zuma’s re-election prospects at Mangaung. (The charges arose out of the awarding of a contract for water purification and oxygen plants in provincial hospitals to Uruguayan businessman Gaston Savoi, who had allegedly paid a R1m bribe to the ANC.) This decision was made by a new acting Director of Public Prosecutions in KwaZulu-Natal, Moipone Noko, within a fortnight of her being deployed to the post. She said she had perused and evaluated the evidence in the case – which included a 112 000-page forensic report into sums amounting to some R144m– and had found it was insufficient to proceed. Mr Pikoli commented that ‘political influence in the NPA, which is constitutionally supposed to be independent, had become glaring’. The DA is taking court action to compel Ms Noko to release the reasons for her decision. [The Star 2 October 2012, The New Age 7 May, City Press 2 June, 13 October 2013]
Since then several more of the accused in the Amigos case – again those with clear links to the ANC – have also had the charges against them withdrawn. [The Star 2 October 2012] However, Mr Zuma’s most outspoken critic, Julius Malema (a former president of the ANC Youth League) has been charged with money laundering, corruption, and fraud. The contrast points again to political pliability on the part of the NPA. [Business Day 25 September 2012]
Clear and certain law
This aspect of the rule of law is important because people need to have reliable guidance in advance as to what is legally required, permitted, or prohibited. Otherwise, it becomes impossible to act within the law. In addition, if laws are unclear, this opens the way for officials to apply them on an arbitrary and unequal basis, eroding the principle of equality before the law.
No comprehensive evaluation of how well this aspect of the rule of law has been upheld is possible, given the great volume of post-1994 legislation. However, a number of ‘transformation’ laws are clearly vague and uncertain in their wording, allowing for their selective interpretation and enforcement. Only a few examples can be provided here.
One such transformation law is the Employment Equity of 1998, which requires employers of 50 people or more to make ‘reasonable’ progress towards ‘employment equity’ for the benefit of ‘suitably qualified’ black people, ie those with ‘the capacity within a reasonable time to acquire the ability to do the job’. Maximum fines for failure to meet this vague obligation currently range from R500,000 to R900,000 and are soon to be trebled (at minimum) under the Employment Equity Amendment Bill of 2012.
Another key transformation statute is the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, which requires applicants for mining rights to have ‘prescribed social and labour plans’, but provides no guidance as to what these should incorporate. This has opened the way to selective application and other abuses of power – including demands by officials of the Department of Mineral Resources (DMR) that particular ANC luminaries must be included in BEE deals before the MPRDA’s requirements will be accepted as having been fulfilled. Such pressure, it seems, compelled Gold Fields to increase the stake in a 2010 deal that was given to ANC chairperson Baleka Mbete from R2.2m to R28.6m, as otherwise its application for a key mining right would not have been accepted. [Sunday Times 10, Business Day 28 March, 16 September, Mail & Guardian 1, 6 September 2013]
Uncertainty about what should be included in social and labour plans also makes it possible for the mining minister to threaten mining companies with the loss of their mining rights. This became evident in September 2011 when the minister, Susan Shabangu, announced the cancellation of the mining right earlier accorded Central Rand Gold (CRG), as CRG had allegedly spent too little on its social and labour plan. The plan called for spending of R33m, against which CRG had spent only R19m. But the company had also spent R35m on pumps against rising acid water, which benefited all mining companies and should (so CRG argued) have counted as part of its social expenditure as well. Though the minister recanted after CRG applied for judicial review of her conduct, the incident highlighted the vulnerability of mining companies to such arbitrary decision-making. [Business Day 29 Sept 2011, Finweek 13 Oct 2011, Financial Mail 14 Oct 2011]
In addition, the MPRDA is silent as to whether a mining right for platinum covers ‘associated’ minerals (such as nickel and chromium), which form part of the same ore body and must perforce be extracted in mining for platinum. Lonmin omitted to apply for the right to mine associated minerals at its Marikana platinum mine as it thought it unnecessary to do so – and the DMR seemed initially to agree. But the DMR later changed its mind, requiring Lonmin to apply for the rights to mine the associated minerals. But a BEE company called Keysha Investments got in first and was awarded the prospecting rights to these associated minerals. The DMR rejected Lonmin’s appeals against this decision, compelling Lonmin to pay Keysha $4m for the surrender of these prospecting rights. [BDlive, 12 October 2012]
Also relevant in this context is the Broad-Based Black Economic Empowerment Amendment Bill of 2012, which criminalises ‘fronting’ or the over-statement of BEE credentials. The Bill defines fronting in so extraordinarily broad a way that it could include, for example, the failure to give an inexperienced black manager the same responsibilities as a seasoned white one, or the failure to turn a BEE start-up into a successful small enterprise. This vagueness also opens the way for selective and arbitrary enforcement. This could have great practical impact too, as the Bill’s penalties for fronting include jail terms of up to ten years.
Further examples of unclear law are to be found in the Mineral and Petroleum Resources Development Amendment Bill of 2013 (the Mining Bill). This introduces large fines (of up to 10% of annual turnover, plus 10% of the value of the previous year’s exports) and/or a maximum four-year prison term for such vague offences as failing ‘substantially and meaningfully’ to promote the participation of black South Africans in the mining industry, or failing to ‘promote economic growth’. [Sections 2(d) and (e), amended MPRDA]
Also relevant in this regard are various ‘framework’ laws: statutes which themselves contain few rules but instead empower the relevant minister to lay down detailed requirements by means of regulations (or codes of conduct) published in the Government Gazette. This also allows the executive to stipulate, or change, the relevant rules with minimal, if any, parliamentary debate or endorsement.
A key example here is the Broad-Based Black Economic Empowerment Act of 2003, under which the minister of trade and industry is able to gazette codes of good practice laying out the BEE requirements the private sector is expected to fulfil. Many of the requirements in the codes, together with the way in which compliance is to be measured, are inherently vague. Moreover, the 2008 codes have now been replaced by new codes, gazetted on 11th October 2013, which have substantially changed the relevant rules by introducing many new and also vaguely phrased requirements.
Then there is the Employment Equity Amendment Act of 2012, which gives the labour minister the power to decide by regulation the crucial question whether designated employers are to use national or regional figures in seeking to match their workforces to the economically active population (EAP). This makes a big difference to coloured people, who make up 55% of the EAP in the Western Cape but only 11% of the national EAP. If the national EAP is to govern, then a million or more coloured people in the Western Cape will find it difficult to gain employment or promotion in the province.
Also relevant here is the Employment Services Bill of 2012, which empowers the labour minister to issue regulations on the right of private employment agencies to engage in labour broking. Though the Government says it seeks merely to regulate this practice, the wording of the Bill is broad enough to allow the minister to impose a total ban on labour broking by means of regulation.
Particularly important here is, again, the Mining Bill of 2013, which empowers the mining minister ‘from time to time by notice in the Gazette, to determine such percentage per mineral commodity…as may be required for local beneficiation, after taking into consideration the national interest’. It further allows her to determine ‘the developmental pricing conditions’ which are to apply ‘in respect of such percentage’ after considering ‘the national interest’. In addition, ‘every producer will have to offer local beneficiators a certain percentage of its raw mineral production, as prescribed by the minister’. The Bill also gives the minister similar powers to require the local beneficiation of petroleum products.
Mining and oil companies thus have no certainty at all as to what beneficiation requirements or price controls may be imposed on them in the future. The relevant requirements may also be changed at ministerial will, simply by notice in the Gazette.
The Mining Bill also gives the State the right to a ‘free carried interest’ in all new oil and gas exploration and production rights, with an option to acquire a further interest on specified terms through a designated organ of state or a state-owned entity, as determined by the minister in the Gazette’. A free carried interest is defined as ‘a share in the annual profits derived from the exercise of an exploration right or production right…despite the State not contributing to the capital expenditure’. On 10th October 2013, the minister announced that the State’s initial free-carried interest n all new exploration and production ventures will be 20%, and that it reserves the right to buy a further 30% at ‘market-related rates’, [Business Day 11 October 2013] which may be different from market values. There is nothing in the Bill to prevent the minister from increasing these percentages, by means of regulation, as she thinks fit.
The 2013 Mining Bill also abolishes the present ‘first-in, first-assessed’ rule, under which applications for mining rights must be dealt with (and approved or disapproved) in the order in which they are received. Instead, the minister will be empowered to ‘invite’ applications for mining rights by notice in the Gazette. In doing so, she may ‘prescribe the period within which any application may be lodged….and the terms and conditions subject to which such rights…may be granted’. Again, this makes for great uncertainty as to what the relevant criteria might be, or how much they might be changed in the future.
Conclusion
South Africa has a long tradition of independence in the Judiciary, the legal profession, and the prosecution service. Many court decisions have gone against the Government and/or Mr Zuma, which is why the ANC now speaks of curtailing, or reinterpreting, the principle of judicial review. In all the instances which have so evoked the ruling party’s ire, judges have visibly maintained their independence. There are also many decisions on prosecution which have doubtless been taken without fear or favour. However, there are also enough instances where political interference seems overt to taint the system as a whole.
Though there is still much to celebrate in our legal system, our Constitution, and our justiciable Bill of Rights, a number of worrying developments are evident too. The ANC has successfully white-anted several key constitutional provisions, and this trend could well continue in this ‘second phase’ of the NDR. Much will also depend on whether the moderates in the ANC can temper the interventions of the radicals. All of which underscores the point that constitutional guarantees of individual freedom and civil rights, though vital in promoting political freedom, are not enough. The political will to uphold them must also be in place. Where that political will is visibly faltering, as in South Africa today, civil society must continually step in to defend the rule of law in all its aspects.