Wednesday, 2 November 2016

The State of Capture – important findings and where to next…

Former Public Protector Thuli Madonsela’s report on #StateCapture reveals deplorable conduct and shocking corruption – but where to from here?

Arguably the most important part of the entire report is found towards the last of the 355 pages under the heading Remedial Action.  It reads as follows:
  • Within 30 days, a commission of enquiry must be appointed.  It will be headed by a Judge appointed by the Chief Justice;
  • The National Treasury is to ensure the commission is appropriately funded, and the Judge appointed will have the power to appoint any necessary staff;
  • The commission will have wide-ranging investigate powers and authority;
  • The commission must wrap up within 180 days;
  • The Executive Members’ Ethics Act and whistleblowing process must be reviewed;
  • The Public Protector must notify the National Prosecution Authority of all matters identified in the #StateCapture report where it appears crimes have been committed.

It seems only a matter of time before President Zuma resigns or is forced out, although the latter appears more likely.  The #StateCaptureReport, together with the outstanding 783 criminal charges, makes his position untenable.

The South African democracy is flawed in many respects, but it deserves better than this.  The next six months will certainly be interesting, particularly given the recent decision in the Nkandla saga (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC)) where the Constitutional Court held that the power of the Public Protector to take appropriate remedial action has legal effect and is binding.

The next few months is a tipping point in South African’s fledgling constitutional democracy – one can only hope that together with the remedial steps (and criminal charges) above, the ANC’s integrity commission takes action, something according to secretary general Gwede Mantashe it has failed to do thus far.


Tuesday, 1 November 2016

Interdicts and #StateCapture

A highly anticipated legal battle is underway in the North Gauteng High Court today (1 November 2016).  President Jacob Zuma, Mineral Resources Minister Mosebenzi Zwane and Co-operative Governance and Traditional Affairs Minister Des van Rooyen are seeking to interdict (prevent the disclosure of) former Public Prosecutor, Thuli Madonsela’s findings on the so-called #StateCapture allegations.

Briefly, State Capture can be defined as the systemic political corruption in which private interests significantly influence a state's decision-making processes to their own advantage
Broadly, there are two types of interdicts – interim and final.  I have not had the opportunity to review the court papers, but be that as it may, this article briefly explores South African civil procedure relating to interdicts.

Holistically, an interdict is a court order prohibiting certain conduct (prevents the respondent from doing something) or forcing certain conduct (requires respondent to do something).  For example, the interdict in the #StateCapture matter will ask the court, via an application with supporting affidavits, to prevent the Public Prosecutor from releasing her controversial report on the influence held by the politically connected Gupta family.  

The requirements for an interdict are:

Interim interdict
  • prima facie right
  • Well-grounded apprehension of irreparable harm
  • No other satisfactory remedy
  • Balance of convenience favours the granting of order

Final interdict
  • Clear right
  • Injury suffered / reasonably apprehended
  • No other satisfactory remedy

Consequently, the applicants in court today must show that a right exists. A prima facie right, is a right that exists “on the face of it” – it doesn’t matter where the right comes from, be it from a contract, the common law or in terms of a statute, but it must be an actual right; a mere interest in the relief sought is not enough. 

Secondly the applicants must show there is a well-grounded apprehension of irreparable harm.  “Irreparable” alludes to a situation where the harm is difficult/impossible to restore.  Similarly, in a final interdict, the applicants must show that an injury (not necessarily physical) has been suffered, or is reasonably apprehended.

Further, the applicants must further show that there is no other satisfactory remedy in law.  In my view, they may struggle to get over this hurdle.  As pointed out by Professor De Vos, the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town:

The issue alluded to above is that the applicants have the right to review and set aside the Public Protector’s report once it has been published – this (in and of itself) is probably enough to constitute a suitable alternative remedy.  That said, the applicant’s will no doubt argue that if the report is published it will cause irreparable damage to their reputations.

Moreover, in an application for an interim interdict, the applicants must show that the balance of convenience favours granting the interdict.  Given the right is only prima facie, it is important that the respondent should not be unfairly prejudiced – this also includes considering the prospects of success of the applicant and may include public interest.  In my view, the balance of convenience (given the intense public interest and national importance to our economy and related institutions of government) does not favour granting the order. 

In terms of procedure, typically, the applicant will ask for temporary relief (in the form of an interim interdict), which will operate until a further hearing, often referred to as “the return day”.  Briefly, the procedure usually follows this route:
  • An application for an interim interdict is brought (with supporting affidavits setting out the grounds discussed above)
  • If the matter is urgent, the application may be brought ex parte (without notice to the other party), with a rule nisi (order instructing parties to return to court on a specified day in future – usually around 2-4 weeks)
  • After the interim interdict (and rule nisi) is obtained, the respondent must show cause on the return day why the order should not be confirmed and a final interdict granted
  • On the return day in court, the interdict sought is usually final, but may again be interim.
Millions of South Africans (as well as a few economists and currency speculators) are waiting with bated breath…

Internet Trolls, Hate Speech, Defamation and Diwali
Diwali, the Hindu festival of lights, has once again created tension on South African social media platforms.  A Durban resident was slammed by the ANC for a racist post on a local Facebook page "Gatvol Bluff".  He has been forced to apologise and will apparently face criminal prosecution and a referral to the South African Human Rights Commission.
The original post, published on East Coast Radio’s website, reads as follows:
Racist, bigoted outbursts are, sadly, something South African users of social media are familiar with.  Back in 2012, another Durban resident posted a similarly intolerant and ignorant view – the aspiring beauty queen allegedly lost sponsors, and was forced to apologise.
Further, many are familiar with Penny Sparrow saga, and after her racist rant she was ordered by the Umzinto Equality Court to pay R150 000.00 to the Oliver and Adelaide Tambo Foundation.
With the media attention these ill-informed posts receive, it is astonishing that in 2016 many still believe they are anonymous on the internet, and can essentially say what they like on social media.  A cursory search of Twitter or Facebook during Diwali, or during the #FeesMustFall protests, or even during the debate regarding #StateCapture reveal a shocking display of blatant racism.
To try combat this intolerable situation, the South African Department of Justice has released a draft Prevention and Combating of Hate Crimes and Hate Speech Bill.  The Bill seeks to criminalise any form of hate speech, and serious consequences await internet trolls and cyber bullies.
Any conduct that advocates hatred towards any other person or group of persons or is threatening, abusive or insulting towards any other person or group persons will result in criminal action.  Consequently, people on local Facebook groups threatening violence, or vandalism with dirty nappies and rotten eggs as a result of Diwali fireworks will face severe action once this Bill is in full force.  That said, the law as it stands today does not tolerate this type of conduct and those responsible may still face both criminal and civil action.
So, as we stand, the laws regulating crimen injuria (the criminal offence of impairing a person’s dignity or privacy) and cyber-bullying (in terms of the Protection of Harassment Act) will find application.  Further, there are civil measures in place to claim damages (in terms of defamation) – in short, there is no shortage of legal recourse available to a person who is the victim of racist outbursts. 
Simply put: if you are comfortable making a statement to 5 people, 50 people, 500 people, even 50 million people; then put it on the internet.  If you think what you say would be embarrassing (or potentially land you in jail or paying a hefty fine), then don’t post it on social media – particularly not in the heat of the moment (and NEVER after too much to drink).
Remember the following simple points:
The internet is permanent.  The message you send can be saved; the “snapchat” selfie that you think disappears after a few seconds can be copied; the tweet or direct message you send is never temporary.  Once you hit send the communication is out there for good – often there is no taking it back.
The internet is not anonymous. Sophisticated tools in the tracing space are commonplace; tracing a perpetrator is relatively simple.    
Simply because you are online does not mean that there are no consequences. Many push the boundaries online and behave like “trolls” or “keyboard warriors”.  Just because you are behind a computer or phone screen does not mean real life rules do not apply.
Think about your future.  Everyone is starting to leave a digital footprint (and has already left a substantial footprint). If you leave a mess, future employers may not want the baggage and you could jeopardize your career.