The FW de Klerk Foundation, its Centre for Unity in Diversity (CUD) and its Centre for Constitutional Rights (CFCR) congratulate Judge Leona Theron on her appointment to the Constitutional Court.
The Centre for Constitutional Rights (CFCR) welcomes the decision by the Western Cape High Court, handed down today, which sets aside South Africa’s nuclear agreement with Russia. The successful challenge to the agreement was launched by civic organisations, EarthLife Africa (ELA) and the Southern African Faith Communities’ Environment Institute (SAFCEI), on the basis that the agreement was unlawful and unconstitutional.
The secret nuclear deal would have reportedly cost the nation R1-trillion and the South African public would be none the wiser – but for the diligence of investigative journalists and the non-governmental organisations who approached the courts.
Apart from the exorbitant costs of the deal, which South African taxpayers would have to bear, the deal transgressed the Constitution’s demands that procurement of goods or services must be fair, equitable, transparent and cost-effective. Binding for a minimum of 20 years, the deal would have practically granted South Africa’s decision-making powers on the nuclear industry, over to Russia.
As structural interdicts go – with layers of reporting back and supervision – the recently handed down order by the Constitutional Court in Black Sash Trust v Minister of Social Development and Others (Black Sash case) is far-reaching and extensive. Ordinarily such an interdict would elicit – not unwarranted – accusations of judicial overreach and a possible breach of the separation of powers doctrine – but these are not ordinary times.
Consider that on the same day in which the Constitutional Court was handing down the decision in the Black Sash case above, the High Court in Pretoria set aside the Minister of Police’s appointment of Major General Ntlemeza as National Head of the Directorate of Priority Crimes Investigation (DCPI). This was set aside on the basis that the appointment, given previous adverse findings by courts against Major General Ntlemeza, was irrational.
Join us for the inaugural launch of the Centre for Constitutional Rights’ (CFCR) flagship publication, the Human Rights Report Card. The launch event is hosted in collaboration with the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) and supported by the Konrad Adenauer Foundation (KAS).
A question has arisen as to whether the Public Protector may legally compel the President to establish a commission of inquiry, seeing as the establishment of commissions of inquiry is, in terms of the Constitution, the sole prerogative of the President.
Various legal authorities have already expressed the opinion that the Public Protector had breached the separation of powers by instructing the President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice, who shall provide one name to the President. Should a court come to this conclusion too – then it renders this aspect of the State of Capture Report null and void. The separation of powers doctrine is a vital component of South Africa’s constitutional democracy. The doctrine means that the Constitution demands that courts ensure that all the branches of government act within the confines of the law. Nonetheless, courts must also defer to the exclusive domain of the Executive and Legislative branches of government unless the Constitution so permits the intrusion.
In terms of the Constitution, it is the prerogative of the national executive to not only negotiate but also sign all international agreements. Such agreements are then binding on the country after they have been approved by resolution in Parliament unless the international agreement in question is of a technical or administrative nature, then such agreement binds the country without the need for a resolution from Parliament. Thereafter, the international agreement becomes law after national legislation is enacted. It is on this basis that the Implementation of the Rome Statute of the International Criminal Court (Implementation Statute) became a part of South African law in 2002.
On Wednesday 5 October, the Parliamentary Portfolio Committee on Communications (the Committee) convened a meeting with the beleaguered Board of the South African Broadcasting Corporation (SABC) to allow the latter to brief the former on the state of affairs at the public broadcaster. This was done in light of the recent Supreme Court of Appeal (SCA) judgment concerning its newly appointed Group Executive for Corporate Affairs, Hlaudi Motsoeneng, and the problems that have recently plagued the SABC. It is worth noting that this meeting was conducted during a period of Parliamentary recess, which indicated the gravity of the matter.
It is a convoluted affair and – where sense can be made of it – suggests an organisation mired in skulduggery and maladministration. That since its inception the National Prosecuting Authority (NPA) is yet to have a head successfully complete a full term without either resigning or being forced to leave the position, is one of the telling signs.
The latest blight to the prosecuting body is the recent decision by the North Gauteng High Court (the Court) in which the General Council of the Bar sought, successfully, to have Nomgcobo Jiba (Jiba) and Lawrence Mrwebi (Mrwebi) struck off the Roll of Advocates. In the judgment, the Court made damning findings against the two. It is of great concern that the following was said of individuals at the helm of the nation’s crime fighting organisation: “I cannot believe that two officers of the court (advocates) who hold such high positions in the prosecuting authority will stoop so low for the protection and defence of one individual who had been implicated in the serious offences.”
The embattled Chief Operations Officer (COO) of the South African Broadcasting Cooperation (SABC) may have reached the end of his tenure at the public broadcaster. After a series of court battles with opposition parties, the Supreme Court of Appeal (SCA) has dismissed SABC COO, Hlaudi Motsoeneng’s application for leave to appeal a High Court ruling that his permanent appointment should be set aside.
In 2014, in the report When Governance and Ethics Fail, the Public Protector found that Motsoeneng had lied about his matric certificate and as a direct result, obtained a position at the broadcaster. Furthermore, despite the release of the report, he was appointed permanently into his current position. In fact, the SABC and the Department of Communications went over and above to retain Motsoeneng and, in 2015, it was revealed that he had awarded himself a salary increase of almost R1 million (R2.8 to R3.7 million). The SABC and Motsoeneng contested the findings of the Public Protector in both the High Court and the SCA, asserting that the findings of the Public Protector were not necessarily binding.
