Constitutional Court judges face much more than legal questions in Zuma case

South African President Jacob Zuma faces a vote of no confidence.
GCIS

South Africa has been treated to an overdose of legal arguments as its Constitutional Court grapples with whether or not a parliamentary vote of no confidence in President Jacob Zuma should be conducted by secret or open ballot.

The country’s opposition parties are trying to get Zuma removed. Their latest attempt was triggered by his irresponsible decision to sack Pravin Gordhan, the widely respected finance minister.

I sat and listened as lawyers for both parties argued their cases before the constitutional court judges. I’m a political scientist, not a lawyer. I therefore deserve the label “layman” and my understanding of what’s at stake should be understood within that framework.

I take this liberty because, while the matter is patently legal, its origin is political. This is obvious from the fact that some political parties and civil society groups have declared their wish that Zuma be removed from office. And, whatever the court decides, the reaction by interested parties and the public is bound to be political.

The case

Following numerous failed attempts at securing a vote of no confidence against the president in parliament, the United Democratic Movement (UDM) and others decided to approach the court. They hope to secure an order instructing the Speaker of the National Assembly to let parliamentarians cast their votes in secret.

The UDM took this route after the Speaker turned down its request for a secret ballot. The Speaker’s position is that she is neither obliged by the Constitution, nor permitted by parliamentary rules, to allow MPs to vote in secret.

In a nutshell, the UDM wants the Court to declare that the Speaker is constitutionally obliged to allow a vote of no confidence by secret ballot. Alternatively, it wants the court to say the Speaker is permitted by parliamentary rules to do so.

Understandably, lawyers for Zuma have opposed both sides of the UDM’s argument.

The trouble here is that the Constitution states categorically – in Part A of Schedule 3(6)(a) – that a President must be elected by secret ballot. But there is no equally explicit provision that says a vote of no confidence in the President must be decided by secret ballot. This has created a lacuna to be exploited by various parties.

Those calling for a secret ballot contend that the Constitution enjoins MPs to hold members of the Executive to account. Therefore, they argue, it goes without saying that a vote of no confidence – the highest form of holding a President to account– must be conducted in a way that ensures the highest form of protection from negative consequences.

The secret ballot, the UDM argues, would give MPs, especially those from the ANC, maximum protection against retribution by the President and the governing ANC if they chose to vote with the opposition.

This is what is termed “purposive” interpretation of the Constitution. It says that the purpose of the drafters of the Constitution was to ensure maximum accountability of members of the executive.

The UDM contends that any form of oversight by MPs that leaves room for possible punishment by members of the Executive would not be in keeping with the spirit of the Constitution.

A philosophical case

It would seem that the Constitutional Court is dealing less with a clear-cut matter of legal facts, but more with a philosophical (jurisprudential) question. The Court is being called on to infer the intention of the drafters of the Constitution, or to interpret the Constitution in way that would, unavoidably, reveal the judges’ philosophical inclination on a morally fraught matter.

The question is a moral one because fundamentally it’s about the conduct of a President who has been flagrantly injuring the interests of the country. While the justices of the Constitutional Court are men and women of law, they are learned and conscious enough to appreciate the contextual weight and social implications of their judgments.

Chief Justice Mogoeng Mogoeng.
GCIS

This is not to drag judges out of the neutral province of law into the entangled web of politics. It is to sharpen the question they are confronted with, and to crystallise the philosophical call to be made. Confronted with the spectre of a rogue president, would the drafters of the Constitution have chosen to grant MPs the maximum protection, enabling them to decide whether or not to rescue their country?

If the judges can’t establish how the drafters of the Constitution would resolve this conundrum, they should put themselves in the shoes of a morally sound person who must choose between saving their country or letting it go up in smoke.

This, essentially, is the moral dilemma confronting the Court.

Do the judges craft a jurisprudential judgment that will protect their own country from a president who is on the rampage, or do they wash their hands and deliver a judgment cloaked in legal technicalities that would facilitate the ultimate ruin of the Republic?

What needs to happen

As the consciences of our judges continue to be haunted by the moral dilemma placed before them, it’s useful to recall the words of Harvard University law Professor Roberto Mangabeira Unger:

No amount of factual inquiry seems sufficient to prove the truth of a general conception of social order.

Indeed, South Africa’s judges are not dealing with facts about truth. They have been called on to resolve a conceptual question about the best social order for posterity in South Africa.

Prince Mashele, Senior Research Fellow, Centre for the Study of Governance Innovation, University of Pretoria

This article was originally published on The Conversation.

Allegations of abuse at Kimberley prison

But report also finds much that works well

By Natalie Pertsovsky
24 May 2017

Aerial view of Tswelopele Correctional Centre. 

A report by Justice Edwin Cameron describes serious problems at Tswelopele Correctional Centre in Kimberley, but also finds some positive aspects to the prison. GroundUp requested the report after an allegation of assault was reported to us by a relative of one of the inmates.

Any judge is allowed to inspect a prison. Cameron and three law clerks visited the prison in October 2016. This visit was spurred by allegations by prisoners of assault.

The report describes findings of an investigation by the Judicial Inspectorate of Correctional Services (JICS). It found that the contract for the CCTV security cameras expired more than a year ago and 99% of the camera recording system doesn’t work, the general maintenance contract expired more than two years ago, warm water isn’t available, and inmates can’t freely use the toilet in the hospital wing at night if an official doesn’t open the cell doors. This means inmates “are forced to make use of plastic bags and bottles to relieve themselves.” Numerous allegations of ill treatment in one of the prison’s units were also made.

But the report also found aspects of the prison working well. It is not overcrowded. In one unit visited, condoms are available, and almost all inmates are tested regularly for HIV. There is a mobile library and cells have televisions and radios. Prisoners can make phone calls during the day. The quality of the food is satisfactory. The prison also produces bread for Kimberley. Many of the prisoners are studying for matric or with UNISA. Cameron wrote that Hendrik Johannes, the head of the prison, and his staff were informative, professional and experienced. “Overall, the centre is in good condition and, though there are design problems, such as the lack of access to hospital ward bathrooms at night, the building itself is new and clean and functional.”

The report also tells this story: “During our visit, a long-term insider, nicknamed Klaargelag (“Done Laughing”), presented a poem about HIV awareness, which he performed. His performance was dramatic, energetic and unforgettable. The offenders’ response to Klaargelag’s presentation was jubiland and evidently appreciative.”

Inhumane treatment at K2

Much of the report deals with a unit called K2. The complaint GroundUp received — which we are continuing to investigate — is about an inmate who was in K2. Prisoners are threatened to be sent to this unit if they complain and once in the unit, inmates who are pursuing degrees can’t continue studying and their exercise is limited. Also, prisoners said they are often intimidated by Johannes before they are transferred to K2. Further, they can only make phone calls during the weekend and these calls count as visits.

The JICS report found that treatment of prisoners in K2 is inhumane. K2 appears to be the place where “behaviourally difficult” prisoners are sent.

During the visit to K2, 15 inmates presented Cameron with complaints of assault against Johaness or other officials. Also, “several inmates stated that Johannes assaulted offenders in his office before they were sent to the unit”. Although Johannes offers reasons for why force may have been used against inmates, nowhere in the report does he deny using force.

Prison officials were accused of using excessive force in incidents in November 2015. In the first a prison official was stabbed. The JICS report found that subsequent “use of force” by officials when transferring the culprits to K2 was “justified”. However, a few days later prison officials assaulted inmates using tonfas. The JICS report found that this was “irrational and was employed as a punishment against inmates who were associated with the stabbing of the prison warder”.

The prison doctor informed Cameron that minor injuries because of assault were treated.
Johannes told Cameron that “the use of K2 as a ‘delinquent’ unit may end” and that the centre may have to deal with offending inmates in their respective units to avoid K2 being overcrowded or making it a “centre for crime”.

Cameron recommended that “a new system be implemented to relocate prisoners to K2”. He suggested Johannes consider closing K2 altogether, which Johannes responded positively to. However, this would require a new disciplinary system to be implemented in the prison to replace the current policy of transferring delinquent prisoners to K2.

Cameron’s report states that “disciplinary procedures against the officials implicated must be implemented” and recommends that “there should be decisive departmental follow up on the JICS recommendations regarding” the November assaults. It also says that the Centre should set deadlines to report on its progress.

Facts about Tswelopele Correctional Centre

• Located about 5km west of Kimberley’s Big Hole
• Can hold 3,021 prisoners
• As of October 2016 had 2,574 prisoners
• 186 serving life-sentences, all of whom are classified medium risk
• 321 prisoners are on antiretroviral treatment for HIV.
• Between 420 and 450 staff, but it is supposed to have 600, including about 390 security staff, 14 nurses, nine social workers, 21 teachers, a psychologist and a doctor
• Consists of three blocks with four units each (i.e.12 units), each with a gym and small yard
• Has a hospital, as well as a bakery that produces bread for Kimberley

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Published originally on GroundUp .

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Gupta takeover of Eskom, Helen Zille called it way back in 2015

I refer to the latest Sunday Times report, and will then point out what Helen Zille said directly after the suspensions of the four Eskom executives in 2015.

DUDUZANE ZUMA FAKE INTELLIGENCE REPORT USED TO SUSPEND FOUR TOP ESKOM EXECUTIVES IN 2015 

Quote from the Sunday Times of yesterday:

“President Jacob Zuma is said to have used a “devious” intelligence report compiled by Duduzane, his son, to effect the suspensions of four top Eskom executives in 2015.

The move paved the way for Brian Molefe’s first posting to Eskom as its CEO and came months after Gupta associate Salim Essa’s efforts to score Trillian’s first contract at the power utility had fallen flat.

Were Essa to have been successful, Trillian would have netted R400-million from Eskom.
A day after the suspensions were announced, the Gupta-owned Tegeta signed its first coal-supply contract with Eskom – an R400-million-a-year, 10-year deal at the company’s Brakfontein mine.

A National Treasury investigation has found that Eskom’s leadership ignored evidence that the coal from Brakfontein was out of specification, according to a draft report emanating from a review of the power utility’s coal supply agreements.

Duduzane holds shares in Gupta companies including Oakbay, which owns Tegeta.”

According to the Sunday Times, Zuma783 summoned the then Eskom chair Zola Tsotsi to his private residence in February 2015 and ordered Tsotsi to suspend the four Eskom executives.

Also present were Zuma783’s nyatsi Dudu Myeni – they have a son together, Thalente Myeni, who is a Prasa rail coach tender beneficiary, and one Nick Linell, who has done some work for Myeni before.

Subsequently to the suspensions of the four Eskom executives, three of them were given golden handshakes, and only one retained- Matshela Koko, who is on the Gupta payroll.

The suspensions opened the way for the Zupta cabal to bring in the Zupta cabal duo of Brian Molefe as CEO of Eskom and Anoj Singh as the CFO. The pair was brought over from Transnet where they also served as CEO and CFO respectively, and were also the hired Gupta stuurboys at Transnet to channel massive tenders the Gupta way.

This is what Helen Zille said back in 2015:

ZUMA MUST EXPLAIN ESKOM INTERVENTION -ZILLE. [ FIN 24 MARCH 26 2015 AT 21:25 ]

“The president’s personal intervention begs the question – what could his motives have been?” she said in a statement.

The answer perhaps lays in the fact that the suspensions “followed shortly after the Eskom executive’s attempts to appoint an audit committee to oversee procurement processes for major contracts.”

Zille said industry insiders believed this move “may have upset political interests benefiting from lucrative diesel and coal supply deals.”

She called on Zuma to explain exactly who’s interests he was protecting by intervening at Eskom.”

Helen Zille proven right, vindicated, hit the nail on the head. And that was before amaBhungane’s revelations of state capture of last week, as revealed on ewn.co.za

Zille said it back then.

Opinion by Daniel Sutherland

 South Africa Today – South Africa News

How President Zuma blew the chance to steal a march on his opponents

South African President Jacob Zuma is appealing a High Court ruling that he give reasons for his controversial cabinet reshuffle.

As the dust was starting to settle on South African President Jacob Zuma’s recent controversial reshuffle of his cabinet, a new storm erupted. The country’s High Court ordered him to give the reasons for his decision.

The governing African National Congress (ANC) is infuriated. The ANC in KwaZulu-Natal organised a march against what the party regards as judicial overreach.

The president is appealing. The main point of his lawyers argument is that the court erred in the way in which it interpreted a Rule 53 of the Uniform Rules of Court. The rules came into effect in 1965 (predating the end of apartheid) to optimise the administration of justice, specifically in relation to the review of administrative or quasi-judicial decisions with pernicious consequences.

The premise of the judge’s ruling seems to be that accountability in the exercise of executive authority is sacrosanct in a constitutional democracy.

Its application in the past has been limited to administrative functions, never an executive function. It’s on this basis that Zuma’s lawyers are arguing that Rule 53 cannot be used to review and set aside an executive decision.

Surreal interpretation of the law

The judge’s interpretation attempts to sync the meaning of the Rule 53 with South Africa’s constitutional democracy. For his part, Zuma’s literal interpretation draws from the apartheid logic where executive sovereignty reigned supreme. In the past, the power of the president was akin to royal prerogative.

The judge argued that this “is a relic of an age past” and not part of the foundational logic of the post-apartheid state.

The president’s grounds for appeal appear surreal. How can the meaning of a rule – determined by a context that the president ferociously fought against as a freedom fighter – be invoked to justify his executive action in a democracy?

This is not a question of law, but of exemplary leadership in a society where the rule of law lies in the constitution.

In taking an oath as the president, Zuma committed himself to, in the words of eminent scholar of government Louis Gawthrop,

the service of democracy, (which) requires, at least, a conscious and mature awareness of the ethical impulses of democracy, the transcendent values of democracy, and the moral vision of democracy.

Indeed, Zuma’s executive authority includes the power to appoint and fire the deputy president, ministers and deputy ministers.

In other words, at issue is not the executive authority of the president, but how this authority is exercised.

The ruling – right or wrong – compels the nation to ask the question: Is Zuma’s exercise of his authority in sync with the objectives of the country’s hard-won democracy, as formalised in the constitution?

In a constitutional democracy, a concomitant of executive authority is accountability – a function of rationality. In other words, the president’s executive powers are not absolute, despite the fact that they are wide-ranging.

Beyond the legalese of a cabinet reshuffle

In a desperate attempt to extricate himself from a sticky situation Zuma has dug in his heels, clinging to the interpretation of law that belongs to the apartheid era.

Lest we forget, the Zuma presidency institutionalised monitoring and evaluation systems to keep in check the performance of state bureaucracy as well as ministers. For, as the former City of Los Angeles Board of Efficiency director Jesse D Burks aptly put it.

most men cannot hold themselves to their highest standard of efficiency unless they are constantly stimulated by the prospect of a rigid and impartial appraisal of their work.

Zuma thought, correctly, that a means to achieve this with his ministers was through performance agreements. These are important to check achievements against outcomes, and to detect misdirection of effort and waste.

They are also important because they give effect to outcomes-based governance where the focus is on the impact of state action. Of critical importance is positive change in the well-being of citizens.

A big part of outcomes-based governance are performance agreements between the president and ministers. These are linked to key outcomes, indicators and targets in the Medium Term Strategic Framework relating to the legislative mandates of respective government departments. The framework focuses attention on government issues that are critically important. These, in turn, are based on the manifesto of the governing ANC, and linked to a five-year electoral mandate.

Outcomes-based governance is an excellent model to optimise the state. Monitoring and evaluation systems generate performance data for the president to determine who in his cabinet performs, or does not.

With all these in place, why have the reasons for the cabinet reshuffle not been forthcoming? Why has it taken the intervention of the judiciary to compel the president to furnish them?

Wittingly or unwittingly, by introducing performance agreements Zuma promised that his decisions to reshuffle the cabinet could be based on rationality. Why is he now acting against the logic of the architecture of his administration which promises accountability in the exercise of executive authority?

Missed opportunity to be the best

Had Zuma followed through the logic of his administration he would have turned out to be the best president who, in the words of influential Baltimorean journalist H.L. Mencken, understands that

as democracy is perfected, the office of the president represents, more and more closely, the inner soul of the people.

He would have outsmarted the main opposition party, the Democratic Alliance (DA), which brought the case to court. After all, he’s in a position to account to the nation about the performance of cabinet members, using performance data generated from their performance agreements.

By making this part of the culture of accountability, alternative narratives – beyond the score cards published annually by the DA assessing the performance of government – would have emerged. These would have provided an informed understanding of the state of the State.

The court case underscores the confluence of accountability and rationality in the exercise of authority in a constitutional democracy. Why is this difficult to understand?

Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of Technology

This article was originally published on The Conversation.

Farm labourers dumped in remote town after wage dispute

“It is unfortunate that in this age people are still being treated like animals.”

By Joseph Chirume
23 May 2017

These men were dumped in a remote town after a wage dispute with a farmer. Photo: Joseph Chirume

Fourteen men brought to Addo to work on a farm picking oranges and lemons say the farmer never paid them. Instead, he drove them out to a remote town and dumped them 200km from home.
They also allege he threatened to shoot them if they did not get out off his vehicle.

Lusanda Ngam, 34, says that earlier in May they were told by a man who works in Addo that there was a farmer who needed 16 strong men to work on his farm. He and his friends recruited 14 men in Middledrift, 20km from Alice, who were looking for jobs.

The farmer hired a taxi to take them to Addo, 230km away. They were promised R1,500 a month, he says.

“We sensed trouble upon arrival when the farmer said he wanted our Identity Books as surety for the money he had spent on transporting us,” says Ngam.

“He paid us very little money in our first week. He said he was deducting the money he had spent on transport. He also told us he deducted money for electricity, water, mattresses and food. We ended up being paid less than R100 each.”

Ngam says the farmer was abusive, calling them lazy and incompetent. They asked him to return their IDs and to pay them out.

“He became very angry and said he would not give us anything. We insisted and he eventually returned our IDs, but he refused to pay us any money. He said we owed him a lot a money,” says Ngam.

They were offered transport in two bakkies. At first they thought the farmer was going to leave them in Alice at the place where they had taken the taxi to the farm. But the farmer dumped them in Paterson, 200kms from Middledrift.

“We refused to get out. He eventually told us that if we insisted on refusing he was going to shoot all of us. We quickly got out of his bakkies afraid that he would kill us. He then drove off … We had no money even to buy air time to inform our families back home about our plight,” says Ngam.
Six of the men were able to get rides to Alice, but eight were stranded.

One of the men, Siyanda Siganga, who lives in Alice and has two young children, says, ‘We were finally helped by a councillor in Paterson who contacted his Addo counterpart, councillor Simphiwe Rune. They took us to Addo Police station where we slept for the night before they arranged a car for us on Saturday that left us in Alice.

“We are broke and penniless. What are we going to give our children who had expected much from us? Who is going to help us so that we get our money that the farmer owes us?”

The farmer, Jabru van Schalkwyk Fourie of Weltevreden Farm, says, “I owe them nothing. These guys were recruited on my behalf by a third party but I sponsored everything including transporting them from Alice to Addo. I also have to pay the man who recruited them his commission. We agreed that I was gong to deduct the following amounts of money from each of their wages, thus R300 for transport, R200 for food and R100 for using my mattresses. They also had to pay electricity.

“They did not work in the first five days because it was raining, so there was no pay. Anyhow, I managed to give them some money for food and to motivate them. At the end, it’s me who has lost more money than what they claim.”

“They were also lazy and always complaining. At last they demanded their IDs because they said they wanted to go home. I asked for the money they owed me. I dropped them in Paterson because it is convenient as there is a main road where they could get transport easily to Alice. I never threatened them with a gun, because I don’t have a licence to own a gun. You can check my records.”

As to the promise of R1,500 a month and also how much he pays his other workers, Fourie says, “They could have earned that amount had they worked hard. We pay R95 a crate of lemons and if you pick by the bag then you earn R2.60. There are people who earn R2,000 a month a fortnight because they work hard. These guys didn’t work”

Addo councillor and Speaker for the Sundays River Municipality Council Simphiwe Rune said, “We came to these men’s assistance after seeing their desperation and suffering. We also took into consideration that they were left in the open this time of the year. We had to do something to ensure they got overnight accommodation and transport back home. They slept at Addo Police station on Friday and on Saturday we arranged a car that took them to Alice.

“It is unfortunate that in this age people are still being treated like animals. Some unscrupulous farmers here hire people from far away places, including bringing illegal immigrants to their farms, because they don’t want to abide by the labour laws of the country.”

Sergeant Majola Nkohli confirmed that “eight men came to Addo Police station on Saturday morning to report that they had a problem with their farmer employer.” He said they did not open a case.

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Published originally on GroundUp .

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