tag:theconversation.com,2011:/id/topics/constitutional-court-18019/articlesConstitutional Court – The Conversation2024-03-07T13:31:57Ztag:theconversation.com,2011:article/2249302024-03-07T13:31:57Z2024-03-07T13:31:57ZI watched Hungary’s democracy dissolve into authoritarianism as a member of parliament − and I see troubling parallels in Trumpism and its appeal to workers<figure><img src="https://images.theconversation.com/files/580025/original/file-20240305-20-3hi9y2.jpeg?ixlib=rb-1.1.0&rect=20%2C10%2C3431%2C2478&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump shakes hands with Hungarian Prime Minister Viktor Orbán during a meeting in the Oval Office on May 13, 2019, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-shakes-hands-with-hungarian-prime-news-photo/1148899659?adppopup=true">Mark Wilson/Getty Images</a></span></figcaption></figure><p><a href="https://www.reuters.com/world/hungarian-pm-orban-meet-trump-march-8-florida-2024-03-04/">Hungarian leader</a> <a href="https://www.gmfus.org/news/when-people-elect-strongman-rule">and strongman Viktor Orbán</a>, who presided over the radical decline of democracy in his country, is scheduled to meet with former President Donald Trump, now the presumptive GOP presidential nominee, at Trump’s Mar-a-Lago resort on March 8, 2024.</p>
<p>Orbán has been <a href="https://www.bbc.com/news/world-europe-67832416">Hungary’s prime minister</a> since 2010. Under his leadership, the country became the first nondemocracy in the European Union – an “<a href="https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/">illiberal state</a>,” as Orbán proudly declared. Trump expressed his admiration for Orbán and his authoritarian moves during their meeting at the White House in 2019.</p>
<p>“You’re respected all over Europe. Probably, like me, a little bit controversial, but that’s OK,” <a href="https://www.theguardian.com/us-news/2019/may/13/trump-latest-viktor-orban-hungary-prime-minister-white-house">Trump said</a>. “You’ve done a good job and you’ve kept your country safe.”</p>
<p>I’ve followed their mutual romance with illiberalism for a long time. Although I am now in the U.S. <a href="https://ces.fas.harvard.edu/people/scheiring-gabor">as an academic</a>, I was <a href="https://www.gaborscheiring.com/">elected to the Hungarian Parliament</a> in 2010 when Orbán’s rule started.</p>
<p>As the U.S. braces for a potential second Trump presidency, Americans may rightly wonder: Would Trump’s America mirror Orbán’s Hungary in its slide toward authoritarianism?</p>
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<a href="https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three people standing before a crowd holding stop signs." src="https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Member of Parliament Gábor Scheiring, right, with two colleagues, all wearing signs that say ‘Enough,’ chained themselves to the Parliament building in a December 2011 protest against the increasing autocracy of Prime Minister Viktor Orbán.</span>
<span class="attribution"><span class="source">Photo Akos Stiller</span></span>
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<h2>Authoritarianism from within</h2>
<p>I can still feel the pleasant spring breeze on my skin as I walked up the National Assembly’s stairs in my freshly bought suit. As newly elected members of Parliament, my Green Party colleagues and I stepped into our roles with high hopes and detailed plans to fix Hungary’s ailing economy and move toward sustainability.</p>
<p>I also remember the cold winter day a year and half later when we <a href="https://www.reuters.com/article/idUSL6E7NN14R/">chained ourselves to the parliament building</a>. It was a demonstration against the hollowing of parliamentary work and democratic backsliding under Orbán’s rule.</p>
<p>If the parliament is the political home of democracy, Hungary’s was vacant by 2012.</p>
<p>Orbán and his party in power hijacked democratic institutions. The nationwide right-wing media network is a crucial component of this authoritarian power. As the Voice of America <a href="https://www.voanews.com/a/hungarian-prime-minister-shows-why-american-right-embraces-him/6687500.html">reported in 2022</a>, Orbán’s allies “have created a pervasive conservative media ecosystem that dominates the airwaves and generally echoes the positions of the Orbán government.” </p>
<p>His government gerrymandered local districts and allowed voters to <a href="https://www.nytimes.com/2022/03/31/world/europe/hungary-viktor-orban-election.html">register outside their home districts</a>, both aimed at favoring Orbán and his party. The government also staffed <a href="https://www.reuters.com/article/idUSKBN1X8244/">the public prosecutor’s office with loyalists</a>, ensuring that any misconduct by those in power stays hidden. </p>
<p>Republicans in the U.S. have followed a similar trajectory with their support of Trump as his rhetoric <a href="https://apnews.com/article/trump-biden-democracy-election-2024-f2f824f056ae9f81f4e688fe590f41b4">grows more authoritarian</a>. Trump says if he wins the election, he wants to be <a href="https://apnews.com/article/trump-hannity-dictator-authoritarian-presidential-election-f27e7e9d7c13fabbe3ae7dd7f1235c72">“a dictator” for one day</a>. A recent poll shows that <a href="https://thehill.com/homenews/campaign/4453457-74-percent-of-republicans-say-its-fine-for-trump-to-be-dictator-for-a-day/">74% of Republicans surveyed</a> said it would be a good idea for Trump to “be a dictator only on the first day of his second term.”</p>
<p>Orbán has spent years <a href="https://www.nytimes.com/2018/05/01/world/europe/hungary-viktor-orban-judges.html">undermining the independence of Hungary’s judiciary</a>, ensuring its rulings are <a href="https://www.nytimes.com/2018/12/12/world/europe/hungary-courts.html">friendly to his government and allies</a>. While still an independent institution, the U.S. Supreme Court – with <a href="https://apnews.com/article/donald-trump-14th-amendment-immunity-supreme-court-d3f001f66c5c3e85302b8772753ed769">three Trump-nominated justices</a> – has become a pillar of Trumpism, handing down rulings overturning the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">constitutional right to abortion</a> and <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">limiting civil rights</a>.</p>
<p>Fox, OANN, and other right-wing media ensure that large parts of America see <a href="https://www.npr.org/2024/02/05/1229295278/the-fracturing-and-expansion-of-conservative-media-ahead-of-the-presidential-ele">the world through a Trumpian lens</a>.</p>
<p>Authoritarian populists tilt the democratic playing field to favor themselves and their personal and political interests. Subverting democracy from the inside without violent repression allows leaders like Orbán and Trump to pretend they are democratic. This authoritarianism from within creates chokepoints, where the opposition isn’t crushed, but it has a hard time breathing.</p>
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<a href="https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A demonstrator holding a placard that in Hungarian says 'Down with the Fascist government.'" src="https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A placard reads ‘Down with the Fascist government’ in front of the Parliament building in Budapest on June 14, 2021, during a demonstration against the Hungarian government’s draft bill seeking to ban the ‘promotion’ of homosexuality and sex changes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/participant-holds-a-placard-reading-down-with-the-fascist-news-photo/1233454607?adppopup=true">Gergely Besenyei/AFP via Getty Images</a></span>
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<h2>No democracy with division</h2>
<p>How can strongmen get away with these antidemocratic politics? If there is one lesson from Hungary, it is this: Democracy is not sustainable in a divided society where many are left behind economically.</p>
<p>The real power of authoritarian populists like Trump and Orban lies not in the institutions they hijack but in the novel electoral support coalition they create.</p>
<p>They bring together two types of supporters. Some hardcore, authoritarian-right voters are motivated by bigotry and hatred rooted in their fear of globalization’s cultural threats. However, the most successful right-wing populist forces <a href="https://library.fes.de/pdf-files/bueros/wien/19110-20220517.pdf">integrate an outer layer of primarily working-class voters</a> hurt by globalization’s economic threats.</p>
<p>Throughout the 20th century, Democrats in the U.S. and left-of-center parties in Europe provided a political home for those fearing economic insecurity. This fostered a political system that engendered equality and a healthy social fabric, giving people reason to care for liberal democratic institutions. </p>
<p>However, when the economy fails to deliver, <a href="https://www.pewresearch.org/global/2010/04/07/hungary-dissatisfied-with-democracy-but-not-its-ideals/">disillusionment with capitalism</a> morphs into an apathy toward liberal democracy.</p>
<p>If the liberal center appears uncaring, authoritarian populists can mobilize voters against both the cultural and economic <a href="https://doi.org/10.1017/S0007123424000024">threats posed by globalization</a>.</p>
<p>In Hungary, the first signs of authoritarianism appeared in economically left-behind rural areas and provincial small and medium towns well before Orbán’s 2010 victory. While these provincial towns suffered from increasing mortality, deindustrialization and income loss, the parties of the liberal center continued to sing hymns about the benefits of globalization, detached from the everyday experience of economic insecurity. </p>
<p>As I showed in my book, neglecting this suffering was the democratic center’s <a href="https://lareviewofbooks.org/article/hybrid-authoritarianism/">politically lethal failure</a>.</p>
<p>By today, Hungary’s liberal and left-of-center parties have retreated to the biggest cities, leaving their former provincial political strongholds up for grabs for the radical right. The same is taking place in the U.S., with the <a href="https://www.politico.com/news/magazine/2023/11/04/new-republican-party-working-class-coalition-00122822">Republicans becoming a party of the working class</a> and nonmetropolitan America.</p>
<p>The success of authoritarian populism in Hungary might seem disheartening. However, there is a silver lining: Those committed to democracy in the U.S. still have time to learn from Hungary’s mistakes.</p><img src="https://counter.theconversation.com/content/224930/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I was a Member of the Hungarian Parliament for the Greens from 2010 to 2014.</span></em></p>One of Donald Trump’s favorite politicians is the Hungarian authoritarian leader Viktor Orbán. Would a country led again by Trump embrace similar antidemocratic politics?Gábor Scheiring, Fellow, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2176952024-01-31T15:25:55Z2024-01-31T15:25:55ZSouth African marriage ruling is a win for divorcees and surviving spouses: it guides the sharing of their assets<p>South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate. </p>
<p>The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death. </p>
<p>The apex court’s judgment of 10 October 2023, in the case of <a href="https://www.saflii.org/za/cases/ZACC/2023/32.html">EB v ER</a>, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.</p>
<p>Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property. </p>
<p><a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Marriages in community of property</a> are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.</p>
<p>In the case of the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">out of community of property regime</a>, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.</p>
<h2>The change</h2>
<p>On 1 November 1984, the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Matrimonial Property Act 88 of 1984</a> entered into force. It introduced a third matrimonial property regime: the accrual system. </p>
<p>The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.</p>
<p>Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses. </p>
<p>For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family. </p>
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<a href="https://theconversation.com/south-africas-new-marriage-bill-raises-many-thorny-issues-a-balancing-act-is-needed-210343">South Africa's new Marriage Bill raises many thorny issues - a balancing act is needed</a>
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<p>Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.</p>
<p>The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.</p>
<h2>The judgment</h2>
<p>When the accrual regime was created, section 7(3) of the 1979 <a href="https://www.justice.gov.za/legislation/acts/1979-070.pdf">Divorce Act</a> was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order. </p>
<p>Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services. </p>
<p>In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the <a href="https://www.justice.gov.za/legislation/acts/1979-070.pdf">Divorce Act</a>, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death. </p>
<p>These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.</p>
<h2>Significance of the judgment</h2>
<p>The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended. </p>
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<p>The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a <a href="https://www.saflii.org/za/cases/ZACC/2022/23.html">2022 case</a>, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.</p>
<h2>Next steps</h2>
<p>The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of <a href="https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf">Matrimonial Property Law</a> is reviewing existing laws that deal with matrimonial property regimes.</p>
<p>In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death. </p>
<p>In its <a href="https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf">discussion paper 160</a>, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.</p><img src="https://counter.theconversation.com/content/217695/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Waheeda Amien is a Professor of Law at the University of Cape Town. She specialises in Legal Pluralism, Religious Family Laws, Freedom of Religion, and Gender Equality. Prof. Amien is also a member of the Advisory Committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law. She writes in her personal capacity. The views expressed in this article are not necessarily those of the University of Cape Town or the South African Law Reform Commission.</span></em></p>The judgment will also benefit spouses in Muslim marriages, which were legally recognised in a 2022 Constitutional Court judgment.Waheeda Amien, Professor of Legal Pluralism, Religious Family Laws, and Human Rights, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2145082023-10-08T08:11:53Z2023-10-08T08:11:53ZSouth Africa’s surveillance law is changing but citizens’ privacy is still at risk<p>In a ringing judgment for the right to privacy, the South African Constitutional Court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">declared</a> sections of the country’s main communication surveillance law unconstitutional in February 2021. </p>
<p>The court gave parliament three years to pass a new law remedying the areas of unconstitutionality. The February 2024 deadline for these amendments is looming fast.</p>
<p>The Regulation of Interception of Communication and Provision of Communication Related Information Act (<a href="https://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13">Rica</a>) was intended in part to protect privacy, combat crime and promote national security. It requires all cellphone sim cards in the country to be registered, and prohibits interception of people’s communications without their consent, except under certain conditions. </p>
<p>But Rica had some weaknesses which have been abused by rogue elements in intelligence. The court case was brought by the <a href="https://amabhungane.org/">amaBhungane Centre for Investigative Journalism</a>, after the state misused Rica to spy on the centre’s managing partner, <a href="https://amabhungane.org/team/sam-sole/">Sam Sole</a>, in an attempt to reveal his sources of information. </p>
<p>The <a href="https://www.gov.za/about-government/contact-directory/ministers/ministers/justice-and-correctional-services-ministry#:%7E:text=Minister%3A%20Ronald%20Lamola%2C%20Mr,Private%20Bag%20X276%2C%20PRETORIA%2C%200001">justice ministry</a> has produced an <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">amendment bill</a> to meet the court’s deadline. </p>
<p>Having researched issues relating to communication surveillance and its oversight for years, my view is that the amendment bill is flawed. It doesn’t provide enough safeguards against the violation of privacy.</p>
<h2>The problem with Rica</h2>
<p>In terms of <a href="https://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13">Rica</a>, intelligence and law enforcement agencies must apply to a special, retired judge for interception directions (or warrants) to conduct surveillance to solve serious crimes and protect national security. The judge is appointed by the justice minister.</p>
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<a href="https://theconversation.com/south-africas-intelligence-agency-needs-speedy-reform-or-it-must-be-shut-down-200386">South Africa's intelligence agency needs speedy reform - or it must be shut down</a>
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<p>The court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">found</a> Rica to be unconstitutional on the following five grounds:</p>
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<li><p>People don’t have to be told that they have been under surveillance. </p></li>
<li><p>The appointment and renewal processes for the Rica judge lack independence.</p></li>
<li><p>The judge only has to hear from one side: those applying for interception warrants.</p></li>
<li><p>Rica does not ensure that intercepted data is safely managed.</p></li>
<li><p>Rica fails to recognise that lawyers and journalists have a professional duty to keep their sources and communications confidential.</p></li>
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<p>The court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">prescribed</a> two interim measures while the law was being redrafted. The first was that within 90 days of an interception direction (warrant) having lapsed, those state agencies applying for surveillance need to inform the surveillance subject that they have been spied on. The second is that applicants must also tell the judge if the surveillance subject is a lawyer or journalist.</p>
<h2>Post-surveillance notification</h2>
<p>With the proposed amendments, the justice ministry has <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">responded</a> largely by reproducing the court’s first interim measure. However, it has added another clause stating that if notifying someone that they have been surveilled could potentially have a negative impact on national security, then the judge may withhold notification and for such period as may be determined by the judge. </p>
<p>This clause is too broad and does not provide an ultimate deadline for notification. It introduces speculation into the decision-making. That’s because the impact needs merely to be possible. There is no requirement to show a national security threat, merely a possible negative impact.</p>
<h2>Independence of the Rica judge</h2>
<p>The justice ministry has <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">inserted</a> a requirement for the Rica judge to be appointed by the justice minister, in consultation with the Chief Justice. This is adequate to the extent that it means that decision does not rest with the executive only. </p>
<p>The ministry has also <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">introduced</a> an entirely new position of a review judge, to automatically review the decisions of the Rica judge. It would have been better to build automatic review into the process once surveillance subjects have been notified. That might make the review process more robust as the subject may provide details that shed new light on the Rica judge’s decisions. If the judge’s decision to grant the warrant was misplaced, this could lead to the original decision being overturned or intercepted material being destroyed.</p>
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<strong>
Read more:
<a href="https://theconversation.com/south-africas-intelligence-watchdog-is-failing-civil-society-how-to-restore-its-credibility-195121">South Africa's intelligence watchdog is failing civil society. How to restore its credibility</a>
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<p>However, given the load of several hundred cases a year, one judge may not be enough, either at the decision stage or the review stage. Consideration should be given to establishing a panel of judges.</p>
<h2>Hearing both sides</h2>
<p>It is possible that the review judge was introduced to respond to the problem of hearing only from the applicant (the “<a href="https://www.law.cornell.edu/wex/ex_parte">ex parte</a>” problem). If that is the case, then it is not an adequate response. Both judges will still be making decisions based on the same one-sided secret evidence.</p>
<p>Rather, as <a href="https://amabhungane.org/">amaBhungane</a> argued in the Constitutional Court case, the bill could include a new position of a <a href="https://www.anchoredinlaw.net/wp-content/uploads/2019/09/Founding-Affidavit-Sam-Sole.pdf">public advocate</a>, to defend the interests of the surveillance subjects.</p>
<p>The public advocate could be granted <a href="https://www.bloomsburycollections.com/monograph-detail?docid=b-9781849468466&pdfid=9781849468466.ch-008.pdf&tocid=b-9781849468466-chapter8">security</a> clearance, in line with <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/jols.12186">well-recognised</a> processes involving “cleared counsel”.</p>
<p>Such lawyers have clearance to access the secret evidence the state is relying on. They are on the same footing as the agency applying for surveillance. They will be able to interrogate the case beyond what is provided for in the application.</p>
<p>As has been <a href="https://intelwatch.org.za/2023/05/30/reforming-communication-surveillance-in-south-africa-in-the-wake-of-amabhungane/">argued recently</a>, the public advocate could represent the interests of surveillance subjects who decide to take decisions on review following post-surveillance notification.</p>
<h2>Confidentiality for lawyers and journalists</h2>
<p>Regarding the need for the applicant to inform the judge that a subject is a journalist or lawyer, the ministry has <a href="https://www.gov.za/sites/default/files/gcis_document/202308/b28-2023rica.pdf">left out</a> an important safeguard from the interim measure provided by Constitutional Court’s judgment. It required the judge to grant the warrant only if necessary, which means that the warrant must be an investigative method of last resort. </p>
<p>On the management of surveillance data, the court <a href="https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19#:%7E:text=The%20Court%20declared%20RICA%20unconstitutional,independent%20judicial%20authorisation%20of%20interception.">required</a> more details in the law on how and where surveillance data must be accessed, stored and destroyed. The justice ministry has failed to provide such detail.</p>
<h2>Metadata surveillance</h2>
<p>The amendment bill is silent on possibly the most serious surveillance <a href="https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/cops_and_call_records_web_masterset_26_march.pdf">issue</a>, relating to the state’s <a href="https://intelwatch.org.za/2023/05/30/rica-reform-205-loophole/">massive and underregulated</a> surveillance of <a href="https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/cops_and_call_records_web_masterset_26_march.pdf">data about a person’s communication</a>, or metadata. Rica <a href="https://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13">allows</a> the state to use procedures other than those provided for in the act to access metadata.</p>
<p>For example, the state has preferred to use <a href="https://www.gov.za/sites/default/files/gcis_document/201502/act-5-1991.pdf">section 205 of the Criminal Procedure Act</a> as it contains much lower privacy standards than Rica. It is thus open to abuse.</p>
<p>One solution is to make Rica the only law governing access to metadata, but retain the procedure whereby the ordinary courts can grant warrants, rather than restricting decision-making to the Rica judge only, to ensure speedy decision-making. </p>
<h2>Missed opportunity</h2>
<p>The justice ministry had more than enough time for the <a href="https://www.dailymaverick.co.za/article/2017-05-10-op-ed-big-brother-is-watching-your-phone-call-records/">review of Rica</a>, section 205 and the entire surveillance setup to assess whether they were still fit for purpose. </p>
<p>The failure is an indictment on the ministry’s leadership of the review process. It missed the opportunity to address the <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">growing</a> <a href="http://www.saflii.org/images/state-capture-commission-report-part-5-vol1.pdf">concerns</a> about unaccountable state spying.</p><img src="https://counter.theconversation.com/content/214508/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Duncan receives funding from Luminate and the British Academy. She is a director of Intelwatch. </span></em></p>The justice ministry had more than enough time to make the law constitutional. Failure to do so is an indictment on its leadership in the process.Jane Duncan, Professor of Digital Society, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2131002023-09-26T13:42:16Z2023-09-26T13:42:16ZThe family home in South African townships is contested – why occupation, inheritance and history are clashing with laws<p>During apartheid, black South Africans could not own land – and therefore their homes – in what were classified as “white” cities. In racially segregated townships, living in “family houses” and passing them on depended officially on a <a href="https://journals.co.za/doi/pdf/10.10520/AJA02586568_844#page=5">range of permits</a>. These were usually to rent from state authorities, but in some cases confusingly to build or buy a house without owning the plot underneath it, which was owned by the state.</p>
<p>A crucial measure in undoing apartheid was transferring ownership of township houses to their long-term residents. <a href="https://journals.co.za/doi/pdf/10.10520/AJA02586568_844#page=8">In 1986</a>, a few years before apartheid’s end, the law changed to enable outright ownership for black people in urban areas. Subsequently, processes for transfer on a large scale were established.</p>
<p>This massive redistribution of public housing stock, alongside legal change, involved hundreds of thousands of homes. Township houses were now assets. The promise was improved security, rights, and inclusion in the property market.</p>
<p>But change did not necessarily give families greater security. Some family members benefited while others were left vulnerable. That is because the transfers – and the legal definitions of property and inheritance – do not account for how many people understand their homes: collective and cross-generational, available to an extended lineage.</p>
<p>This has led to confusion and heartache for hundreds of thousands of people. That confusion, I showed <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">in a paper in 2021</a>, extended to encounters with state administration, which can become the stage on which family disputes are played out.</p>
<p>As I argued in another <a href="https://www.tandfonline.com/doi/full/10.1080/02587203.2019.1632737">paper</a>, with Tshenolo Masha, these understandings of home and kinship warrant legal recognition – indeed, constitutional recognition – as urban custom. Various state officials have taken seriously the collective ownership of family houses, as a matter of customary norms and practice, through administration and court judgments. But they face the rigid limits of existing law.</p>
<p>The family house is central but effectively legally invisible, leaving many people uncertain about what it even means to own or inherit.</p>
<h2>Collective home but individual property</h2>
<p>For many residents, family houses belong collectively to multi-generational lineages. Often, a group of siblings is at the core – the children of an earlier, typically male, household head. Family members might build extra structures on the site to live in. Or they might come and go, but the home is a place to return to. The family house is defended as customary, drawing parallels with the rural homestead.</p>
<p>By the end of apartheid <a href="https://www.britannica.com/question/How-did-apartheid-end">in 1994</a>, regulation was patchy at best, but the occupancy permits were understood to affirm group entitlement because they listed family members, not just the householder.</p>
<p>In statutory law, at stake is an asset with one or more named owners – an indivisible plot or <a href="https://www.saflii.org/za/legis/consol_act/dra1937172/">“erf” of land</a> that includes its built structures. Owners can sell, or they can evict; other occupants have no legal right to stop them. When family houses were transferred, one person was generally registered as owner.</p>
<p>In some cases, the allocation to the registered householder was automatic. In others, there were hearings, but even here residents found their ideas of home and ownership marginalised. A family member would come forward as family “representative” and “custodian” of the collective home. But that representative would typically become the sole titleholder.</p>
<p>In many cases, relatives were unaware that this had happened, or even that an application for title had been made.</p>
<h2>Inheritance: an added layer of complexity</h2>
<p>Inheritance has added another layer to the problem.</p>
<p>Under apartheid there were separate inheritance rules for black people without wills. These were finally struck down by the Constitutional Court in <a href="https://www.saflii.org/za/cases/ZACC/2000/27.html">2000</a> and <a href="http://www.saflii.org/za/cases/ZACC/2004/17.html">2004</a>. Magistrates’ courts were replaced by the dedicated inheritance office, the <a href="https://www.justice.gov.za/master/">Master of the High Court</a>. Inheritance by the eldest son was replaced by rules for all South Africans, prioritising spouses and children in nuclear families.</p>
<p>Once again, essential redress had the effect of narrowing which relationships would be recognised. When a custodian died, wider family members first discovered that they were not collective owners; then they realised they would not even inherit.</p>
<p>The family house is not a static idea in fights over the home. Warring parties may draw on both customary and legal concepts, sometimes at the same time. Among families that approach the state – and many do not – some subsequently drop out of official process. </p>
<p>There is <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">no simple consensus</a> about who gets what or about how this should be decided.</p>
<h2>Efforts to resolve the issue</h2>
<p>The family house is contested, yet it is key to arguments about what is fair – based not just on who owns, but on the nature of ownership.</p>
<p>State officials have repeatedly tried to make the system more responsive. In Gauteng province, where Johannesburg is located, housing tribunals were set up in the late 1990s to decide ownership and to broker family house rights agreements. They were intended to prevent custodians from selling houses or evicting relatives. But it turned out that they held no legal water: from the point of view of deeds registration, custodians’ <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">ownership was unrestricted</a>. </p>
<p>In the Master’s Office, where inheritance is administered, kin complain that their family home somehow became the property of one relative. In Johannesburg, officials <a href="https://academic.oup.com/afraf/article/120/479/219/6132108">try to explain the law</a>, while where appropriate querying how title came to be acquired.</p>
<p>What they cannot do, though, is change the rules.</p>
<p>The courts, too, have highlighted problems with rigid law and procedure. In a 2004 Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2004/17.html">decision on inheritance</a>, a dissenting judge warned that customary understandings of home and custodianship risked being sidelined by standardisation.</p>
<p>More recently in 2018, automatically upgrading householders to owners was <a href="http://www.saflii.org/za/cases/ZACC/2018/42.html">declared unconstitutional</a>.
Men were usually documented as householders under apartheid, and gender discrimination was extended by giving them exclusive property rights. </p>
<p>Other judgments recognise the spirit of collective belonging and access, and they stop individuals from taking the house out of the families’ hands by inheritance or sale. But they cannot make legislation, so they send the question of who owns the house back to a tribunal.</p>
<p>Once again, solutions are restricted to workarounds.</p>
<h2>Towards legal recognition</h2>
<p>In 2022, the <a href="http://www.saflii.org/za/cases/ZAGPPHC/2022/441.html#_ftnref78">Shomang judgment</a> in the North Gauteng High Court called for legally recognising the family house. </p>
<p>A sufficiently flexible notion of family title would be challenging to work out, and doubtless the basis for countless disputes. Surviving spouses need as much protection as the siblings in a lineage. But it would enable administrators and judges to mediate disputes in terms recognisable to the families involved. And to offer more than ad hoc workarounds.</p><img src="https://counter.theconversation.com/content/213100/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maxim Bolt's research was funded by the Economic and Social Research Council of the UK. </span></em></p>The transfer of township rental houses to inhabitants did not necessarily give families greater security. “Family houses” were frequently acquired by individuals.Maxim Bolt, Associate Professor of Development Studies, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1957382022-12-01T12:22:26Z2022-12-01T12:22:26ZSouth Africa’s President Ramaphosa could be impeached - 3 essential reads on the Phala Phala scandal<figure><img src="https://images.theconversation.com/files/498464/original/file-20221201-24-bknlao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Cyril Ramaphosa.
</span> <span class="attribution"><span class="source">Photo by JUSTIN TALLIS/AFP via Getty Images</span></span></figcaption></figure><p>South Africa’s President Cyril Ramaphosa may have <a href="https://www.dailymaverick.co.za/article/2022-11-30-sa-politics-in-turmoil-as-panel-says-president-ramaphosa-must-face-impeachment/">an impeachment case to answer</a>. This was the finding of the independent parliamentary panel probing the scandal over the theft of thousands of US dollars stashed illegally on his farm, Phala Phala. The three person panel, headed by former chief justice <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Sandile Ngcobo</a>, found that the president might have breached the constitution and engaged in corrupt activities.</p>
<p>The panel handed its report to the speaker of parliament for the National Assembly to debate ahead of the president’s possible impeachment at a special sitting of parliament. </p>
<p>The Phala Phala affair threatens to derail Ramaphosa’s chances of winning a second term as president of the African National Congress (ANC) at its <a href="https://www.anc1912.org.za/#">national conference</a> in December – and then becoming national president again. </p>
<p>Academics writing for The Conversation Africa have explored the issues.</p>
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<p>Dirk Kotze argues that the Phala Phala scandal has seriously dented Ramaphosa’s credibility. He sets out how Ramaphosa’s business interests are threatening to jeopardise his presidency, with dire consequences for the country given the important economic and political reforms he is pursuing. </p>
<p>Ramaphosa’s first reform agenda is an economic reconstruction and <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-south-africa%E2%80%99s-economic-reconstruction-and-recovery-plan-15-oct">recovery plan</a>. This includes solving persistent power cuts that have devastated the country’s economy. The second task is to unite the highly <a href="https://www.dailymaverick.co.za/article/2018-01-09-ancs-106th-ramaphosas-push-for-unity-continues/">factionalised governing party</a>, the African National Congress, which he leads. </p>
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Read more:
<a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">South African president Cyril Ramaphosa’s credibility has been dented, putting his reform agenda in jeopardy</a>
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<p>The Phala Phala scandal is not just a threat for Ramaphosa, but could seriously hurt his party’s prospects as it faces gruelling national and provincial elections in 2024. </p>
<p>Support for the party, which has dominated South Africa’s politics since democracy in 1994, has been sliding steadily in the last two decades. According to Susan Booysen, the ANC contested the last general elections in 2019 with only Ramaphosa as the trump card. “The ANC built its 2019 election campaign around Ramaphosa, after polls showed that he was the only leader who continued to enjoy substantial credibility among voters.” </p>
<p>But his image as anti-corruption champion – and vote winner – is now in doubt because of the Phala Phala scandal. </p>
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Read more:
<a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Ramaphosa scandal looks set to intensify the ANC's slide, ushering in a new era of politics</a>
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<p>Richard Calland says this is a historic moment for the country. It would be the first time a president’s fitness for office was assessed since parliament adopted the rules for impeachment in 2018, following a Constitutional Court judgment. He explains the impeachment process, observing that the way the panel applies the law will set an important precedent. </p>
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Read more:
<a href="https://theconversation.com/how-to-impeach-a-president-ramaphosa-case-puts-new-rules-to-the-test-in-south-africa-195390">How to impeach a president: Ramaphosa case puts new rules to the test in South Africa</a>
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<img src="https://counter.theconversation.com/content/195738/count.gif" alt="The Conversation" width="1" height="1" />
The impeachment process could derail Ramaphosa’s political career and seriously hurt the governing ANC’s electoral prospects in 2024.Thabo Leshilo, Politics + SocietyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1902762022-09-08T15:35:10Z2022-09-08T15:35:10ZSouth Africa’s Jacob Zuma is taking a top reporter to court. The verdict could affect journalists’ rights<figure><img src="https://images.theconversation.com/files/483516/original/file-20220908-9455-64ycem.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma appearing in the Pietermaritzburg High Court in 2020 on charges of corruption.</span> <span class="attribution"><span class="source">Photo by Kim Ludbrook/Pool/AFP via Getty Images)</span></span></figcaption></figure><p>South African journalism organisations this week <a href="https://www.citizen.co.za/news/south-africa/3191443/sanef-zuma-private-prosecution-media-freedom/">rallied around</a> well-known journalist Karyn Maughan when former president Jacob Zuma initiated <a href="https://www.news24.com/news24/SouthAfrica/News/breaking-zuma-charges-downer-news24-journalist-in-private-prosecution-over-medical-records-20220906">a private prosecution against her</a>.</p>
<p>Zuma faces <a href="https://www.independent.co.uk/news/world/africa/jacob-zuma-corruption-charges-south-africa-president-arms-deal-a8291826.html">16 counts of corruption</a> for taking a monthly payment of US$34,000 from French arms firm Thales while he was deputy president from 1999 and later president from 2009 to 2018. Thales was involved in South Africa’s massive arms purchase deal during that period.</p>
<p>Zuma had originally <a href="https://mg.co.za/news/2022-09-06-npa-supports-billy-downer-as-zuma-serves-summons/">laid charges</a> against the prosecutor in his corruption case, Billy Downer, for giving a medical certificate from the investigation to Maughan. When the police declined to prosecute Downer, Zuma initiated a case against both him and Maughan for disclosing the information.</p>
<p>Zuma’s supporters jumped on Maughan <a href="https://www.msn.com/en-za/news/other/ntsiki-slams-racist-journo-karyn-maughan-amid-zuma-legal-saga/ar-AA11AzXa?li=BBqfP3n">on social media</a>, lashing her – with some racist and misogynist language - for allegedly exposing Zuma’s medical records. </p>
<p>But the South African National Editors’ Forum <a href="https://www.citizen.co.za/news/south-africa/3191443/sanef-zuma-private-prosecution-media-freedom/">expressed</a> “disgust” at the serving of summons on Maughan. </p>
<p>It was “a clear case of intimidation solely intended to silence Maughan” as
the information “was of public record and not confidential”.</p>
<p>My own organisation, the Campaign for Free Expression, <a href="https://www.biznews.com/undictated/2022/09/07/karyn-maughan-private-prosecution">said</a> Zuma had “a pattern
of taking legal action against his media critics in an attempt to stifle scrutiny and criticism and to divert attention from and delay his own prosecution.</p>
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<p>It should be seen for what it is: an attempt to make it risky for journalists to scrutinise him, and discourage critical journalism.</p>
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<p>Maughan’s case will be interesting and important, and is likely to go all the way to the Constitutional Court. It will test a journalist’s right to publish court material in the public interest.</p>
<p>What is at stake is more than her innocence or guilt: it is whether South Africans have an open court in which reporters can gather information, canvass all the parties and report freely on proceedings. And whether we can have swift justice and not allow for endless delays.</p>
<h2>What the law says</h2>
<p>The law is clear: it is illegal to disclose information that the prosecutor has as part of the investigation without permission of the office of the National Director of Public Prosecutions. It appears that Downer, without the necessary permission, told his colleagues to give the documents to Maughan under embargo, as they were due to be tabled in court and become part of the public record.</p>
<p>Maughan argues that she only published them after they were tabled in court, that neither party had applied for them to be sealed and there was nothing particularly sensitive about them. It was only a medical certificate, not his private records. </p>
<p>What she was doing was routine court reporting: getting information from the parties to the dispute, and publishing them in the public interest.</p>
<p>Why then has it caused such a rumpus? It is because of Zuma’s long use of what
has been called a Stalingrad defence: slow down proceedings and wear down the
other side by appealing every unfavourable ruling and using whatever other means possible to delay proceedings and divert attention from the core case.
So far, this has worked in his favour. Started in 2005, the case is still in its early stages. Now he is trying to have prosecutor Downer dismissed and is lashing out at the media at the same time.</p>
<p>But the courts and much of the public have grown tired of it. His supporters cheer him on, portraying him as a hapless victim of persecution and political conspiracy. And the courts under close scrutiny have to be meticulous to ensure that his rights are respected, even when this causes undue delay.</p>
<p>Zuma is trying to disrupt the process and to harass and intimidate prosecutors and journalists. He did not raise the matter with the media house that published her work, nor did he take her to the Press Council, the body that oversees journalism ethics.</p>
<p>He chose to label her a criminal who belongs in prison. A private prosecution against a journalist covering a person’s court case is unheard of in South Africa.</p>
<p>He is attempting to turn the contestation of a court hearing into an all-out war and chill those who pursue justice against him. He is trying to put the justice system and the media on trial, rather than himself.</p>
<p>The action against Maughan says more about Zuma and his lawyers than it does
about Maughan. It shows a contempt for democratic and court processes, as well as for journalists and their role in ensuring court cases are public, open events.</p>
<p>It demonstrates his willingness to attack whoever is in his way in his attempt to delay and divert attention from his own case. It reveals his capacity – Trump-like – to portray himself as the constant victim of conspiracies. That is why the community of journalists has rallied to Maughan’s defence. </p>
<p>The fight is not just to protect her, but to defend an open justice system, in which reporters play a key role.</p><img src="https://counter.theconversation.com/content/190276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anton Harber is a member of the SA National Editors' Forum (Sanef) and executive director of the Campaign for Free Expression.</span></em></p>Former South African president Zuma is trying to turn the contestation of a court hearing into an all-out war and chill those who pursue justice against him.Anton Harber, Caxton Professor of Journalism, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1793152022-03-15T14:24:18Z2022-03-15T14:24:18ZSouth Africa has a new Chief Justice: an introduction to Raymond Zondo<figure><img src="https://images.theconversation.com/files/452152/original/file-20220315-23-1g5csd2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Raymond Zondo, South Africa's new chief justice.</span> <span class="attribution"><span class="source"> Photo by Phill Magakoe/AFP via Getty Images</span></span></figcaption></figure><p>South African president Cyril Ramaphosa recently <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-appoints-justice-zondo-chief-justice">announced</a> the appointment of Deputy Chief Justice Raymond Zondo as the next chief justice of the country’s Constitutional Court. </p>
<p>Zondo is best known for his role as the head of the judicial commission of inquiry into allegations of rampant corruption, fraud and <a href="https://www.statecapture.org.za/">state capture</a> during former President Jacob Zuma’s tenure (<a href="https://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009-February 2018</a>. Zuma grudgingly established the commission <a href="https://www.thepresidency.gov.za/press-statements/statement-president-jacob-zuma-establishment-commission-inquiry-state-capture">in January 2018</a>).</p>
<p>The commmission’s work will go down in the annals of history as having defined Zondo’s tenacity as a fearless judicial leader. Presiding over the politically charged inquiry saw him lock horns with the former president, who bizarrely questioned his suitability to <a href="https://theconversation.com/south-african-judge-has-refused-to-step-down-from-corruption-probe-this-was-the-right-call-150484">lead the commission</a> – after he had elected him to the position. </p>
<p>The commission tested Zondo’s mettle. It sat over more than 400 days of hearings, featuring more than 300 witnesses. According to the commission, about 1,438 people and entities were implicated by evidence <a href="https://www.gov.za/sites/default/files/gcis_document/202201/judicial-commission-inquiry-state-capture-reportpart-1.pdf">before the commission</a>. </p>
<p>The outcome, in a <a href="https://www.thepresidency.gov.za/documents">three-part report</a>, made far-reaching recommendations in ridding the country of corruption, and setting up an effective anti-corruption framework. </p>
<p>Also notable is Zondo’s handling of Zuma’s <a href="https://collections.concourt.org.za/handle/20.500.12144/36746">contempt of court case</a> before the Constitutional Court. It resulted in the ruling that let to the imprisonment of the former president. </p>
<p>So, who is Justice Raymond Zondo?</p>
<h2>The early years</h2>
<p><a href="https://www.concourt.org.za/index.php/13-current-judges/72-deputy-chief-justice-ray-zondo">Raymond Mnyamezeli Mlungisi Zondo</a> was born on 4 March 1960 in <a href="https://southafrica.co.za/ixopo.html">Ixopo</a>, a small town on a tributary of the Mkhomazi River in the midlands of KwaZulu-Natal Province. Ixopo is most famous as the setting for the 1995 South African-American film, <a href="https://www.rogerebert.com/reviews/cry-the-beloved-country-1995">Cry the Beloved Country</a>, based on <a href="https://www.britannica.com/topic/Cry-the-Beloved-Country-novel-by-Paton">Alan Paton’s novel</a> of the same name. </p>
<p>The young Zondo’s father worked as a labourer in Johannesburg and his mother was a nurse aid. He is the third of nine children. He and his wife Sithembile Zondo have four children. One of them is a cricketer <a href="https://www.cricbuzz.com/profiles/9724/khaya-zondo">Khayelihle (Khaya) Zondo</a>.</p>
<p>Zondo matriculated (finished high school) at St Mary’s Seminary in Ixopo. He went on to study law at the University of Zululand and today’s University of Kwa-Zulu Natal, earning an LLB. He went on to complete three Master of Law degrees (cum laude) in labour law, commercial law, and patent law at the University of South Africa.</p>
<p>During his training as a lawyer he met with a great loss. His articles of clerkship in Durban under <a href="https://www.sahistory.org.za/people/victoria-nonyamezelo-mxenge">Victoria Mxenge</a>, a human rights lawyers who fought fearlessly against apartheid, had to be ceded after she was assassinated by apartheid government agents in 1985.</p>
<p>He was appointed as a judge to the Labour Court in 1997. He then became a judge in the then Transvaal Provincial Division of the High Court, now the Gauteng High Court (1999). He was elevated to judge president of the Labour Court in 2000. The judge president’s role is to provide leadership to ensure that judges in the division perform their judicial responsibilities diligently and effectively. Zondo saw another upward movement when he joined the Constitutional Court in 2012, later becoming deputy chief justice in 2017.</p>
<h2>Career highlights</h2>
<p>Zondo’s illustrious career is a tapestry of highlights: from a lawyer to one of the senior judges in the South African judiciary. He has written more than 200 judgments. </p>
<p>In 1991 and 1992 he served in two committees of the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, <a href="http://globetrotter.berkeley.edu/people/Goldstone/gold-con3.html">chaired by Justice Richard J. Goldstone</a>. Its mandate was to investigate the causes of political violence and intimidation in which some 20,000 people had died in the decade before the release of Nelson Mandela from prison, and the unbanning of the liberation organisations, paving the way for <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">negotiations to end aparthied</a>. </p>
<p>Also notable is that he was the first chairperson of the governing body of the <a href="https://nationalgovernment.co.za/units/view/83/commission-for-conciliation-mediation-and-arbitration-ccma#:%7E:text=The%20CCMA%3A%20conciliates%20workplace%20disputes,for%20accreditation%20and%20subsidy%20from">Commission for the Conciliation, Mediation and Arbitration</a>, whose mandate is to resolve labour disputes speedily and cost-effectively.</p>
<p>In 1994, Zondo was appointed as a member of the ministerial task team tasked with producing <a href="https://journals.co.za/doi/pdf/10.10520/AJA0259188X_1535">a draft labour relations bill</a> for post-apartheid South Africa. It culminated in the <a href="https://www.gov.za/documents/labour-relations-act">Labour Relations Act of 1995</a>. </p>
<p>The <a href="https://gcbsa.co.za/jscdocs/comments/zondo.pdf">General Bar Council</a> has credited him with playing a major part in developing South Africa’s employment law into a respected, coherent and fair system of law.</p>
<p>One of Zondo’s significant judgments was in the case <a href="http://www.saflii.org/za/cases/ZALAC/2000/1.html">Modise v Steve’s Spar Blackheath</a>. In this case, the trade union SACCAWU demanded that the store and other Spar stores agree to bargain collectively with the union. The store declined.</p>
<p>The majority of the employees who went on strike in November 1994 were found by the Supreme Court to have embarked on an illegal strike. It granted an interim interdict forbidding the strike. The workers were subsequently dismissed. </p>
<p>They appealed their dismissal to the Labour Appeal Court. Zondo, with acting appeal judge <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Mogoeng Mogoeng</a> – ironically Zondo’s predecessor as chief justice – concurring, held that the employer was obliged to afford the strikers a hearing in order to decide whether to dismiss them. Also, that the right to be heard should be done prior to the issuing of an ultimatum to return to work or face dismissal, rather than afterwards.</p>
<p>Zondo set a precedence by finding that the principles of <em>audi alteram partem</em> (“let the other side be heard as well”) applied in labour law, and must be observed even in cases of dismissals in strikes. </p>
<p>Ultimately, this was the confirmation of the right to procedural fairness of unprotected striking workers. </p>
<p>It is clear from his many other judgments that Justice Zondo believes in upholding the rights and values enshrined in the country’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>.</p>
<p>Another example was in <a href="http://www.saflii.org/za/cases/ZACC/2012/16.html">Minister of Home Affairs v Tsebe</a>. Zondo would not allow the government to extradite a murder accused to Botswana without receiving an assurance that the death penalty would not be implemented, as that would have been contrary to South Africa’s abolitionist approach.</p>
<h2>Chief Justice role</h2>
<p>When announcing Zondo’s appointment as chief justice, Ramaphosa <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-appoints-justice-zondo-chief-justice">noted</a>:</p>
<blockquote>
<p>The position of chief justice carries a great responsibility in our democracy. As the head of the judiciary, the chief justice is a guardian of our constitution and the laws adopted by the freely elected representatives of the people. The chief justice stand as the champion of the rights of all South Africans and bears responsibility for ensuring equal access to justice. I have every confidence that Justice Zondo will acquit himself with distinction in this position.</p>
</blockquote>
<p>The statement is a clear indication of the mammoth task awaiting Zondo in his new role. </p>
<p>He is one of the longest serving justices on the Constitutional Court, with the institutional memory required to lead the judiciary. But he comes in with the acknowledgement that there is still a lot of work to be done at the Constitutional Court and the judiciary in general. </p>
<p>His new role will include having to deal with what he identified during his interview for the job to be myriad problems affecting the country’s courts, including the delayed handing down of judgments. During the interview <a href="https://ewn.co.za/2022/02/04/a-chief-justice-should-be-someone-of-integrity-zondo-tells-jsc#:%7E:text=%22I%20think%20that%20a%20Chief,the%20judiciary%2C%22%20Zondo%20explained">he had this to say</a>:</p>
<blockquote>
<p>I think that a chief justice in a country such as ours should be somebody of integrity, who can provide intellectual leadership, who has a demonstrable track record as a judge, somebody who is able to work with people and is able to appreciate the contribution of other leaders of the judiciary.</p>
</blockquote><img src="https://counter.theconversation.com/content/179315/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Omphemetse Sibanda does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Zondo’s career is made up of a tapestry of highlights, from lawyer to senior judge. He has written more than 200 judgments.Omphemetse Sibanda, Executive Dean and Full Professor, University of Limpopo Faculty of Management and Law, University of LimpopoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1766072022-02-07T15:23:06Z2022-02-07T15:23:06ZRamaphosa left with tricky choices as South Africa bungles Chief Justice appointment<figure><img src="https://images.theconversation.com/files/444801/original/file-20220207-21-1vc17to.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President of South Africa's Supreme Court of Appeal Mandisa Maya has been recommended as the country's next Chief Justice.</span> <span class="attribution"><span class="source">Photo by Felix Dlangamandla/Daily Maverick/Gallo Images via Getty Images</span></span></figcaption></figure><p>After a <a href="https://www.timeslive.co.za/multimedia/2022-02-05-watch--shouting-match-between-malema-and-lamola-at-jsc-hearing-as-body-interviews-zondo/">fraught and fractious week of public interviews</a> that shed heat but little light on the four candidates eligible to become the next Chief Justice, South Africa’s <a href="https://nationalgovernment.co.za/units/view/64/judicial-service-commission-jsc">Judicial Service Commission</a> has <a href="https://www.sanews.gov.za/south-africa/jsc-recommends-maya-new-chief-justice">recommended</a> that President Cyril Ramaphosa appoint Mandisa Maya, who is currently the head of the Supreme Court of Appeal.</p>
<p>Legally, the President should ignore the recommendation. But politically, he probably can’t. </p>
<p>He should ignore the recommendation because the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> made a number of very serious procedural mistakes that severely undermine the legitimacy and credibility of the appointment process. The commission is a constitutional body responsible for judicial appointments and accountability. It’s composed of a delicate balance of lawyers and politicians.</p>
<p>But, politically, he can’t ignore the recommendation on two grounds. Firstly, it would delay even further a process that’s been extended due to Ramaphosa opting for a wide-ranging consultation and shortlisting process. Secondly, he’d be refusing to accept a recommendation that would result in the appointment of South Africa’s first ever woman Chief Justice. </p>
<p>Ramaphosa is now caught between a rock and hard place. </p>
<h2>The mistakes that were made</h2>
<p>First of all, the Judicial Service Commission appears to have fundamentally misunderstood its role in the constitutional scheme set out in section 174(3) of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a>. It behaved as if it had the power to make the appointment: at one point, Julius Malema prefaced a question to one candidate with the words “if we appoint you…”. He should have been corrected immediately. </p>
<p>In the case of most judges, the President appoints “on the advice” of the Judicial Service Commission. But in the case of the judicial leadership, which includes the Chief Justice and Deputy Chief Justice, the President makes an appointment “after consultation” with the Judicial Service Commission, as well as the leaders of the political parties represented in the National Assembly. </p>
<p>Legally, “after consultation” is a relatively low level of consultation. In essence, the President can simply inform the consultee of his intention and then if they offer a view in response, he should consider the view. </p>
<p>But he is under no obligation to heed it. In the case of the appointment of the Chief Justice the President has a lot of leeway to choose his or her preferred individual. </p>
<p>In any case, the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a> is silent on how precisely the consultation should happen. But the practice was established in 2011, with the appointment of <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Chief Justice Mogeong Mogoeng</a>, who was the <a href="https://www.bbc.com/news/world-africa-14839406">sole nominee</a> of then President Jacob Zuma, when the commission conducted a testy two day interview of Mogoeng.</p>
<p>This time round the commission was presented with a short list of four candidates by an indecisive President in November last year. It conducted the interviews last week.</p>
<p>But – and this is the second procedural weakness – it did so without any publication or statement about the basis on which it was assessing the candidates. No set of criteria were referred to, because there are none. </p>
<p>This is serious abrogation of responsibility. It is impossible to see how such a body can conduct serious interviews without having a clear view of the qualities that they are looking to assess and test.</p>
<p>It may go some way to explain why the interviews were so <a href="https://www.dailymaverick.co.za/article/2022-02-05-jsc-ends-shocking-week-of-chief-justice-interviews-with-marathon-zondo-grilling/">erratic and inconsistent</a>. Different candidates were asked very different questions, introducing itself, an element of unfairness.</p>
<p>Thirdly, however, the real injustice of the process was the scandalous questions that were put especially to Maya and <a href="https://www.news24.com/news24/southafrica/news/its-an-insult-new-low-for-jsc-as-mlambo-asked-about-sexual-harassment-rumours-in-cj-interview-20220204">Dunstan Mlambo</a> (the Judge President of the Gauteng High Court), and to some extent the current deputy chief justice, Raymond Zondo.</p>
<p>In Maya’s case, she was subjected to a series of thoroughly sexist questions, at least one of which – from <a href="https://www.news24.com/news24/columnists/adriaanbasson/adriaan-basson-dali-mpofu-a-legal-nincompoop-and-scoundrel-20220207">Advocate Dali Mpofu</a> – was an example of sexual harassment in plain sight, while most of the others patronisingly failed to fully test her judicial qualities or, for example, her jurisprudential record or judicial philosophy.</p>
<p>The chair of the Judicial Service Commission – deputy president of the Supreme Court of Appeal, Xola Petse – failed to intervene.</p>
<p>Then, in the case of Mlambo, Mpofu was allowed to get away with an even graver breach of process by putting an entirely unsubstantiated “rumour” of sexual harassment to the candidate.</p>
<p>This offended a cardinal principle of law – fair due process, whereby any implicated person gets prior notice of any allegation against them – as well as the established practice of the Judicial Service Commission to not ambush candidates.</p>
<p>It should also be asked whether, and in what circumstances, it is proper for questions relating to alleged misconduct to be put in the absence of an actual complaint. </p>
<p>Again, Petse failed to step in, as he should have. Mpofu must have known that he was breaching Judicial Service Commission practice. As a senior counsel, he should in any case honour the principle of fair due process.</p>
<p>By failing to do so, his intention was apparently to destroy the prospects of the candidate by weaponising sexual harassment – an absolutely scandalous disregard for due process.</p>
<p>It must not go unchallenged. Mpofu must be held to account and disciplined by the relevant professional standards body, which selected him to sit on the Judicial Service Commission. He is not a fit and proper person to do so.</p>
<h2>Not the first time</h2>
<p>Last year, the Judicial Service Commission was required to repeat an interview process after it bungled a first set of interviews for two vacant positions on the constitutional court. </p>
<p>Now, it – and the country – faces the same possibility. The <a href="https://hsf.org.za/">Helen Suzman Foundation</a>, a think tank, <a href="https://www.citizen.co.za/news/south-africa/3008181/legal-action-mulled-interview-process-chief-justice-post/">is weighing up its litigation options</a>.</p>
<p>The bottom line is that the Judicial Service Commission’s behaviour can no longer be tolerated. It needs to be challenged, and the courts given the opportunity to provide legal and constitutional guidance.</p>
<p>The composition of the commission is well-conceived. It is a careful blend of legal expertise and interest groups on the one side, with elected representatives on the other. This provides an additional layer of legitimacy to the appointment of judges, who in a constitutional democracy hold significant power and authority.</p>
<p>The constitutional design is not the problem, it is the way in which members of the commission are conducting themselves.</p>
<h2>Between a rock and a hard place</h2>
<p>A delay of the appointment is far from ideal.</p>
<p>Inexplicably, the President dawdled in making his nomination for the new Chief Justice. This was despite the fact that it has been known for several years that Mogoeng Mogoeng’s term was coming to an end in October last year.</p>
<p>Ramaphosa could have given careful prior thought to the matter and in, say, July published his nomination. The Judicial Service Commission would have had plenty of time to conduct the public interview process.</p>
<p>Typically, when faced by a difficult or delicate decision Ramaphosa opted for an elaborate and elongated process of long-listing, wider consultation, and then short-listing. This played straight into the hands of those on the Judicial Service Commission who wanted to torpedo the candidates that they consider as either politically favourable to the President – although there is no evidence of any such bias – or to mess with the process so as to delegitimise the appointment, which is precisely what has now transpired.</p>
<p>The egregious failures in process by the Judicial Service Commission have muddied the water, obscured the substantive issues relating to the merits of the respective candidates, and complicated Ramaphosa’s decision-making.</p>
<p>Constitutionally, he should reject the approach taken by the Judicial Service Commission and its recommendation – not because of anything to do with the individual, Judge Maya, but because simply to accept its recommendation would be to acquiesce to the procedural unlawfulness perpetrated.</p>
<p>And, given the procedural flaws, the public cannot be confident of the relative strengths and weaknesses of the different candidates were properly explored. At the very least, the Judicial Service Commission should now publish a report that explains the basis of its reasoning and conclusion. </p>
<p>Yet, for Ramaphosa to appoint one of the other three candidates will create enormous political controversy, not least because his critics will be quick to accuse him of rejecting the one woman candidate and thereby missing the opportunity to appoint the first female Chief Justice in South African history.</p>
<p>A legal challenge may well have merit – substantively, given the grave flaws in process as well the injustices caused to the candidates. But politically, the Judicial Service Commission has put Ramaphosa in a very difficult position and he now faces an even more awkward decision in which he will be damned if he does and damned if he doesn’t.</p><img src="https://counter.theconversation.com/content/176607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a founding partner of political risk consultancy, The Paternoster Group, and a member of the advisory council of the Council for the Advancement of the South African Constitution. </span></em></p>The egregious failures in the Judicial Service Commission’s process have muddied the water and complicated the President’s decision-making.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1668392021-08-30T15:31:01Z2021-08-30T15:31:01ZSouth Africa is due to get a new chief justice: what it takes to do the job well<figure><img src="https://images.theconversation.com/files/418046/original/file-20210826-6126-rxn9as.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chief Justice Mogoeng Mogoeng presiding at South Africa's Constitutional Court in 2017.</span> <span class="attribution"><span class="source">Gulshan Khan/AFP via Getty Images</span></span></figcaption></figure><p>South Africa’s Constitutional Court has been a beacon of light during a decade-long period of political uncertainty and turmoil. </p>
<p>Most recently, the highest court in the land handed down an eloquent, as well as ground-breaking, <a href="https://www.news24.com/news24/columnists/guestcolumn/full-judgement-why-jacob-zuma-is-going-to-prison-for-15-months-20210629">judgment</a> in defence of the rule of law and the constitutional order. The June ruling imposed a custodial sentence on former president Jacob Zuma for contempt of court, citing his refusal to heed the court’s order to appear before the Zondo Commission of inquiry into state capture.</p>
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Read more:
<a href="https://theconversation.com/historic-moment-as-constitutional-court-finds-zuma-guilty-and-sentences-him-to-jail-163612">Historic moment as Constitutional Court finds Zuma guilty and sentences him to jail</a>
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<p>There could be no clearer or stronger sign of the independence of the judiciary than Justice Sisi Khampepe’s judgment, written on behalf of the majority of the court.</p>
<p>Nevertheless question marks hang over the court due to some serious governance failures. Errors that were recently made in a judgment that resulted in the final order <a href="https://twitter.com/franstaar/status/1430254409439752195/photo/1">having to be amended</a> suggest that all is not as it should be in South Africa’s highest court. </p>
<p>The court’s response to the <a href="https://mg.co.za/news/2021-07-03-concourt-to-hear-zumas-rescission-application-on-12-july/">rescission application by Zuma</a> after he was found in contempt of court has raised eyebrows. A rescission request – in effect a request to amend or revoke a ruling – is essentially only appropriate for the correction of obvious errors in law or fact in the judgment. But instead of dealing with the matter swiftly and decisively, the court has created further uncertainty by asking for submissions on the international law position. This is curious because the international law dimension was not argued in the proceedings by any of the parties. </p>
<p>This encouraged other litigants, <a href="https://www.news24.com/news24/southafrica/news/mkhwebane-asks-concourt-for-rescission-not-as-an-attempted-appeal-but-to-correct-an-error-20210726">such as the public protector</a>, to make equally frivolous rescission applications. These are frivolous, and possibly vexatious, because they not only have almost no prospect of success but because they veer close to being an abuse of court process. They are attempts to achieve an appeal via the back door. </p>
<p>The strength of the rule of law depends on certainty. The prospect of endless rounds of rescission applications would undermine this pillar of justice. </p>
<p>A second area of governance failures revolves around poor management. The court is short on numbers. <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Chief Justice Mogoeng Mogoeng</a>, whose 10-year tenure officially ends in October, is on terminal leave and to all intents and purposes vacated the position. The deputy chief justice, Raymond Zondo, is the acting chief justice. But he has been focused on completing the work of the <a href="https://www.statecapture.org.za/">Commission of Inquiry into State Capture</a> that he chairs.</p>
<p>There were already two unfilled vacancies on the 11-person apex court and now two other judges – Justices Khampepe and Chris Jafta, in addition to Mogoeng – are also on long leave ahead of their imminent retirement.</p>
<p>Recent hearings have been held with only six permanent members of the court sitting – a highly unsatisfactory situation. Since the constitution permits a quorum of eight, acting appointments have been made to make up the number.</p>
<p>This has been a regular feature of Mogoeng’s time as chief justice. Vacancies have not been filled quickly, and absences through sabbatical and other forms of long leave have not been sequenced wisely, so the court has often had as many as four acting judges.</p>
<p>These developments reflect poorly on the chief justice and point to the very important managerial function wrapped into the position.</p>
<p>This raises the question: who should be the next chief justice and what qualities and attributes should be expected of the head of the judicial branch of government?</p>
<h2>The process</h2>
<p>Judicial appointments are made in most cases on the advice of the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a>. But the chief justice chairs the commission and so has authority to ensure that it recruits and makes judicial appointments swiftly. </p>
<p>Moreover, the last hearings of the commission in April were contaminated by some <a href="https://www.news24.com/news24/southafrica/news/mogoeng-and-malema-row-as-hlophe-keeps-quiet-inside-the-interviews-for-the-wc-high-court-bench-20210424">unruly and unlawful conduct</a>, that was – in at least one case – aided and abetted by Chief Justice Mogoeng himself. Rather than fight litigation challenging the <a href="https://www.timeslive.co.za/news/south-africa/2021-06-03-jsc-commissioners-failed-dismally-during-concourt-interviews-casac-says-in-high-court-papers">process</a>, the Judicial Service Commission simply <a href="https://www.news24.com/news24/southafrica/news/concourt-nominees-to-be-re-interviewed-by-the-jsc-20210812">folded</a>. Fresh interviews will be conducted in October. </p>
<p>There is now debate about whether the Judicial Service Commission’s institutional design is the problem, or whether it is shortcomings of individuals who sit as commissioners.</p>
<p>Identifying the right nominee to be the next chief justice will not be easy. Not only does the person have to head the constitutional court, the person also leads the whole of the judicial branch of government. It is a very onerous role.</p>
<p>The role of the commission in the process of appointing the chief justice is very important. Yet the constitution is somewhat vague as to what is expected of the committee. It simply provides that the president makes the appointment “after consulting” the commissioners as well as the leaders of political parties represented in parliament.</p>
<p>This is a relatively thin form of consultation obligation. </p>
<p>However, as the account of former deputy chief justice Dikgang Moseneke, which appears in his excellent judicial memoir <a href="https://www.panmacmillan.co.za/authors/dikgang-moseneke/all-rise/9781770106666">All Rise</a> reveals:</p>
<blockquote>
<p>The JSC … convened for purpose of inquiry into the fitness of the chief justice nominate to assume office. </p>
</blockquote>
<p>And, as he adds, in 2011, Mogoeng’s interview commanded “high public interest” and lasted the best part of two days, both of which were televised.</p>
<p>So the Judicial Service Commission has, in fact, carved out an important role for itself. Although, in the end the president can choose to ignore whatever transpires at the interview. </p>
<p>In Mogoeng’s case, for example, the public interview exposed the weaknesses in his approach to adjudication, his lack of managerial and leadership experience (having come from the smallest high court division in the land), as well as confirming fears that his Christian faith would trump any commitment to <a href="https://constitutionallyspeaking.co.za/the-difficult-choices-facing-chief-justice-mogoeng/">constitutional values</a>.</p>
<p>Zuma, then president, appointed him anyway.</p>
<p>In the event, Mogoeng provided strong leadership during a very testing time for the judiciary, manifested most obviously when he put his name on the seminal Nkandla judgment which found that both parliament and Zuma had <a href="http://www.saflii.org/za/cases/ZACC/2016/11.html">transgressed the constitution</a>.</p>
<h2>So who next?</h2>
<p>Former deputy chief justice Moseneke was overlooked three times as chief justice. In my view South Africa was deprived of a great jurist and very fine human being. And Zuma’s decisions to overlook him were motivated by bad faith and political considerations linked to Moseneke’s perceived denigration of the outcome of the ANC conference that saw Zuma ascend to the presidency. </p>
<p>That does not mean that ordinarily the deputy chief justice should be treated as being in pole position to assume the top job.</p>
<p>So, when President Cyril Ramaphosa considers who should be the next chief justice, he should indeed be looking for someone with Moseneke’s grace and composure, independence of mind and leadership skills, but not necessarily his jurisprudential accomplishment.</p>
<p>The chief justice is one of 11 justices. He or she needs to be able to command the respect of the other 10 members of the court – something that Mogoeng struggled with both initially, and at other times later in his tenure, as Moseneke records in All Rise.</p>
<p>But Moseneke also describes how resolute and steely a chief justice must be prepared to be in South Africa’s tough political backyard. The courts were attacked during Zuma’s time in office, and continue to be undermined by his supporters now that he is out of office. </p>
<p>Above all, the chief justice needs to have a single-minded and unflinching commitment to constitutional democracy and constitutional values, including social justice. This should be the starting point for an earnest public debate about the qualities and attributes of Mogoeng’s successor.</p><img src="https://counter.theconversation.com/content/166839/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a founding partner of political risk consultancy, The Paternoster Group, and a member of the advisory council of the Council for the Advancement of the South African Constitution.</span></em></p>The Chief Justice needs to have a single-minded and unyielding commitment to constitutional democracy and constitutional values, including social justice.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1644542021-07-16T13:26:54Z2021-07-16T13:26:54ZSouth Africa’s Constitutional Court: the case for judicial dissent, and the caveats<figure><img src="https://images.theconversation.com/files/411423/original/file-20210715-13-adbwny.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Constitutional Court in session in 2018.</span> <span class="attribution"><span class="source">Alaister Russell/Sowetan/Gallo Images/Getty Images</span></span></figcaption></figure><p>When constitutional democracy is under strain, how should we view disagreement among judges in a court of (supposed) last resort?</p>
<p>Two weeks ago, South Africa’s Constitutional Court handed down judgment in two cases with <a href="https://www.news24.com/news24/southafrica/news/zuma-to-jail-ramaphosa-vindicated-two-significant-judgments-ancs-nec-will-debate-this-weekend-20210702">high political stakes</a>.</p>
<p>First, it was Acting Deputy Chief Justice Khampepe who <a href="https://www.youtube.com/watch?v=v84VZM5M-88">read</a> <a href="http://www.saflii.org/za/cases/ZACC/2021/18.html">the court’s reasons</a> for its punitive order sentencing former president Jacob Zuma to 15 months’ imprisonment. This was for contempt of <a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">its earlier order</a> directing him to comply with the summonses and directives issued by the Zondo Commission.</p>
<p>Then, two days later, Justice Jafta <a href="https://www.youtube.com/watch?v=XHk17Oe5V0g&t=1s">delivered</a> the court’s <a href="http://www.saflii.org/za/cases/ZACC/2021/19.html">withering critique</a> of Public Protector Busisiwe Mkhwebane’s disregard for both the facts and the law in her findings and remedial action against President Cyril Ramaphosa in relation to campaign donations.</p>
<p>The outcome of each case is of undeniable political consequence. They add to a string of legal losses that has landed the former president <a href="https://www.news24.com/news24/columnists/guestcolumn/songezo-zibi-how-zuma-ended-up-in-prison-and-why-no-one-can-be-allowed-to-disobey-the-law-20210712">in prison</a> and the incumbent public protector <a href="https://www.dailymaverick.co.za/article/2021-07-01-another-public-protectors-report-bites-the-dust-and-its-all-clear-for-an-impeachment-inquiry/">perilously close to impeachment</a>. </p>
<p>Taken together, the judgments shift the <a href="https://www.dailymaverick.co.za/article/2021-07-08-jacob-zumas-fate-is-but-a-symptom-of-a-deep-dramatic-power-shift-within-the-anc/">fault lines of power</a> in South Africa’s fragile democracy.</p>
<p>But the court was split in both decisions.</p>
<p>While the court was unanimous in finding Zuma in contempt of its orders, a partial dissent written by Justice Theron (with Justice Jafta concurring) parted ways with the majority on the question of sanction. And in the campaign donations case, Chief Justice Mogoeng found himself alone in finding merit in the public protector’s appeal.</p>
<p>These minority judgments are now being used to shore up support for spurious challenges to the finality of the court’s judgments. Zuma has <a href="https://collections.concourt.org.za/handle/20.500.12144/36786?show=full">applied</a> to the court for the rescission of its “erroneous” and “unconstitutional” judgment. And Mkhwebane has <a href="https://www.sowetanlive.co.za/news/south-africa/2021-07-04-concourt-got-it-wrong-says-public-protector-as-she-considers-asking-apex-court-to-rescind-cr17-judgment/">indicated</a> that she may follow suit with a rescission application of her own.</p>
<p>This calls into question the status of minority judgments in a court of last resort. The court’s answer to Zuma’s rescission application will influence the future practice of judicial dissent. But it will also have profound implications for the court’s authority and the rule of law in South Africa.</p>
<h2>Wielding dissents to undermine judicial authority</h2>
<p>Zuma has long <a href="https://mg.co.za/article/2012-02-17-no-sunset-clause-for-constitution/">questioned</a> the logic of dissents. He did so most memorably in an interview with The Star in February 2012:</p>
<blockquote>
<p>How could you say that judgment is absolutely correct when the judges themselves have different views about it? … There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?</p>
</blockquote>
<p>On this occasion, Zuma is using a minority judgment to mount a more fundamental challenge to the authority of the court’s ruling against him.</p>
<p>His rescission application claims that the key sting of the minority judgment was</p>
<blockquote>
<p>the unprecedented announcement that the Constitutional Court had acted unconstitutionally and therefore irrationally or has exceeded its judicial authority and mandate (para 95). </p>
</blockquote>
<p>This does not merely characterise the minority as having <em>disagreed</em> with the majority. It portrays the minority as having <em>pronounced</em> on the constitutionality of the majority judgment itself.</p>
<p>This is a legal sleight of hand. </p>
<p>Dissent often arises from disagreement between the judges about what the constitution requires in a particular case. But only the argument that garners majority support authoritatively answers that question. This simple but incontrovertible fact means that even the judges in the minority – notwithstanding their disagreement – would now have to recognise that the contempt case against Zuma was authoritatively and finally settled by the majority judgment.</p>
<p>But, in keeping with his strategy of <a href="https://www.dailymaverick.co.za/article/2021-04-15-in-response-to-mogoeng-zuma-returns-to-claims-of-concourt-judicial-bias-possibly-orchestrating-his-own-demise/">litigating by letters</a>, Zuma’s distortion of the court’s decision appears aimed at influencing the court of public opinion.</p>
<p>As the guardian of the constitution, the court’s legitimacy depends on public confidence that its rulings vindicate the constitution. By contending that the majority judgment is “unconstitutional”, Zuma casts the court as a threat to the constitution and, by implication, to his human rights as a “victim” of the court’s deviance.</p>
<p>This is why the rescission application constitutes a continuing – and indeed more radical – assault on the court’s authority and the rule of law. And here’s the rub: Zuma portrays the dissent as having split the court in an internecine power struggle that renders the authority and finality of <em>all its judgments</em> open to contestation.</p>
<h2>Questioning the value of dissenting judgments</h2>
<p>Should South Africans lament the fact that the court did not speak with one voice when sanctioning Zuma for his contempt of court?</p>
<p>A unanimous judgment can be a <a href="http://www.saflii.org/za/cases/ZACC/2002/15.html">powerful way</a> to deliver justice in politically divisive cases. But there are reasons to value dissent even when – and perhaps especially when – one agrees with the majority judgment.</p>
<p>Dissent is a vital sign that judicial independence is alive – and kicking.</p>
<p>A split judgment bears out the existence of disagreement that is only possible where there is independent-mindedness on the bench. </p>
<p>It could be argued, in fact, that applying the law “<a href="https://www.justice.gov.za/legislation/constitution/chp08.html">impartially and without fear, favour or prejudice</a>” requires that judges be allowed to dissent. This is not to diminish the value of judicial deliberation aimed at reaching consensus. Rather it is to make the point that forcing consensus would ignore the inextricable link between a judge’s freedom to dissent and their duty to apply the law impartially as a member of an independent judiciary.</p>
<p>The publication of dissenting judgments also makes judges answerable for their decisions.</p>
<p>The Constitutional Court, like other apex courts around the world, settles disagreement between judges through <a href="https://www.yalelawjournal.org/essay/five-to-four-why-do-bare-majorities-rule-on-courts">majority decision-making</a>. This is not simply a hand-raising exercise. Rather, judicial deliberation is a reason-giving practice. Judges are not only <em>entitled</em> – as an exercise of judicial independence – to voice their own opinion. They are also <em>obliged</em> to do so and to support their view with reasons.</p>
<p>The transparency of the court’s reasoned disagreement does not undermine its authority. On the contrary, dissent forces engagement with opposing views and, by inviting refutation, shows why one argument commanded the majority. </p>
<h2>Dissent as a counterpoint to political rhetoric</h2>
<p>But does all this hold true in troubled times, when majority decisions are denounced as “<a href="https://www.dailymaverick.co.za/article/2021-07-01-zuma-draws-from-the-patriarchs-playbook-as-he-insults-judge-sisi-khampepe/?utm_source=top_reads_widget">angry and emotional</a>” and dissents are distorted for political gain?</p>
<p>My answer is yes. Transparent and reasoned disagreement is the best antidote to the kind of noxious discourse that seeks to undermine public confidence in the court.</p>
<p>Nevertheless there is a caveat. Robust judicial debate should be welcomed. But any points of disagreement should be spelled out through reasoned argument that does not jeopardise collegiality or public confidence in the judiciary.</p>
<p>The court has, <a href="https://www.timeslive.co.za/news/south-africa/2017-12-30-how-mogoengs-fellow-judges-disagreed-with-him/">for the most part</a>, been beyond reproach on these scores. But the need for judicial discipline is heightened in politically divisive cases where the court’s own words may be used against it by a litigant on the losing side.</p>
<p>And this is the sting in the tail of this defence of dissents.</p>
<h2>Sting in the tail</h2>
<p>In the Zuma contempt case, the minority advanced strong reasoning but regrettably also resorted to rhetoric that provided a foothold for discrediting the court. Most troubling is the accusation that the majority created law that is “not just bad; it is unconstitutional” (para 191). Unsurprisingly, the minority’s valuable insights have been overshadowed by selective soundbites more likely to trend on Twitter than persuade in legal argument.</p>
<p>In the campaign donations case, Chief Justice Mogoeng invoked the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-s02.pdf">judicial oath</a> in support of his sympathetic stance towards the public protector. But in doing so, he fed a <a href="https://www.timeslive.co.za/sunday-times/opinion-and-analysis/2021-07-04-justices-side-with-the-facts-not-the-faction/">political narrative</a> that judges are biased along factional lines – the very discourse he enjoined the majority to eschew.</p>
<p>Notwithstanding these slips in judicial voice, the court should offer no apology for its split judgments.</p>
<p>This is what hangs in the balance in Zuma’s rescission application: Will the court affirm both the value of the dissent and the finality of the majority decision? Or will the judges stubbornly rehash the debate that previously divided them and so fall prey to the attack on the court’s authority?</p>
<p>Somewhat paradoxically, if the virtues of dissent are to be vindicated, the court must now affirm in <em>unanimous</em> voice that it has settled the law – and settled it finally.</p><img src="https://counter.theconversation.com/content/164454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Taylor clerked at the Constitutional Court of South Africa and previously worked as a legal researcher at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, Including Organs of State.</span></em></p>South Africa’s Constitutional Court should offer no apology for its split judgments.Helen Taylor, Post-Doctoral Researcher, South African Institute For Advanced Constitutional, Human Rights, Public and International Law (SAIFAC), University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1644982021-07-14T14:17:26Z2021-07-14T14:17:26ZChaos in South Africa points to failures in the project to build a democracy<figure><img src="https://images.theconversation.com/files/411223/original/file-20210714-19-1n9h7om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African soldiers interrogate a pedestrian outside a mall in Soweto. </span> <span class="attribution"><span class="source">Photo by Emmanuel Croset/AFP via Getty Images</span></span></figcaption></figure><p>The spate of violence <a href="https://www.aljazeera.com/news/2021/7/13/worst-violence-in-years-spreads-in-south-africa-amid-zuma-jailing">that’s engulfed South Africa</a> shows that not all citizens have internalised constitutional democracy and the rule of law as the organising principle of the post-apartheid society. </p>
<p>Various interventions to institutionalise democracy were more focused on policy interventions and institution-building to safeguard it, but not on ensuring that it was embraced by the entirety of society, appreciating it as the basis of its evolution. </p>
<p>The violence started in KwaZulu-Natal following the imprisonment of the former president Jacob Zuma to serve a <a href="https://www.reuters.com/world/africa/south-africas-top-court-says-ex-leader-zuma-contempt-absences-2021-06-29/">15-month sentence</a> for contempt of the order of the Constitutional Court. </p>
<p>This was initially hailed as a <a href="https://theconversation.com/historic-moment-as-constitutional-court-finds-zuma-guilty-and-sentences-him-to-jail-163612">victory for the rule of law</a>. But the subsequent rioting and mass looting of retail outlets shows it to have been a pyrrhic victory. In many ways, the edifice of the country’s constitutional democracy where the judicial authority is vested in the courts to institutionalise the rule of law is blown to smithereens.</p>
<p>This betrays the sacrifices of many to create an orderly society, where progress related to their selfless efforts had gathered pace over years. Just in a wink of an eye, all is going up in flames. </p>
<p>Beyond the pale in this rasping disobedience is the clamour of a war cry <a href="https://www.enca.com/news/supporters-call-zumas-release">demanding Zuma’s release</a>. Isn’t this treasonous, especially by those who use their influential standing in society to agitate for insurrections in the guise of protest? These concepts are not the same. The constitution states that citizens <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">have the right</a> to “assemble, demonstrate, picket and present petitions”, but “peacefully and unarmed”. This is what protest means.</p>
<p>Closely related to it is freedom of expression, which <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">does not include </a> “incitement of imminent violence or to cause harm”. Especially in the social media, <a href="https://qz.com/africa/2033328/south-africa-to-monitor-social-media-as-protests-rock-the-country/">reckless postings</a> with incendiary intentions to stoke violence, looting, and destruction of property incite insurrection – an uprising against the state. </p>
<p>This is lawlessness, not protest. </p>
<p>The country is held at ransom by those cajoling the state into concessions intended to belie the essence of its foundation based on the supremacy of the constitution and the rule of law. This is largely by those who are demanding that the law should apply to the former president differently. </p>
<p>This absurdity should not in any way be entertained lest it mark the onset of the death of the rule of law. </p>
<p>An important principle in the organisation of the post-apartheid society is that of equality before the law and that nobody is above it.</p>
<p>In my view state power should be unleashed to clamp down on the violence. But this isn’t a sustainable way of making people understand that South Africa is a constitutional democracy. In many ways the rioting shows that many South Africans haven’t grasped what it was that the country decided to become as a post-apartheid society.</p>
<h2>Dangers</h2>
<p>The violence and looting has spawned a situation of national danger for President Cyril Ramaphosa. As the commander-in-chief of the defence force it was within <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a64-97.pdf">his powers</a> to declare a state of emergency. <a href="https://www.news24.com/citypress/news/sandf-called-to-join-police-on-patrols-20210712">He did not</a>. Instead, he opted to consult widely for the next course of action should the situation not subside. </p>
<p>This has come to define his presidential disposition. The state of emergency is the intervention of the last resort to maintain or regain control over public affairs. The constitution makes <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a64-97.pdf">provision for it</a>. </p>
<blockquote>
<p>[When] the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency", the President can declare a state of emergency if such “is necessary to restore peace and order. </p>
</blockquote>
<p>A core element of this is suspending civil rights. In other words, when democracy as the organising principle of society is imperilled, undemocratic means can be used to save it.</p>
<p>Which raises the question: is the president’s cautious approach defensible? Haven’t the incidences of violence, which by their nature are tantamount to insurrections, and therefore create disorder, a reason enough for the declaration of state of emergency? </p>
<p>Despite Ramaphosa’s tough talk, and the <a href="https://www.france24.com/en/africa/20210712-s-africa-to-deploy-army-to-quell-violence-as-former-president-zuma-faces-court">deployment of troops</a>, thuggery continues unabated opportunistically preying on the credulity of the disadvantaged groups in society to make all the actions being taken look like a socioeconomic grievance. </p>
<p>But doesn’t this give us a hint of where the fault line may lie in institutionalising the country’s constitutional democracy?</p>
<p>Invoking state power to maintain order and stability is necessary. But it isn’t a sustainable way of making citizens internalise that South Africa is a constitutional democracy. </p>
<p>In many ways the insurrections suggest that many do not seem to have signed up to the concept that the rule of law would be the organising principle in democratic South Africa. Various interventions to institutionalise democracy were more focused on policy interventions and institution-building to safeguard it, but not on ensuring that it was embraced by the entirety of society. </p>
<p>Had this been the case, many would not have fallen into the trickery of not seeing the violence unleashed against democracy as the push back by the beneficiaries of corruption. In other words, for a democracy to endure, it must exist in the consciousness of society. </p>
<p>But how should South Africa go about this? </p>
<h2>The construction of a democracy</h2>
<p>This requires social institutions as subsystems that optimise co-existence to reassert their role in society, in the same way they animated patriotism in galvanising citizen participation in the making of <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">South Africa’s constitution</a>.</p>
<p>If the mayhem that besets the country is anything to go by, indications are that what became a social contract out of this exercise – where the powers and obligations of the state in relation to the rights and responsibilities of the citizens are defined – may not have been deliberately and systematically brought back into the people’s understanding of what it means to shape society’s consciousness.</p>
<p>In the hubris of the democratic breakthrough, social institutions as platforms to shape the nation’s character receded from this important role. </p>
<p>Much of this is glaring in the learning spaces, where education tends to focus more on forming the mind, and less on character formation. Many who are in the forefront of the mayhem that besets the country had interacted with education in their lives. Some are graduates. They are learned but lack civic character. </p>
<p>This calls for great introspection of the approach to education, lest the institutions of learning keep churning out miscreants that damage rather than build society.</p>
<p>It is time to introduce civic education at all levels of learning to cut across various disciplines. And it should emphasise citizenship as being about shared values of humanism, as enshrined in the constitution, where co-existence is about sustaining each other. </p>
<p>As a function of responsible citizenry, a good society makes democracy thrive. Its safety does not lie in the power of the state to exact obedience, but in the collective conscience of society. Social institutions are key to instilling this. </p>
<p>If this had existed, the Zuma moment which has gripped the country would have been averted as many would have known that South Africa is a constitutional democracy based on the rule of law.</p><img src="https://counter.theconversation.com/content/164498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mashupye Herbert Maserumule received funding from his postgraduate studies from the National Research Foundation(NRF). He is affiliated with the South African Association of Public Administration and Management (SAAPAM). He edits its scholarly publication, Journal of Public Administration. </span></em></p>After 1994 efforts were made to embed democracy. The focus was on policy and institution-building. What was missing was ensuring all South Africans were on board.Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1571492021-03-22T15:06:23Z2021-03-22T15:06:23ZSouth Africa is ripe for electoral reform. Why its time might have come<figure><img src="https://images.theconversation.com/files/390330/original/file-20210318-13-lqe1vb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">ANC campaigners at voting station in November 2020.</span> <span class="attribution"><span class="source">Photo by Darren Stewart/Gallo Images via Getty Images</span></span></figcaption></figure><p>South Africa adopted its <a href="https://hsf.org.za/publications/hsf-briefs/the-south-african-electoral-system">electoral system</a> during the process of making a new constitution in the run up to its transition to democracy in <a href="https://www.tandfonline.com/doi/abs/10.1080/04597239308460952?journalCode=tssu20">1994</a>. </p>
<p>The system agreed was proportional representation. This involved parties drawing up lists of representatives which would get seats in legislatures according to the proportion of votes the parties won in the polls. This system was chosen because it was seen as allowing maximum representation of different political opinions and ethnic identities. </p>
<p>The system has worked well to <a href="http://www.careers.uct.ac.za/sites/default/files/image_tool/images/136/Mattes%20111dem03.pdf">represent minority parties</a> along with <a href="https://www.elections.org.za/NPEDashboard/app/dashboard.html">recurrent African National Congress majorities</a> in the National Assembly and in most of the country’s nine provinces. </p>
<p>But some now see it as working against <a href="https://mg.co.za/opinion/2020-08-15-electoral-reform-its-now-or-never/">accountability</a>. This is because <a href="http://www.elections.org.za/content/Elections/Election-types/">proportional representation</a> hands power to party bosses – which in turn disempowers voters. MPs feel beholden to their parties, rather than to the people who elected them.</p>
<p>The existing electoral system has attracted extensive criticism for rendering elected representatives unaccountable to those who elected them. Correspondingly, calls for electoral reform have been growing louder, with especial demands that voters should be enabled to <a href="https://mg.co.za/article/2017-12-15-south-africa-needs-electoral-reform-but-presidents-powers-need-watching/">elect their representatives directly</a>. But attempts at reform have all been stymied by a reluctance on the part of the politically dominant African National Congress which is well served by the current system.</p>
<p>The call for reform was given a significant boost following a ruling by the country’s top court, The Constitutional Court, in June last year. The judgment forced the issue by calling for amendments to the Electoral Act. In the wake of the ruling, an influential lobby group, the <a href="https://www.inclusivesociety.org.za/">Inclusive Society Institute</a>, has recently produced a detailed report setting out recommendations for electoral reform. </p>
<h2>Electoral reform</h2>
<p>The Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2020/11.html">judgment of June 2020</a> declared the current <a href="http://www.saflii.org/za/legis/num_act/ea1998103.pdf">Electoral Act</a> unconstitutional. This is because the act barred individuals, as distinct from parties, from standing for election at national and provincial levels. </p>
<p>Parliament is now obliged to change the law. A <a href="https://www.parliament.gov.za/press-releases/home-affairs-committee-adopts-electoral-laws-amendment-bill">bill</a> to allow for the change is in progress. This has opened the door to wider reform of the electoral act, particularly with regard to the idea of blending the right of voters to elect their representatives directly with the constitutional imperative for proportional representation.</p>
<p>The proposals for reform made by the <a href="https://www.inclusivesociety.org.za/about-us">Inclusive Society Institute</a> were drawn up by a committee chaired by <a href="http://www.thepresidency.gov.za/national-orders/recipient/roelf-petrus-meyer-1947">Roelf Meyer</a>, who served as the chief representative of the former ruling <a href="https://www.sahistory.org.za/article/national-party-np">National Party</a> during the constitution-making process. </p>
<p>The committee’s <a href="https://cisp.cachefly.net/assets/articles/attachments/84679_2021.02.24_electoral_reform_report.pdf">report</a> makes a number of suggestions. These include:</p>
<ul>
<li><p>that the National Assembly should consist of the current 400 representatives. Of these, 300 should be elected from multi-member constituencies. </p></li>
<li><p>A further 100 compensatory seats should be provided to ensure the overall proportionality of the outcome. </p></li>
<li><p>If a party obtained, overall, 55% of the total national vote, it would receive extra seats (in addition to those it won at constituency level) to provide it with 55% representation in parliament. (Similarly at provincial level.)</p></li>
</ul>
<p>To meet the demands of the Constitutional Court, independent candidates would be able to stand in the multi-member constituencies. </p>
<p>Given the number of registered voters, around 26.7 million <a href="https://www.elections.org.za/NPEDashboard/app/dashboard.html">in 2018</a>, independent candidates would need to receive about 90 000 votes to be elected to the National Assembly. </p>
<h2>More voice, greater fluidity</h2>
<p>The idea behind multi-member constituencies is that 300 out of the 400 MPs would become accountable not only to parties but also to constituencies. This would be a welcome change, even if it would fall short of the direct accountability that many voters would like. </p>
<p>Such a system opens the door to candidates who want to raise issues that are too often smothered by the established political parties. Concerns about <a href="https://www.timeslive.co.za/news/south-africa/2021-01-15-fewer-protests-in-2020-but-that-doesnt-mean-people-are-happier/">government service delivery</a> and about the environment immediately come to mind.</p>
<p>Such a system would also enable aspirant candidates who have failed to gain nomination by their preferred political party to stand, perhaps as independent members of their parties.</p>
<p>The adoption of the system would, therefore, allow voters greater choice. It would also introduce great fluidity into the electoral system by impressing on MPs that they are accountable to constituents as well as their party bosses.</p>
<p>Given that recent elections have seen a steady decline in the proportion of <a href="https://theconversation.com/south-africas-2019-poll-showed-dangerous-signs-of-insiders-and-outsiders-121758">the votes going to the ANC</a> – there are suggestions that it could lose its majority in the next general election <a href="https://www.eisa.org/wep/southafrica.htm">in 2024</a> – there are even chances that the country would have its first government by coalition in the national parliament.</p>
<h2>What next?</h2>
<p>The proposals revive the <a href="https://static.pmg.org.za/docs/Van-Zyl-Slabbert-Commission-on-Electoral-Reform-Report-2003.pdf">reforms proposed</a> by the task team led by the late former opposition leader <a href="https://www.sahistory.org.za/people/frederik-van-zyl-slabbert">Van Zyl Slabbert</a> in 2003. The team was carrying out a constitutional requirement to review the electoral system after five years of democracy. </p>
<p>The team recommended a change that would have introduced multi-member constituencies - whereby each constituency is represented by between three and seven MPs. But the ANC used its majority in parliament to <a href="https://citizen.co.za/news/south-africa/elections/2302232/electoral-reform-time-to-dust-off-the-van-zyl-slabbert-report/">block the proposed reform</a>. What chances are there that this time round the ANC will agree to what would be a far-reaching reform of the electoral system along the lines suggested by the institute?</p>
<p>The party rejected the Slabbert Committee’s recommendations on the grounds that the current system was working satisfactorily. Not least because it was simple and easy to understand. It might now well argue along similar lines. It might suggest that the introduction of multi-member constituencies, with a proportional representation top-up to ensure proportionality, might appear opaque to the majority of the population. </p>
<p>It would be simpler, it might say, to fulfil the Constitutional Court’s ruling by merely allowing individual candidates to stand alongside political parties on the national list. That would enable their election if they garnered the necessary minimum of votes.</p>
<p>While such a minimum change might serve the party’s interests, the sheer difficulties which individual candidates would encounter in attracting nationwide support would effectively gut the reform of content. It will leave MPs as unaccountable in practice as they are today.</p>
<p>There is, within the ANC, a reformist group lobbying for a major change within the electoral system. Likewise, the recent formation of a grouping of “struggle veterans” to <a href="https://www.businesslive.co.za/bd/national/2021-03-18-anti-apartheid-activists-resurrect-the-fight-for-democracy/?utm_source=&utm_medium=email&utm_campaign=Emergency+power+bids+set+to+inject+R45bn+and+ease+chronic+shortages+%7C+Employers+refund+R2bn+to+UIF+after+fraudulent+Ters+claims+%7C+CHRIS+ROPER%3A+Race+to+the+bottom&utm_term=http%3A%2F%2Fwww.businesslive.co.za%2Fbd%2Fnational%2F2021-03-18-anti-apartheid-activists-resurrect-the-fight-for-democracy%2F">defend the constitution and democracy</a>, suggests that momentum for electoral reform might grow. </p>
<p>But, there is real danger that any debate around electoral reform will get caught up in the ANC’s factional politics. Yet, still, the present moment presents a genuine opportunity for a more accountable and truly democratic politics. It will be to South Africa’s great detriment if that opportunity for change is missed.</p><img src="https://counter.theconversation.com/content/157149/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall has previously recieved funding from the NRC. </span></em></p>The existing electoral system has attracted extensive criticism for rendering elected representatives unaccountable to those who elected them.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1569662021-03-11T16:28:03Z2021-03-11T16:28:03ZA close look at how the net has tightened on the right to protest in South Africa<figure><img src="https://images.theconversation.com/files/389051/original/file-20210311-22-1rh4exy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters clash with police in February in Cape Town over student funding.</span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p>South Africa’s public order policing is as ill as it ever was. This has been illustrated in recent <a href="https://www.bloomberg.com/news/articles/2021-03-11/protests-spur-south-africa-to-bolster-university-student-funding">student protests</a> spreading across the country’s campuses. In Johannesburg <a href="https://mg.co.za/education/2021-03-10-why-am-i-being-shot-witnesses-describe-last-moments-of-man-shot-during-wits-protests/">police shot dead</a> a pedestrian at a protest outside the University of the Witwatersrand in Johannesburg. </p>
<p>In March 2020 the government imposed a <a href="https://www.dailymaverick.co.za/opinionista/2021-01-19-south-africas-new-lockdown-regulations-explicitly-ban-all-political-gatherings/">ban</a> on political gatherings as part of a host of interventions aimed at managing the COVID-19 pandemic. The move was <a href="https://www.groundup.org.za/article/government-using-lockdown-decide-who-may-or-may-no-protest/">unprecedented</a> in the country’s post-apartheid history. </p>
<p>Since then there has been a distressing level of uneven and inconsistent policing of gatherings. The message this has sent is that the police were going easy on some gatherings, while taking <a href="https://www.groundup.org.za/article/continued-prohibition-political-gatherings-irrational/">tough action</a> on others to suppress dissent. </p>
<p>As a scholar of the <a href="https://www.scribd.com/document/323143697/Introductin-to-Protest-Nation-The-Right-to-Protest-in-South-Africa#from_embed">right to protest</a> I have not been surprised by the heavy handed action. In my view the state has merely been reproducing behaviour patterns entrenched over the past two decades.</p>
<p><a href="https://journals.co.za/doi/pdf/10.2989/CCR.2020.0009">Research I conducted</a> prior to the lockdown pointed to anti-democratic patterns of behaviour towards protesters. This is despite a 2018 Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2018/45.html">judgment</a> in South Africa that affirmed people’s right to protest. </p>
<p>I concluded from my findings that much more needs to be done at municipal level to ensure that the judgment changes how the state regulates and polices protests. South Africa’s Regulation of Gatherings <a href="https://www.gov.za/documents/regulation-gatherings-act">Act</a> requires a convener to give notice of their intention to hold a gathering to their local authority, in most cases their municipality.</p>
<h2>Understanding local practices</h2>
<p>The Constitutional Court <a href="https://globalfreedomofexpression.columbia.edu/cases/mlungwana-v-the-state/">found</a> in the <em>Mlungwana and Others v S and Another</em> judgment that a convener’s mere failure to give notice of an intention to hold a gathering should not be criminalised. </p>
<p>The court argued that criminalisation was an unjustifiable limitation on freedom of assembly. It argued that less restrictive means could be used to encourage notification, which it recognised served important public purposes.</p>
<p>The ruling covered all gatherings. But it was particularly significant for the right to protest. This is because protests are more susceptible to government repression than ordinary gatherings.</p>
<p>Using notification as a lens through which to view the state’s treatment of protests, I explored whether actual municipal practices on the ground were opening or closing spaces for protests, and what impact <em>Mlungwana</em> was likely to have on these practices.</p>
<p>I drew on two datasets, which provided rich detail about actual municipal practices over the past decade. The first was collected from 12 municipalities between 2012 and 2013 around the country by a team of researchers under my direction. The second was sourced from the <a href="https://www.saha.org.za">South African History Archives</a>. It had assisted a public interest law clinic to send access to information requests to all municipalities in the country where an information officer’s contact details could be found. Many municipalities simply ignored their requests.</p>
<p>The documents they obtained covered the period 2015 onwards. </p>
<p>I supplemented these datasets with interviews with municipalities, activists and lawyers.</p>
<p>The research results did not paint a flattering picture of municipal practices. Municipalities used pre-emptive restrictions on gatherings, and especially protests, as a matter of course. </p>
<p>For example, municipalities impose onerous conditions that are not required by, or even supported by, the Act. Some require conveners to pay fees to hold a gathering. </p>
<p>In addition, the Act should regulate gatherings in a content-neutral manner with the narrowest prohibitions possible on harmful forms of expression. Yet, there was evidence of municipalities interfering in the lawful expressive content of protests.</p>
<p>In one municipality conveners had to provide information about whether placards would be displayed in gatherings, the names and copies of the identity documents of people who were going to give speeches at the gathering, as well as the duration of the speeches.</p>
<p>Another required conveners to provide details of whether speeches would be made at gatherings, and if so, by whom. In two others they required conveners to give descriptions of the placards and slogans to be displayed.</p>
<p>These requirements risk chilling freedom of expression in gatherings as speakers may be unwilling to be identified in advance out of fear that their speeches may make them targets for harassment or intimidation.</p>
<p>The datasets revealed that municipalities held preparatory meetings for most gatherings they’d received notices about. This is in spite of the fact that in terms of the Act, meetings are needed only if the responsible officer has concerns about the gathering.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-student-protests-in-south-africa-have-turned-violent-66288">Why student protests in South Africa have turned violent</a>
</strong>
</em>
</p>
<hr>
<p>My research showed that outright prohibitions or refusals of requests for gatherings were a rarity. However, municipalities have also been known to impose blanket prohibitions on gatherings during special events – such as around the time of the 2010 football World Cup and, more recently, the 2016 local government elections – effectively suspending the right to gather in public spaces outside of a State of Emergency.</p>
<h2>A shift</h2>
<p>Municipal over-regulation of protests, coupled with over-policing, suggests a doctrinal shift in how they are viewed by the government. Instead of recognising protests as a democratic right and legitimate form of expression, increasingly protests have been framed as threats to domestic stability and, consequently, national security.</p>
<p>For example, I found no evidence from my research that the national government stepped in to curb abuses.</p>
<p>This shift is not confined to South Africa. It reflects a more conflictual global social order, declining respect for democracy as a political form, and consequently increasingly common framings of protests as riots and protesters as mobs. </p>
<p>State conduct during the lockdown has been yet another sign of this doctrinal decline.</p>
<p><em>Mlungwana</em> was an important step towards reforming the problematic notification process. But, unless the judgment is followed by a deeper and more consistent ideological and doctrinal commitment to respecting the right to protest and ensuring a more genuine incorporation of the majority of South Africans into the political system, then the changes are likely to be limited.</p><img src="https://counter.theconversation.com/content/156966/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Duncan receives funding from the Open Society Foundation for South Africa and Luminate.</span></em></p>Instead of being a democratic right and legitimate form of expression, protests have increasingly been framed as threats to national security.Jane Duncan, Professor, Department of Journalism, Film and Television, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1553922021-02-16T14:55:38Z2021-02-16T14:55:38ZZuma’s defiance is a grave moment for South Africa. But it’s not a constitutional crisis<figure><img src="https://images.theconversation.com/files/384470/original/file-20210216-19-18ewqhk.jpg?ixlib=rb-1.1.0&rect=5%2C274%2C3589%2C1983&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma addresses supporters after one of several court appearances on corruption charges.</span> <span class="attribution"><span class="source">EPA-EFE/Phil Makgoe/Pool</span></span></figcaption></figure><p>The attempt by former South African president Jacob Zuma to destabilise the country’s constitutional order, and defy the rule of law, does not constitute a constitutional crisis as some <a href="https://www.iol.co.za/sundayindependent/news/nkandla-tea-party-could-help-avert-a-constitutional-crisis-e06bb55a-afde-415a-b3e0-b7e83c662738">have claimed</a>.</p>
<p>It is, nonetheless, a grave moment for modern South Africa and its fledgling democracy.</p>
<p>A former president who, as the Constitutional Court has <a href="https://collections.concourt.org.za/bitstream/handle/20.500.12144/36716/%5bJudgment%5d%20CCT%20295-20%20Secretary%20of%20the%20State%20Capture%20Commission%20v%20JG%20Zuma.pdf?sequence=30&isAllowed=y">pointed out</a>, has a particular responsibility to respect the constitution even out of office, has chosen to <a href="https://www.702.co.za/articles/407535/jacob-zuma-defies-constitutional-court-ruling-and-is-prepared-to-go-to-prison">defy an order from the highest court</a>. This, while attacking the legitimacy of the judiciary and the <a href="https://www.statecapture.org.za/">Commission of Inquiry into State Capture</a> led by Deputy Chief <a href="https://www.concourt.org.za/index.php/13-current-judges/72-deputy-chief-justice-ray-zondo">Justice Raymond Zondo</a>.</p>
<p>A quick rendition of the history of the matter is appropriate. In 2016 then public protector <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">Thuli Madonsela</a> completed her report on systemic corruption in government – called <a href="https://cdn.24.co.za/files/Cms/General/d/4666/3f63a8b78d2b495d88f10ed060997f76.pdf">State of Capture</a> – shortly before the end of her distinguished seven-year term.</p>
<p>Recognising that she had barely scratched the surface of the phenomenon that South Africans now refer to as <a href="https://www.sahistory.org.za/archive/state-capture-report-public-protector-14-october-2016">‘state capture’</a> – grand corruption and repurposing of state organs for private gain – she required remedial action to be taken. Zuma, who was then president, was obliged to appoint a judicial commission of inquiry. Moreover, Madonsela wisely required that the Chief Justice, and not Zuma, identify the commission chair. </p>
<p>Zuma <a href="http://www.saflii.org/za/cases/ZAGPPHC/2017/747.html">challenged Madonsela’s report and lost</a>. And the country’s Chief Justice, Mogoeng Mogoeng, chose his deputy, Judge Zondo, to head the commission of inquiry. Zuma <a href="http://www.thepresidency.gov.za/press-statements/statement-president-jacob-zuma-establishment-commission-inquiry-state-capture">duly appointed him</a>.</p>
<p>Judge Zondo set up the commission in January 2018 and began his marathon journey to uncover the evidence of state capture and its underlying systemic causes. He has heard <a href="https://www.statecapture.org.za/">more than 300 days</a> of evidence. He has also heard evidence from 40 witnesses who have <a href="https://www.sowetanlive.co.za/news/south-africa/2021-02-15-state-capture-commission-says-zuma-has-no-legal-basis-to-defy-concourt-order/">implicated Zuma</a>.</p>
<figure class="align-center ">
<img alt="A man wearing specs, a dark suit and blue tie sits in a chair." src="https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=349&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=349&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=349&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=438&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=438&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384475/original/file-20210216-23-1gc2d3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=438&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Deputy Chief Justice Raymond Zondo.</span>
<span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span>
</figcaption>
</figure>
<p>But his attempts to have Zuma appear before him have proved futile.</p>
<h2>Acts of defiance</h2>
<p>The commission needs Zuma as a witness to respond to the allegations against him. But, despite his <a href="https://www.news24.com/news24/southafrica/news/breaking-defiant-zuma-doubles-down-accuses-zondo-of-playing-politics-20210215">protestations to the contrary</a>, he has no real intention of appearing before the commission. One reasonable assumption is that he hasn’t got satisfactory answers to the evidence that has been adduced. The other is that he fears he will implicate himself further.</p>
<p>Zondo has been more than accommodating of Zuma – <a href="https://theconversation.com/treating-zuma-with-kid-gloves-has-failed-what-now-for-south-africas-corruption-commission-154571">perhaps too much so</a>. This is certainly the view of the Constitutional Court as set out in its recent <a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">judgment</a> – the judgment in which it ordered Zuma to obey the summons to appear as a witness at the commission.</p>
<p>Zuma has now declined to obey the summons. He <a href="https://ewn.co.za/2021/02/15/zuma-i-have-no-objection-to-the-law-but-i-object-to-zondo-inquiry">failed to appear</a> on Monday, 15 February as he was required to. He cited the spurious reason that he has launched judicial review proceedings against Judge Zondo’s decision not to recuse himself. This was in response to an equally <a href="https://theconversation.com/south-african-judge-has-refused-to-step-down-from-corruption-probe-this-was-the-right-call-150484">unfounded claim</a> of conflict of interest and bias by Zuma against Judge Zondo. </p>
<p>This application has no bearing on the Constitutional Court order. The apex court was aware of Zuma’s recusal challenge. But because he elected not to appear or be represented in front of the Constitutional Court, his claim that the court failed to take his recusal challenge into account seems far-fetched to say the least.</p>
<p>In this sense, Zuma has been hoist by his own legal strategy petard. </p>
<h2>Contempt of court</h2>
<p>Judge Zondo had no choice but to announce that the commission would apply to the Constitutional Court, inviting it to <a href="https://www.news24.com/news24/southafrica/news/live-jacob-zuma-no-show-at-statecaptureinquiry-proceedings-expected-to-continue-20210215">find Zuma in contempt of court</a>.</p>
<p>Contempt of court is a <a href="https://www.golegal.co.za/contempt-of-court-criminal/">common law offence</a> in South Africa, that can lead either to a fine or a prison sentence. Judge Zondo indicated that the commission will argue for a custodial sentence if, as seems certain, Zuma is convicted of contempt of court. This paves the way for the unseemly sight of a former president being arrested and then incarcerated.</p>
<p>As the (then acting) Judge Clive Plaskett <a href="http://www.saflii.org/za/cases/ZAECHC/2003/19.pdf">put it in a 2003 High Court case</a>:</p>
<blockquote>
<p>Contempt of court is a criminal offence. It is committed, generally speaking, when a person unlawfully and intentionally violates the ‘dignity, repute or authority of a judicial body’ or interferes in the administration of justice in a matter pending before such a body. It serves three important purposes, namely to protect the rights of everyone to fair trials, to maintain public confidence in the judicial arm of government and to uphold the integrity of orders of courts.</p>
</blockquote>
<p>Importantly for present purposes, the court then added the following:</p>
<blockquote>
<p>At the heart of the rule of law is the idea, foundational in civilised society, that the law must be administered by independent courts and that, as Dicey expressed it, ‘no man is above the law’ and ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’ 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.</p>
</blockquote>
<p>That is why this is a grave and seminal moment. A former president is challenging the constitutional order.</p>
<h2>No constitutional crisis</h2>
<p>But this is not a constitutional crisis. A constitutional crisis is when there is an irreconcilable clash between – or dilemma in relation to – different parts of the constitutional system. Or where the constitution has failed or yielded to undue partisan political interference. </p>
<p>South Africa is a long way from that.</p>
<p>On the contrary, as it did in containing a rogue president in the final phase of Zuma’s time as president, the rule of law is holding and, slowly, bringing him and his cronies to account.</p>
<p>Zuma is a former president, <a href="https://constitutionallyspeaking.co.za/why-zumas-justification-for-disobeying-court-order-is-legally-absurd-and-why-the-con-court-must-have-the-final-say-on-it/">not a sitting president</a>. </p>
<p>He is, instead, an increasingly beleaguered figure, thrashing around for an exit from a legal dead end.</p>
<p>His actions could, nevertheless, still lead to a <a href="https://www.dailymaverick.co.za/article/2021-02-02-dealing-with-zuma-its-a-choice-between-a-political-and-constitutional-crisis/">political crisis</a> for the balance of power in the ruling party, the African National Congress (ANC), and the longer-term prospects for <a href="https://www.sanews.gov.za/south-africa/yes-sa-thuma-mina">reformist</a> President Cyril Ramaphosa.</p>
<p>This could have unpredictable consequences. </p>
<p>Zuma is in a corner and largely isolated. His only option is to stir the pot so much – even if it causes more division and conflict within the ANC – that it gives him some kind of bargaining power.</p>
<h2>Unsettling future</h2>
<p>This is an awkward moment for the ANC. It is seeking to recover lost unity and restore public trust ahead of a significant municipal election <a href="https://www.dailymaverick.co.za/article/2020-09-28-2021-local-government-elections-likely-to-go-ahead-and-they-could-be-the-most-contested-ever/">later this year</a> and a critical five-yearly national elective conference at the <a href="https://www.anc1912.org.za/cyril-ramaphosa">end of next</a>. </p>
<p>The conference will determine the political future of Cyril Ramaphosa, currently president of the country and the party. The question is whether he will get a second term.</p>
<p>In this, Zuma’s case converges somewhat with that of his ally, the ANC’s secretary-general <a href="https://www.timeslive.co.za/politics/2021-02-03-jacob-zuma-has-done-nothing-wrong-leave-him-alone-ace-magashule/">Ace Magashule</a>, who is <a href="https://www.businesslive.co.za/bd/national/2021-02-14-ancs-ace-magashule-may-be-forced-to-step-down/">on trial for corruption</a>. They have common interests and common cause: to undermine the political and democratic order to try and save their skins.</p>
<p>In my view they will fail. And the constitution will once again prevail. But, as ever with Zuma, there is likely to be collateral damage.</p><img src="https://counter.theconversation.com/content/155392/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a member of the Advisory Council of the Council for the Advancement of the South African Constitution (CASAC) and a Partner in political economy consultancy, The Paternoster Group.</span></em></p>The former president is in a corner and largely isolated. His only option is to stir the pot so much that it gives him some kind of bargaining power.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1545712021-02-04T14:24:48Z2021-02-04T14:24:48ZTreating Zuma with kid gloves has failed. What now for South Africa’s corruption commission?<figure><img src="https://images.theconversation.com/files/382186/original/file-20210203-13-1qqlex3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge Raymond Zondo, chair of the commission investigating grand corruption in South Africa, has been too polite with former state president Zuma. </span> <span class="attribution"><span class="source">Deaan Vivier/Netwerk24/Gallo Images/Getty Images</span></span></figcaption></figure><p>South Africans have witnessed a strong exchange between the <a href="https://www.statecapture.org.za/">State Capture Commission</a> investigating corruption, the Constitutional Court and former president Jacob Zuma. Zuma, on whose watch the plunder allegedly took place, refused to comply with a summons from the commission. The commission then applied to the court for a declaratory order that he was obliged by law to cooperate. </p>
<p>The court <a href="https://www.dailymaverick.co.za/article/2021-01-28-final-order-concourt-rules-jacob-zuma-must-appear-and-answer-questions-at-zondo-commission/">granted the order</a>, condemning Zuma’s uncooperative behaviour. Zuma then issued a <a href="https://ewn.co.za/2021/02/01/defiant-zuma-says-won-t-abide-by-concourt-order-to-appear-at-zondo-inquiry">public statement</a> that he would defy the court’s ruling. Finally, the commission responded to Zuma’s defiance, announcing it was pressing <a href="https://www.polity.org.za/article/he-thinks-hes-above-the-law-zondo-commission-slams-zumas-refusal-to-obey-concourt-order-2021-02-03">criminal charges against him</a>. </p>
<p>While many have welcomed the commission’s sharp reaction, we need to ask whether it has gone far enough.</p>
<p>The Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">judgment</a> was, in many respects, easily foreseeable. There could be no doubt that <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">Zuma</a> was subject to the <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">constitution</a> of the country, to the case law which upholds the validity of the <a href="https://www.statecapture.org.za/">commission</a>, and to the <a href="https://www.gov.za/documents/commissions-act-28-may-2015-1055">Commissions Act</a>. There’s also no doubt that he is subject to the regulations which <a href="http://www.saflii.org/content/covid-saflii-0">run the commission itself</a>.</p>
<p>The Act gives commissions of enquiry the powers of courts of law, including the power to issue summons. This means the State Capture Commission had the power to summon Zuma to appear before it. It did so in this case as a last resort, as he had repeatedly avoided appearing and answering its questions.</p>
<p>Zuma was required, by law, to comply with such a summons and was not allowed to refuse to answer questions from the commission. If he wants to refuse to answer a question to protect himself from self-incrimination, he has to <a href="http://www.saflii.org/za/cases/ZACC/2021/2.pdf#page=40">make a detailed case</a> for refusing to answer each specific question.</p>
<p>The Constitutional Court described Zuma’s lack of cooperation with the commission as “reprehensible” and ordered him to pay the commission’s legal costs – a highly unusual measure in constitutional litigation against the state. </p>
<h2>State Capture Commission</h2>
<p>Zuma established the commission on <a href="http://www.thepresidency.gov.za/press-statements/statement-president-jacob-zuma-establishment-commission-inquiry-state-capture">9 January 2018</a>, as part of the remedial action required by the then Public Protector, <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">Thuli Madonsela</a>. This followed her
investigations into alleged improper conduct by the then president and his friends, the <a href="https://www.bbc.com/news/world-africa-22513410">Gupta family</a>, in his appointment of government ministers, and the <a href="https://www.sahistory.org.za/archive/state-capture-report-public-protector-14-october-2016">operations of state companies for private benefit</a>. </p>
<p>Zuma established the commission after failing to have Madonsela’s <a href="https://www.news24.com/news24/SouthAfrica/News/download-the-full-state-of-capture-pdf-20161102">“State of Capture” report</a> overturned on <a href="http://www.saflii.org/za/cases/ZAGPPHC/2017/747.html">review</a>. </p>
<p>When announcing the commission, Zuma <a href="http://www.thepresidency.gov.za/press-statements/statement-president-jacob-zuma-establishment-commission-inquiry-state-capture">noted that</a></p>
<blockquote>
<p>The allegations that the state has been wrestled out of the hands of its real owners, the people of South Africa, is (sic) of paramount importance and are therefore deserving of finality and certainty.</p>
</blockquote>
<p>Zuma, who had been president since May 2009, resigned in January 2018 and was <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">replaced by Cyril Ramaphosa</a>. </p>
<h2>Kid gloves and delaying tactics</h2>
<p>The Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">judgment</a> was not surprising to people who have followed the commission’s two-year effort to get Zuma to testify. </p>
<p>The court sets out these efforts in its judgment. </p>
<p>But what was surprising was that the court had almost as much criticism for the commission as it had for Zuma. Importantly, it overturns Zuma’s claim of <a href="http://www.702.co.za/articles/397372/why-did-zuma-not-raise-problem-with-zondo-at-the-beginning-of-the-inquiry">victimhood and unfair targeting</a>.</p>
<p>The court found that, far from treating Zuma worse than the other witnesses, the commission had handled him with kid gloves. In doing so, it wasted valuable time and state resources, and imperilled a vital public investigation. </p>
<p>For example, it <a href="https://www.sabcnews.com/sabcnews/zuma-invited-to-give-evidence-at-state-capture-inquiry/">“invited”</a> Zuma to give evidence instead of issuing a summons to him. It negotiated with his lawyers when he first walked out of the proceedings <a href="https://www.businesslive.co.za/bd/national/2019-07-19-jacob-zuma-pulls-out-of-state-capture-inquiry/">in July 2019 </a>. And it went through an unnecessary process of a hearing on <a href="https://www.businesslive.co.za/bd/national/2020-01-17-inquiry-mulls-way-to-get-zuma-to-appear-before-zondo/">whether to issue summons</a> when it could simply have issued the summons. </p>
<p>By giving Zuma the chance to respond to this hearing, the commission opened the door to further <a href="https://citizen.co.za/news/south-africa/breaking-news/2368354/zuma-vs-zondo-commission-will-summons-jz-to-appear-in-november/">delaying tactics</a> on his part. </p>
<h2>Zuma’s perverse argument</h2>
<p>The judgment gives the public a comprehensive finding on how Zuma has frustrated the work of the commission, why that is unacceptable, and why his claims of a witch hunt hold no water.</p>
<p>As for Zuma himself, it is clear that he has <a href="https://protect-za.mimecast.com/s/6B8sCnZmpOtV2mxzC9n8nv">learnt nothing</a>. His <a href="https://www.scribd.com/document/492844527/Jg-Zuma-Statement-on-Constitional-Court-Decision-Compelling-Me-to-Appear-Before-State-Capture-Commission-1-February-2021#from_embed">response</a> to the judgment ignores all the carefully substantiated arguments that the court provides. He merely reiterates that the system is stacked against him. </p>
<p>The only change is that he now includes the Constitutional Court among his alleged persecutors. The fact that his evidence is central to the commission’s work because he ran the engine room of all the alleged corruption before the commission (<a href="http://www.saflii.org/za/cases/ZACC/2021/2.html">paragraphs 69-70 of the judgment</a>) is taken as proof of the unfair campaign against him.</p>
<p>Perversely, the fact that the judgment details his legal obligations is taken as proof that the law is aimed exclusively at him, rather than applying equally to all witnesses. This, once again, ignores the court’s point that Zuma cannot be granted better treatment than any other witness before the commission.</p>
<h2>Time for decisive action</h2>
<p>But the most important message from the judgment is for the commission itself, and its chair, Judge Raymond Zondo. And that is that it doesn’t matter what Zuma thinks.</p>
<p>The enquiry cannot be run as an effort to persuade either Zuma or his followers that he is being fairly treated. </p>
<p>The apex court has made it clear that the commission has an essential constitutional duty to fulfil and that, if it does not use the powers given to it by law to carry out this duty, it is failing South Africa. Whatever shortcomings its final report may have, it would be important to know that the commission did its best. </p>
<p>The commission’s <a href="https://www.polity.org.za/article/he-thinks-hes-above-the-law-zondo-commission-slams-zumas-refusal-to-obey-concourt-order-2021-02-03">response</a> to Zuma’s defiance emphasises that he is not above the law. It shows a growing willingness to use its coercive powers. But laying criminal charges is merely one of its options. </p>
<p>As the commission <a href="https://www.gov.za/sites/default/files/gcis_document/201409/36743act10of2013a.pdf">enjoys the powers of a High Court</a>, it can also imprison a person who refuses to testify, for up to eight days at a time, without a criminal conviction. That might still not bring Zuma to answer the questions put to him. But politeness will clearly not do so either.</p>
<p>Even an appeal to the highest court in the land has failed to win Zuma’s cooperation. It has, however, handed the commission the clearest statement yet of its duties and the tools it has to fulfil them.</p>
<p>The ball is now in Judge Zondo’s court.</p><img src="https://counter.theconversation.com/content/154571/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Constitutional Court described Zuma’s lack of cooperation with the commission as “reprehensible”.Cathleen Powell, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1482792020-10-18T08:59:10Z2020-10-18T08:59:10ZWhy an amnesty for grand corruption in South Africa is a bad idea<figure><img src="https://images.theconversation.com/files/363935/original/file-20201016-23-au6zjn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thuli Madonsela, professor of law and former Public Protector of South Africa.</span> <span class="attribution"><span class="source">EFE-EPA</span></span></figcaption></figure><p>South Africa’s former Public Protector, <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">Thuli Madonsela</a>, provoked a political storm recently when she suggested that public servants implicated in grand corruption should be given the chance to apply for <a href="https://www.timeslive.co.za/news/south-africa/2020-10-13-a-chance-to-start-with-a-clean-slate-thuli-madonsela-urges-sa-to-consider-amnesty-for-the-corrupt/">amnesty</a>.</p>
<p>Many South Africans, weary of rampant, unchecked and unaccountable corruption, could be forgiven for asking: what on earth was she thinking?</p>
<p>Madonsela won the admiration of many South Africans because of her steely resolve in the face of malfeasance and breaches of the rules of integrity in public office. Her proposal suggested she might be going soft on corruption.</p>
<p>To be effective as the Public Protector Madonsela required many attributes, as I set out in my 2013 book, <a href="https://www.loot.co.za/product/richard-calland-the-zuma-years/lwlk-1845-g5a0"><em>The Zuma Years</em></a>. These included independence of mind, a very thick skin and a certain contrarian eccentricity that rendered her far less susceptible to the numerous attempts to intimidate her as she took on then president Jacob Zuma and his state capture network.</p>
<p>Her amnesty idea displays all of these characteristics. </p>
<p>It should be taken seriously, if only to affirm the merit of a diametrically opposed position.</p>
<p>It’s an inherently bad idea.</p>
<h2>Bad timing</h2>
<p>Madonsela’s timing is especially unfortunate. It is only in very recent times that <a href="https://www.saps.gov.za/dpci/index.php">the Hawks</a>, the priority crimes investigating police unit, and other agencies of the criminal justice system appear to have recovered the institutional capacity to begin prosecuting those responsible for the deep-lying state capture project.</p>
<p><a href="https://www.news24.com/news24/southafrica/news/opposition-parties-welcome-arrests-of-alleged-masterminds-behind-free-state-asbestos-contract-20200930">Recent developments</a> have begun to suggest that the net is finally tightening around the bigger fish that are the true architects of systematic corruption in the country.</p>
<p>This has been widely <a href="https://www.politicsweb.co.za/politics/arrest-of-corruption-suspects-welcomed--sacp">welcomed</a>. Accountability, at last.</p>
<p>Against the grain of this public view, Madonsela, <a href="https://blogs.sun.ac.za/inaugural-lectures/event/prof-thuli-madonsela/">a law professor</a>, entered the fray to suggest that instead of being tough on the perpetrators, an olive branch should be extended.</p>
<p>This is an example of the “independent-mindedness” for which Madonsela was <a href="https://theconversation.com/how-south-africas-public-protector-has-set-a-high-bar-for-her-successor-63891">rightly acclaimed</a> during her seven-year term as Public Protector from 2009-2016.</p>
<p>It is also not only contrarian, but also eccentric in that it makes so little sense. </p>
<p>To be fair to her, she tried to clarify later that she did not mean amnesty for every perpetrator, and certainly not the big fish. Her idea is targeted at those whose “status”, <a href="https://www.702.co.za/podcasts/415/the-john-perlman-show/370859/former-public-protector-prof-thuli-madonsela-calls-for-a-corruption-amnesty-for-public-servants">she says</a>, “in the food chain is quite junior”.</p>
<p>But the first of a series of fatal flaws in her idea is about where to draw the line: on what basis should one distinguish the smaller from the bigger fish?</p>
<p>Those who had played a “minor but critical” role was how she framed her idea. There is already a problem here: is it possible for something to be both “critical” to a (criminal) enterprise and yet still “minor”? </p>
<p>I think not.</p>
<h2>Half-baked idea</h2>
<p>Madonsela confirmed that amnesty should be available on a legal rather than a moral basis. Yet, in a radio <a href="https://www.702.co.za/podcasts/415/the-john-perlman-show/370859/former-public-protector-prof-thuli-madonsela-calls-for-a-corruption-amnesty-for-public-servants">interview</a> after she’d floated the idea, and drawn a lot of flak, she added to the confusion.</p>
<p>At first Madonsela spoke of people who may have “bent the rules” unwittingly, in which case, they may well have a legal defence to criminal conduct. Later, she clarified that she intended to cover individuals with “agency”, even to the extent that their palms have been “greased with money” (which, she argued, they would have to pay back in return for amnesty).</p>
<p>If the right to amnesty was indeed to be a legal entitlement, then the terms on which entitlement to amnesty applies have to be very clearly and carefully drawn. This much has been revealed in Constitutional Court decisions concerning the legal rationality of presidential amnesties or pardons in the case of <a href="http://www.saflii.org/za/cases/ZACC/1997/4.html">women convicts</a> and <a href="http://www.saflii.org/za/cases/ZACC/2010/4.html">perpetrators of apartheid era offences</a>.</p>
<p>Madonsela’s public policy rationale appears to be that without an inducement, the smaller cogs in the bigger wheels of state corruption may seek to hide and avoid prosecution when what is required is that they should come forward with information about the bigger fish.</p>
<p>Perhaps, then, an offer of amnesty – in effect, a legal right to indemnity from prosecution – deserves to be given serious consideration. This, especially if it is the case that the <a href="https://nationalgovernment.co.za/units/view/66/national-prosecuting-authority-of-south-africa-npa">National Prosecuting Authority </a> is struggling to pull together the evidence to bring strong prosecutions against the most powerful perpetrators of state capture corruption.</p>
<p>But there is no evidence that this is the situation. And, moreover, there are major downsides to be weighed in the balance. </p>
<h2>The case against amnesty</h2>
<p>First of all: deterrence. </p>
<p>The fact that amnesty has been granted in the past may encourage future corrupt actors to take the risk. The corollary is that the successful prosecution of corrupt officials is likely to discourage repetition.</p>
<p>Secondly, the arguments put forward by Madonsela would, in my view, provide grounds for mitigation in sentencing – not for amnesty. One example would be “small fish” cooperating with the investigative authority and providing evidence about the bigger fish. Another example would be if someone could show that they were bullied into bending procurement rules by a superior and more powerful individual in the system.</p>
<p>Another possible avenue – common practice in criminal justice systems around the world – is the use of a “plea bargain”. Here an accused person trades information in return for facing a less serious charge.</p>
<p>Amnesty would, in effect, deprive them of this opportunity and could thereby undermine the integrity of the whole criminal justice system.</p>
<p>The other major consideration is perception – both in the eyes of key stakeholders, such as the investment community and, secondly, the general public.</p>
<p>Investors are especially eager to see if South Africa has the capacity to hold to account those who contaminated the democratic state and so undermined fair competition by enabling a rent-seekers’ paradise. It is about the strength of the rule of law. Investors want to feel confident that this is one destination where the rule of law holds and where, because of state capture prosecutions, there is less risk of a repeat.</p>
<p>And surely, above all else, the public will feel cheated if perpetrators of state capture corruption, however “minor”, get away scot-free. This, more than anything, would encourage a lawless society, steeped in a culture of impunity rather than accountability.</p>
<h2>A dangerous path to tread</h2>
<p>Attempts to trade amnesty for information about state corruption have caused conflict as well as controversy in other countries. One notable example was in <a href="https://www.reuters.com/article/us-tunisia-politics-corruption-idUSKCN1BO218">Tunisia in 2017</a>. </p>
<p>But the biggest danger is that it simply sends the wrong message. This was aptly spelt out by esteemed South African artist William Kentridge reflecting on a previous attempt at taking the amnesty road in South Africa through the <a href="https://www.justice.gov.za/trc/">Truth and Reconciliation Commission</a> process. </p>
<blockquote>
<p>A full confession can bring amnesty and immunity from prosecution or civil procedures for the crimes committed. Therein lies the central irony of the Commission. As people give more and more evidence of the things they have done they get closer and closer to amnesty and it gets more and more intolerable that these people should be <a href="https://www.academia.edu/907785/_Learning_From_the_Absurd_Violence_and_Comparative_History_in_William_Kentridge_s_Ubu_Tells_the_Truth_">given amnesty</a>.</p>
</blockquote>
<p>Admittedly, Madonsela has a different purpose in mind than the national reconciliation ambition of the Truth and Reconciliation Commission process. But, no, Advocate Madonsela, a blanket amnesty would send the wrong message at the worst possible time.</p><img src="https://counter.theconversation.com/content/148279/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a member of the Advisory Council of the Council for the Advancement of the South African Constitution (CASAC) and a Partner in political economy consultancy, The Paternoster Group. </span></em></p>The first of a series of fatal flaws in the idea is about where to draw the line.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1474662020-10-07T14:55:47Z2020-10-07T14:55:47ZZuma’s attack on a judge is without merit, but it’s dangerous for South Africa<figure><img src="https://images.theconversation.com/files/361831/original/file-20201006-18-1ky53oe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma at the Zondo Commission in July 2020.
</span> <span class="attribution"><span class="source">EFE-EPA/Mike Hutchings</span></span></figcaption></figure><p><a href="https://theconversation.com/post-truth-politics-and-why-the-antidote-isnt-simply-fact-checking-and-truth-87364">“Post-truth”</a> culture is exemplified by the constant negation of fact-finding, expertise and <a href="https://www.theguardian.com/books/2018/jul/14/the-death-of-truth-how-we-gave-up-on-facts-and-ended-up-with-trump">research</a>. Within such a culture, speakers, whether they occupy positions of power or are commenting anonymously on social media, become increasingly comfortable with claiming that reality is whatever they say it is. This, without any need to offer evidence which can be evaluated against objective criteria through <a href="https://www.politifact.com/factchecks/list/?speaker=donald-trump&ruling=false">reasoned argument</a>. </p>
<p>Former South African president Jacob Zuma adopted this approach when he recently demanded that Deputy Chief Justice <a href="https://www.concourt.org.za/index.php/13-current-judges/72-deputy-chief-justice-ray-zondo">Ray Zondo</a>, the head of the <a href="https://www.sastatecapture.org.za/">state capture inquiry</a> investigating grand corruption during Zuma’s tenure, recuse himself. He claimed the judge was biased against him. </p>
<p>His lawyer’s letter to the commission <a href="https://www.dailymaverick.co.za/article/2020-09-30-zumas-move-to-recuse-zondo-cynicism-meets-panic-meets-staggering-hypocrisy/">states</a> that Zuma is “of the firm view” that Zondo’s alleged bias against him stems from “personal matters and strained relations that the chairperson ought to have disclosed right at the beginning of the inquiry” and</p>
<blockquote>
<p>the fact that the President and the Chairperson have historical, personal, family and professional relations that ought to have been publicly disclosed by the chairperson before accepting his appointment.</p>
</blockquote>
<p>No evidence is provided of the strained relations, nor of what aspect of Justice Zondo’s and Zuma’s personal dealings could have resulted in bias. Zuma’s “view” alone is sufficient.</p>
<h2>Testing impartiality of judges</h2>
<p>Claiming a right to determine reality by mere say-so is becoming increasingly commonplace, but we should never get used to it. It is dangerous, because it has the potential to destroy two of the foundations of a healthy society: recognising the distinction between facts and opinions, and using reasoned argument, rather than status, to establish the truth.</p>
<p>Since 1999, we have had a test for the impartiality of individual judges from the Constitutional Court case of <a href="http://www.saflii.org/za/cases/ZACC/1999/9.html">President of the Republic of South Africa and Others v South African Rugby Football Union (Sarfu) and Others</a>. In this case, the head of the South African Football Union, Louis Luyt, asked five of the judges on the Constitutional Court to recuse themselves because of their personal relationship with Nelson Mandela, the president of democratic South Africa at the time.</p>
<p>Luyt complained that the then Chief Justice <a href="https://www.sahistory.org.za/people/chief-justice-arthur-chaskalson">Arthur Chaskalson</a> had attended the wedding of Mandela’s son. He also said other judges had been closely associated with the governing party, the African National Congress (ANC), before their appointment to the Constitutional Court.</p>
<p>The court rejected the application. It held that the test that the applicant had to meet was objective, and that the onus of establishing it rested upon the applicant, who had to show that</p>
<blockquote>
<p>a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.</p>
</blockquote>
<p>The judge himself or herself decides the application, although refusals to recuse can be taken on review to higher courts. The court also emphasised the presumption that judicial officers are impartial in adjudicating disputes, because </p>
<blockquote>
<p>legal training and experience prepare judges (to determine) where the truth may lie in a welter of contradictory evidence.</p>
</blockquote>
<p>Finally, the court stressed strongly that the reasonable apprehension must be that “the judicial officer will not decide the case impartially” and not that he or she “will decide the case adversely to one party”.</p>
<p>The question is whether the same impartiality test applies to chairs of commissions of inquiry as well. </p>
<h2>Weighing Zuma’s claim</h2>
<p>In one way, the impartiality of chairs of commissions might appear even more important. That’s because they are actively involved in the collection of evidence, rather than sitting back passively while two sets of lawyers present the evidence of their choice in the adversarial setting of a court case.</p>
<p>On the other hand, commissions of inquiry do not make binding rulings. All they do is to give advice to the office who created them, and their recommendations have no direct effect on persons implicated in the reports. But if we assume that the same, stringent test applies to the chair of a commission, it is likely that Justice Zondo’s past association with Zuma will not be a ground for recusal.</p>
<p>Most importantly, Zuma’s own view of Justice Zondo’s bias – “firm” or not – will simply not be the deciding factor in determining whether Justice Zondo is biased. What will matter is whether a reasonable, objective and informed person would understand that Justice Zondo has not brought, or will not bring, an impartial mind to bear on the evidence.</p>
<p>Zuma has not provided any evidence to prove, as he is required to do, that Justice Zondo would not bring an impartial mind to the task before him. Indeed, some of the “evidence” mentioned in the letter amounts to a complaint that Zuma is not being given preferential treatment. Thus it treats as bias a generally applicable rule announced by Justice Zondo – that the Commission makes the final decision on hearing dates, not the witnesses – and the fact that Justice Zondo did not accept that Zuma was ill on one of the occasions that he did not appear before the Commission.</p>
<figure class="align-center ">
<img alt="Deputy Chiec Justice Zondo wearing a black suit, blue tie and specs enters the the State capture commisssion venue" src="https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/361828/original/file-20201006-20-1npnwwx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Deputy Chief justice Ray Zondo.</span>
<span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span>
</figcaption>
</figure>
<p>In January, Zuma tried to postpone appearing before the <a href="https://www.sastatecapture.org.za/">Commission</a>, <a href="https://www.statecapture.org.za/site/files/documents/210/SEQ_01.2020_-_02._Answering_Affidavit_-_JGZ.pdf">citing ill health</a>. His affidavit included this revealing <a href="https://www.statecapture.org.za/site/files/documents/210/SEQ_01.2020_-_02._Answering_Affidavit_-_JGZ.pdf,%20para%2032">statement (paragraph 35)</a>, </p>
<blockquote>
<p>I urge the Commission to accept that my views on State Capture answer the various opinions expressed by different individuals who have given their views to the Commission. The Commission and its witnesses are entitled to their views about me, but I am equally entitled to reject them.</p>
</blockquote>
<p>The letter by Zuma’s lawyers demanding Justice Zondo’s recusal does not even bother to state that Zuma provided sufficient evidence of his illness when he wanted to postpone his hearing in January. He sees it as proof of bias (which he is stating now) that Justice Zondo did not accept his evidence then. </p>
<p>It is up to the Chair to evaluate the evidence brought to the Commission, including evidence that a witness is unable to attend. It is thus not in itself a sign of bias if the Chair finds the evidence insufficient. Again, Zuma seems offended that his own “reality” has not been validated by the person whose job it is to consider all evidence impartially, on its own merits.</p>
<h2>Cynical move</h2>
<p>Facts matter. It’s the job of courts and commissions of inquiry to work out what they are. The statements by other witnesses implicating Zuma in orchestrating grand corruption are not “views”. They are central factual allegations that Zuma must address so that the Commission can determine the extent of corruption and its agents. “Compelling” Zuma to do so through a summons (one of Zuma’s complaints in January) is not a sign of bias or bullying. </p>
<p>It is a sign of a commission doing its job on terms approved by the Constitutional Court. By casting doubt on the impartiality of the Chair, Zuma is probably just buying time. But he is also discrediting a vital institution for ending corruption in South Africa, and undermining the process which South Africa needs for a clean start.</p><img src="https://counter.theconversation.com/content/147466/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cathleen Powell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Claiming a right to determine reality by mere say-so is becoming increasingly commonplace, but we should never get used to it.Cathleen Powell, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1406682020-06-12T16:46:52Z2020-06-12T16:46:52ZConstitutional Court ruling heralds changes to South Africa’s electoral system<figure><img src="https://images.theconversation.com/files/341530/original/file-20200612-153867-1on1m41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Deaan Vivier/Netwerk24/Gallo Images/Getty Images</span></span></figcaption></figure><p>Ultimately, it took <a href="https://afternoonexpress.co.za/guests/princess-chantal-revell/3158">Chantal Revell</a>, a descendant of the Khoi and San royalty, to initiate a change in South Africa’s electoral system. This has been a contentious subject for almost 20 years. An official task team was set up to resolve it and it has gripped the attention of opposition parties, elevating the subject to an election campaign issue.</p>
<p>South Africa’s Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2020/11.html">has ruled</a> that the country’s Electoral Act is unconstitutional on the grounds that it doesn’t allow citizens to be elected to the national and provincial legislatures as independent candidates. The case was brought by the New Nation Movement. This civil society group argued that the act infringed on the right to exercise individual political choices. Chantal Revell was the second applicant in the case. </p>
<p>Constitutional Court Justice Mbuyiseli Madlanga’s verdict is possibly a defining moment. By enabling independent candidates to contest provincial and national elections it promises to change various aspects of South Africa’s life. The ability of independent candidates to stand in national elections offers a wide choice that could entice apathetic eligible voters into the process and attract others away from established parties. The primacy of individuals over parties, however, might also weaken associational life built upon civic values in favour of divisive identities. </p>
<h2>A hotbed of controversy</h2>
<p>The controversy around South Africa’s electoral stemmed from the <a href="http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/Van-Zyl-Slabbert-Commission-on-Electoral-Reform-Report-2003.pdf">recommendations made by the electoral task team</a>, led by former opposition leader <a href="https://www.sahistory.org.za/people/frederik-van-zyl-slabbert">Frederik Van Zyl Slabbert</a>, in January 2003. Previous elections were administered by interim legislation and permanent legislation was required in time for the next election in 2004. </p>
<p>The task team was mandated to probe whether the interim legislation, which prescribed voting for political parties – that is <a href="http://www.elections.org.za/content/Elections/Election-types/">proportional representation</a> – should be made permanent or revised.</p>
<p>Composed of various experts from government, South Africa’s electoral commission, the academy and the legal profession, the task team offered contrasting proposals. Most wanted the electoral system changed to a mixed one – providing for direct election of constituency representatives and for a political party. </p>
<p>Others wanted to retain the system of voting for parties, which then decide whom to send to parliament. Parliament adopted the minority proposal. Retaining the proportional representation system met all four principles that the constitution envisaged for an electoral system: fairness, inclusiveness, simplicity and accountability. </p>
<p>The majority view was unhappy that proportional representation fell short on enabling individual accountability. Nonetheless, it admitted that collective accountability was afforded through periodic elections.</p>
<p>Parliament was not the only interest group persuaded by the minority view. The public, too, was enamoured with voting for parties that decided who to send to parliament. Part of the electoral task team’s activities involved a public opinion survey undertaken by the Human Sciences Research Council. </p>
<p>The survey <a href="http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/Van-Zyl-Slabbert-Commission-on-Electoral-Reform-Report-2003.pdf">showed</a> that between 74% and 81% of South Africans felt that the proportional representation system was fair. They thought it enabled equal representation and made sure that parliament was as inclusive as possible, especially in relation to gender and race.</p>
<p>But there was a feeling that members of parliament should be tied to particular constituencies. This was insignificant, though, in light of the general acceptance of the electoral system. </p>
<p>Consequently, there was hardly any popular outcry about the inappropriateness of the electoral system.</p>
<h2>The Zuma factor</h2>
<p>The brouhaha over the electoral system coincided with the election of Jacob Zuma as president <a href="https://www.sahistory.org.za/article/jacob-zuma-presidency-2009-2017-march">in 2009</a>. Implicated in corruption and fresh from a rape acquittal, Zuma was a perfect picture of notoriety. So long as parties provided a fairly acceptable slate of candidates, voters did not mind much that they didn’t elect them directly. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=365&fit=crop&dpr=1 600w, https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=365&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=365&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=458&fit=crop&dpr=1 754w, https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=458&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/341538/original/file-20200612-153812-dis30z.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=458&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Princess Chantal Revell.</span>
<span class="attribution"><span class="source">Facebook</span></span>
</figcaption>
</figure>
<p>It was the governing African National Congress’s (ANC’s) reaction to public disapproval of Zuma, and its consequent misuse of its parliamentary majority to stifle law enforcement agencies, that turned popular opinion against the proportional representation system. The ANC showed how powerless voters were under the system. It was also arrogant to the point of offending public sensibilities. </p>
<p>Zuma’s subsequent misconduct simply emboldened popular sentiment in favour of voters directly electing their own government leaders.</p>
<p>Enabling independent candidates to contest provincial and national elections promises to go some way towards this end. </p>
<h2>The impact</h2>
<p>One possible outcome is that a wider choice of contestants could reverse the declining interest in the electoral process.</p>
<p>For the 2019 election alone, for instance, more than 9 million eligible voters <a href="https://www.elections.org.za/NPEDashboard/app/dashboard.html">did not register to vote</a>. The 26,756,649 who registered represented only 74.6% of the total voting age population. Even among those who registered to vote, only 66% of them showed up to cast their ballot on the day. This was a significant drop in turn-out rate from 73.48% in the previous election. </p>
<p>New entrants into the electoral contest, therefore, could entice the uninterested eligible voters into the process.</p>
<p>As for the current parties, the entry of new contestants presents mixed fortunes. Their current voters could abandon them for new entrants. Some voters aren’t entirely happy with these parties, but vote for them because they lack alternatives. Electoral support for existing parties could drop. </p>
<p>Another possible outcome could be that parties that <a href="https://www.dailymaverick.co.za/article/2019-03-14-the-ancs-electoral-list-a-k-a-the-usual-suspects/">sneak dishonourable candidates onto their lists</a> could be forced to improve their nomination process. This could be the trigger the ANC needs to prioritise moral rectitude in the selection of party candidates. </p>
<p>But it’s uncertain whether this will happen.</p>
<p>Independents could potentially tilt the balance of power. But the extent of that shift is unclear. As a result of Madlanga’s ruling the country is likely to have a mixed ballot – constituency and proportional representation – in the next national election. </p>
<p>This would simply be a replication of what currently happens at the local government level. </p>
<p>Independents won’t be able to contest the proportional representation ballots. These can only be cast for political parties. This means independents, assuming the 400 parliamentary seats are shared equally between constituency and proportional representation, will only contest 200 seats. </p>
<p>It’s highly unlikely therefore that independents will ever be in the majority to elect a president among them. Because they contest both ballots, parties are the only ones that could possibly get majority support, enabling them to elect a president from their midst.</p>
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<img alt="" src="https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=583&fit=crop&dpr=1 754w, https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=583&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/341532/original/file-20200612-153817-ptuhwm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=583&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The late Frederik Van Zyl Slabbert.</span>
<span class="attribution"><span class="source">David Porter/Fairfax Media via Getty Images</span></span>
</figcaption>
</figure>
<p>It’s not guaranteed, however, that voters will cast both proportional and constituency ballots. If a voter chooses a constituency candidate on strength of character, it is unlikely that the same voter would vote blindly on the proportional representation ballot. Unless the party has an equally credible list of leaders, it is unlikely to get the proportional representation ballot. </p>
<p>While voting for a trustworthy party candidate, voters can spoil the proportional representation ballot as a statement of disapproval against the candidates on the party list.</p>
<h2>Hurdles to clear</h2>
<p>What might protect established parties against competition from independents is the likelihood of poor organisational infrastructure, inexperience and money. Their success is not guaranteed.</p>
<p>Equally worth noting is that this new beginning may herald even more divisiveness in South African politics. Political parties often bring together diverse individuals around common values. They transcend primordial identities and promote overarching civic identities. The applicant who instigated this victory at the Constitutional Court, Chantal Revell, hopes to mobilise her ethnic group into political support. </p>
<p>Rather than worry, perhaps one should welcome Revell’s potential candidature as a test of the salience of ethnic politics in the Western Cape. This ruling portends multiple possibilities.</p><img src="https://counter.theconversation.com/content/140668/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mcebisi Ndletyana receives funding from the National Institute for Humanities and Social Sciences. He is the author of the recently published book, Anatomy of the ANC in Power: Insights from Port Elizabeth, 1990 – 2019.</span></em></p>South Africa’s Constitutional Court verdict is possibly a defining moment for South Africa’s electoral system.Mcebisi Ndletyana, Associate Professor of Political Science, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1399912020-06-03T14:45:26Z2020-06-03T14:45:26ZCourt throws South Africa’s lockdown exit strategy into disarray. But it got it wrong<figure><img src="https://images.theconversation.com/files/339529/original/file-20200603-130903-10r366w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's professional surfers have been allowed back in the water. </span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p>A South African High Court has declared the government’s lockdown regulations <a href="http://www.saflii.org/za/cases/ZAGPPHC/2020/184.pdf">unconstitutional</a> and, therefore, invalid, driving a coach and horses through its COVID-19 strategy. </p>
<p>Justice Norman Davis found that both the <a href="https://www.gov.za/documents/disaster-management-act-regulations-alert-level-3-during-coronavirus-covid-19-lockdown-28">level 3</a> and <a href="https://www.gov.za/speeches/minister-senzo-mchunu-level-4-risk-adjusted-measures-public-service-response-covid-19-8-may">level 4</a> regulations are “irrational”. The government has <a href="https://www.gov.za/Coronavirus">five COVID-19 alert levels</a>, from level 5 down to level 1, when most normal activity can resume. </p>
<p>After <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-extension-coronavirus-covid-19-lockdown-end-april-9-apr-2020-0000">two months</a> of enduring one of the most stringent lockdowns of any country, there have been signs of restlessness in some communities. As the government added greater detail to the regulations, when the country moved from level 5 to level 3, the credibility of restrictions has been stretched.</p>
<p>But the legal and governance impact of this week’s <a href="http://www.saflii.org/za/cases/ZAGPPHC/2020/184.pdf">judgment</a> is far-reaching. It will heap further unwelcome pressure onto a government that is already under intense pressure as it tries to navigate a complex, wholly unfamiliar and ever-changing decision-making terrain.</p>
<p>The judgment declares that the regulations are invalid. But, with the exception of some, it suspends the declaration of invalidity for 14 days to allow the Minister of Cooperative Governance, Nkosazana Dlamini-Zuma, to</p>
<blockquote>
<p>review, amend and republish the regulations (with) due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the constitution.</p>
</blockquote>
<p>This requires the government to redo the work that it has done in preparing, and then promulgating, the regulations. It also creates a new layer of uncertainty to an already highly fluid situation.</p>
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Read more:
<a href="https://theconversation.com/rule-of-law-has-moved-centre-stage-in-lockdown-what-it-is-and-why-it-matters-139045">Rule of law has moved centre stage in lockdown: what it is and why it matters</a>
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<p>During the 14-day period, the newly instituted <a href="https://www.gov.za/documents/disaster-management-act-regulations-alert-level-3-during-coronavirus-covid-19-lockdown-28">level 3 regulations</a>, which reopened a large part of the economy and allowed the sale of alcohol, will remain in force. But, the judgment means that it will not be possible for the government to revert to the old level 4 regulations without a substantial rewrite.</p>
<p>An appeal by government to the Constitutional Court is highly likely, and highly desirable. It is hard to think of a more significant judgment in terms of how many people and how wide a sweep of the economy it affects. </p>
<p>But, in my view, the judgment is unconvincing in many respects and has applied the law incorrectly. </p>
<p>Given the stakes, it is important that it is properly understood and held up for public scrutiny. </p>
<h2>Rationality test</h2>
<p>For a government decision to be held by the court to be “irrational” does not mean that the court finds the decision itself to not be based on logical reasons or clear thinking.</p>
<p>Instead, the rationality test permits the court to review a decision based on an assessment of whether there is a rational connection between the government decision, the process used to reach it, and a legitimate government purpose.</p>
<p>The court notes that the government’s affidavit had argued that the “means justify the end” and, therefore, the regulations pass the rationality test. But, Justice Davis then observed that he wondered aloud during argument whether in fact the government actually intended to apply the Machiavellian notion of the “end justifies the means”.</p>
<p>As the judgment unfolds, it becomes increasingly clear that he takes a dim view of the reasonableness (not rationality) of a good deal of the government’s decision-making, thereby potentially confusing the law.</p>
<p>He finds, for example, that:</p>
<blockquote>
<p>Restricting the right to freedom of movement in order to limit contact with others in order to curtail the risks of spreading the virus is rational, but to restrict the hours of exercise to arbitrarily determined time period is completely irrational.</p>
</blockquote>
<p>The court’s responsibility was to see if there was any rational connection between the decision and the purpose, not whether there was a better means of serving the end goal.</p>
<p>Moreover, it requires the court to examine with great precision each and every step of the decision-making process, and to assess the evidence of how the decision was taken and whether, in an objective sense, the decision was correctly deemed to be in service of the purpose. </p>
<p>Justice Davis’s judgment fails to do so. Although, if government did an inadequate job at placing sufficient evidence of their reasoning and decision-making process, then they are partly at least the architects of their own misfortune.</p>
<p>Regardless, Justice Davis appears to review both sets of regulations and then pick out the ones that displease him most in terms of whether they “make sense” to him or not, and to declare all of them invalid, and not just those that he has sought to apply the rationality test to.</p>
<p>The reference to evidence is scanty. For example, the court observes – without any citation – that millions of South Africans in the informal sector have less daily contact than people attending a funeral, making the “blanket ban” on them “appear to be irrational”.</p>
<h2>Holes in the argument</h2>
<p>The court describes the approach of the government as “a paternalistic approach, rather than a constitutionally justifiable approach”.</p>
<p>Paternalism may be politically or ideologically unattractive to some, especially libertarians. But, it is not, per se, a constitutionally impermissible policy or strategic position for the government to adopt, pandemic crisis or not.</p>
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<img alt="" src="https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Waste recyclers queue for food handouts in Johannesburg as the nationwide lockdown left them unable to work.</span>
<span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span>
</figcaption>
</figure>
<p>The judgment may also be vulnerable to attack for adopting a simplistic approach to the “legitimate government purpose”, which it finds to be solely to contain the spread of the virus. This is a misunderstanding.</p>
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Read more:
<a href="https://theconversation.com/numbers-can-kill-politicians-should-handle-south-africas-coronavirus-data-with-care-136587">Numbers can kill: politicians should handle South Africa's coronavirus data with care</a>
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</p>
<hr>
<p>The risk-adjusted strategy that creates the framework of different COVID-19 alert levels, under the <a href="http://www.cogta.gov.za/cgta_2016/wp-content/uploads/2016/06/DISASTER-MANAGEMENT-ACT.pdf">Disaster Management Act 2002</a>, seeks to strike a balance at every stage of the unfolding crisis between competing and overlapping priorities. </p>
<p>This includes the public health priority of building capacity in the health system to absorb an inevitable rise in infections, and the duty of the state to protect lives and livelihoods.</p>
<p>The other puzzling aspect of the judgment relates to its approach to the Bill of Rights and possible limitation of the rights enshrined in it.</p>
<p>Clearly, the lockdown involved the limitation of certain “normal” freedoms. The question is whether the limitations are constitutionally permissible pursuant to the test set out in section 36 of the constitution. This requires that <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000600002">such limitations be proportional</a>. This means that the government may use only the least restrictive measure for achieving its aim.</p>
<p>But, having found the regulations to be irrational and therefore invalid, the court had no need to consider whether they unjustifiably infringed any right protected in the Bill of Rights. Justice Davis bluntly finds that:</p>
<blockquote>
<p>…in an overwhelming number of instances the Minister (sic) have not demonstrated that the limitation of the Constitutional rights already mentioned, have been justified in the context of section 36 of the Constitution.</p>
</blockquote>
<p>Confusingly, the court order requires the government not to fix the impugned “irrationality” of the regulations, but instead to review them with regard to whether they may infringe the Bill of Rights. </p>
<h2>Rule of law</h2>
<p>Government lawyers, as well as cabinet ministers and officials, will be scratching their heads over this judgment. Not least because the notion of a “rationally justifiable” infringement of constitutional rights is a novel formulation.</p>
<p>Whether the judgment is overturned on appeal or not, what it shows – once again – is that South Africa’s rule of law and its judicial independence are alive and kicking.</p>
<p>At a time of such extreme crisis, courts may be inclined to give the government a little more latitude – such as the decision of the German Supreme Court last month, <a href="https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-036.html">in finding</a> that its government has a wide scope for the assessment, evaluation and design of its COVID-19 response. </p>
<p>As South Africa’s Constitutional Court has found in <a href="http://www.saflii.org/za/cases/ZACC/2009/28.html">other cases</a> involving complex public policy and socio-economic rights, the more “polycentric” the governmental decision-making or policy choice, the more careful the court should be not to stray into the executive’s lane. Nothing could be as polycentric as COVID-19. </p>
<p>This is not to say that government should be given a free hand or a blank cheque. A state of national disaster cannot permit lawmaking through the back door, nor enable a slippery slope into autocracy. Far from it. As the High Court judgment shows, government will have to work hard to ensure that it is acting within the law, respecting hard won rights every step of the way.</p><img src="https://counter.theconversation.com/content/139991/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a Founding Partner in political risk consultancy, The Paternoster Group, and a member of the Advisory Council of the Council for the Advancement of the South African Constitution.</span></em></p>The judgment creates a new layer of uncertainty in an already highly fluid situation and heaps further unwelcome pressure onto government.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1265212019-11-08T08:58:40Z2019-11-08T08:58:40ZHow the fall of the Berlin Wall 30 years ago resonated across Africa<figure><img src="https://images.theconversation.com/files/300670/original/file-20191107-10930-1ozfrfj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Berlin Wall symbolised the Cold War divide between the capitalist West and communist Soviet Union.
</span> <span class="attribution"><span class="source">EPA-EFE/Omer Messinger</span></span></figcaption></figure><p>When the Berlin Wall was pierced on 9 November 1989, world attention was on Europe. But the collapse of the Soviet Union that followed resonated across Africa and globally. The <a href="https://www.visitberlin.de/en/events-30th-anniversary-fall-of-the-wall">30th anniversary</a> offers an opportunity to reflect on these forces and their implications for Africa’s politics and foreign relations.</p>
<p>The way forward for Africa in the aftermath of the <a href="https://www2.gwu.edu/%7Eerpapers/teachinger/glossary/cold-war.cfm">Cold War</a> – the decades-long struggle for supremacy between communist Soviet Union and capitalist US – was uncertain. Suddenly there were new opportunities for African agency. Since then the <a href="https://theconversation.com/democracy-in-africa-the-ebbs-and-flows-over-six-decades-42011">record has been mixed</a>, but several broad trends are evident and hard to imagine had communism not collapsed. </p>
<p>During the first three decades of post-colonial independence, many countries had settled for the constraints of being allied to either the Soviets and China, or Western states (often their former colonial masters) </p>
<p>By the late 1980s, the increasing likelihood of liberation fuelled South Africa’s black majority’s hopes for freedom. The country became the last in Africa to be freed from <a href="https://theconversation.com/world-politics-explainer-the-end-of-apartheid-101602">white rule in 1994</a>.</p>
<p>Salim Ahmed Salim, then secretary-general of the Organisation of African Unity (OAU), describes his recollection of that time in the <a href="https://www.loot.co.za/product/sifiso-ndlovu-the-thabo-mbeki-i-know/kldf-3588-g520">book</a>, “The Thabo Mbeki I Know” (69-79), thus:</p>
<blockquote>
<p>The end of the Cold War meant that Africa could assert itself. The mandate of the OAU insofar as liberation was concerned was coming to an end because South Africa was about to become free. In reality, the whole of Africa became free when South Africa attained its liberation. Now that we were free, and our countries no longer had to deal with the question of liberation, what next?</p>
</blockquote>
<p>Delineating the impact that the end of the Cold War has had during the ensuing three decades is almost as difficult as speculating where Africa would be today had this not happened. Changes in global alignment affected each of its now 54 diverse nations differently. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/history-didnt-end-with-the-fall-of-the-berlin-wall-but-only-now-is-the-new-battleground-clear-125768">History didn’t end with the fall of the Berlin Wall – but only now is the new battleground clear</a>
</strong>
</em>
</p>
<hr>
<p>But marking the end of the bipolar era does offer the chance to reflect on both the changes and continuities in African politics and global relations since 1989. It’s also opportune to ponder where Africa might be heading.</p>
<h2>South Africa’s dividend</h2>
<p>The first decade of the 1990s now seems unrealistically optimistic. Democratic rhetoric prevailed, and innumerable democratic reforms were tried. The <a href="https://theconversation.com/how-colonial-rule-predisposed-africa-to-fragile-authoritarianism-126114">legacies of colonialism</a> and the Cold War client dependencies persisted. Weak institutions and ethnic diversity bred strong leaders who, once elected, became entrenched. Many countries succumbed to <a href="https://www.princeton.edu/%7Elwantche/Africa_Dictatorial_and_Democratic_Electoral_Systems_Since_1946">electoral authoritarism</a>.</p>
<p>But the political benefits to South Africa from the end of the Cold War were immediate and critical. The long, hard anti-apartheid struggle had been gaining momentum nationally and globally. But suddenly the global isolation of the white minority regime was sealed. And local resistance solidified as ideological differences and modest Soviet military assistance for the freedom struggle also disappeared. </p>
<p>The time had come to deal with the most basic demand for political rights and equality for all South Africans. Hence the <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">negotiated settlement process</a> to end apartheid started in earnest in 1991.</p>
<p>South Africa’s transition was exceptional. Centuries of brutal colonial oppression and decades of apartheid had divided and emasculated communities into so-called <a href="https://www.sahistory.org.za/article/homelands">homelands</a>. These were the ten mainly rural impoverished areas where black South Africans were required to live, along ethnic group lines, with false trappings of sovereignty. </p>
<p>One unintended consequence of this was the emergence of a popular opposition committed to non-sectarian, inclusive self-rule. Proclaimed in the <a href="http://scnc.ukzn.ac.za/doc/HIST/freedomchart/freedomch.html">1955 Freedom Charter</a>, the <a href="https://theconversation.com/the-legacy-of-south-africas-freedom-charter-60-years-later-43647">blueprint</a> for a free and prosperous South Africa, it was finally be institutionalised in the country’s <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">1996 constitution</a>, arguably the world’s most carefully designed and ambitious modern democratic experiment.</p>
<p>Unlike most of the world, South Africa’s nationalism is no longer rooted in the one “race” or ethnic group. It has become a leading example of civic nationalism. Historian James McPherson explains that most countries are variants of ethnic nationalism: people in a defined territory who share common characteristics of language, custom, religion and over time <a href="https://www.penguinrandomhouse.com/books/112575/is-blood-thicker-than-water-by-james-mmcpherson/">genetic characteristics</a>.</p>
<p>What defines the civic nationalism of South Africa is not a dominant faction’s common roots, but a diversity of identities that share allegiance to the rule of law. It boasts a government of, by and for the people, as Abraham Lincoln tried to <a href="http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm">redefine America in 1863</a>. These words were appropriately repeated in a unanimous 2017 decision by South Africa’s Constitutional Court in a <a href="http://www.saflii.org/za/cases/ZACC/2017/21.pdf">case that tested</a> the limits of parliamentary and presidential authorities.</p>
<h2>New pan-African norms</h2>
<p>The second decade after the Cold War marked a flourishing of <a href="https://theconversation.com/sobukwes-pan-africanist-dream-an-elusive-idea-that-refuses-to-die-52601">pan-Africanism</a>. It responded to Salim’s challenge by replacing the OAU with the African Union (AU) in July 2002, in Durban, South Africa. </p>
<p>With the continent liberated but still vulnerable to local conflicts and foreign meddling, several leaders mounted an effective diplomatic offensive to transform the OAU into a more effective regional body for <a href="https://www.eisa.org.za/pdf/eisa2016Stremlau.pdf">preventing and resolving conflicts</a>.</p>
<p>The AU’s Constitutive Act featured stronger commitments to good governance, mutual oversight and shared commitments to <a href="https://au.int/en/constitutive-act">collective security and cooperation</a>.</p>
<p>Complementary instruments, notably the <a href="https://au.int/en/treaties/african-charter-democracy-elections-and-governance">African Charter on Democracy, Elections and Governance</a>, obliged all AU members to hold periodic elections and to invite the AU to monitor them.</p>
<p>Greater cooperation was also evident within the eight AU affiliated regional economic communities. And there was fruitful experimentation with supplementary bodies, notably the <a href="https://au.int/en/organs/aprm">African Peer Review Mechanism</a> and the <a href="https://au.int/en/nepad">New Partnership for Africa’s Development</a>.</p>
<p>South Africa played a leading role in these efforts to build capacity and advance African agency and self-reliance across the continent and globally, with the <a href="http://www.saqa.org.za/docs/webcontent/2017/Book%20review%20May%202017.pdf">strong support</a> of then President Thabo Mbeki (1999-2008).</p>
<h2>Democracy drift</h2>
<p>The third post-1989 decade has been marked by <a href="https://www.africaresearchinstitute.org/newsite/blog/review-cheeseman-democracy-in-africa/">many democratic setbacks</a>, within and among African countries. Democratic reversals, including in South Africa, have been exacerbated by autocratic behaviours globally and escalating big power rivalries. </p>
<p>There are always risks for Africa when dealing with any major power. Last December, for example, then US national security advisor John Bolton outlined the Trump administration’s <a href="https://www.whitehouse.gov/briefings-statements/remarks-national-security-advisor-ambassador-john-r-bolton-trump-administrations-new-africa-strategy/">“New Africa Strategy”</a> in terms evocative of the Cold War. Its goal is countering Russia’s and China’s growing influence on the continent.</p>
<p>Russia is no exception. Less than a week after the Russia-Africa Summit <a href="https://theconversation.com/russia-steps-up-efforts-to-fill-gaps-left-by-americas-waning-interest-in-africa-125945">attended by dozens of African leaders</a> in Sochi, Russia has been exposed for <a href="https://www.nytimes.com/2019/10/30/technology/russia-facebook-disinformation-africa.html">targeting African politics and elections</a> using social media. </p>
<p>Internet abuse is a <a href="https://freedomhouse.org/report/freedom-media/freedom-media-2019">global problem</a>. But African countries are especially vulnerable to the negative political impact of new information technologies, <a href="https://saiia.org.za/event/digital-democracy-vs-digital-dictatorship/">especially social media</a>. The dangers of fake news in fuelling greater polarisation, hate speech, government surveillance, and control are well known. </p>
<p>The full impact of the new technologies on Africa’s politics and economics needs much more study and analysis to develop balanced and fair policies as well as safeguards. </p>
<p>These new technologies are vital for Africa’s political, economic and social well-being. But they are also vulnerable to foreign manipulation. By 2029 we could even decide that digitisation lies at the heart of the fourth post-Cold War decade of struggle between democratic and autocratic politics in Africa.</p><img src="https://counter.theconversation.com/content/126521/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John J Stremlau does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Marking the end of the Cold War offers the chance to reflect on the changes and continuities in African politics and international relations since 1989.John J Stremlau, Honorary Professor of International Relations, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1206042019-07-30T13:04:45Z2019-07-30T13:04:45ZConstitutional Court ruling ushers in new era for energy regulation in South Africa<figure><img src="https://images.theconversation.com/files/285682/original/file-20190725-136744-1vuf5f9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Industrial users of gas have brought the energy regulator's methodology under the scrutiny of the courts.</span> </figcaption></figure><p>A recent <a href="https://www.concourt.org.za/index.php/judgement/328-national-energy-regulator-of-south-africa-and-another-v-pg-group-pty-limited-and-others-cct131-18-15-july-2019">judgment</a> of South Africa’s Constitutional Court involving the country’s <a href="http://www.nersa.org.za/ContentPage.aspx?PageId=231&PageName=Profile">energy regulator</a> signals a new found willingness by the courts to scrutinise the way regulators set prices and tariffs. This added level of regulatory accountability can only bode well for major sectors of South Africa’s economy that are subject to economic regulation. </p>
<p>The statutory powers of regulators such as South Africa’s National Energy Regulator (NERSA) are extensive. Importantly, these powers typically apply to the development of the regulatory frameworks and methodologies in which regulated prices and tariffs are set. </p>
<p>As a check on these powers, provisions of law allow for review of administrative actions taken by regulators. But until now few cases dealing with regulated prices and tariffs have been heard by the courts. Where the courts have reviewed regulatory price determinations, they have typically deferred to the expertise of specialist regulators on matters not explicitly prescribed in statute.</p>
<p>There is a well established body of administrative law that provides reason for this hesitation of the courts ‘to step into the shoes of the regulator’. But the unfortunate consequence of this hesitancy has been that regulators have had almost absolute discretion in the development regulatory methods and the determination of regulated prices within South Africa.</p>
<p>A complaint of a group of seven industrial gas users has changed all of this. </p>
<h2>A bit of background</h2>
<p>The origins of this case date back at least to the October 2011 publication of the regulator’s Methodology to approve Maximum Prices of Piped Gas in South Africa. This was followed by the March 2013 determination to approve Sasol Gas (Pty) Limited’s maximum prices for gas piped from its Mozambique production fields.</p>
<p>Facing increasing prices associated with the decision, a group of seven industrial gas users applied to the Gauteng Division of the High Court of South Africa to review and set aside the regulator’s <a href="http://www.nersa.org.za/Admin/Document/Editor/file/Piped%20Gas/Pricing%20and%20Tariffs/Pricing%20Decisions/Current/Methodology%20%20to%20approve%20Maximum%20Prices%20for%20Piped-Gas%20in%20South%20Africa.pdf">Methodology and Maximum Price Decision</a>.</p>
<p>The complaint got off to a slow start. The High Court refused to consider the merit of the case. Based on its finding that the 2011 Methodology was the administrative action to be challenged, the High Court ruled that the industrial users had breached an established 180-day rule for application to the courts. </p>
<p>The complainants then turned to the <a href="http://www.justice.gov.za/sca/judgments/sca_2018/sca2018-056.pdf">Supreme Court of Appeal</a>. The appeal court found that the 2011 Methodology document was not of direct and immediate consequence. It also found that the 2013 price determination was the relevant milestone to apply the 180-day rule. With the appeal launched within the required time frame, the appeal court then set out to review the merit of the case. </p>
<h2>Lifting the veil</h2>
<p>The appeal court scrutinised the technical underpinnings of the decision at a level of detail far greater than had been observed in the few cases of its kind that had preceded it. It was rather critical of the regulator - finding that it had “…decided to apply a criterion which it could not define and did not understand”.</p>
<p>Judge Leach (writing the judgment) added that given the circumstances, he had “….not the slightest hesitation in concluding that NERSA’s decision……was wholly irrational and unreasonable and, for that reason, ought to have been reviewed and set aside by the court a quo”.</p>
<p>NERSA then appealed to the Constitutional Court.</p>
<h2>Linking process to purpose</h2>
<p>Whereas the majority court ultimately found the Maximum Price Decision to have been irrational, it did so on different grounds to those of the Supreme Court of Appeal. In writing the judgment Justice Khampepe framed the relevant question before the Court as</p>
<blockquote>
<p>whether the means (including the process of making a decision) are linked to the purpose, or ends.</p>
</blockquote>
<p>Even though the majority court found no cause to rule on the methodology employed by the regulator <em>per se</em>, it did find it an essential element of the process, and therefore subject to review.</p>
<p>The Constitutional Court accepted the regulator’s stated aim</p>
<blockquote>
<p>to replicate competitive market outcomes in approving maximum prices. </p>
</blockquote>
<p>There seems to have been agreement that this competitive market standard follows from provisions of the Gas Act. These provisions require that maximum gas prices must first be approved by the energy regulator where there is inadequate competition in the market. </p>
<p>The court then referred to the overly familiar (and misunderstood) observation that in </p>
<blockquote>
<p>competitive market conditions, a firm prices its products at the level where the price equals the marginal cost.</p>
</blockquote>
<p>With this and related observations in mind, Justice Khampepe wrote that “(o)ne of the most relevant factors in the regulator’s entire equation…. ought to have been Sasol’s own marginal costs of production. </p>
<p>Established case law was then cited pulling together purpose, process, and an observable factor needed to complete the connection in that</p>
<blockquote>
<p>…. a failure to consider a relevant material factor in the process of coming to an administrative decision can render the decision irrational. </p>
</blockquote>
<p>Given that the energy regulator had failed to consider this mandatory input (that is, marginal cost) linking the process (that is, methodology) to purpose (that is, price obtained in a competitive market) the majority court found that it had acted irrationally in approving Sasol’s maximum gas price. </p>
<p>The Constitutional Court set aside the 2013 decision and ordered the energy regulator to reconsider.</p>
<h2>Now what?</h2>
<p>It is not entirely clear how the regulator is to use Sasol’s marginal cost in determining maximum allowed gas prices. A literal interpretation of the judgment would suggest that prices be set at Sasol’s marginal cost. But the Court would be well aware that this is a recipe for disaster: Sasol would not recover its fixed costs of production, to say nothing of exploration costs and associated risk, and so on. </p>
<p>But if the regulator employs an approach other than that suggested by Justice Khampepe, will the courts accept it as capable of mimicking the outcome of a competitive market?</p>
<p>Resolving these issues is likely to lead to a more fundamental issue being reconsidered – defining the purpose (or standard) against which regulated prices are to be set in South Africa. </p>
<p>If international experience provides any guidance, this may take decades to resolve.</p><img src="https://counter.theconversation.com/content/120604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Stephen Labson has acted as a regulatory expert in cases brought before the High Court of South Africa and advises a number of regulated enterprises within South Africa and elsewhere. He has not received any form of renumeration from any of the parties to this case, and has not received any form of financial benefit for writing this article.</span></em></p>South African courts have been reluctant ‘to step into the shoes of the regulator’. But the confirmation by the Constitutional Court of the ruling by the Supreme Court of Appeal has changed all that.Stephen Labson, Consulting Economist; Senior Research Fellow University of Johannesburg; Lecturer, Graduate Programme on Competition and Regulation, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1176632019-05-24T08:55:19Z2019-05-24T08:55:19ZIndonesia’s presidential election dispute: Prabowo’s plan to challenge election result may be in vain<p>It is official. Indonesia’s president Joko “Jokowi” Widodo is reelected for the second time. This is also the second failed attempt from former military general Prabowo Subianto to become president of the world’s third largest democracy with the biggest Muslim population. </p>
<p>After more than a month tallying votes from the 17 April election, the General Elections Commission (KPU) formally <a href="https://www.bbc.com/indonesia/indonesia-48329211">announced</a> Jokowi’s reelection on May 21. </p>
<p>Not long after the announcement, Prabowo’s camp <a href="https://www.cnnindonesia.com/national/20190521115051-32-396813/prabowo-gugat-hasil-pilpres-2019-ke-mahkamah-konstitusi">declared</a> that they will challenge the result to the Constitutional Court, a similar move he took five years ago. The Court, in 2014, <a href="https://nasional.kompas.com/read/2014/08/22/11025921/Ini.Penjabaran.Lengkap.Putusan.MK.Tolak.Gugatan.Prabowo-Hatta?page=all">rejected</a> Prabowo’s lawsuit due to insufficient evidence. </p>
<p>The article will describe the legal process that Prabowo must undergo for his case, and why it will likely fail. </p>
<h2>Constitutional Court’s mandates</h2>
<p>The Constitutional Court is one of the judicial powers in Indonesia. It holds <a href="http://www.dpr.go.id/jdih/uu1945">four mandates</a>:</p>
<ol>
<li><p>reviewing laws to decide if they are in accordance with Indonesia’s Constitution–whether it is “constitutional” or “unconstitutional”</p></li>
<li><p>settling disputes over the authority of state institutions</p></li>
<li><p>deciding dissolution of political parties</p></li>
<li><p>settling disputes over the results of general elections.</p></li>
</ol>
<p>Prabowo’s lawsuit falls under the Court’s last authority. </p>
<p>Under his current lawsuit, Prabowo hopes the Court will nullify KPU’s decision and disqualify his opponent, Jokowi, which ultimately will lead to Prabowo winning the election.</p>
<h2>Breakdown of the legal process</h2>
<p><a href="https://mkri.id/index.php?page=web.Perkara2&menu=4">The process</a> will begin when Prabowo files the lawsuit to <a href="https://mkri.id/index.php?page=web.ProfilMK&id=5&menu=2#">the Court’s clerk</a></p>
<p>The clerk will examine the documents to ensure they include the applicants’ identities and their demands.</p>
<p>The Court will inform Prabowo that whether his lawsuit meets the Court’s initial requirements. If the conditions are not met, Prabowo will be given one day to revise and complete his lawsuit, then file it back to the clerk. After the Court decided that the lawsuit qualifies for a preliminary hearing, the Court will announce a date. The Court will also inform, and invite, the defendant and other related parties (in this case, Jokowi and KPU) to the hearing.</p>
<p>During the hearing, judges will ask Prabowo about his lawsuit and give suggestions related to Prabowo’s demands. <a href="https://mkri.id/public/content/persidangan/risalah/risalah_sidang_6940_1.PHPU.PRES.XII.2014.6%20AGUSTUS%202014%20(BY%20INDAH).pdf">He will then be given time, up to three days</a>, to revise it. </p>
<p>After the revision, the Court will hold trials to examine whether the claims made by Prabowo are legally sound. During the hearing, the judges will listen to the testimony from plaintiffs, defendants, other related parties, and experts. There will be at least two sessions of the trial, held on different days - one to hear the plaintiff’s side and another to hear from other parties. </p>
<p>The court will also examine written evidence, cross-examine the testimonies of the witnesses, and examine other proofs and clues. Written evidence include, but are not limited to, the KPU’s documents supporting the declaration of Jokowi’s victory.</p>
<p>After all those processes, the Court will decide whether to grant or to deny the motions, within a maximum of 14 working days since the case is registered. </p>
<h2>Trial schedule</h2>
<p><a href="https://www.hukumonline.com/pusatdata/detail/lt59ba5511ab93b/node/534/undang-undang-nomor-7-tahun-2017/">The 2017 Law on Elections</a> states candidates who are unsatisfied with election results can submit a lawsuit to the Constitutional Court by no later than three days after KPU announces the results.</p>
<p>Thus, the deadline for Prabowo to formally file his lawsuit is on May 24.</p>
<p>Once Prabowo filed his lawsuit, the Court will register the case on June 11 and will notify the other related parties to attend the preliminary hearing.</p>
<p>On June 14, the preliminary hearing will take place, and Prabowo will be given time until June 17 to revise his application. After that, the Court will hold trials to further examine the case from June 17 to 21. </p>
<p>The judges are expected to read the final verdict by June 28. </p>
<h1>Decision options</h1>
<p>The Court has three final decision options - not to process the case, to grant the plaintiff’s demands or to reject them.</p>
<p>The Court will not process a lawsuit if it does not meet requirements. This include mistyping the identity of the plaintiffs, the plaintiffs are not valid candidates, or the plaintiffs pass the 3-day deadline to file the lawsuit. </p>
<p>The Court will reject a lawsuit if it is unlawful. Prabowo faced such rejection in 2014. The Court decided to reject his demand due to <a href="http://wcw.cs.ui.ac.id/repository/dokumen/lihat/11587.pdf">insufficient evidence</a>.</p>
<p>The final option is the Court will grant the plaintiff’s motions when they are proven to be legally sound.</p>
<p>If the Court grants Prabowo’s motions, the Court will nullify KPU’s decision and determine the right result of the election. </p>
<p>However, if the Court decides to deny Prabowo’s motions and therefore reject his lawsuit, this will lead to Jokowi’s victory, as the Court’s decision is final and binding. </p>
<h2>Difference between 2014 with 2019</h2>
<p>In 2014, when Jokowi won by a slim margin, Prabowo only had to bring evidence from 57,000 polling stations.</p>
<p>This year, according to the KPU, Jokowi wins by 16 million votes over Prabowo. </p>
<p>To prove electoral fraud in the 2019 election, Prabowo has to show that there are at least 100 frauds in <a href="https://nasional.kompas.com/read/2019/05/21/19060811/agar-gugatannya-di-mk-kuat-kubu-prabowo-harus-hadirkan-bukti-sebanyak-ini">100,000 to 200,000</a> polling stations.</p>
<p>Therefore, it seems that Prabowo’s lawsuit will also end up in vain.</p>
<p><em>Las Asimi Lumban Gaol translated this article from Indonesian.</em></p><img src="https://counter.theconversation.com/content/117663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Josua Satria Collins tidak bekerja, menjadi konsultan, memiliki saham, atau menerima dana dari perusahaan atau organisasi mana pun yang akan mengambil untung dari artikel ini, dan telah mengungkapkan bahwa ia tidak memiliki afiliasi selain yang telah disebut di atas.</span></em></p>Indonesia’s General Election Commission (KPU) has announced incumbent Joko “Jokowi” Widodo’s victory in 2019 presidential election. His opponent Prabowo Subianto, plans to challenge the result. Here’s why it will likely end up in vain.Josua Satria Collins, Researcher at Indonesia Judicial Monitoring Society (MaPPI), Faculty of Law University of Indonesia, Universitas IndonesiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1157352019-05-01T09:42:28Z2019-05-01T09:42:28ZRace still colours South Africa’s politics 25 years after apartheid’s end<figure><img src="https://images.theconversation.com/files/271723/original/file-20190430-136787-1gxpztv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">African National Congress supporters at the party's manifesto launch. </span> <span class="attribution"><span class="source">Epa/Kim Ludbrook</span></span></figcaption></figure><p>It would be surprising if race played no part in South African elections. The country’s colonial and <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid</a> past ranked alongside the <a href="https://www.ferris.edu/jimcrow/what.htm">America’s Deep South</a> as among the most racist social orders in the world. If religious polarisation is also considered, South Africa often compared with <a href="https://socialistworker.org/2008/11/24/struggle-in-northern-ireland">Northern Ireland</a> and the <a href="https://www.aljazeera.com/indepth/opinion/aren-europeans-calling-israel-apartheid-state-190410081102849.html">Israel-Palestine</a> conflict.</p>
<p>The slogan <a href="http://uir.unisa.ac.za/bitstream/handle/10500/3761/thesis_tshawane_n.pdf">“rainbow nation”</a> seems to have retired along with Anglican archbishop emeritus Desmond Tutu. Personal racist incidents still <a href="https://www.news24.com/SouthAfrica/News/coffin-assault-judgment-will-be-lesson-for-racists-mlotshwa-20170825">make the headlines</a> and class remains hued by colour at the structural level. Although slightly over half of the country’s middle class is now black, deep poverty is an almost exclusively <a href="https://doi.org/10.1080/02589346.2012.656912">a black experience</a>.</p>
<p>Race continues to divide. Take just the best-known parties among the four dozen contesting the country’s <a href="https://theconversation.com/south-africans-go-to-the-polls-in-may-what-you-need-to-know-113418">general election this month</a>. They all represent radically different perspectives on the race issue. And – at the extremes – there is no crossing the colour line. </p>
<p>For example, almost no black Africans will vote for the minority <a href="https://www.vfplus.org.za/">Freedom Front Plus</a>. Almost no whites will vote for the Economic Freedom Fighters <a href="http://www.effonline.org/Home">(EFF)</a>, the third-largest party. Strident racial rhetoric from some EFF leaders. And its <a href="https://www.politicsweb.co.za/documents/the-effs-2019-election-manifesto-iv">election manifesto</a> envisages for massive tax rises, a proviso that’s alienated white voters. For its part, the Freedom Front Plus’s campaign to <a href="https://www.vfplus.org.za/2019-election-manifesto">defend minorities</a> against affirmative action and <a href="https://www.thedti.gov.za/economic_empowerment/bee_sector_charters.jsp">black economic empowerment</a> doesn’t attract many black voters.</p>
<p>But, when moving towards the leading parties of the centre, the governing African National Congress <a href="https://www.anc1912.org.za/">(ANC)</a>, and the official opposition, the <a href="https://www.da.org.za/?gclid=EAIaIQobChMI4em9oNfZ4QIV2oXVCh0xJQRfEAAYASAAEgJeCvD_BwE">Democratic Alliance (DA)</a>, are making serious efforts to reign in racial rhetoric among their leaders and members. They also have manifestos that promote non-racialism.</p>
<h2>Non-racialism</h2>
<p>The <a href="https://ewn.co.za/2019/01/12/must-read-the-anc-s-2019-elections-manifesto">ANC</a> and <a href="http://politicsweb.co.za/documents/the-da-manifesto-2019">DA</a> documents and speeches have repeated their long-held goals of non-racialism. Both try to ensure that people of all colours are represented in their executive structures.</p>
<p>Recently, ANC veterans condemned a statement by their powerful secretary-general urging a vote against <a href="https://citizen.co.za/news/south-africa/politics/2118030/anc-veterans-slam-magashule-for-outrageous-racial-utterances-about-whites/">“whites” and for “blacks”</a>. And the party’s election campaign, particularly in Gauteng and the Western Cape, chooses issues and rhetoric which include white voters.</p>
<p>The DA too has more than once disciplined leaders, or got members to resign, because of <a href="https://rekordcenturion.co.za/60851/da-mp-apologises-for-racist-facebook-post">racial comments</a> on twitter or elsewhere </p>
<p>At a deeper level, the DA is attempting a strategy so difficult that it has only been accomplished twice before in South Africa’s history. The party seeks to change from an overwhelmingly white party to a predominantly black party. The South African Communist Party achieved this <a href="https://www.sahistory.org.za/article/south-african-communist-party-sacp">during the 1920s</a>. The Liberal Party followed a similar path <a href="https://www.sahistory.org.za/topic/liberal-party-south-africa-lpsa">during the 1960s</a>.</p>
<p>Historically, the ANC’s <a href="http://www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AD1137/AD1137-Ea6-1-001-jpeg.pdf">Freedom Charter</a> affirmed that</p>
<blockquote>
<p>South Africa belongs to all who live in it, black and white. </p>
</blockquote>
<p>The ANC’s alliances from the 1950s included organisations centred on <a href="https://www.britannica.com/topic/Coloured">coloured</a> – people of both European (white) and African (black) ancestry - , Indian, and white members. It incrementally opened its own membership to supporters of all colours before 1990.</p>
<p>At times, a few commentators have criticised the ANC as being dominated by either <a href="https://hsf.org.za/publications/focus/issue-8-third-quarter-1997/the-truth-about-the-xhosa-nostra">isiXhosa speakers</a> or <a href="https://www.loot.co.za/product/books-llc-nguni-languages/hhfl-1256-g140">Nguni language speakers</a>, but these complaints found little traction. The ANC’s membership embraced a nation-wide representivity among black Africans, and included <a href="https://hsf.org.za/publications/focus/issue-8-third-quarter-1997/the-truth-about-the-xhosa-nostra">activists from all of the race-based definitions entrenched during apartheid</a>.</p>
<p>Strategically, the ANC is the only African nationalist party that has had to accommodate – in policy and rhetoric – a <a href="https://businesstech.co.za/news/lifestyle/189135/south-africas-white-population-shrinks-even-further-in-2017/">significant white minority</a>.</p>
<p>More than nine-tenths of white settlers fled Algeria <a href="https://www.jstor.org/stable/2524278">after independence in 1962</a>; the same in Angola and Mozambique following independence <a href="https://www.jstor.org/stable/4185453?seq=1#page_scan_tab_contents">in 1974</a>. This also happened in Zimbabwe between the <a href="https://www.iol.co.za/news/africa/whites-flee-zimbabwe-in-droves-216882">1980s-1990s</a>. White Algerians had the right to French citizenship; white Angolans and Mozambicans had the right to Portuguese citizenship. Over half White Zimbabweans had the right to either South African or British citizenship. </p>
<p>By contrast, the overwhelming majority of white South Africans have no rights to other citizenships.</p>
<h2>The people</h2>
<p>White South Africans are only make up <a href="http://www.statssa.gov.za/publications/P0302/P03022018.pdf">7,8%</a> of the population. But they remain strategically important. They still own most capital and <a href="http://theconversation.com/white-people-in-south-africa-still-hold-the-lions-share-of-all-forms-of-capital-75510">most companies</a>. They constitute a significant proportion of management and in <a href="https://businesstech.co.za/news/business/121632/these-4-graphs-will-change-your-thinking-on-employment-in-sa/">most of the professions</a>.</p>
<p>The western powers, investors, and media remain sensitive to their concerns and anxieties.</p>
<p>Interestingly, statistics show that white living standards have risen higher than anyone else’s <a href="https://www.fin24.com/Economy/white-south-africans-have-best-quality-of-life-irr-20170508">since 1994</a>. That is not exactly the <a href="https://pulitzercenter.org/reporting/myth-white-genocide">“genocide”</a> proclaimed by the global alt-right.</p>
<p>There is a wide range of black views on colour and race relations. Some activists in the Rhodes-must-fall and Fees-must-fall <a href="https://www.academia.edu/31837026/An_analysis_of_the_FeesMustFall_Movement_at_South_African_Universities">movements</a> expressed total alienation from whites and “whiteness”. Simultaneously, there are many interracial friendships and some interracial marriages.</p>
<h2>Tensions bound to remain</h2>
<p>The world’s oldest democracy, the US, and the world’s largest democracy, India, also have to grapple with the contradictions between nonracial or non-caste ideals in their constitutions, and affirmative action and preferential procurement laws and regulations.</p>
<p>In South Africa, similar issues continue to be addressed by a host of institutions. These range from the <a href="https://www.sahrc.org.za/">Human Rights Commission,</a> to the <a href="http://www.justice.gov.za/eqcact/eqc_main.html">Equality Court</a> and similar quasi-judicial entities, in addition to test cases decided by the <a href="https://constitutionallyspeaking.co.za/an-embarrassing-mistake-from-the-constitutional-court/">Constitutional Court.</a>.</p>
<p>Given that the country has the world’s largest white minority living under black rule, colour line tensions will remain a fairly permanent feature of the country’s political landscape. The same can be said of the US, where the world’s largest black minority lives under white rule.</p><img src="https://counter.theconversation.com/content/115735/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is an ANC member, but writes this article in his professional capacity as a political scientist.</span></em></p>South Africa has the world’s largest white minority living under black rule.Colour line tensions might remain a feature of the country’s political landscape.Keith Gottschalk, Political Scientist, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1089472019-01-21T13:40:47Z2019-01-21T13:40:47ZThe CAR provides hard lessons on what it means to deliver real justice<figure><img src="https://images.theconversation.com/files/253637/original/file-20190114-43525-1gdlngs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many have been displaced by violence in the Central African Republic. </span> <span class="attribution"><span class="source">EPA/Stringer</span></span></figcaption></figure><p>The conundrum facing justice in the Central African Republic (CAR) was well summed up by Jean Pierre Waboe, Vice-president of the country’s Constitutional Court, whom I interviewed:</p>
<blockquote>
<p>In a situation whereby the state does not exist, injustice becomes the norm. Anybody can set about doing anything. </p>
</blockquote>
<p>The breakdown of state control since the resurgence of conflict in 2013 has had drastic consequences for the possibility of any forms of governance – political, economic or legal in CAR. </p>
<p>Under these circumstances, the need for “justice” has become more crucial. For Waboe, however, the problem of justice in the country is that it’s seen as too formal, too distant, too complex, and too slow to respond to what’s needed. For justice to work, a country needs a judiciary system that’s functioning, legitimate and credible. And that can deliver justice that’s immediate, operative and helps populations to reconnect torn relationships. A justice that, for him, can “dry tears”. </p>
<p>The question that keeps getting asked is: what justice is possible in a climate of impunity? And indeed in times of war.</p>
<p>The CAR’s Special Criminal Court is the site of protracted struggle over the meaning, and the feasibility of justice. In the absence of a functioning judicial system, the establishment of a <a href="http://www.cps-rca.cf/sites/default/files/inline-files/Loi%20_%20Cour%20p%C3%A9nale%20sp%C3%A9ciale%20_.pdf">tribunal in 2015</a>
was an unprecedented initiative. Yet, the precarious conditions of its existence make it a promise that teeters on the ledge of collapse. </p>
<p>The special court is something of an experiment. Unlike previous ad hoc tribunals such as Yugoslavia and Rwanda, it isn’t meant to constitute an alternative or competitor to the International Criminal Court (<a href="https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf">ICC</a>). Rather, it’s role is to complement the ICC’s ongoing investigations into alleged war crimes and crimes against humanity. If successful, <a href="https://justiceinconflict.org/2015/05/14/why-central-african-republics-hybrid-tribunal-could-be-a-game-changer/">the hope</a> is that it could become a model of shared prosecuting authority across domestic and international judicial regimes for grave crimes. </p>
<h2>Fraught with difficulties</h2>
<p>The mandate of the court is to prosecute crimes committed since 2003 including rape and sexual violence, widespread crimes and material destruction. Human Rights Watch found that some of the most egregious and brutal crimes have been committed since <a href="https://www.hrw.org/report/2018/05/17/looking-justice/special-criminal-court-new-opportunity-victims-central-african">the breakout of the civil war in 2013</a>. And yet, no form of justice has been offered and no one prosecuted. </p>
<p>The temporary nature of the special court’s mandate sits at odds with the fact that violence is ongoing. In the provinces outside of Bangui and the South West, a plethora of armed groups offer “protection” one day, the next they repress. They raze villages, extract rare minerals, levy tax, loot humanitarian supplies, kidnap people for ransom, set up racket schemes and impose tolls to trucks and people. </p>
<p><a href="https://www.tandfonline.com/doi/abs/10.1080/13600820701562843?src=recsys&journalCode=cgsj20">Many scholars view</a> special courts as part of the liberal peace building treatment package and in that sense a part of a broader agenda of social transformation of post-conflict societies.</p>
<p>But the CAR’s current volatile conditions render the very administration of justice a dangerous endeavour. Judges and witnesses have to be protected; the domestic judiciary personnel lacks experience in investigating crimes against humanity and the judiciary system itself is vulnerable to “instrumentalisation”, that is its misuse for political or other ends. Deterring fighters from committing grave crimes or recidivists from committing further crimes is one thing. Restoring confidence, trust and respect for the justice system is another. How are ordinary people to respond when it’s clear that the assessment of crimes happens against a backdrop of entrenched hierarchies based on ethnicity, political and religious affiliation, and economic capacity? </p>
<p>There are a host of additional problems too. For instance, the recruitment of young people into armed groups has gone unabated. According to the United Nations’ Children and Armed Conflict report, <a href="https://reliefweb.int/report/world/children-and-armed-conflict-report-secretary-general-a72865-s2018465-enar">the number of young recruits quadrupled</a> in 2017 relatively to 2016.</p>
<p>The reality is that, for victims, the promise of justice is a spectrum that carries both risks and possibilities. </p>
<p>The court, for instance, regulates the forms, spaces, styles and even the emotional structure of victim testimony. And the convention of legal proceedings – the use of codified language and formal rules of presentation and evidence for example – leave victims, most of whom are illiterate, further marginalised. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251933/original/file-20181222-103657-1vcq1gs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">CAR’s Special Criminal Court.</span>
<span class="attribution"><span class="source">Supplied by author.</span></span>
</figcaption>
</figure>
<p>A further complication is that war criminals seem to have little to fear from United Nations forces given the latter’s limited mandate. Besides, atrocities have been committed by all parties involved. The <a href="https://www.icc-cpi.int/car/bemba?ln=fr">acquittal</a> of Jean Pierre Bemba by the ICC remains a great puzzle for those that have witnessed the atrocities committed by his troops in CAR. </p>
<p>This poses the question of the criteria and line of priority that are to guide future prosecutions. </p>
<h2>The alternatives</h2>
<p>Is there an alternative to lengthy and costly procedures and imprisonment? For Walidou, a legal scholar who has taught at the University of Bangui for many years, there is:</p>
<blockquote>
<p>Give to each [former fighter] a modest income, a decent uniform and integrate them in an auxiliary unit to calm them down and they will leave armed groups.</p>
</blockquote>
<p>For Walidou, by taking back youngsters, the state can gather information on logistics, the circulation of weapons, the exploitation of resources, the means of supply to armed groups, and other information that it currently doesn’t have.</p>
<p>The imperative for a justice that restores what has been broken, and the need to make examples of perpetrators who have been captured, can pull in different directions. In fact, they run the risk of cancelling out each other. </p>
<p>What this points to is the need to better understand the sociology of the conflict, to assess the role of justice in relation to the peace process and to reconstruction more generally. This could, for example, mean considering the role of amnesty and moratoria as well as non-legal mechanisms in national reconciliation.</p><img src="https://counter.theconversation.com/content/108947/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Niang received a grant to cover a research trip to the Central African Republic as part of the Uncovering Security Story Lab programme supported by the Thomson Reuters Foundation, the Stanley Foundation and the Gerda Henkel Stiftung.</span></em></p>The volatile conditions in the Central African Republic make the administration of justice difficult.Amy Niang, Visiting Professor at the University of Sao Paulo and Senior Lecturer in International Relations, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1049702018-12-21T05:36:33Z2018-12-21T05:36:33ZWhy Indonesia’s judiciary ignores Constitutional Court decisions – and how to fix that<p>In February 2008, Bambang, a surgeon at the Dinas Kesehatan Tentara (DKT) Hospital, an Indonesian military hospital in Madiun, East Java, was reported to police by his patient, Johanes Tri Handoko, regarding his practice permit. </p>
<p>The Madiun District Court acquited Bambang. However, the Supreme Court granted the prosecutor’s appeal on October 30 2013. </p>
<p>The surgeon was found guilty of violating Articles 76 and 79 of the 2004 Law on Medical Practice for practising medicine without a practice permit and for not providing medical services in accordance with professional standards and standard operating procedures. The Supreme Court sentenced him to prison for a year and a half.</p>
<p>But Bambang should not have been imprisoned. </p>
<p>Six years prior, on June 19 2007, the Constitutional Court (which has the authority to assess all provisions of the constitution) had removed the imprisonment provision on <a href="http://hukumpidana.bphn.go.id/wp-content/uploads/2012/11/Putusan-MK-No.-4_PUU_V_2007.pdf">those articles</a>. </p>
<p>The Constitutional Court argued that the provision had caused insecurity and fear as a result of disproportionate criminal sanctions stipulated in the regulation. Therefore, doctors who violate the articles can only be sentenced to a fine, not imprisonment.</p>
<p>Bambang’s case is an example of a decision by the Constitutional Court not being enforced. The Law on the Constitutional Court states that the court’s decisions shall be final and binding. This means all decisions should be adhered to and applied. But they are not. </p>
<h2>What’s holding it back?</h2>
<p>At least two factors result in Constitutional Court decisions on judicial review not being enforced.</p>
<p>First, law enforcers are not aware of the court’s decision. Many legal provisions that have been declared unconstitutional by the Constitutional Court are not well documented. From 2003 to 2017, 574 provisions were declared unconstitutional. </p>
<p>When a law enforcer is dealing with rules, they need to keep up with the changes. This is not easy because the changes are numerous. For instance, there are 15 provisions in the Criminal Code that have been declared unconstitutional from 2003 to 2017.</p>
<p>One case illustrates this problem. On December 13 2004, the Constitutional Court issued <a href="https://mkri.id/public/content/persidangan/putusan/Putusan006PUUII2004rev91204.pdf">a decision</a> that ruled Article 31 of Law No. 18 of 2003 on Advocates as unconstitutional. The article prohibits someone who is not an advocate by profession from acting as an advocate. However, in 2008, <a href="https://www.hukumonline.com/berita/baca/hol19342/masih-ada-lbh-kampus-yang-dilarang-berpraktek">some law enforcers still used that article</a>.</p>
<p>Second, the judiciary at times disobeys the Constitutional Court’s decision, as shown in Bambang’s case. The Supreme Court argued that not all Constitutional Court decisions have binding force. </p>
<p>But, under Constitutional Court Law, all Constitutional Court decisions are final and binding. All of the Constitutional Court decisions should be enforced by everyone, including the Supreme Court and the Attorney-General.</p>
<p>Another case is when the Constitutional Court issued <a href="https://mkri.id/public/content/persidangan/putusan/putusan_sidang_1651_34%20PUU%202013-telahucap-6Maret2014.pdf">a ruling</a> in 2013 that a criminal case can be reviewed more than once. The Supreme Court, however, issued a <a href="http://bawas.mahkamahagung.go.id/bawas_doc/doc/sema_07_2014.pdf">circular</a> in 2014 restricting criminal reviews to once only. </p>
<p>In 2016, the Constitutional Court <a href="http://repository.unika.ac.id/16329/7/13.20.0075%20Vania%20Dewi%20Christant.LAMPIRAN.pdf">ruled</a> that a prosecutor can’t apply for a review in criminal cases. But the Attorney-General is ignoring this and has stated that prosecutors will continue to apply for reviews.</p>
<h2>Regulation with a law is the best solution</h2>
<p>The solution to the judiciary ignoring the Constitutional Court is to enact a regulation for every norm the Constitutional Court has ruled upon. </p>
<p>This action has actually been regulated under the 2011 Law on Legislation Formulation. The parliament and the government have the authority to regulate a new law based on a paragraph, article and/or section of the law that has been expressly stated in a Constitutional Court decision. This new law is also intended to prevent a legal vacuum for the norm after the Constitutional Court decision.</p>
<p>However, no new law based on a Constitutional Court decision has been regulated. </p>
<p>Indonesia requires the political will from legislators to release new regulations in response to the Constitutional Court’s rulings. Otherwise the highest court will continue to be ignored and unconstitutional norms will continue to be applied to citizens.</p><img src="https://counter.theconversation.com/content/104970/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Muhammad Tanziel Aziezi received funding from the Norwegian Embassy in Indonesia on blasphemy law research, from the Swiss Embassy in Indonesia to train "International Criminal Law" to judges, attorneys, and civil society, from the Kingdom of the Netherlands to strengthen chamber system at Indonesia's Supreme Court. </span></em></p>Some Indonesian law enforcers are simply not aware of Constitutional Court decisions. But some are blatantly ignoring them.Muhammad Tanziel Aziezi, Researcher, Indonesian Institute for Independent Judiciary (LEIP)Licensed as Creative Commons – attribution, no derivatives.