David meets the Queen

Professor David McQuoid-Mason, Chair of Street Law SA, recently met the Queen at a Reception for Heads of Commonwealth Organisations at St. James Palace, London on 27 October 2015, prior to the Commonwealth Heads of Government Meeting (CHOGM) in Malta. The function was held by the Queen to thank the Commonwealth organisations for supporting her and the Commonwealth.

For the occasion McQuoid-Mason wore what he calls his ‘Mandela jacket’ designed by Lindiwe Khuzwayo of Durban, which was in colourful contrast to the dark suits worn by the other male participants and attracted the eye of the Queen.

Queen's Reception Electronic Image 151027_CRCHOGMR_SID_1263

There are bigger things at stake than Nkandla


October 12 2014 at 10:43am
By Craig Dodds (iol.co.za) Comment on this story

The political climate is likely to get uglier unless a solution to the problem is found, writes Craig Dodds.

Nkandla is fast threatening to overtake the arms deal as the most investigated issue since 1994 – generating a plethora of official (and less official) reports in its wake, even as prospects of a resolution appear to recede.

It is already almost certain to end up before the Constitutional Court, following a parliamentary process mired in controversy from the start.Copy of 2667711

There are thus far five reports on Nkandla – those of the public protector, Special Investigating Unit, joint standing committee on intelligence and a Public Works task team, as well as President Jacob Zuma’s response to these.

Parliament’s ad hoc committee on the issue has asked a technical team to prepare a draft report for its members to consider, probably next week, before they submit a final report to the National Assembly on their findings and recommendations.

Chairman Cedric Frolick said he’d discuss extending the deadline (October 24) for the committee to complete its work.

But the committee consists of ANC members only, after the opposition parties represented on it withdrew, saying the ANC’s refusal to budge on any of the opposition proposals showed the governing party was hell-bent on producing a whitewash to exonerate Zuma.

The opposition parties are now preparing their own report, which they may release next week.

That will bring to seven the number of reports on Nkandla (if Zuma’s is included, though it’s more or less a summary of the first four).

All this comes as the country faces an economic crisis that makes the R216 million spent on Nkandla pale into insignificance.

Veteran former ANC MP Ben Turok was incredulous when he spoke to journalists this week about “the political climate”.

“Here’s the IMF reducing our growth prospects to 1.4 percent, for the fourth time, and we’re worrying about Nkandla? There’s a hell of a lot more money here that we’re going to lose,” Turok said.

“I watch the economy very carefully, and what I see is alarming… mining, manufacturing and agriculture, all three are stagnant, if not worse, all three.”

Everybody was “sick and tired” of Nkandla, Turok said.

Yet some of the institutions that are supposed to resolve situations where public money has been misspent have been rendered impotent by the political stalemate over the scandal.

Public Protector Thuli Madonsela’s report has been called into question by ANC members on the ad hoc committee, among others, and attacks on her credibility escalated this week with the delivery of a letter accusing her of “gross misconduct and incapacity” and asking Parliament to investigate and take “appropriate corrective measures”.

The Nkandla ad hoc committee has referred this submission back to Speaker Baleka Mbete, suggesting it be dealt with by the justice portfolio committee.

Meanwhile, Parliament’s report on Nkandla, following a process in which the ad hoc committee has thus far refused to call any witnesses to respond to the remaining unanswered questions stemming from the public protector and SIU’s investigations, is unlikely to satisfy anyone other than the ANC.

Frolick said this week the committee would deliberate on the draft report and, if there were “any gaps”, consider how to address them, but he would not commit to inviting any of the role players to Parliament to provide clarity.

The opposition parties’ alternative report, on the other hand, will have no formal status, having been produced outside the parliamentary process.

Chairman of the DA federal executive, James Selfe, said this week he had compiled a draft report on behalf of the opposition parties, which was being circulated for their approval.

He said he had tried to refer only to the existing reports, “particularly the parts where they concur”.

“We’re not making any assumptions – we do obviously draw some conclusions – but we’re just trying to say, on the basis of what was before that committee, this is the inescapable conclusion,” Selfe said.

One example was that Zuma had agreed, according to the public protector’s report, that he had asked for a larger cattle kraal at Nkandla and been willing to contribute to the costs, contradicting the ANC’s claims that the president was unaware of the details.

But Selfe admitted the opposition document would have no formal status and was “essentially a political report”.

The rules of Parliament do not allow for the production of minority reports.

The parties had had the option of remaining in the committee and having their views recorded in its final report, but this would have conferred legitimacy on the process, according to Selfe.

They would instead use the debate on the ad hoc committee’s report, when it is tabled for consideration by the National Assembly, to argue their case.

Given the ANC’s healthy majority, that will not change the outcome of the process, with the adoption of the ad hoc committee’s final report a foregone conclusion that, technically, will bring Parliament’s role in the matter to an end.

Waiting in the wings, however, is the probability of a Constitutional Court application by the opposition parties to have Madonsela’s remedial actions – including that Zuma should pay a reasonable portion of the costs of “non-security” items – enforced.

They are awaiting the outcome of another application, in the Western Cape High Court, relating to the enforceability of remedial actions contained in Madonsela’s report on the SABC’s appointment of Hlaudi Motsoeneng, among other issues.

It will be months, at least, before a Constitutional Court ruling settles the question at the bottom of the strife – whether Zuma must pay for some of the Nkandla costs as Madonsela said he should.

In the meantime, the “political climate” is likely to get a lot uglier, further sapping confidence in the country and its ability to focus on its economic problems.

It’s not clear at this stage how seriously the justice committee will take the complaint against Madonsela, given that a proper interrogation of the charges would involve calling her to Parliament to respond to criticisms of her report on Nkandla – something the ANC representatives on the ad hoc committee have been reluctant to do.

An inquiry into Madonsela’s fitness for office would inevitably require Parliament to pick over the Nkandla carcass yet again, just when it had tried to put the matter to rest.

But opposition parties are not going to allow it to drop off the agenda anyway, and the Concourt application will be another opportunity for them to mobilise public sympathy.

On top of that, the DA’s application for a review of the decision to drop arms-deal-related corruption charges against Zuma will add fuel to the fire in the coming months, while jockeying for position within the ANC in the lead-up to its National General Council next June will add to the noise.

The country is in for a very bumpy ride in the months to come, unless something gives in the meantime.

“People are sick and tired of the evasion of the solution. It’s a very sensitive issue which needs to be resolved,” Turok told reporters this week.

“I think all of us should try and be sensible and say, let’s find a way out. I don’t want to say he must now come and own up. I’m saying the country requires a solution. We must resolve this thing once and for all, and stop this haggling.”


Political Bureau

Protect the Public Protector

We, as a Law School, have a proud history of speaking out against violation of and threats to the rule of law. The Society of Law Teachers of Southern Africa (SLTSA) gave an undertaking to the TRC in 1997 that law schools would always protect the rule of law and  ensure that the foundational principles of our constitutional democracy not be undermined.

In order to protect institutions that have been set up to strengthen democracy, we are obliged to issue the following statement:

  1. The Constitution must be interpreted in a manner that advances the founding principles of democratic governance, accountability, responsiveness and openness.
  2. An independent, effective and functional Public Protector is vital if we are to attain this objective.
  3. Interpretations of the Constitution which advance short- term political and other parochial interests but undermine constitutional institutions cannot be countenanced.

We condemn in the strongest terms any attempt to undermine the office of the Public Protector; whether it be by members of the Executive, Members of Parliament, leading politicians or members of the public.

We wish to place on record the following:

  1. Section 181(2) of the Constitution requires the Chapter 9 institutions, which include the Public Protector and her office, to carry out their mandate ‘without fear, favour or prejudice’.
  2. Section 181(3) of the Constitution requires ‘other organs of state, through legislative and other measures to ‘assist and protect’ Chapter 9 institutions, including the Public Protector’s office, ‘to ensure the independence, impartiality, dignity and effectiveness of these institutions’.
  3. Section 237 requires all constitutional obligations to be performed diligently.
  4. The Public Protector submitted a comprehensive report after an exhaustive process into the upgrading of the Nkandla complex and concluded that the President and his family improperly benefitted and suggested remedial action.
  5. The findings of the Public Protector may only be reviewed by a court of law, and any review of her findings by the ad hoc Parliamentary committee, the MPs, the Ministerial task team, the Special Investigative Unit (SIU), an Individual Minister or any other body or person, would be contrary to the rule of law and unconstitutional.
  6.  Parliament is required to study the remedial action recommended by the Public Protector in her report in order to hold the relevant person accountable.
  7. It is not within the powers of Parliament to determine whether the Public Protector’s conclusions were correct or not.
  8. The report of the Public Protector is that of an independent constitutional institution and may not be treated as if it is of equivalent status to other reports on the Nkandla complex, compiled at the behest of the Executive or by agencies which report to the Executive.

We therefore call upon members of the Executive, the ad hoc Parliamentary committee, MPs and spokespersons for the ruling party to desist with immediate effect from making unconstitutional and ill-conceived attacks on the office of the Public Protector and her office and to implement her recommendations.

If the public would like to join the campaign to protect the public protector they can visit #tag.protect the public protector.

School of Law, University of KwaZulu-Natal,

Endorsed by the South African Law Deans Association (SALDA) and by the Society for Law Teachers in Southern Africa (SLTSA).

Provinces have final say on admissions – ruling

A provincial government has the final say on the number of pupils that can be admitted to a school, the Constitutional Court ruled yesterday, according to a BDlive report. ‘While the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level by the principal acting under the authority of the head of department,’ the court said in what the report says is seen as landmark judgment.

‘Where the need arises, section 5(9) provides a safety valve, which allows the MEC to consider admission refusals and overturn an admission decision taken at school level,’ the court ruled. The report notes the matter came to the Constitutional Court after Rivonia Primary School refused to admit a child to grade 1 when the parents applied in 2010 because the school was full. The Gauteng government instructed the school to admit the pupil, contrary to the school’s admission policy. The SCA found last year that the Gauteng government’s instruction to the school was unlawful, and that a school’s governing body had the authority to determine the school’s capacity. The judgment overturned a High Court decision, which held that the overall authority to determine school capacity rested with provincial education departments. The matter subsequently went to the Constitutional Court.

Acting Constitutional Court Judge Nonkosi Mhlantla wrote the majority judgment. She said: ‘The power of the governing body must also be understood within the broader constitutional scheme to make education progressively available and accessible to everyone.’

A report in The Times notes the court found against the Education Department head, saying he had not acted in a procedurally fair way by physically forcing the child into the class. Both parties were criticised for not working together in a spirit of ‘co-operative governance’. ‘Trouble starts when we become more absorbed in staking out the power to have the final say rather than in fostering partnerships to meet the education needs of children,’ the judge said. The chairman of Rivonia Primary’s governing body, Rickson Mboweni, said he was ‘disappointed’ by the ruling but pleased that all further actions of the department, when intervening in an admission dispute, had to be ‘procedurally fair’.

MEC for Education in Gauteng Province and Others v Governing Body of the Rivonia Primary School & Others for a full report.

Court blocks sex register listing

The recent court appearance of a 14-year-old boy who raped younger boys and stabbed a 12-year-old girl has put the spotlight on whether child offenders should be treated differently to adults. The case highlights the dilemma of weighing up the clashing rights of child sex offenders and their victims. The case came to the Cape Town High Court earlier this year on review from the magistrate’s court, which had found the boy guilty of raping three boys, aged six and seven, and of attacking the girl.

At the centre of the matter was whether he should be listed in the national register of sexual offenders. Two weeks ago, the high court found that the law prescribing that all sexual offenders be registered was unconstitutional.

A section of the Criminal Law (Sexual Offences and Related Matters) Amendment Act prohibits a court from taking into account whether the offence involved kissing or rape, and whether there was consent, and does not allow offenders to make representations as to why they should not be registered. The court gave parliament 18 months in which to amend the section and send it to the Constitutional Court for ratification. It said including a child’s name in the register had “far-reaching implications”, including stigmatisation, and affected the child’s rights to privacy and dignity.

Morgan Courtenay, a lawyer for the Centre for Child Law, which joined the case as an interested party, said one of the “severe” effects of being registered was that it limited employment opportunities. People listed on the register would not be allowed to work in the same environment as children, and in certain instances offenders have to disclose their convictions to employers. They might not be allowed to adopt children.

Though the aim of the register is to protect children and the mentally disabled from sex predators, Courtenay said children should not be treated like adults because they were still developing.

“Generally, they do not understand the consequences of their actions and should be treated differently to adults, who can differentiate between right and wrong,” he said, suggesting that the register be limited to adults.

Kenneth Klopper, the boy’s lawyer, agreed. He argued that children were not mentally or physically “on a par” with adults, which is why the law makes special provision for them, with a focus on rehabilitation.

Cecil Tsegarie, who represented Justice Minister Jeff Radebe , argued that the register should include all sex offenders.

Tsegarie said this extended to the boy because he had “readily admitted that he is a sexual predator of children in stating in his plea that he lusts for sex with children”.

But the high court found that the listing of a child in the register should be considered case by case.

Justice Department spokesman Mthunzi Mhaga said there were over 5000 offenders on the register, most of them adults.

Until the Constitutional Court rules, no child sex offender will be listed, Tsegarie said.

Click here for full Report: IVAN JOHANNES VS STATE High Crt Judgmnt

SANDF asks ConCourt to set aside liability finding

Published in: Legalbrief
Date: Thu 04 July 2013
Category: Litigation Issue No: 3309

The SA National Defence Force is asking the Constitutional Court to set aside the findings of the SCA and High Court that it can be held liable for an attack by a man using a weapon built from military gun parts, notes a Beeld reports. The basic parts of an R4 rifle were stolen from an army base outside Pretoria in 2001.

The gun was later ‘built’ with more parts stolen by a military chaplain, Jacob Motaung, from a military base in Middelburg, Mpumalanga. He passed on the parts to Vusi Mahlangu, who used them to rob and injure Leon von Benecke, from Bronkhorstspruit.

Von Benecke successfully sued the Minister of Defence for damages as Motaung was in the SANDF when the parts and ammunition were stolen. But SANDF head Solly Shoke now says in court papers addressed to Chief Justice Mogoeng Mogoeng that Von Benecke’s damages are too far removed from the theft committed by Motaung. The court, he says, should not accept a causal link between the thefts and Von Benecke’s injuries. Mogoeng is considering the application.

OHCHR 2012 Report

The 2012 Report of the United Nations Office of the High Commissioner on Human Rights has been released. The thematic issues dealt with include impunity and the rule of law and violence and security. It also contains a number of case studies on African countries in relation to torture and arbitrary detention.

The report is available at http://www2.ohchr.org/english/ohchrreport2012/web_en/allegati/downloads/1_Whole_OHCHR_Report_2012.pdf

Minister defends Legal Practice Bill Published in: Legalbrief Today

Category: Policy
Issue No: 3283

Justice and Constitutional Development Deputy Minister Andries Nel has refuted allegations that provisions in the Legal Practice Bill that seek to empower the Minister to appoint three members of the proposed Legal Practice Council out of a total of 21 are a deliberate move by government to control it, reports Legalbrief Policy Watch.

Reiterating government’s commitment to strengthening the independence, dignity, accessibility and effectiveness of the courts as part of the process of transforming the legal profession as a whole, Nel told the annual meeting of the Black Lawyers Association that ‘the untransformed state of the legal profession’ not only constitutes a ‘stumbling block’ to greater access to legal services and justice: it also impedes the further transformation of the judiciary.

While it will be the role of the Minister’s appointees to assist the council in its efforts to address this, they will not be in a position to drive the process. According to the Deputy Minister, ‘elites … who have done well under the current rules’ consider government attempts at transformation as ‘akin to … tyranny’, projecting themselves as victims. SA ‘s Constitution does not give an elite the right to carry out decisions ‘in an opaque way for their own benefit’, or to ‘permanently engage in … vices’ that prevent others from ‘ascending the ladders of the legal profession’, Nel said.
Full Legalbrief Policy Watch report

Immigration: SA still not dealing effectively with asylum seekers

SA attracts the largest number of asylum seekers in the world, but grants refugee status to very few, ranking only 36th in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58 000, notes an Irin report.

The Department of Home Affairs approved just 15.5% of the applications it processed in 2011, less than half the global average recognition rate of 38%, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualised assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

Source: LegalBrief

Ground-breaking court win for ‘separated’ children

The North Gauteng High Court has ordered that eight ‘separated’ minors be allowed to register for and attend public school. The issue arose after public schools were threatened with fines for allowing these children into school, according to the Refugee and Migrant Rights Programme.

‘Separated’ children have been refused entry into SA public schools over a lack of documentation and status because the Department of Home Affairs does not recognise them as dependents of their caregivers. ‘Separated’ children are defined as those separated from both parents, or from their previous legal caregiver.

After the Minister of Education and the Gauteng MEC for Education decided not to oppose the application, the court ordered that the Department of Education allow these minors to register for and attend public school. Lawyers for Human Rights attorney Neo Chokoe said: ‘This case is ground-breaking in that is has opened doors for many separated children who are unable to study because they are undocumented. The judgment is significant in that … applicants will be allowed to register in schools without permits.’

Education organisations said the effect of the judgment would be to place a greater burden on an already stretched public education system. Nomusa Cembi, of the SA Democratic Teachers Union, is quoted in Beeld as saying the Department of Education would now have to provide schools with teachers that can speak the languages of those learners.‘The learners will obviously attend schools that don’t charge school fees and the department would have to increase their subsidies.’

Fedsas deputy head Jaco Deacon said it was unfair for schools to deal with problems that would now arise, including catching up on work missed. SA Teachers Union head Chris Klopper said all schools had limited water, sanitation and safety resources, as well as teaching capacity. Schools’ obligations cannot continue to increase.

Source: Legalbrief