Despite the Constitutional Court decision on disclosing taxpayer information, there’s a risk the law will continue to shield most public representatives from the scrutiny of their finances and tax affairs, thus limiting the ability of voters to make informed choices at the ballot box.

The decision by South Africa’s Constitutional Court to invalidate legislation that banned access to taxpayer information by anybody other than the SA Police Service (SAPS) and the National Prosecuting Authority (NPA) – in Arena Holdings (Pty) Ltd t/a Financial Mail v SARS – is not likely to result in the release of former president Jacob Zuma’s tax records or those of anyone else, for that matter, in the foreseeable future.

The judgment creates only a limited exception to the general obligation of the SA Revenue Service (SARS) to keep taxpayer information confidential. SARS can only grant such a request if the disclosure of the tax records would reveal evidence of “a substantial contravention of, or failure to comply with, the law” and “the public interest in the disclosure of the record clearly outweighs the harm”.

A decision on whether a request for taxpayer information meets this threshold must be made by the SARS Commissioner (or other designated SARS official). But as SARS has consistently shown a profound reluctance to breach taxpayer confidentiality, it may well apply this test in an overly strict manner.

Some journalists, opposition politicians and ANC members aligned with the so-called radical economic transformation (RET) faction may also argue that SARS cannot be trusted to assess such requests fairly when it involves taxpayers who serve in government.

So, for example, while there may be suspicions that President Cyril Ramaphosa’s tax records would reveal a failure to comply with the law (suspicions raised by the Phala Phala scandal), this may not, in the absence of some solid evidence, justify disclosure of the tax records. (In the Arena Holdings case, Zuma argued before the Constitutional Court that the release of his tax record could not be justified by mere allegations contained in a book, as this was all hearsay evidence.)

Moreover, if SARS does decide to disclose the tax records of an individual, that individual could stall or even stop the release by taking advantage of the various protections afforded by the legislation. This includes lodging an internal appeal, and if that is unsuccessful, challenging the validity of the decision in court. (Conversely, a journalist whose request for the disclosure of a taxpayer’s record is denied, could also approach the court to have that decision reviewed.)

As far as Zuma is concerned, he is likely to use all the avenues open to him to prevent the disclosure of his tax records.

Officially, Zuma has not always opposed the disclosure of his tax records (more about that later), but in papers submitted to the Constitutional Court in the Arena Holdings case, Zuma strenuously objected to the release of his tax records to AmaBhungane and other journalists.

He argued that this would violate his right to inherent dignity “because it arms journalists whose demonstrated record of writing about me has shown nothing but hostility and a desire to harm my inherent dignity”, and suggested that the records would be used to “parade him as a symbol of corruption”.

This seemingly represents a dramatic change in attitude as he had previously given the impression that he had no objection to the release of his tax records.

To understand why, it is necessary to go back to 2018, when Mmusi Maimane, the then leader of the opposition, lodged a complaint with the Public Protector, requesting her office to investigate allegations contained in the book, The President’s Keepers, that Zuma had received undisclosed payments while in office and had failed to pay tax on the money received.

Surprisingly, the now-suspended Public Protector, Busisiwe Mkhwebane, announced that she had embarked on an investigation into this complaint, and subpoenaed the Commissioner of SARS to appear before her and to produce the former president’s taxpayer information.

SARS objected to the demand and refused to comply on the ground that the disclosure was prohibited by the secrecy and confidentiality regime established by the Tax Administration Act.

Protracted litigation between SARS and the Public Protector ensued.

The Constitutional Court eventually confirmed in December 2020 that section 69(1) of the Tax Administration Act permitted SARS to withhold taxpayer information from the Public Protector.

As an aside, when Mkhwebane first issued a subpoena in 2018, Zuma confidant Tom Moyane was still the SARS Commissioner, which may provide a partial explanation for the uncharacteristic enthusiasm Mkhwebane showed for the investigation into Zuma, despite the fact that she had previously demonstrated some bias in favour of the RET faction of the ANC.

Of interest here is that section 69(6)(b) of the Tax Administration Act permits the disclosure of taxpayer information to another person “with the written consent of the taxpayer”.

On 12 November 2019, shortly before the case was heard in the high court, Zuma tweeted his consent, writing: “It must be known that I have nothing to hide. If the @PublicProtector wants to see my SARS records she is free to do so. We should not make the job of the PP difficult. If she wants my records, she must have them.”

However, as a tweet is not a legally recognised way to grant written consent, SARS disputed the claim that Zuma had consented to the disclosure of his tax records.

Zuma filed a sworn statement the night before the case was to be heard to confirm under oath that he authored a tweet “to indicate that I had no objection to the public protector gaining access to the taxpayer information which she seemingly needed to complete an investigation in the public interest”.

Stating that he had “nothing to hide”, Zuma claimed that he “also intended to give unqualified consent for the use of the relevant information by the public protector or any other organ or institution of the state, which would, in any event, be bound by its own rules regarding confidentiality”.

The wording here is curious as it does not, in fact, grant consent to the Public Protector to access Zuma’s tax records.

Instead, Zuma merely states that he intends granting such consent, presumably at some undisclosed date in the future.

It serves as a reminder to journalists to scrutinise statements made by politicians very carefully to ensure that carefully crafted but potentially misleading statements are accurately reported.

We do not know whether Zuma kept his promise to grant unqualified consent for access to his tax records. I would be surprised if he did.

In any event, as far as I can tell, the Public Protector never took Zuma up on his offer, and it is unclear whether the complaint lodged against Zuma by the then leader of the opposition was ever investigated or finalised.

We may therefore never know whether Zuma really believed back then that he had nothing to hide, or whether his more recent opposition to the disclosure of his tax records (which suggests that he does believe there is something to hide – at least from journalists), was justified.

All this raises questions about the wisdom of legislation that shields our elected representatives from scrutiny. Most perplexing is that our courts seem to believe that as far as taxpayer confidentiality is concerned, the right to privacy should trump other rights – except in very limited circumstances.

The danger that the court may be wrongly conflating the right to privacy with the protection of an individual’s reputation, is illustrated by a passage in the dissenting judgment in the Arena Holdings case, where Justice Mhlantla noted that the limited exception provided for in the majority judgment “could be detrimental to the reputations and societal standings of taxpayers” and even warned that it was “a drastic measure that may have grave consequences to a taxpayer”.

While the disclosure of taxpayer records does impose a limitation on the right to privacy, I am not sure this limitation is as severe as suggested by Justice Mhlantla.

Surely, it will only have grave consequences for a taxpayer if it reveals something really bad (such as the commissioning of a criminal offence) about that taxpayer.

I also worry that the law will continue to shield most public representatives (including the president, cabinet ministers and MPs) from scrutiny of their finances and tax affairs, thus limiting the ability of voters to make informed choices at the ballot box.

Surely, the moderate limitation that would be imposed by legislation that requires complete tax transparency from our elected representatives could easily be justified, not least because of the potential effect this may have on the ability of voters to hold them accountable.

But as such legislation can only be adopted if a majority of MPs in the National Assembly supports it, it is unlikely to see the light of day.

Turkeys not voting for Christmas, and all that.

Employment equity legislation helps to ensure that black applicants are treated fairly and to limit the appointment of less talented white applicants over more talented black applicants. Utilised well, it is a powerful tool in the fight against intellectual mediocrity and stagnation.

The recent publication of draft regulations setting out compulsory employment equity targets at senior occupational levels for employers with more than 50 employees in targeted sectors of the economy attracted harsh criticism from, among others, DA leader John Steenhuisen and leaders of the Solidarity trade union (read here and here).

While the draft regulations are, quite frankly, an incoherent mess, much of the above criticism is based on misleading or demonstrably false claims about the legislation.

Let me start by showing my hand. While employment equity legislation can be exploited to justify nepotism and unlawful instances of “cadre deployment”, it is part and parcel of the pursuit for equality and a requirement for its achievement.

As the Constitutional Court held in Minister of Finance v Van Heerden, it is wrong to depict redress measures as a form of “reverse discrimination”. Without taking positive action (including in the workplace) to “eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege”, we cannot eradicate discrimination.

To this, I would add a personal insight, based on stints as the chair of the faculty transformation committee and as head of an academic department at a South African university, about the pivotal role employment equity legislation can play in levelling the playing field when appointments are made, and in enhancing the quality of teaching and scholarship in a university.

In my experience, employment equity legislation plays a pivotal role in limiting the impact of racial bias in appointment decisions. It helps to ensure that black applicants are treated fairly and to limit the appointment of less talented white applicants over more talented black applicants. Utilised well, it is a powerful tool in the fight against intellectual mediocrity and stagnation.

It is from this perspective that I view the draft regulations recently issued by the minister of labour in accordance with newly inserted provisions of the Employment Equity Act (not yet brought into force).

Currently, the act requires all employers who employ more than 50 people to prepare an employment equity plan for periods of up to five years to “achieve reasonable progress towards employment equity in that employer’s workforce”. The plan must set out, among others, the employment equity targets adopted by an employer to be achieved for each year of the plan, as well as the affirmative action measures to be implemented as required by section 15 of the act.

Before the adoption of the amendments, an employer was free to choose its targets (based on race, gender and disability), as long as its plan would make reasonable progress to correct the effects of past and ongoing discrimination in the employment sphere.

Because many private sector employers made very slow progress in addressing the effects of past (racial) injustice, Parliament amended the act last year to force employers to adopt more aggressive employment equity targets.

The new section 15A of the act allows the minister of labour to identify specific economic sectors (such as agriculture, mining, manufacturing, education and construction) and to set numerical employment equity targets for these sectors at all occupational levels in the workforce.

Designated employers in these sectors are required to use the sectoral targets set by the minister in their employment equity plans, and their progress will (partly) be assessed based on these “imposed” targets.

These targets are to be set nationally as well as for each province, and employers have to follow either the national targets or the targets set for their province. The minister has now issued draft regulations identifying the relevant economic sectors and proposing the equity targets for each sector as envisaged by section 15A of the act.

In response, DA leader John Steenhuisen complained that this would impose “forced quotas” in “every workplace, in every economic sector, in every province”; would “restrict” the employment of “Indians” and “coloureds” in a severe manner; claimed that “if companies don’t comply, they are severely punished”, and called on “companies, big and small, to defy a law that prevents them from hiring skilled people”.

Solidarity claimed that the adoption of the regulation would result in 71,518 “coloured” people, 116,934 “Indian” people and 404,608 “white” people losing their jobs nationally.

It also provided numbers for each sector, claiming, for example, that 50,363 “white” people (69.5%), 25,275 “Indian” people (79.4%) and 18,450 “coloured” people (45.4%) working in financial services would have to vacate their jobs in the next five years.

None of this is true.

First, the new targets do not impose “forced quotas” as claimed. Section 15(3) of the Employment Equity Act makes clear that in seeking to achieve its equity targets, employers are permitted to give preferential treatment to underrepresented groups and to set numerical targets to be achieved, but “may not impose quotas”.

South Africa’s Constitutional Court highlighted this in its judgment in South African Police Service v Solidarity obo Barnard, and noted the act requires employment equity plans to be flexible and inclusive and that a “designated employer may not adopt an employment equity policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups”.

It is true that section 42 of the act empowers the director-general of the Department of Labour to assess whether a designated employer is implementing employment equity in compliance with the act by considering a wide range of factors which now includes (in terms of section 42(aA) “whether the employer has complied with a sectoral target as set out in terms of section 15A” of the act. But it would be unlawful for the DG to order the employer to meet its sectoral target if this was not reasonable in the circumstances.

In any event, if the DG determines that an employer had failed to implement an employment equity plan because it had not met the sectoral targets, he or she would not be empowered to impose a fine or to order the employer to implement the targets.

In terms of section 45 of the act, the DG will have to approach the Labour Court for an order directing the employer to comply with the request or recommendation; or to impose a fine. The DG bears the onus of proof that the employer had not complied with the provisions of the act.

This is an important safeguard against possible abuse or misapplication of the law by politically aligned functionaries. This is well illustrated by the 2009 Labour Court judgment in Director General of the Department of Labour v Comair (one of the few reported cases in which the DG had concluded that the employment equity plan of an employer did not comply with the provisions of the act), where the court concluded that the DG had failed to take into consideration all the factors set out in section 42 of the Act, and dismissed the application.

In the only reported case I could find where the Labour Court had fined an employer for non-compliance (the 2007 judgment in Director General, Department of Labour v Win-Cool Industrial Enterprise (Pty) Ltd), the court imposed a penalty of R300,000 on the employer, of which R200,000 was suspended on condition that the employer complied with its obligations within a specified period.

As far as I can tell, the vast majority of cases of non-compliance brought to the Labour Court involve cases where an employer had failed to comply with the formal requirements set out in the act, and not where there was a failure to achieve targets set out in an existing employment equity plan.

Not only does the evidence not back up Mr Steenhuisen’s claims of draconian enforcement, it suggests that since 2009, the department of labour has been extremely lax in holding companies to account for their failure to achieve even modest employment equity targets.

It is also not clear what the legal basis is for the claim by Solidarity that many hundreds of thousands of people would lose their jobs if the new provisions of the act were implemented. The law currently does not provide for this, as the Labour Court held in Robinson & Others v PricewaterhouseCoopers that “affirmative action is not, and never has been legitimate ground for retrenchment”.

While codes of good practice allow employers to consider their employment equity targets when offering voluntary retrenchment packages to employees — and also suggest that an employer could moderate the impact of mass retrenchments on its employment equity plan by using it as one of several considerations when identifying who should be retrenched — this does not allow an employer to dismiss an employee on the sole ground that this was required for the employer to meet sectoral targets set by the minister, as Solidarity suggests.

That said, the draft regulations issued by the minister are a shoddy piece of work, and largely incomprehensible. There is no explanation provided to help us understand what the various targets for each sector and each occupational level might mean and how they would have to be applied. The targets are given in percentage format, but they do not add up to 100% or even close to 100%, and we do not know why this is so. Do the compilers of these tables know how percentages work, or is there a secret explanation for this oddity? It is also worrying that some of the targets are clearly impossible to meet, no matter how aggressively employers pursue these targets.

For example, in the table for “top management” in the agriculture, forestry and fisheries sector, the proposed national targets are set as follows: “African” (30.4%), “coloured” (3.5%), “Indian” (1%), and “white” (8%) – thus a combined 43%. What happened to the other 57% of the workforce? Impossible to say.

Given that the current workforce profile for this sector is given as “African (9.1%), “coloured” (5.8%), “Indian” (1.2%) and “white” (83.1%) – the latter is not a typo; 29 years after the advent of democracy, a full 83% of top managers in the field remain white – it is not clear that the compilers of this document took any notice of reality and considered what could optimistically be achieved.

Unfortunately, this tardiness provides much ammunition for individuals and groups who oppose any measures aimed at correcting the effects of past and ongoing injustice or deny the impact of race on systemic and entrenched inequality in the workplace and in the broader society.

But, fortunately, much of this criticism has been so over the top and so misleading, and even false, that the critics have just as much egg on their faces as the drafters of the regulations.

Earlier this week the Namibian Supreme Court ruled that the government’s refusal to recognise the validity of same-sex marriages concluded outside Namibia for the purpose of immigration law infringes the rights to dignity and equality guaranteed in the Namibian Constitution. While the judgment will, for now, only benefit a few same-sex couples who marry elsewhere, it contains powerful language that could be used to challenge the validity of other legislation that currently discriminates against LGBTIQ+ individuals in Namibia.

This important victory for LGBTIQ+ rights in Namibia follows in the wake of the adoption of a draconian Anti-Homosexuality Bill by the Ugandan parliament, as well as news that an opposition MP had tabled a similar Bill – the Family Protection Bill – before the Kenyan parliament. Some might therefore interpret the Namibian development as bucking a general trend of intensified oppression of LGBTIQ+ people by governments in sub-Saharan Africa.

But the story is more complicated than this.

The first thing to note is that developments in Uganda and Kenya are linked to a concerted campaign in at least 10 countries on the African continent against gay rights, abortion, birth control, and sex education by a far-right US Christian organisation called Family Watch International and its president, Sharon Slater. Slater and her organisation were actively involved in campaigning and strategizing for the adoption of the Uganda Bill. She met with Ugandan president Yoweri Museveni on 2 April this year urging him to add an exemption to the law for LGBTIQ+ people who were being subjected to so-called conversion therapy – a set of discredited practices that attempt to change a person’s sexual orientation.

The second thing to note is that over the past decade several countries on the African continent have gone in the other direction by repealing colonial era laws that criminalised same sex acts. These countries include Angola, Botswana, Mozambique, Lesotho, and Seychelles. These also happen to be countries not targeted by anti-LGBTIQ+ hate campaigns by far-right US Christian groups like Family Watch International. Different states on the African continent are therefore moving in different directions on this issue.

But because so many people who write about the continent persist in portraying it as a single country or amorphous entity, these complexities tend to get lost. (I am reminded here of Nigerian author Dipo Faloyin’s acerbic but inspiring book Africa is Not a Country: Notes on a Bright Continent, which, in turn, was inspired by  the Kenyan author Binyavanga Wainaina’s 2005 magnificent Granta essay, “How To Write about Africa”.)

The recent judgment of a 5-judge panel of the Namibian Supreme Court in Digashu v Government of the Republic of Namibia, Seiler-Lilles v Government of the Republic of Namibia could be added to the positive column, as it opens the door for the possible decriminalisation of same sex acts and other legal reforms in Namibia.

The majority judgment (authored by Chief Justice Shivute) came as somewhat of a surprise. This is because in 2001 the Namibian Supreme Court declared in Immigration Selection Board v Frank that “equality before the law for each person does not mean equality before the law for each person’s sexual relationships”. That judgment also stated that the term “family institution” in the Namibian Constitution and other international instruments “envisages a formal relationship between male and female”, for the purpose of procreation.

In Digashu, the majority held that these statements in Frank amounted to obiter dicta, thus merely the expression of an opinion which was not essential to the decision and was therefore not legally binding on the court in the present case. But the court went further by expressing its disapproval of the statements made in Frank, thus distancing the court from the conservative approach taken in the earlier judgment.

For me the second striking aspect of the majority judgment is its rejection of the argument that public opinion on homosexuality should be decisive in this case. (In his lone (reactionary) dissent, justice Mainga relied heavily on public opinion, complaining that the majority judgement “trashes the historical, social and religious convictions of the Namibian people”.)

Holding that the impugned provision infringed on the right to dignity guaranteed in article 8 of the Namibian Constitution, the majority confirmed the position in Namibian law that section 8 “does not permit limitations” and is thus “inviolable”, but that the ambit of the right to dignity must be determined “with reference to the constitutional values, the aspirations, norms, expectations and sensitivities of the Namibian people as expressed in the Constitution”.

The court nevertheless held that while public opinion as expressed by the elected representatives in parliament could be relevant to determine the views and aspirations of the Namibian people, “it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution”. The majority suggested that courts should be less inclined to follow public opinion when the rights of minorities are in issue, by endorsing the following passage from the judgment of the South African Constitutional Court in S v Makwanyane:

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

This is potentially of great significance as it would make it far more difficult for the government in future to defend other legal provisions that discriminate against LGBTIQ+ individuals on the ground that a majority of Namibians disapproved of same sex acts and relationships. This view is bolstered by the fact that in its equality analysis, the majority also endorsed the view expressed by South Africa’s Constitutional Court in Hoffmann v SAA to the effect that:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place.

The third striking aspect of the majority judgment relates to its finding that the impugned provision also infringed on the right to equality guaranteed in article 10(1) of the Namibian Constitution, which states that “all persons shall be equal before the law”. Although the reasoning of this part of the judgment is not always easy to follow, the majority did not seem to rely on article 10(2) of the Namibian Constitution (which prohibits discrimination of various listed grounds including “social status” and “sex”) because this section does not expressly prohibit discrimination on the ground of sexual orientation.

The applicants had argued that they were being discriminated against on the grounds of “social status” and “sex”. Regrettably, the majority did not express an opinion on the validity of these arguments, leaving the matter open to be decided on another day.

It nevertheless found that the impugned provision infringed on article 10(1) of the Constitution because the differentiation between same sex spouses and heterosexual spouses was “not reasonable in the sense of not being rationally connected to a legitimate statutory object”.

This was so, first, because the majority held that the government had not advanced any legitimate reason for the differentiation. It had merely relied on the earlier judgment of the Supreme Court in Frank as justification for the provision. But even if the government had advanced other justifications for the impugned provision it may have run into problems, given the fact (as I explained above) that the court rejected the idea that public opinion, and specifically public prejudice about homosexuality, could ever justify discrimination against LGBTIQ+ individuals.

Second, this conclusion is bolstered by the fact that the majority emphasised the harmful impact of the discrimination on same sex couples, suggesting that it would be difficult to justify this kind of discrimination because of this harmful impact, which the majority described “far reaching and potentially devastating when compared to spouses in a heterosexual marriage”. The majority further noted that the “result of the differentiation has led to a profound impairment of their fundamental human dignity at a deeply intimate level of their human existence”’.

The majority again quoted approvingly from (and explicitly endorsed) a judgment of the South African Constitutional Court, this time from National Coalition for Lesbian and Gay Equality v Minister of Justice, where justice Ackerman held that:

The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be.

Significantly, this passage comes from a judgement in which the South African Constitutional Court invalidated the country’s colonially imposed sodomy laws. It therefore suggests that the Namibian Supreme Court would be ready to invalidate that country’s sodomy laws if such a challenge came before it.

While the struggle for the full recognition of LGBTIQ+ rights in Namibia is far from won, the judgment is a significant first step towards that goal.

The ruling by the North Gauteng High Court last week on the government’s obligation to provide an uninterrupted supply of electricity to schools, hospitals and police stations has been widely misunderstood. Even if the judgment is not overruled, it will do little to address the fundamental problem, not only because the order is directed at the wrong party, but also because it is vague and practically impossible to implement.

According to EskomSePush, the electricity in my neighbourhood will be off for more than nine hours today. It is probably much worse for many others, and it will probably get worse for all of us before it gets better – if it ever gets better.

Because the problem is systemic and political and because of the widespread (and valid) loss of trust in the ability of the ANC government to fix what it had broken, it is not surprising that the UDM and other parties turned to the courts for help.

But court orders cannot magically fix seemingly intractable governance and management problems. When a court ignores this fact and, perhaps in frustration, succumbs to magical thinking – as a full bench of the North Gauteng High Court seemed to have done last week in a judgment penned by Judge Norman Davis in United Democratic Movement and Others v Eskom Holdings and Others – by issuing orders that appear impossible to implement and may not have any beneficial effect, it imperils the authority of the court and respect for the rule of law.

Let me explain.

The UDM originally asked the court to instruct the minister of public enterprises and/or Eskom to ensure that all hospitals, schools, police stations and various other affected parties are exempt from load shedding. In the alternative, it asked the court to order Eskom and the minister of public enterprises to “take immediate steps to procure alternative sources of electricity and/or energy” for schools, hospitals, police stations and a list of other affected parties, “including but not limited to solar panels and generators”.

The court declined to grant the exemption order. Although the judgment is not a model of clarity, it looks like the court declined to do so because it accepted that it was not currently possible to exempt all schools, hospitals and police stations from load shedding. This is so because many of these entities are “embedded” in the surrounding electricity network, which means that an exemption “would result in a whole network or suburb (or town even) having to be excluded, which would result in no actual ‘load’ being able to be shed”.

Instead, the court latched on to the UDM’s alternative request, and ordered the minister of public enterprises to “take all reasonable steps within 60 days from date of this order, whether in conjunction with other organs of state or not, to ensure that there shall be sufficient supply or generation of electricity to prevent any interruption of supply as a result of load shedding” at schools, hospitals and police stations.

As far as I can tell (the judgment is unfortunately rather superficial and lacking in substantive legal analysis) the court’s reasoning runs along the following lines:

There is currently not a sufficient supply or generation of electricity to provide schools, hospitals and police stations with an uninterrupted supply of electricity. This infringes on the right of access to healthcare (hospitals), the right to education (schools) and the right to life (police stations).

To cure these rights infringements, the minister of public enterprises (who the court seems to believe oversees the implementation of the plan to fix load shedding), must take reasonable steps to make sure sufficient electricity is generated or procured so that hospitals, schools and police stations have access to an uninterrupted electricity supply.

How exactly this must be done must be left in the hands of the minister who will need to consider the “different permutations” involved.

The first problem with the order for the minister to take “reasonable steps” to ensure a sufficient supply or generation of electricity for schools, hospitals and police stations, is that it is so vague that it would be difficult to determine whether it has been complied with or not.

In most cases where the reasonable standard is used, courts merely declare that an infringement of one or more of the rights in the Constitution occurred and leave it to the executive to address the problem. But here the court ordered the minister to take steps to fix the problem within 60 days.

Arguably this means that almost anything the minister does in the next 60 days might turn out to comply with the order to “take reasonable” steps to do something. Would reasonable steps include the appointment of a ministerial task team to do a feasibility study? Meeting the Eskom board to tell it to do better? Issuing a tender for the installation of generators and solar panels? Launch a campaign to get South Africans to use less of the electricity they only intermittently have access to?

It’s difficult to say.

The second problem is that by focusing on increasing the supply and generation of electricity – an intractable problem caused by Eskom being too dysfunctional to generate enough electricity to serve the needs of the country – the order conflates the systemic long-term problems that cannot easily be fixed, with the short-term question of how to limit the impact of load shedding on hospitals, schools and police stations.

Nothing the minister does in the next 60 days will magically fix (or even improve) the intractable problem of electricity generation. To the extent that the order requires the minister to take “reasonable steps” to generate or procure more electricity, the order is therefore meaningless. It is like ordering the Reserve Bank to take reasonable steps within 60 days to eradicate economic inequality in the country.

The third problem is that the judgment ignores complex constitutional questions about who carries the legal obligation to provide an uninterrupted electricity supply to hospitals, schools and police stations, or to mitigate the effects of load shedding for these institutions where the electricity supply is interrupted.

As a result, it wrongly assumes that the minister of public enterprises has the legal authority to take all the steps envisaged by the order to ensure such an uninterrupted supply of electricity.

Because “electricity and gas articulation” is a competence shared between the national government and municipalities, and because section 73 of the Municipal Systems Act of 2000 directly imposes the obligation to provide basic services (including electricity) in an equitable and accessible manner on municipalities, it is possible that municipalities carry the can on this.

But the matter is even more complex than this, as the provision of healthcare services and basic education are competences shared between the national and provincial spheres of government, raising questions about whether provincial departments of education and health, or the national department, are ultimately responsible for the financing and installation of solar panels and generators at schools and hospitals.

What is certain is that the minister of public enterprises is not responsible for any of this, and has no authority to interfere in the matter by instructing national or provincial departments on what to do.

To the extent that the order requires the minister to do that which the Constitution and legislation requires to be done by municipalities, provincial departments, or by other national departments, the court is instructing the minister to do something that he has no legal authority to do and cannot legally do. To this extent, the order is meaningless and cannot be implemented.

A bit like a court ordering the governor of the Reserve Bank to deliver textbooks to schools in Limpopo.

This does not mean there is no plausible constitutional argument to be made that the government’s failure to ensure the adequate supply of electricity to meet the needs of the society infringes on the right of access to healthcare and the right to basic education.

More specifically, an argument could be made that the failure of the government to take reasonable steps to limit or eradicate the impact of load shedding on the provision of healthcare services and basic education infringes on the right of access to healthcare in section 27, and the right to basic education in section 29 of the Constitution.

The fact that load shedding at schools and hospitals disproportionately impacts the lives of poor and vulnerable people who rely on public health services and attend schools that cannot mitigate the impact of load shedding, would be pivotal in making this argument.

If a plausible argument in this regard is presented to a court in a matter in which all the responsible parties have been cited, a court may then well issue a declaratory order that the relevant rights have been infringed because of the failure to develop a reasonable plan to limit the impact of load shedding on hospitals and schools.

That would be very different from the order issued by the North Gauteng High Court last week, which seemed to have ordered the wrong party to do something that seems close to impossible to do within the time frame provided.

When a court does the latter it undermines its own authority and imperils the rule of law.

After the resignation last week of Al Jamah-ah councillor Thapelo Amad as mayor of Johannesburg, the city is set to get its eight mayor in just over two years. (The DA’s Mpho Phalatse served twice: she was briefly removed from office, then reinstated by the court, then removed again.) While municipal governments in many smaller hung councils have been relatively stable, Johannesburg is by no means the only municipality where the election of a hung council (requiring the formation of a coalition or minority government) has led to instability and dysfunction.

As some opinion polls suggest that the ANC next year might lose its majority in the National Assembly (and in one or more provincial legislatures), the obvious worry is that this will lead to the same kind of instability and dysfunction in government that we have seen in places like Johannesburg.

If the ANC loses its overall majority in the National Assembly (and it remains an “if”), and if this leads to the formation of unstable and dysfunctional coalition or minority governments, it may lead to a further erosion of trust in government and its institutions, and – more broadly – in party politics in South Africa. I also fear that coalition chaos at the national level will fuel rising populism, and will further entrench the kind of scapegoat politics at which political parties across the political spectrum in South Africa seem to excel.

On paper, coalition governments are supposed to hold several benefits, most notably that they bring together a wider spectrum of people with a wide range of views, who are forced to compromise to find each other and to form a stable government. They are also supposed to curtail the abuse of power as well as corruption within government as it is thought that coalition parties will check on each other to ensure they are not tainted by shenanigans of their coalition partners.

This has obviously not been the case at local government level in South Africa, and it would be naïve to assume that coalition governments would function better at provincial and the national sphere.

Unfortunately, there are no easy solutions to the problem of unstable and dysfunctional coalition or minority governments. The problem can definitely not be solved merely by making a few well-chosen changes to the relevant parts of the Constitution and other legislation.

This is because the problem is at heart a political – and not a legal – one. If we had had more competent and honest elected politicians and more principled political parties, (and if leaders of larger political parties had the emotional intelligence and political skills to get more voters to reward such parties with their vote) much of what we see in coalition governments in Gauteng might have been avoided.

This is not to say that some minor changes to the Constitution or other relevant legislation should not be considered. As I have previously suggested, introducing an electoral threshold of 1% or 2% to limit the number of smaller parties might help to stabilise at least some of these coalition governments. Abolishing the secret ballot requirement for the election of speakers, mayors, premiers, and the president, and limiting secret ballots voting for the removal of these office bearers to cases where the vote is clearly aimed at holding the elected office bearer accountable, may also limit the ability of unscrupulous actors to “buy” the votes of elected officials of other political parties.

But such changes might not have a significant positive impact unless there is a major shift in our dysfunctional, money-and-status-driven, political culture in which political parties tend to choose their own short-term self-interest above the interest of voters, regardless of how this may impact on the most basic services the state ought to provide to citizens and without worrying too much about the long-term effect of their behaviour on the image and electoral prospects of their party.

When anything goes, anything goes.

Because of the transactional nature of our politics, gaining personal access to positions of power (and the relatively high salaries that go with such positions) often play a role in the decisions of party leaders about entering or exciting coalitions. Parties who enter into coalitions (or – like the EFF – support a particular minority coalition from the outside), often also benefit financially and politically from the access to public resources (tenders, jobs in the public service and on various boards of public institutions).

For as long as political parties believe they will get away with it, the squabbles for positions will continue to dominate coalition politics in South Africa. Put differently, until such time as it becomes politically untenable for political parties engaged in coalition negotiations to put their own short-term interests above those of the voters who elected them, the problem will continue.

What is needed is a fundamental change in the political culture.

As Prof Jaap de Visser pointed out last week at an excellent webinar on coalition governments, co-hosted by the University of the Western Cape Dullah Omar Institute, part of the problem is the absence of the type of political conventions that are rooted in respect for the outcome of democratic elections and thus respect for South African voters.

In many relatively well-functioning democracies with a long tradition of coalition governments, political conventions play an important role in preventing the kind of destructive behaviour by political parties that bedevil coalition politics in South Africa. Such conventions, which normally emerge because political parties wish to signal to voters that they respect the outcome of the democratic process, and thus the will of the voters, are absent in South Africa.

Political conventions impose informal (instead of purely legal) constraints on political parties in hung legislatures. Such conventions are broadly accepted by political parties in competitive democracies where governments are regularly voted into and out of office because politicians understand that these conventions will benefit them when their time comes to negotiate coalition agreements in the future.

One such convention is that the political party who receives the largest percentage of votes (or the largest number of seats) in the election will lead the coalition government, or will at least get a first stab at forming a coalition government.

For example, earlier this year in Finland, the National Coalition Party got the chance to form a coalition government after it came first in the national election, winning 20.82% of the votes. The Social Democratic Party of the then incumbent prime minister Sanna Marin came third with 19.95% of the votes, but made no claim to form a coalition government. Because the convention in Finland is that the winning party’s leader gets the opportunity to negotiate a coalition government after the president and the parliament convene to name the lead government negotiator, that was the end of Marin’s premiership.

Interestingly, the newly announced ANC guidelines on managing coalitions at the local level seems to embrace this principle. In terms of the guidelines, the ANC accepts the principle that the “party that has won the largest votes should lead the coalition in that municipality and executive positions should be allocated in proportion to the votes obtained by coalition partners”.

Another such convention is based on an agreement between parties that political parties who form part of a coalition government are only entitled to the number of position in the executive proportionate to the number of seats it holds in the legislature. Where this convention is upheld, a small party who obtained, say, 5% of the seats, would not be able to hold larger parties to ransom by demanding 50% of the executive positions in the coalition government.

The new ANC coalition guidelines commit the party to a weaker version of this principle, accepting that a threshold should be imposed to disqualify the smallest parties who had not won a minimum number of seats from serving in the executive.

On paper, the adoption of the guidelines by the ANC is an encouraging development. But one would be draft to take the ANC at its word on this, as its recent actions in various hung councils in Gauteng conflict with many of the principles contained in the guidelines. With the support of the EFF, the ANC installed mayors from tiny political parties to serve as figureheads for ANC-EFF coalition governments in several municipal councils, probably in the hope that voters will blame the inevitable failures of the coalition government on the hapless mayor from a Micky Mouse party.

The disastrous decision by the ANC, EFF and Patriotic Alliance to elect Thapelo Amad (whose party received less than 1% of the votes) as mayor of Johannesburg is the most obvious example of this. If the ANC follows the same strategy when Johannesburg gets to elect a new mayor in the coming days, it will cast serious doubt on the ANC’s commitment to its own guidelines.

What makes this even more depressing is that quite a number of seemingly thoughtful South Africans defended Amad’s election as the Mayor of Johannesburg, arguing that it was not illegal for him to do so (in the same way that it is not illegal to be a bigot or a bully?), or that it was the democratic right of larger political parties (by which they meant, the political party they support) to install the councillor of a 1% party to head the municipal government.

Hopefully, most voters do not share this view, and will punish the parties for imposing a candidate who received only 9000 votes as mayor of the city, and doing so in the name of “democracy”.

But I suspect that things will only really change when political parties accept that it is in their own interest to embrace the kind of political conventions discussed here, because the conventions are just as likely to benefit them than disadvantage them at some time in the future. This, in turn, may only happen when the electoral fortunes of political parties fluctuate over time and political parties are voted into and out of office at regular intervals.

As this case centred on Pfizer’s Covid-19 vaccine shows, it is not in the interest of anti-vaxxers to have their claims subjected to the discipline of a court process requiring the production of evidence, not conjecture.

I have been ill in bed for the past week with what may or may not have been a bout of Covid-19. In my befuddled state, I went down a Twitter rabbit hole of anti-vax conspiracy theories, including an entire subgenre of tweets about people who “died suddenly”, supposedly providing “proof” that Covid-19 vaccines are deadly. One example is the claim that US NFL football star Damar Hamlin’s on-field collapse in January was caused by Covid-19 vaccines, and the subsequent baseless conspiracy theory that the player had died but had been replaced by a “body double” or even a “clone”.

This got me wondering about an alleged court challenge recently launched in South Africa by a group calling itself the Freedom Alliance of South Africa (FASA). FASA says it has lodged papers in the Gauteng High Court to review and set aside various decisions by the South African Health Products Regulatory Authority (Sahpra) to register Pfizer’s Comirnaty Covid-19 vaccine for use in South Africa.

FASA is a fringe anti-vax group that promotes anti-Semitic conspiracy theories. Its Telegram channel makes rather novel claims about vaccines, including that they make you magnetic or emit Bluetooth signals, as well as bizarre 5G conspiracy theories about street lights.

Reading FASA’s “court papers” (which can be accessed here) makes one cringe a little and laugh a little – a bit like when a CEO of a mid-sized company proudly shows you his schoolboy collection of Scope pin-up girls with the nipple caps digitally removed “with the latest technology”.

It’s hard to look, but also hard to look away.

The 145-page founding affidavit, authored by a specialist neurosurgeon, Herman Jacobus Edeling, forms part of a bundle of documents of more than 700 pages. Dr Edeling often testifies as an expert witness in court cases. (He testified last week that Bosasa State Capture accused Angelo Agrizzi has neurological brain damage and is unable to participate meaningfully in court proceedings).

I looked at the documents to find out what the legal basis for FASA’s alleged review application was, and what evidence it provided in support of its application. I am obviously not qualified to assess the veracity of all the claims and arguments advanced in the documents – I will leave that to the experts in the field – but am in a position to assess the soundness of the legal arguments on which the application is based, and to establish whether the documents, on its face, provide any factual basis for the review.

The first striking aspect of the founding affidavit is that it makes no attempt at setting out the legal basis for the purported challenge. It claims the review is based on all but one of the grounds of review listed in section 6(2) of the Promotion of Administrative Justice Act, and, in the alternative, on the principle of legality. It also claims the rights in sections 10, 11, 12 and 33 are “implicated” in the case. But as this is the sum total of the “legal analysis” contained in the document, it is impossible to know what the legal basis of the review might be.

FASA may, however, have brought the case for reasons other than fighting and winning the case in court. As in all review proceedings, FASA would be entitled to the full record on which the decision by Sahpra to register the Pfizer vaccine was based. For any group advancing a conspiracy about a vast, global cover-up, such a record would provide a wealth of information that could be misrepresented, distorted or otherwise exploited to promote their conspiracy. The affidavit hints at this, where Edeling summarises the purpose of the application as follows:

This application is a call on Pfizer to explain its conduct for public scrutiny. It is also a call on the South African regulators and Government to hold Pfizer to account and to act in the best interests of the South African public. As a last resort, the applicant humbly requests this Court to come to the aid of bodies like the applicant, in the interests of the health of the South African public.

The second striking aspect of the founding affidavit is that it makes many claims that contradict the scientific consensus, but makes no effort to back this up by linking it to supporting “evidence”. As the stated aim of the case is to challenge a tide of “misinformation” concocted in a vast global conspiracy, by people who glibly turn a blind eye to the killing of hundreds of thousands of people, one would think that Dr Edeling would at least have made an effort to point the court to the sources he relies on. Some of this “evidence” is contained in the voluminous appendixes, but one looks in vain for banks of footnotes that direct the reader to the specific study or article, and the specific page, that support any of the claims.

A third striking aspect of the founding affidavit is the speculative tone in parts of the document. (“I have reason to believe”, “one of the many questions that arise”, “because of the seriousness of the accusations levelled at Pfizer”, “research has shown”, “many medical practitioners have reported” and so on.) In essence the affidavit asks the court to trust the applicant’s “experts” (whose credibility has been questioned by those who are actual experts in the field), and, above all, to trust Dr Edeling, who asks the court to trust that the:

opinions I express in this document are based on conclusions I have drawn from a careful consideration of available facts. Where I reference peer-reviewed journal articles, I ask the Court to accept them on the basis that I have satisfied myself of the correctness of the views and conclusions expressed in those articles, given that I have carefully scrutinised and assessed them by applying my aforementioned skillset.

But for me the most striking aspect of the affidavit is its failure to hold the applicants to the same standard of proof it demands of others. This is not surprising, as its case about the dangers of the vaccine implodes if one applies the standard of proof that Edeling insists is required to determine causality between the vaccine and any adverse effects suffered by those who got vaccinated.

Dr Edeling makes much of the fact that in the six-month trial data provided by Pfizer, the death of one of the participants had an unknown cause, while the report of the data concluded that “none of the deaths were considered to be related to” the Pfizer vaccine.

Dr Edeling (reasonably, in my view) complains that the authors of the report “give no details as to how they established that there was no causal link between the deaths and the vaccines. Autopsies, together with detailed review of medical records, would have been the objective mechanism by which to determine causality.”

Yet, a substantial part of the affidavit quotes from a report by a “computational biologist”, Dr Jessica Rose, who relies on data downloaded from the US-based Vaccine Adverse Events Reporting System (VAERS), as “evidence” that the Pfizer Covid-19 vaccine “is already showing drastic increases (of hundreds or thousands of percentage points) in adverse events such as cancers, deaths, disability, fertility issues, and adverse events in children compared to all other vaccines over a decade-long period”.

VAERS is an early warning system where doctors, nurses, healthcare workers and, yes, people receiving vaccines (or their families), can report adverse events suffered by individuals who have been vaccinated. Anyone with access to the internet, email or a telephone can report anything to VAERS. While VAERS provides a handy tool for researchers to explore possible problems with a particular vaccine, it does not provide evidence that a particular vaccine caused a particular adverse event since each report is not investigated (using an “objective mechanism”) to establish whether the vaccine caused the adverse event.

To illustrate, imagine a system was created where people could report adverse events linked to eating a KFC Streetwise Two meal. The reports are checked for accuracy (did the reporting person eat a Streetwise Two, and did they suffer an adverse event in the days that followed?), but this would not provide evidence that the KFC meal caused the adverse event. For all we know, the adverse event could have been caused by browsing an old collection of Scope pin-up girls with the nipple caps digitally removed.

In a court of law, Dr Rose’s report is therefore going to be of no assistance – at least not to the applicants. The legal absurdity of it all becomes clear when one peruses “case studies” of vaccine injury presented by two South African doctors. For example, Dr Mare Olivier recounts the story of a 57-year-old patient who “began presenting symptoms a mere four days” after getting his first vaccination. For unknown reasons he was only diagnosed with cancer a year later and tragically passed away in January this year.

According to Dr Olivier, “the sudden and unexplained onset of this patient’s condition, together with its rapid progression, and the close temporal association to the vaccine led me to conclude that this patient was injured by the Pfizer vaccine”. Needless to say, an expert witness who presents this kind of “evidence” in a court of law is going to have a torrid time, to say the least, and the professional reputation (if any) of such a witness will be destroyed under cross-examination. The fact that Dr Olivier seems blissfully unaware of the potential peril she is in (assuming the case goes to court and assuming the court allows oral evidence to be presented), could be read as either touchingly naive or as alarmingly ignorant.

There are many other technical reasons that this case is a non-starter (Plascon-Evans rule anyone), and I would be surprised if it ever reaches the courts. In any event, it is obviously not in the interest of anti-vaxxers to have their claims subjected to the discipline of a court process requiring the production of evidence, not conjecture.

But the alleged filing of court papers is already being celebrated by anti-vaxxers across the world as evidence that the tide is turning against science and against the experts who base their views on the best available evidence, and I have no doubt that the mere filing of these papers will cause immense harm.

It would be desirable for a compromise to be reached to make limited funding available to Busisiwe Mkhwebane to allow her to pay a much smaller and cheaper legal team to represent her.

Suspended Public Protector Busisiwe Mkhwebane and her legal representative, Dali Mpofu, are not known for their fidelity to the facts or the law (see for example, here, here and here).<__!more__>

It is therefore not surprising that they have claimed over the past week that the refusal by the Public Protector’s office to continue paying her escalating legal costs was part of a campaign to vilify and humiliate Mkhwebane, and that continuing with the impeachment inquiry in the absence of her legal representatives would be illegal, unlawful and unethical and an infringement of Mkhwebane’s rights.

In reality, the facts and the law do not seem to back up these claims – although an argument could be made that any Chapter 9 public office bearer facing an impeachment inquiry should be entitled to the payment of reasonable legal expenses incurred during such an inquiry, as this was necessary to ensure the fairness of the process.

The first obvious point to make is that the Constitutional Court did not, as suggested, rule that Mkhwebane was entitled to legal representation of her choice at state expense. The Public Protector did not raise the matter of who should carry the cost of such legal representation before either the high court or the Constitutional Court and neither court considered this question.

In Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others the Constitutional Court did invalidate the National Assembly rule that allowed for legal representation before the impeachment committee “provided that the legal practitioner or other expert may not participate in the committee”. The court amended the rule to read that the section 194 committee “must afford the holder of a public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice”.

The court pointed out that in our law “there is no free-standing or absolute right to legal representation in foraother than courts of law”, but held that it was irrational for the rules of the National Assembly to allow full legal representation for a president appearing before an impeachment committee in terms of section 89, but not for Chapter 9 office bearers appearing before an impeachment committee in terms of section 194.

This conclusion was bolstered, according to the court, by the fact that judges “are also entitled to full legal representation during a hearing held by the Judicial Conduct Tribunal to determine whether a judge should be removed [from office] due to allegations of incapacity, gross incompetence or gross misconduct”. (The relevance of this point will be addressed below.)

However, this is not the end of the matter as the court also pointed out that in terms of rule 129AD(2), the committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner and that a “reasonable and fair procedure requires full legal representation for the public office bearer facing impeachment”.

An argument could therefore be made that the state has an ethical duty to fund the reasonable cost for the legal representation of any Chapter 9 office bearer appearing before an impeachment committee to ensure that the process is reasonable and fair.

But this is not the contention advanced by Mkhwebane and her legal team. Instead, they seem to be arguing that the state has an unlimited obligation to fund any legal cost incurred by the office bearer, no matter how exorbitant.

It is not in dispute that Mkhwebane’s legal costs have spiralled out of control. Last Friday, acting Public Protector Kholeka Gcaleka revealed in a letter to the committee that the total expenditure for the legal fees in respect of the litigation on the impeachment process, as well as the proceedings before the section 194 inquiry for the 2022/23 financial year, came to about R26.2-million.

It is unclear how much of this was spent on litigation aimed at stopping the impeachment process, and what percentage was spent on the committee proceedings, but it was previously estimated that Mkhwebane’s five-person legal team was costing about R130,000 per day. The Public Protector’s office earlier also suggested that there were “discrepancies” in the invoices presented to it by Mkhwebane’s legal team, raising further questions about the exorbitant cost incurred.

As Mkhwebane is not indigent, and as the Public Protector’s office has already spent millions of rands on her legal fees, it could hardly be argued that she is a vulnerable person who requires Legal Aid funding.

Ideally, Mkhwebane and her lawyers should have taken steps to avoid the current impasse by curtailing the legal costs to ensure the funds made available by the Public Protector’s office lasted until the conclusion of the process.

The failure to do so has exposed Mkhwebane to a charge that she is the author of her own misfortune and cannot complain about the fact that her legal representatives withdrew because she has failed to manage the resources provided to her to conduct her defence.

That said, the question is whether a solution to the problem (assuming Mkhwebane is keen to secure further legal representation to allow her to face cross-examination while legally represented) may be for her to apply to Legal Aid South Africa for limited funding. Support for this view can, at first blush, be found in the various high court and Constitutional Court judgments dealing with the funding of legal representation for Marikana miners before the Marikana Commission of Inquiry.

Recall that the high court in Magidiwana & Another v President of the Republic of South Africa & Othersordered Legal Aid South Africa to take steps to provide legal funding to Marikana miners to allow them to participate in the Marikana Commission of Inquiry. While the court held that the right to legal representation at commissions was not an absolute one, it said that a refusal to fund could be unlawful, but this would depend on the specific context.

The vulnerability of the applicants as participants in the proceedings of the commission, and the need for each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-a-vis his or her opponent (equality of arms principle), were decisive factors in the court’s decision.

But as Mkhwebane is not indigent, and as the Public Protector’s office has already spent millions of rands on her legal fees, it could hardly be argued that she is a vulnerable person who requires Legal Aid funding.

Another problem is that the high court qualified its order by making it clear that the Marikana miners were not entitled to unlimited funding, and that the court could not prescribe to Legal Aid how much funding to provide. It merely suggested that it would be “commendable” if Legal Aid funded two counsel (one senior junior and a junior counsel) and a firm of attorneys.

The court emphasised that “the principle of equality arms does not mean equal representation on the same scale as the State parties”. Legal Aid could therefore hardly be expected to fund Mkhwebane’s legal cost at the level it has been funded to up to now.

The two Constitutional Court judgments on the matter also cast doubt on whether the judgment would be of assistance to Mkhwebane as they make it clear that the high court decision was less far-reaching than it looked.

First, in dismissing an appeal of an urgent application, the Constitutional Court in Magidiwana and Others v President of the Republic of South Africa and Others made it clear that while “unfairness may arise when adequate legal representation is not afforded”, this “does not mean that courts have the power to order the executive branch of government on how to deploy state resources”.

Second, in dismissing an appeal of the high court judgment quoted above, the Constitutional Court in Legal Aid South Africa v Magidiwana and Others made it clear that the high court judgment did not impose any general obligation on Legal Aid to fund legal representation, and that Legal Aid retained its discretion to decide on a case-by-case basis whether it would fund such legal representation, concluding that:

The decision of the High Court will have no practical effect on any of the parties – in particular on Legal Aid and its future decisions in respect of funding. If in future parties that appear before a similar commission require legal representation at state expense, they will have to apply to Legal Aid which will consider the application in terms of the relevant law and regulations. If the application does not meet the requirements for funding, Legal Aid will be free to decline it.

Assuming that the ship has sailed and that Mkhwebane has only herself to blame for running out of funds to pay her legal team, should the committee continue with its work? It would be desirable for a compromise to be reached to make limited funding available to Mkhwebane to allow her to pay a much smaller and cheaper legal team to represent her.

If she refuses to accept this and uses the matter of legal funding to try to avoid facing cross-examination, the committee would have to summons her to force her to appear.

This would be in line with the position of judges facing a Judicial Conduct Tribunal as provided for in section 28(2) of the Judicial Service Commission Act.

This section states that a judge facing such a tribunal “is entitled to attend the hearing and to be assisted by a legal representative, but the Tribunal may begin or continue a hearing, in whole or in part, in the absence of the respondent, or the respondent’s legal representative, or both of them, if the Tribunal is satisfied that the respondent was properly informed of the hearing”.

As Mkhwebane has often argued that she should be treated in the same manner in which judges are treated, she should have no objection to this – unless, of course, she is using the funding issue to avoid what might turn into her catastrophic cross-examination.

It was the ANC government that decided in 2000 to enter into a 25-year contract with security company G4S, which manages the prison from which Bester escaped. The contract was concluded despite the company’s international reputation for corruption, racism, abuse, violence and neglect.

Earlier this week, it was reported that the “ANC leadership” claimed to be enraged by the failings of the “security cluster ministers” following the escape of Facebook rapist and murderer Thabo Bester from a private prison in Mangaung. ANC secretary-general Fikile Mbalula even warned (apparently with a straight face) that the ministers might be fired unless they drastically improved their performance.

This attempt at distancing the ANC and the government it leads from the catastrophic management of the Correctional Services system over a period of more than 20 years by the very same ANC government – a classic case of gaslighting – would have been laughable had it not been deployed successfully in the past by the party to escape accountability for its many failures.

While I do not believe Mbalula’s claim that security cluster ministers may face dismissal if they do not improve their performance (performance clearly never having been the main consideration for the appointment or removal of ministers in the ANC government), the systemic corruption and maladministration within the Department of Correctional Services – that made Bester’s escape possible and led to the attempted cover-up of the incident by the authorities – will not be fixed merely by firing the relevant ministers.

One would have to fire the entire government to even begin to address the problem – something only voters can do.

Let me explain.

It was the ANC government that decided in 2000 to enter into a 25-year contract with security company G4S, which manages the prison from which Bester escaped. The prison commenced operations on 1 July 2001 and its contract only expires on 30 June 2026. As investigative journalist Ruth Hopkins again pointed out this week, the contract was concluded despite the company’s international reputation for corruption, racism, abuse, violence and neglect.

Why did the ANC government enter into a contract with a private company to build and run prisons, when it officially does not support the privatisation of public services?

The obvious answer is that such a contract provided opportunities for corruption for the benefit of politically connected individuals. This suspicion is supported by the work done by Hopkins, who has written extensively about G4S. She argued this week – relying on research done for a book – that the arrangement between G4S and the Department of Correctional Services was a money-making scheme that reminded her of the Bosasa scandal, and pointed out that the contract largely benefited a very powerful consortium of shareholders with connections high up in the ANC.

Despite the many reports of corruption and inhumane treatment in the facility (including an internal report that contains evidence of irregularities in the administration of drugs in the prison – which the department fought for five years to keep secret), the ANC government has not cancelled the contract. Nor could I find any evidence that the department had taken active steps to address the problem.

More generally, it is no secret that the Department of Correctional Services is rife with corruption, intimidation and nepotism and that the department has experienced a total breakdown in the disciplinary system.

Back in 2006, the Jali Commission of Inquiry into the Correctional Services system made damning findings about the culture of lawlessness within the department, and listed a number of examples of attempts by officials to derail the work of the commission and to cover up wrongdoing – including by intimidating and threatening anyone willing to cooperate with the commission.

In this regard the report concludes:

Throughout the Commission’s hearings, some senior officials made a concerted effort to discredit the Commission and its investigators. Investigators were threatened with death. Intimidation and fear is prevalent in the Department of Correctional Services, including Head Office. As a result, even the people holding management positions are not completely committed to the enforcement of the Departmental regulations because they fear reprisal from other members. This is the case even if they are not corrupt because fear drives them to avoid enforcing the rules and regulations.

The report confirmed that corruption and nepotism in the recruitment and promotion of officials within the system was one of the root causes of the rot within the department, which resulted in a situation where “many officials occupy responsible senior positions without having the necessary competence and experience for such positions”.

No wonder, then, that the commission also found that there “appeared to be a poor work ethic prevailing in most of the Management Areas investigated”, and that there was “a general breakdown of organisational standards and norms” within the department.

The commission also concluded that there was “a general culture of violating prisoners’ constitutional rights, with prisoners being deprived of their full visitation rights, being served lunch and supper together at midday and thereafter being locked in their cells often merely because members want to leave work early to attend to their own private affairs”.

(We also know that at the G4S private prison, the abuse extended to the unlawful drugging of unruly inmates – at least those without money to bribe their way out – to pacify them.)

In various interim reports, the commission made shocking findings about the prevalence of illegal drug dealing, medical aid fraud, favouritism in appointments, extortion, unlawful financial transactions with prisoners, fraudulent matric certificates, unlawful visits, theft, assault of prisoners, irregular appointments, irregular transfers and parole transgressions within the department. The various reports also contain a long list of recommendations on how to fix things.

In 2016, 10 years after the final Jali Commission report was published, Prof Lukas Muntingh concluded in an article in the SA Crime Quarterly that while there had been some improvement, the Department of Correctional Services “remains beset by the same problems as those the commission was established to address: overcrowding, corruption, impunity, rights violations and services that do not reach sufficient numbers of prisoners and leave much to be desired with regard to impact”.

Given this overall picture, it is hardly surprising that the Department of Correctional Services only conceded that Thabo Bester had escaped from prison after the evidence uncovered by GroundUp – in a series of astonishing exposés – became so overwhelming that the department could no longer hold up the charade that Bester had died in prison.

In a generous reading, DCS spokesperson Singabakho Nxumalo could have been excused for falsely “confirming” on 3 May 2022 that Thabo Bester had died in a fire at the Mangaung prison.

But this position became untenable after 31 May 2022 when – as GroundUp reported earlier this month – papers filed in the Pretoria High Court revealed that a woman claiming to be Bester’s mother tried to claim the body, but she was refused after her DNA did not match that of the body, and that the cause of death of the body found in Bester’s cell was blunt force injury to the head. The post-mortem report also revealed that the height of the body was 1.45m. In a police mugshot, Bester stands taller, at over 1.7m.

Despite this, Nxumalo continued to claim – most recently on 18 March this year – that Bester had died on 3 May 2022. He also said the department did not have the autopsy report on the body found in the prison cell of convicted rapist and murderer Thabo Bester.

In a statement issued by the department on 17 March this year, the department also demonstrated contempt for the brave whistle-blowers and journalists who exposed the scandal by complaining about “so-called leaks from unidentified sources” and suggested that “information supplied by these unauthorised sources” was putting undue pressure on the department to confirm or deny these reports.

On 26 March, the National Commissioner of the South African Police Services, General Fannie Masemola, announced that he had ordered the prioritisation of investigations into Bester’s prison escape, but also complained about “the leaking of sensitive and confidential information to media houses” and warned that this “is being looked into by authorities”.

What has been entirely absent from the responses by various government spokespeople and the relevant government ministers, is any explanation of:

• Why the matter has not been properly investigated up to now;
• Why the department seemed to have covered up the matter and continued to mislead the public in the face of mounting evidence that its story was untrue;
• Whether the minister, deputy minister or commissioner had approved the cover-up, or knew about it, and if they did, whether they will be held accountable;
• Whether the head of the Mangaung prison and other responsible individuals will be held accountable for what happened, and why officials it says were dismissed after the incident were not criminally investigated and charged;
• Why the department and the police are going after GroundUp and whistle-blowers instead of going after the corrupt officials who made the escape possible, and the senior officials or politicians who were in cahoots with them or may have turned a blind eye;
• Why the contract with G4S has not been cancelled, and whether this has anything to do with the fact that a powerful consortium of shareholders with connections high up in the ANC allegedly benefit from it; and
• What steps the Department of Correctional Services and the relevant ministers have taken over the years to root out the problems identified in the Jali Report; why these attempts have not been successful, and what would be done differently in future.

It is good and well that the police are now investigating a case of murder and wrongful escape against Thabo Bester. Hopefully, he will be caught quickly and sent back to prison before he hurts anyone. But even if this happens, those in government who have political and administrative responsibility for the department, and the ANC government as a whole, should not be allowed to avoid accountability for the systemic failures that made the escape possible in the first place.

If the “ANC leadership” was really enraged by the scandal, as Mbalula claims, it could show this by demanding protection for the whistle-blowers who risked their lives to expose this scam, and by holding its deployees in government – whose actions or failure to act contributed to the mess – to account by expelling them from the party, if necessary.

But, as we all know, this will not happen.

A recent judgment of the Labour Court dismissing a claim by five black employees that Makro had unfairly discriminated against them by paying them less than they paid a white female employee who performed the same or substantially the same work, failed to consider the impact of previous and ongoing racial discrimination in the labour market on the wages of black middle class employees in the private sector, and wrongly assumed that the company did not perpetuate systemic racism because it paid at least two black employees doing comparable work a higher salary than it did the white female employee.

The five black employees all work as Merchandise Controllers at Makro. In 2018, they discovered the payslip of a white female Merchandise Controller on the work printer and noticed that she earned substantially more than they did. They lodged a grievance with Makro, who then reviewed the salaries of all Merchandise Controllers “against the pay range” and then made adjustments “to ensure that all MC’s were within the range”.

But as they were still paid less than their white colleague, they approached the Labour Court alleging that Makro was guilty of racial discrimination in the workplace. They relied on section 6(1) of the Employment Equity Act which prohibits designated employers from unfairly discriminating, either directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race. This section must be read with section 6(4) of the Act, which makes clear that paying employees different salaries for doing the same work based on their race constituted unfair discrimination.

In a disappointingly cryptic and formalistic judgement (penned by Mthalane AJ), the Labour Court in SACCAWU obo Mabaso and Others v Masstores (Pty) Ltd t/a Makro, dismissed the claim on the ground that the differences in salary were not based on race, but was rather the result of the process previously followed by Makro when it recruited new staff. (Until 2018, Makro considered a candidate’s employment history when determining their remuneration, and in order to make the offer attractive, usually offered both internal and external candidates 15% more than their current salary.) The court also argued that the differences in salary could not be based on race because Makro paid at least two black Merchandise Controllers more than they did the white female.

The Labour Court, somewhat confusingly, concluded that it was not sufficient for the five employees to merely allege that the white female employee earned more than them because of her race, and that “something more” was required of them. What they had to do and failed to do, was to show that they were paid less because of their race, which they failed to do.

Technically, the Court mistakenly treated the matter as if the onus was on the black employees to prove that racial discrimination occurred. But section 11(1) of the Employment Equity Act makes clear that all they needed to do was to allege that such discrimination occurred, after which the onus shifted to the employer to prove, on a balance of probabilities, that such discrimination did not take place as alleged, or that any discrimination that did occur was rational and not unfair.

More substantively, the Labour Court failed to consider the possibility that this may have been a case of indirect discrimination, and thus failed to consider the possible negative and disproportionate impact of the company’s policy on the wages of black employees. (It is not clear from the judgment whether these arguments were before the court at all.) The Court seemed to have accepted that the policy did not discriminate based on race because it was couched in neutral terms and did not negatively impact on all black employees doing a similar job.

But as the Constitutional Court explained in City Council of Pretoria v Walker the prohibition on indirect discrimination “evinces a concern for the consequences rather than the form of conduct. It recognises that conduct which may appear to be neutral and non-discriminatory may nonetheless result in discrimination”.

It is not necessary to show that the employer had the intention to discriminate against employees of a particular race or that it explicitly did so. Instead, one has to ask whether the company’s relevant processes, rules or practices led to a situation in which black employees were on average paid less for doing the same job as their white counterparts. (This is the first step of the inquiry, if discrimination is present, the second step is to ask whether the discrimination was fair or unfair.)

This focus on the impact of rules, practices, or policies, rather than on the intention behind them, is of considerable conceptual importance. It signals a rejection of the formalistic conception of equality which requires identical treatment of similarly situated individuals, and recognises, as the Constitutional Court noted in Brink v Kitshoff NO, that an equal treatment approach will perpetuate “patterns of group disadvantage and harm” and “build and entrench inequality amongst different groups in our society”.

The South African approach is also consistent with the adoption of affirmative action measures, which our courts do not view as an exception to a general rule requiring equal treatment, but as an inherent requirement for the eradication of systemic discrimination and thus for the achievement of substantive equality.

Because the Court adopted a narrow and formalistic approach to discrimination, it failed seriously to consider the possibility that Makro’s recruitment procedures, in fact, discriminated against black employees. To assess whether a large organisation like Makro in fact discriminated, one would have to look at the institutional culture and history of the organisation, as well as the broader evidence of the impact of racial prejudice and systemic racial discrimination on the wages paid to black employees. One would also have to look critically at the processes, rules, and practices, of the organisation to determine to what extent these reflected the world view or life experiences of the historically socially and economically dominant group within the institution.

As the Constitutional Court pointed out in MEC for Education: Kwazulu-Natal and Others v Pillay norms embodied in an institutions processes, rules, and practices are not necessarily neutral, and often reflect the world view of the “mainstream and historically privileged” group in the institution. The processes, rules, and practices ofan institution historically dominated by white men, for example, may be based on the unexamined assumption that the average employee of that organisation is Christian, heterosexual, gender conforming, middle class, white, and male, and that the circumstances, life chances, and experiences of all employees are more or less the same.

While appearing to be neutral and thus not discriminatory, such rules may have a disparate impact on those who are different from this presumed norm and may in fact discriminate against an employee on the basis of their race, gender, religion, or sexual orientation.

An example of this would be a policy that requires employees of a certain rank to have a driver’s licence, where this is not an inherent requirement of the job. This would disadvantage employees who did not have the same opportunities to obtain a licence as the imaginary middle class white male employee would have had, and would like amount to racial discrimination. Similarly, a policy that did not reasonably accommodate the needs of primary caregivers of children (who, unfortunately, remain overwhelmingly female), may disadvantage women and discriminate on the ground of sex and gender.

Returning to the case under discussion, it is striking that Makro, in fact, reviewed the salaries of all Merchandise Controllers after the black employees lodged their grievance and then adjusted the salaries of its employees “to ensure that disparities are eradicated”. We are not told what these disparities were and to what extent these may have been linked to race, but it does raise a strong suspicions that the company engaged in race-based waged discrimination in the past.

It is unclear from the judgement what justification the company offered for the continued wage discrepancies exposed by the five black employees (the five black employees are still being paid less than their female colleague), but it would be surprising if the company did not use the existing salaries of its employees as a starting point for determining the new salary scales.

Makro previously determined the salary of new Merchandise Controllers by looking at the employment history of the employee (inside or outside the company) and the salary they had earned in their previous job. This immediately raises alarm bells as it suggests that the company may have adjusted its salaries after receiving complaints, but did so without disturbing the racialised patterns of disadvantage created by past practices.

In any event, basing any decision on what salary to pay an employee on their past remuneration will more than likely result in racially discriminatory remuneration practices. This is so as various studies have shown that there is a significant unexplained differential in South Africa between the wages of black employees and white employees doing comparable work (although some studies suggest that this is not the case for the lowest paid workers). In fact, one study, which compared the earnings of black employees and white employees who did comparable work, and who were more or less of the same age, education, gender, and worked in the same industry, occupation, or sector, with the same family situation, found that the average wages of black employees were 30% less than that of white employees.

As the wages of many employees at Makro were directly or indirectly determined by an employee’s previous salary (as determined by a wage market that discriminates against black employees), it would be surprising if the overall effect of the company’s policy was not to discriminate against black employees by, on average, paying them less than white employees doing comparable work. As Makro carried the onus to prove that they did not discriminate against black employees, once the employees showed that they earned less than the white female employee, Makro had the duty to present any evidence to prove that on average white Merchandise Controllers were paid no more than their black counterparts.

Had the company produced the requisite evidence to show that black employees were not, on average, paid less than white employees doing comparable work, the Court would have been justified to rule in favour of Makro. Makro seemed to have failed to produce such evidence, but because the court wrongly assumed that a seemingly neutral process or set of principles will not have a racially discriminating effect, they nevertheless got away with it.

Mpofu’s often spurious objections, lengthy monologues, politically motivated digressions, and ad hominem attacks on witnesses and political opponents sometimes seem to have only a tenuous connection to the applicable (accurate) legal principles and the relevant verifiable facts.

On Monday 6 March 2023, suspended Public Protector Busisiwe Mkhwebane’s legal representative, advocate Dali Mpofu, accused former Public Protector Thuli Madonsela of presenting a “litany of falsity” to the National Assembly ad hoc committee considering Mkhwebane’s impeachment, claiming that the affidavit she submitted to the committee was “not an affidavit”.

Mpofu also suggested that changes she made to her statement to fix typos were unlawful and potentially criminal, because a commissioner of oaths had not initialled every page of the document.

The matter wasted almost three hours of the committee’s time, before one of the evidence leaders, advocate Ncumisa Mayosi, intervened to challenge the legal basis for the accusations.

This wise intervention made clear that there was, in fact, no legal basis for the accusations. The relevant regulations merely require a commissioner of oaths to sign the document, something the Western Cape High Court confirmed in Minister of Safety and Security and Others v Mohamed.

In various other testy exchanges between Madonsela and Mpofu on Monday and on Tuesday 7 March, he also wrongly suggested that Professor Madonsela was not a registered advocate (which is in any event not a requirement for appointment as Public Protector); accused her of being complicit in an assault; and (after she told him that the latter comment was “another low, even by your standards”), threatened to “deal with” Madonsela – adding that this would be “ugly”.

While all this will likely end up as just another footnote to the unnecessary protracted psychodrama playing out before the impeachment committee in the National Assembly, it nevertheless points to larger problems with the way in which the committee has chosen (or has been forced) to conduct its business, and raises broader questions about the ability and willingness of the Legal Practice Council (LPC) to uphold ethical standards within the legal profession.

It was perhaps inevitable that the section 194 committee would get bogged down in a political swamp, and that some MPs on the committee would use the opportunity to wage larger political battles.

After all, the members of the committee are all elected politicians representing the interests of their political parties (and, in some instances, pursuing personal vendettas against individuals perceived to have shown a lack of respect), which is not easily squared with the committee’s duty to conduct an inquiry “in a reasonable and procedurally fair manner” and to make rational findings based on the correct legal principles and facts.

Unfortunately, things have been far worse than I had feared they would be. The rules of the National Assembly require that the process be concluded “within a reasonable timeframe”, something it has not been able to achieve.

Instead, the process continues to drag on and on, with the committee often forced to spend hours, or even days, listening to the testimony of witnesses with very little to say about events that could help the committee to assess the charges against Ms Mkhwebane.

Many days have also been wasted by Mr Mpofu, whose often spurious objections, lengthy monologues, politically motivated digressions, and ad hominem attacks on witnesses and political opponents sometimes seem to have only a tenuous connection to the applicable (accurate) legal principles and the relevant verifiable facts.

Mkhwebane and her legal team have also employed various other tactics – including several last-minute requests for the postponement of scheduled hearings – that have dragged out the proceedings. (Whether their aim is to delay the final decision on impeachment until Mkhwebane’s term of office ends, and she becomes entitled to a large pay-out, is not clear.)

The Constitutional Court may inadvertently have contributed to the unbecoming manner in which the process has unfolded when it ruled last year in Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others that a Chapter 9 office bearer was entitled to full legal representation during a section 194 impeachment inquiry to ensure that the process was fair and reasonable.

While the court was almost certainly correct to invalidate the National Assembly rule which held that a Chapter 9 office bearer like Mkhwebane was entitled to legal representation during the impeachment process, provided that the legal practitioner did not participate in the committee inquiry, the court failed to consider what “full legal representation” may look like in the context of the kind of inquisitorial process followed by the committee.

The court failed to anticipate that allowing Chapter 9 office bearers full legal representation before the impeachment committee was likely to create serious problems – especially in the absence of the kinds of rules that apply in criminal courts to curb potential abuses of the system by defence lawyers.

It is not that surprising that legal practitioners embedded in an adversarial legal culture would exploit the absence of rules to ensure the smooth running of the inquisitorial process to the advantage of their client.

No such rules are currently in place: the National Assembly rules merely require the committee to conduct the inquiry “in a reasonable and procedurally fair manner”, but is silent on the role of legal representatives in the process.

As a result of this ambiguity, the Public Protector has insisted that she is entitled to the kind of robust legal representation enjoyed by an accused person in a criminal trial – but without any of the constraints applicable to defence lawyers in criminal trials.

At the same time, the Public Protector and her legal representatives have strenuously objected to any signs of evidence leaders behaving like prosecutors, insisting that they remain neutral presenters of evidence.

Utilising the threat of further litigation (and thus further delays in the proceedings), the Public Protector’s legal representatives have had significant success in exploiting the uneven playing field created by the ConCourt ruling, turning parts of the proceedings into an unseemly political spectacle to distract the public’s attention from the relevant law and the facts, and to denigrate individual witnesses and others who may have attracted the ire of Ms Mkhwebane, Mr Mpofu and other EFF leaders.

In recent weeks, the chairperson of the committee has had some success in curtailing some of these excesses, but in the absence of clear rules to prevent the kind of political grandstanding we have witnessed, his task remains an unenviable one.

Hopefully, when Mkhwebane testifies later this month the chairperson will uphold the principle enunciated by the Constitutional Court in Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others that “the committee is at liberty to cross-examine the office bearer, and to request the office bearer to directly respond to the questions posed”.

All this would have been unnecessary if only the LPC had acted with sufficient diligence to strike Ms Mkhwebane from the roll. The first request to do so was lodged with the LPC in July 2019.

In December 2020 a full bench of the High Court also referred Mkhwebane to the LPC after making scathing findings against her. But it is unclear what, if anything, the LPC has done to finalise these complaints.

It is also unclear whether anything should be read into the fact that Mkhwebane’s name does not appear on the LPC’s list of registered legal practitioners available on its website.

Given this tardiness, I would be surprised if the LPC takes any action to investigate any possible breaches by Mr Mpofu of the relevant provisions of section 57 of its Code of Conduct.

Section 57 of the code imposes a duty on legal practitioners “to take all reasonable steps to avoid, directly or indirectly, misleading a court or a tribunal on any matter of fact or question of law,” as well as a duty to “disclose to a court or a tribunal all relevant authorities of which the legal practitioner is aware that might reasonably have a material bearing on the decision the court or tribunal is required to make”.

While one might argue that the misstatement of the law and spurious accusations levelled against Madonsela may not have breached the code because the false claims were made in ignorance and not out of malice, one would at least have to look into the matter before coming to such a conclusion.

However, it appears that this is not the first time Mr Mpofu has made self-evidently wrong claims about the law when representing Ms Mkhwebane. An example of this can be found in the 2020 Constitutional Court judgment of Public Protector v Commissioner for the South African Revenue Service and Others.

In this case, the Constitutional Court (in a unanimous judgment penned by Madlanga J) set aside the High Court’s personal cost order against Mkhwebane, despite the fact that she had falsely claimed under oath that she had not received notice that a personal costs order would be sought against her. (While she did receive notice that such an order would be sought, she was not cited by name, something her lawyers wrongly told her was required by our law.)

The Constitutional Court remarked that on the face of it, “her assertion before us that there was no notice in this regard is astounding and warrants censure and perhaps more”. The court nevertheless declined to make a personal cost order against her, explaining that it was the senior counsel who represented her in the case who advised her to make this claim.

The court noted that in oral argument before the court “her counsel owned up to the fact that it was his idea that the Public Protector must adopt this stance, an idea he wisely abandoned and did not pursue in oral argument as it was legally indefensible”.

Describing the Public Protector’s assertion that her false claim that she was not given notice was justified because she was not cited by name as “outlandish”, and noting that she could be criticised “for failing to realise that the legal point she was obviously advised to advance was a non-starter”, the court declined to punish her with a personal cost order for making this false claim because “she got that advice from senior counsel” [the court’s italics].

Mkhwebane’s senior counsel in the case happened to have been advocate Dali Mpofu.

As far as I am aware, this matter has never been taken up by the Legal Practice Council. While there may be as yet undisclosed reasons to explain away this seemingly unethical behaviour, I worry that the LPC’s inaction may encourage other legal practitioners to advance self-evidently mistaken legal arguments and false factual claims in support of the seemingly dishonest actions of their clients.

It may also send a signal to Mr Mpofu that he will not be held bound by the Code of Conduct – no matter how appalling his behaviour when representing clients politically aligned to the party he belongs to.

To understand why the ANC reacted with such vehemence to claims by former Eskom CEO, Andre de Ruyter, that senior ANC members were involved to monumental corruption at Eskom, one must take note of fact that the State Capture Commission identified support for corruption within the ANC, the tendency of the party to protect its own interests above the interests of the country, and the failure of the party to hold members implicated in corruption, as the main reasons for the failure of the party to curb corruption within its ranks.

Former Eskom CEO Andre de Ruyter caused a stir when he said in an interview last week that “the pigs are at the trough at Eskom and the corruption goes right to the top of the ANC” (as Justice Malala pithily summarised it). The interview outraged the ANC and its allies, with its secretary general Fikile Mbalula calling the claims of political meddling and corruption at the embattled Eskom “unfortunate, irresponsible, and baseless”.

I will leave it to others to opine on the wisdom of De Ruyter giving the interview, how credible his claims are, or on the extent to which he may or may not have been a failure as CEO of Eskom. What interests me here, rather, is to look beyond the immediate political dynamics at play, and reflect on what the vehement response from the ANC might tell us about the party’s claimed efforts to address corruption within its ranks.

One way to do so is to revisit parts of the report of the Commission of Inquiry into state capture. I am not referring to Part IV of the Zondo Commission report into state capture at Eskom – although it does remind us just how endemic corruption at Eskom had become and how dysfunctional the entity is – but rather to Part VI of the Zondo Commission report, which explains the inextricable link between ANC money politics and endemic corruption in South Africa, and casts doubt on the ability of the party to address the problems within its own rank.

This part of the State Capture report reminds us that the ANC itself has correctly identified the extent of the party’s corruption problem. The report quotes extensively from the ANC’s 2020 review of its “Through the Eye of a Needle” document, which warns that “money politics has put the ANC in a precarious position of risking being auctioned at all levels” and that it “state and private resources are being used thus making corruption to be an essential modus operandi of these transactional politics.” The report also quotes President Cyril Ramaphosa as saying not so long ago “that there has been corruption, but that it is both continuing and pervasive, in government and in the party”.

This is a significant admission from within the party that corruption in the ANC is not merely a problem of “a few bad apples” within the party who enrich themselves through individual corrupt acts. Instead, corruption has become an essential part of the way politics are conducted within the party, which means any credible attempts to address it would require the party to take radical steps to change its culture and the way it operates.

The problem can therefore not be fixed merely by prosecuting some of the perpetrators of corruption and hoping that this will lead to a fundamental change in attitudes towards corruption, and in the way in which politics is conducted within the party. (Given the scope of the problem, even a well-resourced and highly competent NPA would not have been able to prosecute even 1% of all cases in which some form of corruption had occurred over the past 10 years.)

If I am correct, the question is what else could be done to fix the problem. To my mind, there are two possible solutions to the problem. One would be for the ANC to be voted out of office. The other would be for the ANC to fix itself, but this would require the party to go to war with a significant portion of its own members who are involved in the kinds of practices the party has identified as a problem. As the Zondo Commission report concludes, it is:

abundantly clear from the evidence before the Commission, that for as long as the ANC is in power, the failure of the ANG successfully to reform and renew itself as undertaken by President Ramaphosa will render the South African state unable to rid itself of the scourge of State Capture and corruption. What is equally clear from theevidence is that such reform and renewal should take clear precedence over attempts to appease various competing factions within the governing party for the sake of party unity.

Unfortunately, the chances of the ANC “renewing” itself successfully are rather slim. While Ramaphosa told the State Capture Commission that the party was committed to eradicate corruption in government and in the party, justice Zondo remained sceptical, pointing out that the ANC has been promising to fight corruption within the party for over twenty years – without success. Moreover, there has been no explanation from Ramaphosa on “why the party’s previous attempts to deal with these problems have failed, and why any such attempts might now succeed”.

The State Capture report identifies several factors that contributed to the failure of the ANC over the past 20 years to deal decisively with corruption, and suggests that it is unlikely that the party will be able to do so now.

Speaking specifically about the Zuma era, the report points out that important members of the ANC – those who held that balance of power – were against acting on matters of corruption and State Capture, and that they held enough power in the party to ensure corruption continued. One could argue that this is no longer the case, but as Stephen Grootes pointed out earlier this week, in December last year 40% of ANC delegates voted for corruption-implicated Zweli Mkhize at its conference, raising questions about the commitment of a very sizeable number of ANC members to the anti-corruption drive.

Another, but related, problem identified in the report is the tendency within the ANC to conflate the interests of the party and the constitutionally enshrined public duty of those in government. Quoting Gwede Mantashe, the report concludes “that the ANC prioritises its own survival and strength over the interests of the country. It seems that Mr Mantashe was pre-occupied with the survival of the ANC irrespective of what happened to the country and its economy”.

The report does not mention this explicitly, but the retention of several corruption-tainted, as well as incompetent cabinet ministers in Ramaphosa’s cabinet (presumably to foster “unity”), is an obvious example of this tendency. Another example is the tendency of the ANC to “recycle” corruption-tainted party members who work at any level of government. For example, a municipal manager might resign from his or her job after disciplinary charges are instituted against them, only to be re-appointed as city manager in another town governed by the ANC.

Which is directly linked to another problem – and the crux of matter – identified by the State Capture report, namely that the ANC is unable or unwilling to hold accountable those of its own members who have credibly been implicated in corruption. Astonishingly, the report reveals that between 2014 and 2021 not a single ANC member had been disciplined at the national level for their involvement in corruption. (This finding is based on the records of the ANC’s National Disciplinary Committee and National Disciplinary Committee of Appeal provided to the Commission by the party.)

Instead, the ANC has outsourced the responsibility to hold its members accountable to the Hawks and the NPA, as the party’s position is that it will only act against a party member implicated in corruption after that member had been prosecuted, convicted, and sentenced.  Because these bodies remain under-resourced and – despite some efforts to strengthen them – still largely inept, the ANC approach in effect shields the vast majority of its members from any accountability for their corrupt actions. (It is for this reason that party leaders who are prosecuted inevitably complain that they are being prosecuted for political reasons – another way to say that that the party failed to protect them from prosecution.)

The failure of the ANC to hold its members accountable is perfectly illustrated by the party’s response to the report of the State Capture Commission, in which approximately 200 ANC members were implicated in some form of wrongdoing. While the ANC announced at the time that it had handed over a list of those members implicated in the report to the party’s Integrity Commission, and later announced that 97 of these members would be summoned to appear before the Commission, no other action has so far been taken against any of those implicated in the report.

In any event, the Integrity Commission does not have the power to discipline any ANC member, although it can make recommendations, including recommendations for disciplinary action. However, the chances of any of the 97 members summoned to appear before the Integrity Commission being disciplined are rather slim, because so far “there is no evidence that Integrity Commission recommendations have resulted in disciplinary action against any ANC member accused of corruption, save for recommendations that certain individuals should step aside from their positions the NEC”.

The ANC justifies its failure to hold its members accountable via internal processes by arguing that it could not discipline its members for corruption unless they had been convicted of a criminal offence. Justice Zondo correctly rejected this argument, pointing out that the “ANC disciplinary bodies have their own standards for proof of misconduct and their own appeals process” and deal “with many types of misconduct, which are not dependent on criminal convictions”.

By choosing not to discipline its members for corruption-related matters unless they have been prosecuted and found guilty by a court, the party has made a policy choice that in effect shields its members from accountability. It is no wonder then, that the party closed ranks to protect their own, when the former CEO of Eskom cast aspersions on an unnamed senior ANC leader. In the long run, this approach may not be in the party’s best interest. But as the Zondo Commission report points out:

this is a risk that the party, by failing to discipline those accused of corruption, has deemed acceptable. This certainly does not augur well for the prevention of corruption in the future. Nor does it give positive reassurance that State Capture will not recur.

A judgment that holds a lawyer in contempt of court has arrived at a time when one has to ask whether the legal profession is facing a crisis of legitimacy, aggravated by the unethical behaviour of a small number of members of the profession.

It is not that unusual to come across a high court judgment in which a judge expresses disappointment about the tardy actions of one of the lawyers or of one of the legal teams in a matter. But it is not often that one comes across a judgment in which a lawyer is held in contempt of court for failing to obey a court order, and “sentenced” to pay punitive costs in his personal capacity. It is, regrettably, also uncommon to encounter a judgment in which a judge takes such a decisive stand against the unethical, contemptuous, or dishonest behaviour of legal practitioners.

It was therefore both depressing and heartening to read the judgment of acting judge Warren Shapiro in the case of Grundler NO and Another v Zulu and Others in which the high court held advocate Lee Zulu in contempt of court for refusing to provide the applicants with copies of the court papers he submitted on behalf of his clients in a previous application — despite a court order to do so.

The trouble started when Mr Zulu, representing certain members of a dysfunctional body corporate, applied for, and was granted, an order to place the body corporate under the administration of a Board of Trustees. Mr Zulu brought this application ex parte, inexplicably failing to give notice of the application to Mr Grundler — the court-appointed administrator of the body corporate — and the body corporate, who both obviously had a direct and substantial interest in the matter.

Suspecting that Mr Zulu may have failed to make a full disclosure of all the material facts in his application, the applicants asked Mr Zulu to provide them with copies of the court papers he prepared for the application, which he failed to provide — even after a court ordered him to do so. (Whether he did so because the court papers revealed dishonesty on his part, is impossible to say.) As a result, Mr Grundler and the body corporate approached the court to declare Mr Zulu in contempt of court, and asked the court to sanction him by sending him to prison, alternatively, to order him to pay a fine.

The court took a dim view of the vague and insubstantial “justifications” offered by Mr Zulu, especially his claim that he could not provide copies of the papers as he had a duty to uphold “confidentiality” with the body corporate. The court dismissed the latter argument, calling it “nonsense”, and described Mr Zulu’s behaviour as “unprofessional, obstructive, and dilatory and certainly […] not the behaviour one would expect from a legal practitioner”.

The judgment arrives at a time when one has to ask whether the legal profession is not facing a crisis of legitimacy, made worse by the unethical and even criminal behaviour of a small but not entirely insignificant, number of members of the profession. Here I am not only talking about the political theatrics, bullying, and amateurish bullshitting, we have come to expect from some lawyers representing high-profile political (or politically connected) individuals and other wealthy clients. I am also referring to the slew of recent news reports containing accusations of lawyers and judges behaving badly. Only in the last week, at least four such matters came to public attention.

• Last week it emerged that a newly appointed judge of the Free State high court had been summonsed to appear in the Kroonstad Specialised Commercial Crime Court on charges of theft, money laundering and contempt of court, stemming from the judges conduct while still practicing as an attorney.
• It was also reported over the weekend that the Eastern Cape judge-president Selby Mbenenge is facing an investigation by the Judicial Conduct Committee after claims of sexual harassment levelled against him by a judge’s clerk based in the Makhanda high court.
• On Tuesday, the Judicial Conduct Tribunal started its impeachment hearing into judge Tintswalo Makhubele, for taking up an appointment as acting chairperson of Prasa, after the JSC had selected her for appointment as a judge, and for allegedly using this position at Prasa to advance the interests of a company whose contracts with Prasa have been set aside on the grounds of corruption linked to state capture.
• And on Wednesday Daily Maverick reported that evidence has emerged that advocate Dawie Joubert, a senior counsel and member of the Bar’s examination board, has been involved in an attempt to frame conservationist Fred Daniel. The report also claimed that a senior public prosecutor, named as Ms Ansie Venter from Middleburg, has also allegedly been implicated in the matter.

It is no wonder, then, that the court complained in the Grundler judgment, about “a rising trend in the legal profession of practitioners demonstrating disrespect (if not outright contempt) for courts and the judiciary”. It is also heartening to read the judge’s timely reminder to all legal practitioners that “Officers of this Court must be held to a higher standard of conduct than lay people”, and that legal practitioners “do not own a duty only to their clients, they also owe a duty to the courts and the legal system”.

One does not need to look far to find examples of this sort of behaviour, from the ranks of senior counsel to the most junior of candidate attorneys. It manifests not only in how practitioners interact with opponents and judges in and out of court but also in the launching of prima facie spurious applications, lacking in factual or legal foundation, that are designed to “snatch bargains”, achieve ulterior objectives, delay and/or obstruct. It is a “win at all costs” attitude that does a disservice to the profession and to the country and sets an appalling example to the public at large. It ignores not only the oath that all lawyers take upon their admission but also the distinction between the duty that practitioners owe to their clients and the separate duty that they owe to the Court.

The court further noted that in this case Mr Zulu had “failed in this most basic duty” by not distinguishing “between his clients’ interests and his own professional and ethical obligations”. He also failed to provide any substantive explanation for his failure to obey a court order, and was thus guilty of contempt of court. Consequently, the judge referred Mr Zulu to the Legal Practice Council “so that his conduct as a legal practitioner can be investigated and, if required, sanctioned”.

But because the Legal Practice Council has, in some instances, declined to sanction legal practitioners who flout the code of ethics, and has generally been slow to investigate, and — if required — to act, against legal practitioners implicated in unethical or criminal behaviour, it is also significant that the court endorsed the view that there “must be a serious consequence” for the kind of behaviour Mr Zulu made himself guilty of.

Notably, the court seriously considered imposing a sentence of direct imprisonment without the option of a fine on Mr Zulu as punishment for his contempt of court (as the Constitutional Court did in the contempt of court case of Mr Jacob Zuma). The court approvingly quoted justice Edwin Cameron’s Supreme Court of Appeal judgment in Fakie NO v CCII Systems (Pty) Ltd, where it was noted that the reason why courts were permitted to commit recalcitrant litigants to prison when they make themselves guilty of contempt of court, was not only to ensure court orders were enforced but also, and more importantly to protect the “very effectiveness and legitimacy of the legal system”.

That, in turn, means that the Court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.

The court in Grundler nevertheless decided not to send Mr Zulu to prison, because “justice must be tempered with a modicum of mercy”, and because there was a possibility that, “given the chance”, Mr Zulu might “react quite differently, and would understand where his obligations lie and the seriousness of failing to comply with orders of court” (the latter aspect distinguishes this case from that of Mr Zuma).

The court nevertheless held that it was important to impose a serious sanction on Mr Zulu, and ordered him “in his personal capacity to pay the costs of both the main application and the application for contempt and all reserved costs on the scale as between attorney and client”.

This case was somewhat unique because Mr Zulu ignored a court order directed at him personally, so there was no doubt that he was responsible for the misconduct. But it is not always that clear to what extent the misconduct can exclusively be laid at the door of the legal practitioner, instead of their clients, especially in cases where the legal practitioner becomes too closely identified with their client and their client’s political or other causes.

Moreover, courts are usually reluctant to grant personal cost orders against legal practitioners, because they worry that this may have a chilling effect on the ability or willingness of lawyers to represent the interests of their clients robustly and efficiently. While this worry is real, it may be time — given the scale of the problem — for our courts to use personal cost orders against legal representatives who ignore their professional and ethical obligations and the duty they owe to the courts and the legal system, and shamelessly abuse the legal process, often at great financial benefit to themselves.

The DA declared its support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when President Cyril Ramaphosa embraced their idea.

Thanks to well-timed rolling blackouts in the Cederberg, I was spared having to watch yet another of President Cyril Ramaphosa’s State of the Nation Addresses (Sona) last week. From what I gather from the text of the speech and responses from the commentariat class, the speech was too long, exceptionally tedious, too technocratic, and lacking in heart.

Ramaphosa also seemed to have delivered the speech with the charisma and energy of a pap snoek. It was also a blessing to be spared from having to witness yet another round of the tedious big-cock politics of disruption so beloved by the EFF, as well as from the usual displays of triumphant philistinism by some ANC and opposition MPs.

To be honest, had I been given a choice between having to watch Ramaphosa delivering the 2023 Sona, or having to spend several days trapped on the MSC Sinfonia with other Kappityt Festival cruise passengers and being forced to watch every single Steve Hofmeyr performance on that cruise, it would have been a difficult choice to make.

With Steve being booted from the cruise, the Kappityt Festival would have won hands-down — even if it meant that I would have had to listen to Karlien van Jaarsveld singing her famous hit, “Rooilipsoene”, 10 times each day. Go, Karlien! (If I may make a suggestion to the organisers of the Kappityt Festival, why not invite Dodo Nyoka, the young cowboy who sings in Afrikaans, and had a hit last year with his song, Foto’s, in which he sings about wanting to enjoy life by getting a bit drunk, having a braai, and making a few mistakes.)

The big “news” of the night was obviously the declaration of a national State of Disaster, ostensibly to allow the ANC government to fix the rolling blackouts crisis created by the very same ANC government over the past 15 years. As I argued last week, it is not clear that the declaration of a State of Disaster will allow the government to do much to deal with the crisis that it would not have been able to do otherwise.

But the most surprising development of the night came when DA leader, John Steenhuisen, issued a statement before the President’s speech even ended to announce that the DA had “already briefed our lawyers to challenge the announcement in court”.

Claiming (quite correctly, I think) that the government was grasping at straws, the DA leader also claimed that the declaration of a State of Disaster was “dangerous” and “desperate” as it would lead to a looting frenzy.

The statement was, to say the least, rather odd — unless we assume that it was an act of empty political theatre aimed at the DA’s core constituency. Why brief lawyers to challenge the declaration of a State of Disaster (I assume this is what the DA leader meant to say, as one cannot legally challenge an “announcement”) even before regulations and directions have been issued?

In the absence of such regulations and directions, it would be extremely difficult to assess whether the declaration (as well as the measures taken in terms of it), were unlawful, not least because these regulations and directives will give an indication of whether the government would be able to convince a court that the declaration was “necessary” to deal effectively with the power crisis.

What makes the hasty announcement of court action even odder is the fact that the DA is already challengingthe constitutionality of parts of the Disaster Management Act, arguing, among other things, that what constitutes a national disaster “is so vaguely defined that the decision almost [sic] amounts to a discretion”. (If the criteria are vague, it means that the decision to declare a State of Disaster — as opposed to specific regulations adopted in terms of it — would be difficult to challenge in court.)

But what got the commentariat class most excited (yes, I am obviously a member of this class), was the fact that the DA declared support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when the President embraced their idea. Evidently, the party was caught out flip-flopping in a manner that would even impress EFF leader Julius Malema.

To limit the pedantic hair-splitting for which the usual party hacks are infamous, let me provide the precise wording of the DA’s pre-Sona position. The DA first made the call in May 2022 for “Eskom to be declared a State of Disaster” to “ensure, among other things that a moratorium is placed on unnecessary regulatory requirements”.

In July last year, the DA “clarified” its position by explaining that the party did not support the declaration of a state of emergency, but rather the declaration of a “ring-fenced” State of Disaster “that is fully accountable to Parliament”.

When several journalists and commentators pointed this out, the DA decided to gaslight voters and journalists by claiming there was no contradiction between the party’s position before and after Sona.

Channelling his inner Lindiwe Sisulu, DA MP Ghaleb Cachalia even accused journalists of spreading disinformation about the DA’s position, and demanded that these journalists apologise to the DA.

Luckily I need not say more about this bizarre attempt to deny reality, as Ivo Vegter, who is sympathetic to the DA, explains it in sufficient detail in an opinion piece published in The Daily Friend, the online newspaper of the ironically named “Institute of Race Relations”.

I find myself — for once — in agreement with Vegter that the DA scored a serious own-goal with its gaslighting. Sadly, this is yet another, and entirely preventable, example of what Prof Somadoda Fikeni memorably described as the DA’s tendency to “mutilate itself in a corner, unprovoked”.

Conjuring up every drop of interpretative charity available to me, let me assume that the DA really did not say what it said in their pre-Sona press statements, or perhaps that it did not realise what the consequences of its original proposal would be.

Taking the proposal at face value, I will now try and explain why the DA’s proposal for a “ring-fenced intervention” (as Steenhuisen renamed the DA’s position in an interview with News24) that would allow for robust parliamentary scrutiny and oversight, may be both unworkable, and unconstitutional.

In his News24 interview, Steenhuisen suggested that the DA supported a ring-fenced State of Disaster/intervention which would focus “on specific aspects of the energy crisis to mitigate its effects and address structural shortcomings to end it”.

This could include the scrapping of “tax levies for Eskom for the purchase of diesel or exempting Eskom from certain labour legislation or removing the red tape preventing alternative energy sources from entering the grid quickly”. (To be fair, similar suggestions have been made by more than one commentator expressing qualified support for the declaration of the State of Disaster.)

The DA leader further suggested that this could be done through non-constitutional measures such as presidential and ministerial directives, as well as legislation in terms of section 44 (2) of the Constitution. The DA has also proposed the creation of a National Assembly ad hoc committee to oversee the implementation of these measures and to hold the executive accountable.

The first problem with this proposal is that much of what is proposed would be unconstitutional and invalid. As a start, presidential or ministerial directives cannot be used to exempt Eskom and other entities involved in the generation or distribution of electricity (or anyone else, for that matter) from obligations imposed on them by legislation — even if Parliament attempts to delegate this power to the president or approves the directives.

This is so, not only because it would be in breach of the separation of powers doctrine, but also because it would be in breach of the provisions of the Constitution prescribing the procedures to be followed for the valid adoption or amendment of legislation.

For example, the only way to exempt Eskom from certain labour legislation is for a bill amending the relevant legislation to be tabled in Parliament, and then for Parliament to adopt that legislation after following the procedures prescribed in section 75 or 76 of the Constitution. (This process usually takes between six months and two years to complete.)

The scrapping of tax levies on the purchase of diesel by Eskom runs into a similar problem, except that section 77 of the Constitution imposes additional procedural constraints on the adoption of money bills (which includes bills that impose or abolish national taxes, levies, duties or surcharges).

Of course, after the minister of finance tables his budget next week, MPs (including DA MPs) may propose amendments to the budget, including by proposing the scrapping of levies imposed on the purchasing of diesel by Eskom, as long as they follow the complicated procedures prescribed in the Money Bills Amendment Procedure and Related Matters Act of 2009, and as long as such an amendment is supported by a majority of MPs.

Where red tape is caused by regulations or directives issued by a relevant minister (and where these regulations could be scrapped without falling foul of the primary legislation), they could be repealed by the self-same minister. However, Parliament does not have the power to instruct a minister to repeal regulations, but MPs sitting on the relevant portfolio committee can hold a minister to account as they see fit.

But by far the most embarrassing aspect of the DA’s proposal — far more embarrassing than its flip-flopping and its tortured attempts to argue it did not flip-flop — is its suggestion (amplified on Monday by Cilliers Brink, the DA “shadow minister” for cooperative governance and traditional affairs), that a set of disaster measures could be brought to Parliament “as allowed by section 44(2) of the Constitution” to deal with the problem.

When I first read this, I fleetingly considered the possibility that Steenhuisen and Brink had sought legal advice on the matter from suspended Public Protector, Busisiwe Mkhwebane and her current legal team.

To understand just how uninformed and misguided this suggestion is, one has to understand that section 44(2) of the Constitution only grants powers to the national Parliament to adopt legislation on the short list of topics over which the Constitution grants provincial legislatures or municipal council exclusive jurisdiction.

Section 44(2) allows the national Parliament to intervene and pass legislation that trumps the legislation passed by provincial legislatures or municipal councils on the listed topics, but only when it is necessary to “maintain national security; economic unity; essential national standards; to establish minimum standards required for the rendering of services; or to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole”.

Now for the punch-line. The most important topics listed in schedule 5 (over which provinces have exclusive competence and to which section 44(2) would apply) are abattoirs, ambulance services, provincial archives, provincial libraries, liquor licences, provincial museums, provincial planning and cultural matters, provincial sport, and provincial roads and traffic.

The most important topics over which municipal councils have exclusive competence are beaches and amusement facilities; cemeteries and funeral parlours; fencing and fences; licensing of dogs; markets, noise pollution; street trading; street lighting, and traffic and parking.

It is difficult to imagine that any aspect of the Eskom crisis was caused by provincial legislatures or municipal councils passing legislation or by-laws on any of the topics listed in schedule 5. (To pre-empt claims by members of the blue troll army that I am guilty of spreading disinformation, let me suggest, only somewhat tongue in cheek, that the exclusive power of municipalities to regulate street lighting may be the one exception.)

It is all rather depressing, and not only because it would be good for the country if the official Opposition (and other opposition parties) acted in ways that enhanced its credibility and legitimacy, instead of shooting itself in the foot at every opportunity it gets.

The theory here is that the more effective and credible opposition parties are, the more competitive elections are likely to become, and the more competitive elections become, the more power voters have, and are perceived to have, to hold the governing party accountable.

But it is also depressing because what the DA proposals also illustrate is that there are no quick-fix solutions for the electricity crisis. The politicians who tell voters otherwise are lying and they must surely know this. Such politicians potentially pose a threat to our democracy.

When large numbers of citizens embrace the kind of magical thinking that allows them to ignore the facts, the science, and everything else, and makes them believe that the party of their choice will make the impossible happen, they inadvertently prepare the ground for the takeover of our democracy by populist and/or fascist political parties.

News that the National Executive Committee (NEC) of the ANC has urged the ANC government to declare a National State of Disaster to address the energy crisis (a crisis created by the self-same ANC government) has – predictably – been met with extreme scepticism and even outrage.

While there are good reasons to be sceptical about this proposal, this is not primarily because there is any chance that the government will use its disaster management powers to ban Woolies chicken or the sale of alcohol, or to impose other restrictions of the kind imposed during the Covid-19 crisis(as some commentators have suggested), but rather because a declaration of a State of Disaster will largely be meaningless as it will not grant the government the kind of additional powers that would allow it to circumvent their existing legal obligations.

In any event, it is far from clear that a declaration of a State of Disaster to deal with the energy crisis will be lawful.

This is because such a declaration may not meet the legal requirements for the declaration of a national disaster, as set out in the Disaster Management Act. In terms of the Act, a national disaster may be declared in narrow circumstances in order to deal effectively with a disaster. The Act defines a “disaster” as a:

progressive or sudden, widespread or localised natural or human-caused occurrence which causes or threatens to cause death, injury or disease; damage to property, infrastructure or the environment; disruption of the life of a community; and is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.

While this definition is quite broad, and on a generous reading may thus apply to the Eskom crisis, reading the Act holistically, it is at best unclear whether it applies to a situation where the “disruption of the life of the community” was caused by many years of government mismanagement, corruption and incompetence and could only be fixed by addressing government mismanagement, corruption and incompetence.

This view is bolstered by the fact that section 2(1)(b) of the Act makes clear that the Act does not apply to situations where the “disaster” can be “dealt with effectively in terms of other national legislation aimed at reducing the risk, and addressing the consequences of an occurrences of that nature”.

I would argue that the Act was not meant to address the kind of systemic governance failures that caused the ongoing energy crisis and makes it close to impossible to fix it, but rather to deal with unforeseen situations that could not be dealt with effectively by relying on the existing legislation.

In the case of Eskom, the problem is not that the government lacks the legal power to fix the problem, but rather that it has for many years lacked the political will to do so, and that it has not done its job to ensure that Eskom is run competently and free of serious corruption.

Put differently, the problem is linked to systemic governance failures over many years – something that cannot be fixed by declaring a State of Disaster and taking a few legal shortcuts.

In light of the above, a declaration of a State of Disaster to deal with the energy crisis may be vulnerable to legal challenge on the basis that the Disaster Management Act does not apply to the government-created load shedding crisis.

But if we assume for the moment that I am wrong, and that the declaration of a National State of Disaster to deal with the energy crisis will withstand judicial scrutiny, it is not clear such a move will empower the government to do more than it is currently doing to help fix the problem.

In fact, the declaration of a National State of Disaster may give no, or very few, additional powers to the government to deal with the crisis.

The mistake many commentators make is to assume that a declaration of a National State of Disaster to deal with the energy crisis will allow the government to wield as much additional power as it did during the Covid state of disaster. But the two situations differ markedly.

Most notably, unlike with the Covid crisis, the generation and distribution of electricity is extensively regulated by various pieces of legislation. What must be understood is that this legislation will remain in place and will remain binding on all. It is therefore misguided to believe that the declaration of a National State of Disaster will allow the government to bypass binding legislation to speed up the resolution of the energy crisis.

It is important to note that section 26(2)(b) of the Disaster Management Act makes clear that the national executive must deal with a national disaster in terms of existing legislation and contingency arrangements.

Where a National State of Disaster is declared, this can only be “augmented by regulations or directions” made in terms of the Act. But the government is not empowered to use such regulations and directions to take shortcuts to circumvent existing legislation. (This may in some cases be permissible if the government declares a state of emergency in terms of section 37 of the Constitution, but that is a different matter altogether.)

For example, the government would not be permitted to use the declaration of a National State of Disaster to circumvent the provisions of the National Energy Regulator Act of 2004 in order to undo electricity price increases adopted by Nersa. Similarly, it would not be able to circumvent the provisions of the Electricity Regulation Act of 2006, to speed up the allocation of electricity generating licences.

It has been suggested that the declaration of the National State of Disaster is necessary to make additional funds available to deal with the crisis. This is, of course, nonsense.

Nothing prevents the Minister of Finance from allocating additional funds for the energy crisis in the annual budget to be tabled on 22 February. It is certainly not necessary to declare a State of Disaster for him to be able to do so.

Moreover, section 16(1) of the Public Finance Management Act allows the Minister of Finance to authorise additional expenditure “which cannot, without serious prejudice to the public interest, be postponed to a future parliamentary appropriation of funds”.

Last, it has been suggested that the declaration of a State of Disaster will allow for a relaxation of the procurement rules to speed up vital Eskom procurement. But, once again, it is not necessary to declare a National State of Disaster to do so, as existing legislation already bestows a wide discretion on the Treasury to amend procurement rules.

Most notably, section 3 of the Preferential Procurement Act allows the Minister of Finance to exempt an organ of state such as Eskom, from the provisions of that Act if it is in the public interest to do so.

I would argue that the proposal to declare a National State of Disaster to deal with the energy crisis could, at best, be read as an act of desperation on the part of the governing party, based on a misreading of the powers such a declaration will bestow on the government.

At worst, it is a cynical public relations exercise to try to convince voters that the government is doing something about the crisis, knowing that it is impossible to fix the problem in the next year or two.

It is clear that some forms of cadre deployment are unconstitutional and invalid, and that carefully targeted court action challenging specific instances of such deployments may well be successful. But even this won’t solve South Africa’s endemic governance problems.

Last week the Gauteng High Court heard arguments in the DA’s case challenging the constitutionality of the ANC’s controversial cadre deployment policy — just one of the many recent cases in which political parties and other pressure groups have turned to the courts to deal with a myriad of government failures, including seemingly never-ending rolling blackouts, governance dysfunction, and endemic corruption at every level of government.

While some of these legal challenges may be successful, it would be a mistake to assume that court orders will be effective in fixing rolling blackouts and other governance failures, and in ending government corruption and nepotism.

This is not to say that strategic litigation may not sometimes be effective in checking specific cases of abuses of power, maladministration, and corruption, but rather that deeply embedded systemic failures are not going to be fixed by court orders alone.

The DA’s cadre deployment challenge is a case in point. Even if the DA wins its case and the court declares the ANC’s cadre deployment policy invalid (something that looks far from certain), it may not have a significant impact on the ability of the governing party and its allies to “deploy” selected loyalists into the civil service and other public entities.

Until the emergence of the State Capture narrative, public criticism of “cadre deployment” mostly emanated from people on the right of the political spectrum, sometimes accompanied by accusations that the policy reflected the Stalinist inclinations of the ANC.

It became a catch-all phrase, often used by economically (but no longer politically) powerful people anxious that the ANC would use its political power to transform society and state institutions in ways that would harm elite interests, and would entrench ANC dominance for generations to come while weakening the ability of opponents and critics of the party to “fight back”.

Given this particular history, I remain sceptical of the uncritical use of the term “cadre deployment” as a catch-all phrase to describe any attempts by the governing party and its leaders to influence the appointment of individuals to constitutional bodies, the civil service, and other public entities.

But there is no doubt that some forms of what is now sweepingly referred to as cadre deployment have had a devastating effect on the ability of the state to function effectively, and have played a pivotal role in facilitating corruption and State Capture.

And I must concede that I, for one, had previously underestimated the devastating impact that certain forms of cadre deployment (and abuses of the system) have had on the ability to govern cleanly and efficiently.

It is clear that some forms of cadre deployment are unconstitutional and invalid and that carefully targeted court action challenging specific instances of such deployments may well be successful.

This is so, first, because section 195(1)(i) of the Constitution requires that employment and personnel management practices in the public administration must be “based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation”.

Second, section 197(3) states that “no employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause”. Section 9(3) furthermore prohibits unfair discrimination on any ground, including on the grounds of ethnic or social origin, conscience, belief, culture, language and birth, which is also reflected in employment equity legislation applicable to the public administration.

Lastly, some forms of cadre deployment may also be unlawful and invalid because it would be in breach of either the legality principle or of the administrative law, including the principle that specific classes of decision-makers are not permitted to abdicate their responsibility by acting on the instructions of another person or body.

For example, in the case of Mlokoti v Amathole District Municipality, the Eastern Cape Division of the high court invalidated the appointment of the municipal manager because the Regional Executive Committee of the ANC instructed its members in the council not to appoint the best candidate for the job, but to appoint its preferred candidate instead, thus, as the court explained, usurping the power of the democratically elected council.

But these provisions of the Constitution (and applicable legislation) do not place an absolute ban on cadre deployment as broadly understood. For example, section 195(4) of the Constitution allows for “the appointment in public administration of a number of persons on policy considerations”, on the condition that such appointments are regulated by national legislation.

Moreover, section 197(1), which has often been invoked to justify certain forms of cadre deployment, requires the public service to “loyally execute the lawful policies of the government of the day”.

One reason for the inclusion of this provision in the Constitution was to allay fears of the incoming democratic government that members of the apartheid-era public administration (packed with National Party loyalists) would use their power to derail the implementation of the policies of the ANC government.

The Zondo Commission of Inquiry report into State Capture recognises that the latter provision “cuts both ways” and thus that a balance must be struck between the need to create a professional and non-partisan public administration, on the one hand, and the need to ensure that the administration loyally executes the lawful policies of the government of the day, on the other.

The report further suggests that there would be nothing wrong with requiring that appointees to the public administration have a good understanding of the policies of the governing party, be that the ANC, the DA or any other party that forms part of the government at any of the three spheres of government.

Some version of this kind of cadre deployment (if one can call it that) happens in both ANC and DA-controlled governments across South Africa, especially at more senior levels of the administration. It is not an accident that one would be hard-pressed to find a vocal and influential ANC or EFF member in the senior ranks of the provincial administration in the Western Cape, just as one will not find a vocal and influential DA member in the top echelons of the national administration.

Political parties in government also appoint their own in senior positions in the civil service to distribute patronage to party loyalists. Parties use this kind of patronage to buy loyalty and to attract ambitious new members to the party, which is why governing parties who lose power (and therefore access to patronage) often implode — which is one reason why the ANC in the Western Cape is only a shadow of its former self.

I also wonder if the reason the DA remained a relatively disciplined and coherent party until it lost electoral ground in 2019 is partly because these losses made clear that the party would not be in a position to gradually unlock more patronage opportunities to benefit loyal party members.

Some version of this kind of patronage politics happens in many democratic systems (although it is not usually branded as cadre deployment), and does not necessarily pose a great risk to the integrity of the system.

Moreover (and this is an important set of caveats), as long as the party or coalition of parties in government changes from time to time and as long as appointees are more or less equipped to do the jobs they have been appointed to do, the system is not egregiously unfair to citizens who wish to work and advance in the public administration.

If I am correct, the problems now widely associated with cadre deployment (endemic corruption, the collapse of service delivery, and the broader collapse of the state) cannot be fixed merely by invalidating the ANC’s cadre deployment policy. This is so because even in the absence of a cadre deployment committee, the party will continue to be able to exert an outsized influence on the appointment of individuals to the public administration and other public institutions — at least for as long as it retains its electoral dominance.

Because the party uses various forms of lawful and unlawful patronage to keep it in power and its allies and donors onside, the party must ensure that both the lawful and unlawful deployment practices continue as its survival depends on it.

The same holds true for regional or local power brokers within the party. Even if the national leadership of the ANC instructs its members in government to only appoint competent and honest individuals, it would not be in the interests of party leaders at lower levels of government to adhere to such an instruction.

In any event, the national leadership of the ANC has little influence over the practices of its allies and partners who perpetrate some of the most egregious and destructive forms of cadre deployment.

For example, a 2015 ministerial task team report on the selling of educator posts uncovered evidence of serious problems with the appointment of often underqualified or inept principals and other senior staff at some schools, particularly at schools where Sadtu has a strong presence.

While few of the cases uncovered by the task team involved the payment of bribes, the task team found evidence of collusion between union officials and government officials in the appointment of principals and other senior staff at some schools. These kinds of cadre deployments are devastating, but they won’t end if the ANC policy is declared invalid.

For all these reasons, even carefully selected court action may do little to address the endemic governance problems which are perhaps too simplistically linked to the abuses associated with the ANC’s cadre deployment policy.

What is required to even begin to fix the problem is for citizens to hold the ANC politically accountable for these failures at the ballot box and elsewhere.

The attempt by Jacob Zuma to privately prosecute Cyril Ramaphosa for failing to interfere in an internal National Prosecuting Authority matter raises broader questions about the potential abuse of private prosecutions by politically powerful or wealthy individuals.

As former president Jacob Zuma and his supporters have often pointed out, a decision to charge and prosecute an individual may cause serious harm, including to the reputation of the accused person.

If the accused is not a wealthy person and does not have access to unlimited funds from other sources to defend him or herself, they may also be financially ruined by the prosecution. Even if the case is later dropped, or if the accused is ultimately acquitted, it will not undo some of the harm caused.

The problem is well illustrated by the facts of the case of Nundalal v Director of Public Prosecutions KZN and Others (in a judgment of a full bench of the KwaZulu-Natal High Court).

In this case, Mr Nundalal was being privately prosecuted by a certain Mr Singh on charges of defeating the ends of justice and making a false statement. Seemingly, Mr Singh, a wealthy businessman, was using the private prosecution to avenge a previous court loss against the impecunious Mr Nundalal. The high court took a dim view of this abuse of the private prosecution process in the following terms:

Dragging the applicant, a man who cannot afford to pay his legal costs, through years of litigation, at costs to time, energy, expenses and most importantly, state resources are disproportionate to the alleged offences… Disappointingly his legal team has not dissuaded him from persisting with this debilitating exercise. Indulging the private prosecutor because he has the means to litigate is grossly unfair and disproportionate to its impact on the public purse, the allocation of state resources and the administration of justice.

Because decisions to prosecute or not to prosecute are open to abuse, the South African Constitution establishes an independent National Prosecuting Authority (NPA), and requires prosecutors to make decisions to prosecute or not to prosecute without fear, favour or prejudice, and in accordance with lawfully adopted policy directives, including a prosecution policy.

The current prosecution policy requires prosecutors to act in good faith when they make prosecutorial decisions, and reminds prosecutors that decisions whether or not to prosecute should “be taken with care, because it may have profound consequences for victims, witnesses, accused and their families”.

As the policy makes clear, a decision to prosecute should only be taken if “there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution”.

Section 179(5)(d) of the Constitution provides a further safeguard against abuse, by allowing the National Director of Public Prosecutions (NDPP) to review a decision to prosecute or not to prosecute after taking representations from the accused person, the complainant, or any other relevant person. (Of course, if the NDPP is not independent or honest, this provision can also be abused to facilitate political interference in decisions to prosecute or not to prosecute – as happened when the then acting NDPP dropped charges against Jacob Zuma back in 2009.)

The Constitutional Court explained in Corruption Watch NPC v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC that the independence of the NPA was pivotal in upholding the rule of law, pointing out that many criminals – especially those holding positions of influence – will rarely, if ever, answer for their criminal deeds, if the prosecuting authority is “malleable, corrupt or dysfunctional”.

There is also the danger that functionaries within that prosecuting authority would be unlawfully “pressured into pursuing prosecutions to advance a political agenda”.

While the NPA showed worrying signs of malleability, corruptibility and dysfunction during the Zuma years, unconstitutional and unlawful interference in its affairs preceded the election of Zuma as president of the country. The most glaring example was the decision of then president Thabo Mbeki to suspend Vusi Pikoli as NDPP after Pikoli decided to proceed with the arrest of the then police commissioner, Jackie Selebi, and to prosecute Selebi on corruption charges.

To make matters worse, president Kgalema Motlanthe subsequently decided to remove Pikoli from office (a decision that was almost certainly unconstitutional and invalid), despite the fact that Pikoli had done nothing to warrant such a removal.

But even at its most malleable, the NPA seldom instituted prosecutions for actions that do not constitute criminal offences, or where there was not sufficient evidence to provide a reasonable prospect of a successful prosecution.

Notably, in the many, many, legal challenges brought by Zuma to delay or end his own prosecution, he has never made a serious attempt to show that insufficient evidence exists to meet the “reasonable prospect of success” standard for prosecution.

But as the attempt by Zuma to prosecute Ramaphosa illustrates, private persons can also abuse the criminal justice system to advance a political agenda or their own personal or financial interests by launching a spurious private prosecution. Worryingly, in the case of private prosecutions, there are fewer safeguards in place to protect ordinary citizens from such abuses.

As I have pointed out before, on paper section 7 of the Criminal Procedure Act only allows for the private prosecution of individuals in narrowly defined circumstances. But in practice, these restrictions may not prevent the abuse of the system as intended.

First, while a private prosecution can only proceed once the NPA has refused to prosecute and has issued a nolle prosequi certificate, such a certificate does no more than simply confirm that the NPA had declined to prosecute the individual.

While our law is not entirely clear on this point, the NPA may believe that it is obliged to issue such a certificate when it declines to prosecute – even when the impugned act does not constitute a criminal offence, and even if there is no or little evidence to link the investigated individual to the alleged crime. (This is so despite the fact that a single judge held in Singh v Minister Of Justice And Constitutional Development And Another that the prosecuting authority is not obliged by the provisions of s 7(2) to issue a certificate.)

Ramaphosa’s case illustrates why the NPA should not issue nolle prosequi certificates in cases where the alleged acts do not constitute a criminal offence. Recall that Zuma is attempting to prosecute Ramaphosa for not committing a criminal offence as he is claiming to want to prosecute Ramaphosa for failing to launch an inquiry into the conduct of the NPA and of Billy Downer. This is despite the fact that the National Prosecuting Authority Act prohibits such interference.

While the act does allow the president to establish an inquiry into the fitness of the NDPP to hold office, launching any other inquiry would amount to improper interference with the carrying out or performance of its powers, duties and functions. Section 32(1)(b), read with section 41(1), makes it clear that this would constitute a criminal offence.

Second, as Professor Jamil Mujuzi pointed out in an article titled “The history and nature of the right to institute a private prosecution in South Africa”, at present the Criminal Procedure Act “does not require that a private prosecutor should have a prima facie case against the accused before he may institute a private prosecution, and the high court has not questioned this position”.

In fact, in Solomon v Magistrate, Pretoria 1950 (3) SA 603 (T), the court suggested that the legislature “must have contemplated that private prosecutors might in many cases have weak grounds for prosecution”. This means that an individual may be subjected to a private prosecution even if there is little or no evidence to show that the accused committed a crime.

Third, the Criminal Procedure Act does not prescribe the form of summons for a private prosecution. However, as the high court noted in Nundalal (in theory at least), the clerk who issues a summons “must be satisfied that the private prosecutor complies with the requirement in s 7(1)(a) [of the Act] in that he has some substantial and peculiar interest in the trial and the personal injury he suffered arising from the commission of the offence which he seeks to prosecute”.

This requirement does provide some protection against abuse, but as the court noted in Nundalal, clerks have a “low-level discretion” when issuing a summons, which means that a summons may well be issued even when these requirements of section 7(1)(a) are clearly not met.

Last, it is at best unclear whether the accused person has a right to make representations before a private prosecution is instituted against them.

A person facing a frivolous or vexatious private prosecution has two options to limit the harm caused by such a prosecution.

First, when the accused is asked to plead, he or she could challenge the prosecutor’s title to prosecute on the grounds that a valid a nolle prosequi certificate was not issued, or that the private prosecutor did not have some substantial and peculiar interest in the trial and had not suffered a personal injury because of the alleged crime.

Second, he or she could approach the court for an interdict to stop the unlawful prosecution – as Ramaphosa did. The second option may not be available to individuals with limited funds to pay for legal representation.

But as I pointed out earlier, these options may only partially undo the harm caused by a frivolous or vexatious private prosecution.

One way to address this problem would be to require the private prosecutor to obtain permission from the high court before a summons could be issued. As Mujuzi points out, this used to be the position in South Africa before the legislature intervened, as a private prosecution could only be instituted once the high court had established that the private prosecutor had a prima facie case against the accused.

I would add additional requirements, namely that the court must not issue permission if, in its view, the prosecution is frivolous, vexatious, or brought with an ulterior purpose.

Sadly, even if the law is amended as suggested, unscrupulous private parties and their unscrupulous lawyers may still try to abuse the system by approaching the court for permission to pursue a private prosecution against a political opponent or financial rival, despite the fact that they know that there is no prospect that such permission would be granted.

On Tuesday 13 December 2022 members of the National Assembly will vote on whether to proceed with a full inquiry into the possible impeachment of President Cyril Ramaphosa. Because the ANC occupies 230 of the 400 seats in the NA, the vote is likely to favour Ramaphosa.

ANC MPs have a long and lamentable history of shielding its presidents from accountability by the National Assembly (NA), and in recent weeks several commentators have preemptively lambasted ANC MPs for planning to protect President Cyril Ramaphosa in the same way they, for many years, protected a constitutional delinquent and scoundrel like Jacob Zuma. (ANC MPs voted against several motions of no confidence in Zuma, and also voted against an impeachment motion against him.)

While there are some exceptions (the Standing Committee on Public Accounts does relatively well in holding members of the executive accountable, despite the fact that a majority of its members are from the ANC), ANC MPs also tend to be less robust than members of opposition parties in holding other members of the Cabinet accountable to the NA.

Ironically, the bitter factional battles inside the ANC, and the failure of Ramaphosa to snuff out dissent within the party (he is not nearly as ruthless a politician as Zuma), have probably been good for accountability, as rebel MPs have used their power to embarrass members of the Cabinet aligned to an opposing faction.

But it is not surprising that ANC MPs protect their leader, and are likely to do so again on Tuesday — no matter how bad the leader is. In fact, the entire system makes it very difficult for MPs from a governing party to hold members of the executive (and thus senior party members) to account.

As I have written before, ANC MPs (but also MPs from other parties) are subject to strict party discipline and if they are instructed to toe the party line and do not, they run the risk of losing their seat and hence a well-paying job.

In United Democratic Movement v Speaker of the National Assembly (the secret ballot judgment), the Constitutional Court recognised that MPs — especially MPs from the governing party — who are required to hold the president and Cabinet accountable might be torn between their obligation to follow the party line, on the one hand, and their obligation to hold the executive accountable, but rather optimistically held that “in the event of conflict between upholding constitutional values and party loyalty, [MPs’] irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.”

Because MPs are subject to strict party discipline and can lose their jobs if they follow their conscience (if any), ANC MPs were always going to vote to protect the president. This is why ANC MPs who on Tuesday vote to protect President Ramaphosa would almost certainly have done so even if the report of the independent panel was flawless, and even if Ramaphosa had not approached the Constitutional Court to have the report reviewed and set aside.

I would be surprised if even the handful of ANC MPs who have publicly sided with the State Capture faction of the ANC, and really want to get rid of Ramaphosa, will vote in favour of the motion. Why risk your job by standing up for your principles instead of following party orders when you can’t remember what those principles are or if you ever had any?

But I would think that the ANC MPs who vote to protect President Ramaphosa from accountability on Tuesday may have a much stronger case for following the party line than they would have had if the report of the independent panel had not been so badly drafted (Prof Jonathan Jansen might have exaggerated slightly when he wrote that if a group of his honours students had written the Phala Phala report, he would have failed all of them and barred them from future studies, but it is difficult to argue with the claim that the report is not up to the standard one would expect of a panel chaired by a former Chief Justice.)

Such ANC MPs might well argue that by voting to protect President Ramaphosa they are upholding both party loyalty and constitutional values. This is because a president can only be validly impeached if, as a matter of fact, the president made himself guilty of a serious violation of the Constitution or the law.

If the impeachment process goes ahead and the President is impeached, and the facts do not support a conclusion that the President was guilty of a serious violation of the Constitution or the law, the impeachment would be invalid. The Constitutional Court confirmed this in Economic Freedom Fighters and Others v Speaker of the National Assembly (the impeachment judgment), stating that:

A removal of the President where none of those grounds is established would not be a removal contemplated in section 89(1). Equally, a process for removal of the President where none of those grounds exists would amount to a process not authorised by the section.

The problem is that the panel’s report inexplicably failed to consider the quality and admissibility of the evidence, and then made things worse by not considering whether this evidence provides any proof that any breach of the Constitution or the law was of a serious nature.

To be fair, part of the problem is that the impeachment motion was brought prematurely, at a time when other investigations were still ongoing, and not all the evidence had been uncovered. Had the ATM waited for the Hawks and the Reserve Bank to complete its investigations, there may well have been a much stronger case to be made for impeachment.

This does not mean that ANC MPs will, in my view, have a leg to stand on if they protect the President from other forms of accountability or if they continue to block impeachment in the event that sufficient evidence of a serious violation of the Constitution or the law is uncovered.

One must remember that while impeachment is the most radical mechanism at the disposal of the NA to hold the president accountable, it is a mechanism that will seldom be available to the NA because there would seldom be sufficient evidence before it to conclude that the President is guilty of a serious violation of the Constitution or the law.

In such cases, the NA nevertheless has a constitutional duty to hold the President accountable. The most effective way to do so in the Phala Phala case would be for the NA to establish an ad hoc committee to look into the matter and to try and gather as much evidence as it can.

Such a committee would have vastly superior powers than the independent panel had, will be able to seek evidence and call witnesses to establish the facts. Such a committee would also have the power to request president Ramaphosa to testify before it, to submit all relevant documents to it, and to answer questions on the Phala Phala scandal in person. If the president refuses to do so, the committee would then be able to summon the president to force him to appear before it.

When announcing that the ANC NEC decided that ANC MPs should vote against the establishment of an impeachment committee, the NEC also said President Cyril Ramaphosa should still be held accountable for the allegations emanating from the Phala Phala robbery in other investigations. ANC MPs who take their accountability duties seriously should therefore insist that the NA launches its own investigation by establishing an ad hoc committee to look into the matter.

Moreover, if the impeachment motion is killed off in the vote on Tuesday, opposition parties will, for once, be able to do more than merely denounce the ANC MPs for protecting the president from accountability, by also demanding that the NA establish an ad hoc committee to look into the scandal and uncover the truth.

As such a committee will be established exactly to do what the independent panel was unable to do — to establish as many of the facts as possible — and as this will be the most effective way for the NA to hold the President accountable in the absence of sufficient evidence to start an impeachment process, such a call by opposition parties will in effect call the bluff of the ANC NEC, who surely do not actually believe that the president should be held accountable by anyone, least of all by its own MPs in the NA.

Moreover, as the ANC is never going to vote to impeach the leader of their party, no matter how serious his or her breaches of the Constitution and the law may be, an ad hoc committee process may well be more effective in holding the President accountable than the impeachment process, which will fail because of the ANC’s superior numbers in the NA.

I advance this proposal to establish an ad hoc committee to investigate the scandal because I worry that too many people do not realise that the choice before the NA is not as stark as they may think. The choice is not between accountability through impeachment, or no accountability at all.

One can, for the moment, hold the position that impeachment is premature and vote against the motion to proceed, while still insisting that the NA has a constitutional duty to hold the President accountable, and that the most effective way to do so would be by establishing an ad hoc committee with a mandate to investigate the matter and to call Rampahosa to account fully for what happened.

The report of the independent section 89 panel on whether sufficient evidence exists to warrant a full inquiry by an ad hoc committee of the National Assembly into whether President Cyril Ramaphosa committed serious violations of the Constitution or the law, or is guilty of serious misconduct, contains devastating ‘findings’ against the President. While there are significant leaps of logic in the report (arguably making it vulnerable to judicial review), it does not necessarily mean that the President has no case to answer.

Arguably the most damaging aspect of the Phala Phala panel report is its conclusion that the President has a case to answer on the origins of the foreign currency that was stolen, as well as the underlying transaction for it.

The President claimed that the stolen money was the proceeds of the sale of 20 buffaloes to Mr Mustafa Mohamed Ibrahim Hazim, a citizen of Sudan, and furnished the panel with “an acknowledgement of receipt” as proof, but the panel concluded that there was substantial doubt that this was true.

This conclusion is not surprising.

As the panel pointed out, it is odd that a foreign national would rock up at Phala Phala without making prior arrangements to view the animals with more than $500,000 in foreign currency on hand, would be given an “acknowledgement of receipt” that contained no particulars of the buyer “such as his physical address, telephone numbers, business address, and other personal details such as his passport number”, and would make no arrangements to collect the buffaloes he had bought more than two-and-a-half years ago. It is also odd that the money was not kept in a safe, but was rather stuffed in a sofa where it was kept for well over a month.

The second truly damaging conclusion reached by the panel is that president Ramaphosa exposed himself to a situation involving a conflict between his official responsibilities and his private interests, most notably by seeking assistance from the president of Namibia to apprehend the suspects of the theft and to keep the matter quiet.

The panel also quoted from a confidential report of the Namibia Commissioner of the Criminal Investigation Department (dated 21 June 2020) which stated that discussions about the theft “are allegedly going on between the country’s two Presidents”, and noted that “due to the sensitivity of the matter and the envisaged fallout it will create in South Africa [the South African authorities] requested that the matter is handled with discretion”.

(It must be noted that the panel seemed to have accepted without question that the Namibian Report was genuine and that the claims made in it were true, despite the fact that the report was furnished by the former head of the South African State Security Agency, Mr Arthur Fraser, whose credibility is not beyond reproach.)

On the other hand, I find the panel’s conclusion that there is prima facie evidence that the President violated section 34(1) read with section 34(2) of the Prevention and Combating of Corrupt Activities Act by not reporting the theft to a police official in the Directorate for Priority Crime Investigation (known as the Hawks), unpersuasive. Section 34(1) required the President, as a member of the Phala Phala closed corporation, to report the theft, or “cause such knowledge or suspicion to be reported” to the police official in the Directorate for Priority Crime Investigation.

The panel held that it was “common cause that the President reported the housebreaking and theft to General Rhoode” and that he “expected the General to process the report in accordance with police procedures”. The panel also noted that given “the high rank in the police hierarchy that these senior police officers hold, we can assume they knew that theft which involves such a huge amount had to be reported to the police official in the Directorate for Priority Crime Investigation”.

On the panel’s own version of events, the failure lies with General Rhoode and not with the President, who expected the general to report the matter in “accordance with police procedures”.

Apart from the above, the major weakness of the panel report is that it does not deal adequately with the question of whether any breaches of the Constitution or the law or any misconduct were of a serious nature. As the panel noted, “not every violation of the Constitution or the law, or misconduct constitutes a ground for impeachment and removal from office”. Only serious violations justify impeachment.

The rules of the National Assembly define serious misconduct as “unlawful, dishonest or improper behaviour performed by the President in bad faith”, and a serious violation of the Constitution or the law, as “behaviour by the President amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith”.

This means that the question of whether the President had acted in bad faith and with the necessary intention, is crucial in determining whether grounds for impeachment exist. Where the President acts in breach of the Constitution, where the relevant provision of the Constitution is reasonably open to different interpretations.

The panel argued that “bad faith can be inferred from the nature and the circumstances surrounding the violation of the Constitution or the law and misconduct”. But it seemed to have accepted that what matters is whether the allegations are serious, and that it was not necessary to consider whether the President had the intention to violate the Constitution or the law or commit misconduct.

Had it done so, it may well have concluded that receiving foreign currency from an unexplained source, and using the position as Head of State to keep the theft secret and to persuade the government of Namibia to do so as well, amounts to serious violations or misconduct. (But it would have strengthened the panel’s report if it had identified the applicable criminal provisions that may have been breached.)

But its failure to do so casts doubt on at least one of its other conclusions, namely that the President may have committed a serious violation of the Constitution by running the Phala Phala game farm, because by doing so he had undertaken “other paid work” in breach of section 96(2)(a) of the Constitution. The panel noted that the term “other paid work” is not defined in the Executive Ethics Code. Nor have our courts provided a definitive definition of this term. The panel also held — correctly in my view — that the term should be interpreted expansively to cover “all work for financial gain or reward whether as employees or self-employed”.

President Ramaphosa argued that he had declared his interest in Phala Phala and that he was not getting paid for his work, and that section 96(2)(a) therefore did not apply. While he may well be wrong about this, the fact that he declared this interest and that there is no definitive definition of the term, means that it would be difficult to argue that there is evidence that the President’s actions in this regard amount to an intentional or malicious violation of the Constitution or the law performed in bad faith.

If the President’s lawyers advise him that the report is not beyond reproach, the President may be tempted to approach the courts to have the panel report reviewed as set aside on the grounds of legality. As all exercises of public power are, in principle, reviewable by our courts, and as the report was prepared in accordance with the rules of the National Assembly as authorised by the Constitution, the report may well be reviewable. Given the weaknesses in the report, it is not inconceivable that such a review may be wholly or partially successful.

Even if such a review is eventually unsuccessful, it may delay the President’s day of reckoning for two or three years, allowing his less principled supporters to invoke a non-existent version of the sub judice rule to argue that the many grave questions about the President’s conduct should only be discussed once the courts have finalised the matter. (Jacob Zuma and Busisiwe Mkhwebane have shown just how effective such a strategy can be.)

But none of this may matter much. Even if the panel’s report is set aside, the questions about where the foreign currency came from, why it was stuffed in a couch and its theft kept secret, and what President Ramaphosa may or may not have asked his Namibian counterpart to do, will not go away. The only way to make the questions go away is to provide a detailed and honest explanation, supported by the evidence of others involved in the matter as well as any relevant documents, something (as the panel noted) the President has not yet done.

An impeachment inquiry by an ad hoc committee of the National Assembly would be the perfect place to do so. Of course, such an inquiry would be disruptive and would provide a platform for opposition parties to shout their indignation to the heavens. But if the President has nothing to hide, he would be wise to jump at the opportunity to clear his name before such an ad hoc committee.

The obvious alternative is to resign as President of the ANC and the country.

It should have come as no surprise that the Supreme Court of Appeal earlier this week confirmed that the granting of medical parole to former president Jacob Zuma by the erstwhile Commissioner of Correctional Services, Arthur Fraser, was unlawful and invalid because Zuma did not meet the medical criteria for the granting of this kind of parole.

Although the Supreme Court of Appeal (SCA) did not mention this, Zuma had in effect admitted there were no valid medical grounds to release him on medical parole, when he denied at a media briefing last month that there was anything seriously wrong with his health.

Zuma bristled when he was asked at the briefing whether his alleged health problems did not disqualify him from standing for a leadership position in the governing ANC:

What’s wrong with the health… just tell me, what’s wrong with the health? Looking at me, am I in the bed lying in a hospital?

With this statement, Zuma seemed to confirm the findings of the independent report of the Medical Parole Advisory Board — a panel consisting of 10 medical doctors — that he did not comply with the requirement in section 79(1)(a) of the Correctional Services Act which states that:

Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care.

The SCA confirmed this week in its judgment in National Commissioner of Correctional Services and Another v Democratic Alliance that medical parole can only be granted if the Medical Parole Advisory Board confirms that the prisoner is either terminally ill or physically incapacitated.

Medical parole cannot be granted on the say-so of the prisoner, his doctors or his legal representatives. Nor is the Commissioner of Correctional Services — normally not a medical practitioner — permitted to second-guess the finding of the board, as Arthur Fraser did with Zuma.

As the SCA pointed out, before the Correctional Services Act was amended in 2011, there was no Medical Parole Advisory Board; the Commissioner had the sole power to decide whether a medical condition was one that qualified in terms of the act for the granting of medical parole.

As the SCA pointed out: “This was open to abuse, as there was no provision for an independent medical opinion to verify the diagnosis by the inmate’s treating doctor”. Not only was it open to abuse, it was abused — at least in the case of Schabir Shaik.

Readers might recall that the act was amended after the controversy surrounding the release of Schabir Shaik on medical parole on 3 March 2009.

It was claimed at the time that Shaik, who had just started serving his 15-year prison sentence for being in a “mutually symbiotic” corrupt relationship with Jacob Zuma and for soliciting a bribe on Zuma’s behalf from a French arms company, was being released to allow him “to die a dignified death” because he was in the last stages of a terminal illness.

Shaik was released from prison less than a week after Zuma, who was then the president of the ANC and would soon be elected president of the country, had said publicly that as national president he would pardon Shaik on medical grounds. Of course, Shaik is still alive and well today, more than 5,000 days after his release.

Zuma will almost certainly approach the Constitutional Court to ask for leave to appeal against the judgment of the SCA. Assuming that leave to appeal will be refused because there is little prospect that the appeal will be successful, Zuma will have to go back to prison.

As the SCA explained, the invalidation of the medical parole means that: “Mr Zuma’s position as it was prior to his release on medical parole will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Escourt Correctional Centre to do so.”

Here, the SCA is merely confirming the well-established position that when a court invalidates a decision, it is as if the decision was never taken, with the situation returning to what it was on the day on which the decision was taken — unless a court explicitly rules otherwise.

This means that in terms of calculating the length of his remaining sentence, Zuma is now in the exact position he was in on the day he was unlawfully released on parole.

The legal position is, therefore, that Zuma has only served two months of his 15-month prison sentence. He will have to serve approximately two more months in prison before he would qualify for release on ordinary parole or correctional supervision.

This is because section 73(6)(aA) of the Correctional Services Act states that offenders serving a sentence of less than 24 months “may not be placed on parole or day parole until such offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, a quarter of the sentence”.

Because the SCA declined to express an opinion on whether the time spent by Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration, some of his supporters wrongly interpret the decision as giving the Commissioner of Correctional Services an unfettered discretion to allow Zuma not to serve the rest of his sentence.

But, as the SCA made clear, the commissioner can only do what he or she is legally empowered to do in terms of the relevant legislation.

As the relevant legislation prohibits the release of an offender serving a sentence of less than 24 months before an offender has served at least a quarter of their sentence, this must mean that once Zuma has served a quarter of his sentence, the commissioner will be able to consider any application for parole, and at this point the commissioner may arguably take into account the time spent by Zuma on unlawfully granted medical parole.

Whether this would favour Zuma or count against him when he applies to be released on parole, remains an open question.

I have not been able to find any other provisions in the Correctional Services Act that would allow the commissioner to deduct the period in which Zuma was on invalidly granted medical parole from his overall sentence.

Had Parliament not amended the Correctional Services Act in 2011 in an attempt to limit the abuse of medical parole (at a time when Zuma was serving his first term as president of the country), the SCA might not have been in a position to invalidate the sham medical parole.

This is because, before 2011, the act did not provide for a mechanism to test the veracity of claims made by the prisoner’s physician that the offender suffered from a terminal illness. One would normally expect physicians to act in the best interest of their patient, without making claims about their health that may not be true.

However, in the present case, Zuma’s personal physician, Dr QSM Mafa from the South African military, as well as the Surgeon General, had supported the application for medical parole.

Dr Mafa seemed to have done so by making claims about Zuma’s health that may not have been entirely accurate.

As the SCA noted, Mafa responded to the question of whether the offender suffered “from a terminal disease or condition” by answering “yes”, a claim that was obviously not true.

This raises questions about the reliability of medical certificates provided by members of the SANDF medical services in other court proceedings, as well as to the Zondo Commission of Inquiry, about Zuma’s health where he sought to be excused from proceedings on grounds of ill health.

It will be interesting to see how credible courts will consider future sick notes of this kind to be.

Hopefully, SANDF doctors who treat Zuma will in future continue to provide him with the best medical care available, while making sure that they do not imperil their own future by making claims about his health that may not be factually accurate.

It should have come as no surprise that the Supreme Court of Appeal earlier this week confirmed that the granting of medical parole to former president Jacob Zuma by the erstwhile Commissioner of Correctional Services, Arthur Fraser, was unlawful and invalid because Zuma did not meet the medical criteria for the granting of this kind of parole.

Although the Supreme Court of Appeal (SCA) did not mention this, Zuma had in effect admitted there were no valid medical grounds to release him on medical parole, when he denied at a media briefing last month that there was anything seriously wrong with his health.

Zuma bristled when he was asked at the briefing whether his alleged health problems did not disqualify him from standing for a leadership position in the governing ANC:

What’s wrong with the health… just tell me, what’s wrong with the health? Looking at me, am I in the bed lying in a hospital?

With this statement, Zuma seemed to confirm the findings of the independent report of the Medical Parole Advisory Board — a panel consisting of 10 medical doctors — that he did not comply with the requirement in section 79(1)(a) of the Correctional Services Act which states that:

Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care.

The SCA confirmed this week in its judgment in National Commissioner of Correctional Services and Another v Democratic Alliance that medical parole can only be granted if the Medical Parole Advisory Board confirms that the prisoner is either terminally ill or physically incapacitated.

Medical parole cannot be granted on the say-so of the prisoner, his doctors or his legal representatives. Nor is the Commissioner of Correctional Services — normally not a medical practitioner — permitted to second-guess the finding of the board, as Arthur Fraser did with Zuma.

As the SCA pointed out, before the Correctional Services Act was amended in 2011, there was no Medical Parole Advisory Board; the Commissioner had the sole power to decide whether a medical condition was one that qualified in terms of the act for the granting of medical parole.

As the SCA pointed out: “This was open to abuse, as there was no provision for an independent medical opinion to verify the diagnosis by the inmate’s treating doctor”. Not only was it open to abuse, it was abused — at least in the case of Schabir Shaik.

Readers might recall that the act was amended after the controversy surrounding the release of Schabir Shaik on medical parole on 3 March 2009.

It was claimed at the time that Shaik, who had just started serving his 15-year prison sentence for being in a “mutually symbiotic” corrupt relationship with Jacob Zuma and for soliciting a bribe on Zuma’s behalf from a French arms company, was being released to allow him “to die a dignified death” because he was in the last stages of a terminal illness.

Shaik was released from prison less than a week after Zuma, who was then the president of the ANC and would soon be elected president of the country, had said publicly that as national president he would pardon Shaik on medical grounds. Of course, Shaik is still alive and well today, more than 5,000 days after his release.

Zuma will almost certainly approach the Constitutional Court to ask for leave to appeal against the judgment of the SCA. Assuming that leave to appeal will be refused because there is little prospect that the appeal will be successful, Zuma will have to go back to prison.

As the SCA explained, the invalidation of the medical parole means that: “Mr Zuma’s position as it was prior to his release on medical parole will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Escourt Correctional Centre to do so.”

Here, the SCA is merely confirming the well-established position that when a court invalidates a decision, it is as if the decision was never taken, with the situation returning to what it was on the day on which the decision was taken — unless a court explicitly rules otherwise.

This means that in terms of calculating the length of his remaining sentence, Zuma is now in the exact position he was in on the day he was unlawfully released on parole.

The legal position is, therefore, that Zuma has only served two months of his 15-month prison sentence. He will have to serve approximately two more months in prison before he would qualify for release on ordinary parole or correctional supervision.

This is because section 73(6)(aA) of the Correctional Services Act states that offenders serving a sentence of less than 24 months “may not be placed on parole or day parole until such offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, a quarter of the sentence”.

Because the SCA declined to express an opinion on whether the time spent by Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration, some of his supporters wrongly interpret the decision as giving the Commissioner of Correctional Services an unfettered discretion to allow Zuma not to serve the rest of his sentence.

But, as the SCA made clear, the commissioner can only do what he or she is legally empowered to do in terms of the relevant legislation.

As the relevant legislation prohibits the release of an offender serving a sentence of less than 24 months before an offender has served at least a quarter of their sentence, this must mean that once Zuma has served a quarter of his sentence, the commissioner will be able to consider any application for parole, and at this point the commissioner may arguably take into account the time spent by Zuma on unlawfully granted medical parole.

Whether this would favour Zuma or count against him when he applies to be released on parole, remains an open question.

I have not been able to find any other provisions in the Correctional Services Act that would allow the commissioner to deduct the period in which Zuma was on invalidly granted medical parole from his overall sentence.

Had Parliament not amended the Correctional Services Act in 2011 in an attempt to limit the abuse of medical parole (at a time when Zuma was serving his first term as president of the country), the SCA might not have been in a position to invalidate the sham medical parole.

This is because, before 2011, the act did not provide for a mechanism to test the veracity of claims made by the prisoner’s physician that the offender suffered from a terminal illness. One would normally expect physicians to act in the best interest of their patient, without making claims about their health that may not be true.

However, in the present case, Zuma’s personal physician, Dr QSM Mafa from the South African military, as well as the Surgeon General, had supported the application for medical parole.

Dr Mafa seemed to have done so by making claims about Zuma’s health that may not have been entirely accurate.

As the SCA noted, Mafa responded to the question of whether the offender suffered “from a terminal disease or condition” by answering “yes”, a claim that was obviously not true.

This raises questions about the reliability of medical certificates provided by members of the SANDF medical services in other court proceedings, as well as to the Zondo Commission of Inquiry, about Zuma’s health where he sought to be excused from proceedings on grounds of ill health.

It will be interesting to see how credible courts will consider future sick notes of this kind to be.

Hopefully, SANDF doctors who treat Zuma will in future continue to provide him with the best medical care available, while making sure that they do not imperil their own future by making claims about his health that may not be factually accurate.