Freedom Under Law: Tribute to the Rt. Hon. The Lord Steyn, P.C

4 December 2017

Freedom Under Law regrets that the founding Chair of its International Advisory Board, Lord Steyn, died in London on 28 November 2017.

Johan van Zijl Steyn was born at Stellenbosch in 1932, his father a founding member of its Faculty of Law. His grandfather was a Boer fighter, imprisoned in the camp at Green Point, Cape Town and exiled to Sri Lanka, where he and four others escaped by swimming ashore from their ship in the notoriously shark-infested Colombo Harbour. They returned via Russia, Europe and what is now Namibia to their astonished fellow commando-members in the Free State. It is said that the latter refused to believe them, given the flatness of the earth.

Lord Steyn studied law at Stellenbosch, and as a Rhodes Scholar at University College, Oxford. Returning to South Africa, and to practice at the Cape Bar, he took silk at the age of 38 in 1970. In later years, he looked back on what is to be learnt from how a government without effective constitutional limitation on its exercise of power “by and large could and did achieve its oppressive purposes by a scrupulous observance of legality. It made an indelible impression on me.”

In 1972 he left South Africa. He began practice anew in London. Quickly he overcame the disadvantages of an unconnected outsider and built up a leading commercial practice. In just six years he became a Queen’s Counsel, and in January 1985 he was offered an appointment by the Lord Chancellor to the select ranks of the Commercial Court. Self-deprecatingly he ascribed his appointment to a simple error in persona: whenever the Lord Chancellor, then Lord Hailsham, met him he called Steyn “Charles”.

After seven years he was elevated to the Court of Appeal and very shortly thereafter was appointed a member of the Judicial Committee of the House of Lords and a member of the Privy Council.

Lord Steyn is widely regarded as one of the most influential and creative judges of our time. He delivered leading judgments covering a wide range of legal fields. Of course his reputation as a pre-eminent commercial lawyer made this likely in the areas of contract, arbitration and international trade. So, too, his contribution to greater legal harmonisation in Europe, drawing in his own life on scholarship and practice in both civil law and common law systems.

But it is his contribution to public law – that which determines the relationship between citizens and the State – which was least expected and has been most marked.

In the Pinochet case, the House of Lords was confronted with a claim to sovereign immunity – the immunity from prosecution in a foreign country claimed by a head of state. Following the military coup led by General Pinochet in Chile in 1973, more than 4 000 individuals had died or disappeared, invariably in the hands of the secret police. Lord Steyn rejected the ruling of a lower court that there is no justification for reading any limitation based on the nature of the crimes committed into the immunity which exists.

He held: “If a Head of State orders victims to be tortured in his presence for the sole purpose of enjoying the spectacle of the pitiful twitchings of victims dying in agony (what Montaigne described as the farthest point that cruelty can reach) that could not be described as acts undertaken by him in the exercise of his functions as a Head of State … The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a Head of State.”

He also refused to apply the act of state doctrine to acts condemned as high crimes by customary international law.

Lord Steyn’s contribution to the law is not confined to his judgments. He has written a series of papers and delivered public lectures on equally wide-ranging issues: criminal justice, the roles of the profession and the judiciary, the case for substituting the House of Lords with a Supreme Court, contract and arbitration law, and the interpretation of statutes. Most famously, he delivered the 2003 F.A Mann lecture, which began, as his writing always does, by going directly to the issue: “The most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals.”

He criticised the refusal by United States courts to act. These courts considered that although Guantanamo Bay had been occupied by the United States since 1903, it did not constitute American soil: “As a lawyer brought up to admire the ideals of American democracy and justice, I would have to say that I regard this as a monstrous failure of justice.”

Lord Steyn has been described in these words by a leading UK constitutional lawyer, Professor Sir Jeffrey Jowell (also a member of FUL’s International Advisory Board): “Fiercely independent, he would sometimes dissent sharply from his brethren when he was unable to persuade them. Ultimately a man of the highest values, and most steadfast commitment to equality, the rule of law and constitutionalism.”

Lord Steyn once said of another that great judges, like great cricketers, select themselves. We mark today one such: an exceptional career in the law, committed to its animating spirit.

JEREMY GAUNTLETT SC QC

Richard Mdluli

On 17 January 2018 Richrd Mdluli was relieved of his duties as head of crime intelligence within the SAPS. However, he retires with full benefits and the departmental enquiry into his abuse of secret funds accordingly falls away. Mdluli continues to face criminal charges and his trial for kidnapping is scheduled to resume on 12 February 2018. However, the case relating to his fraud and perjury charges continues not to be re-enrolled.

Review of the Appointment of General Mthandazo Ntlemeza as Head of the Hawks

FUL together with the Helen Suzman Foundation brought an application to set aside the appointment of General Ntlemeza as the new head of the Hawks. Extremely serious findings of dishonesty had been made against Ntlemeza by the Pretoria and KwaZulu Natal High Courts. It is critical that the person appointed to head the country’s most elite crime-fighting unit, tasked with overseeing efforts to combat corruption and other specialised crime, be an individual of the highest integrity. Without such assurance, there is risk that the institution be compromised and corrupted. In court, FUL and HSF maintained that Ntlemeza’s appointment was irrational in that proper consideration had not been given to the court findings relating to his honesty in the appointment process. The application was heard by a full bench in the North Gauteng High Court on 6 December 2016.

In March 2017, judgement was given, ordering that Ntlemeza’s appointment was unlawful. Ntlemeza sought leave to appeal the decision before the North Gauteng High Court and HSF and FUL made a counter-application seeking immediate execution of the order. Ntlemeza’s application was denied whereas the application for immediate enforcement was granted. Ntlemeza subsequently sought to appeal the immediate enforcement order which was dismissed by the SCA. He was also denied leave to appeal the judgement relating to the unlawfulness of his appointment.

Thereafter, Ntlemeza sought leave to appeal to the Constitutional Court. In December 2017, his application was dismissed by the Constitutional Court.

Review of Withdrawal of Charges against Former NDPP Nomgcobo Jiba

Following the appointment of Shaun Abrahams to the post of NDPP, Abrahams announced his withdrawal of perjury and fraud charges against Nomgcobo Jiba, a fomer acting NDPP, and her appointment as the head of an expanded National Prosecutions Services. Several court findings have been made against Jiba and Lawrence Mrwebi, special director of public prosecutions, impugning their integrity and professional conduct, including by the Supreme Court of Appeal in the case brought by FUL against Richard Mdluli.

FUL brought an urgent application seeking the suspension of Jiba and Mrwebi pending an application to review and set aside the decision to withdraw charges. Although FUL did not succeed in its urgent application, the judge noted that the issue was of paramount public importance. In the interim, the General Council of the Bar succeeded in its application to have Jiba struck from the roll of advocates.

On the 21 December 2017, the Court handed down judgment on the merits, reviewing and setting aside the decision to withdraw charges against Jiba; setting aside the decision of the President not to institute an enquiry into Jiba and Mrwebi’s fitness to hold office; ordering the institution of such an enquiry and suspending Jiba and Mrwebi from office pending the enquiry’s outcome (although the implementation of this order was suspended pending finalisation of the appeal in the GCB matter to have them struck from the roll). Jiba and Mrwebi were also prohibited, pending finalisation of the appeal in the GCB matter, from performing any function within the NPA, presenting themselves at its offices or engaging in any discussion concerning NPA cases.

This case, together with the Nxasana judgement, paves the way for a revitalised NPA — holding out the prospect of a new head of integrity and conscientiousness and rid of those actors who have made it so vulnerable to political interference.

Review of the Settlement Given Former NDPP Mxolisi Nxasana

FUL together with Corruption Watch sought review of the settlement granted former National Director of Public Prosecutions, Mxolisi Nxasana. The two organisations also sought a declarator that the termination of Mr Nxasana’s appointment was unconstitutional and should be set aside; that the subsequent appointment of Mr Abrahams was invalid and was to be set aside; and that the President, owing to conflict, may not appoint, remove or suspend an NDPP but that the Deputy President is to do so.

In a hard-hitting judgement on the 8 December 2017, the North Gauteng High Court granted the relief sought by the applicants although declined to order the reinstatement of Mr Nxasana. The judgment is of critical importance to the independence of the National Prosecuting Authority clearly underlining that persons at its head must be of unimpeachable integrity and there can be no suggestion that political interference enters into their removal or appointment.

The President and the Abrahams have both launched applications for leave to appeal the judgement and the applicants are seeking confirmation of certain parts of the order before the Constitutional Court.

FUL’s Intervention in the Social Grants Crisis

The matter concerns the operation of a contract for the payment of social grants. A third of the country’s citizens are recipients of these grants. In 2012, SASSA contracted with Cash Paymaster Services (Pty) Limited (CPS) to pay social grants on its behalf. That contract was subsequently declared invalid by the Constitutional Court and the order of invalidity suspended so as not to disturb the distribution of grants. Despite assurances provided by SASSA that it intended to take over the payment function of social grants itself, it became apparent as the contract’s expiry date approached that SASSA would instead look to enter into a new contract with CPS.

The Black Sash brought its application to the Constitutional Court, seeking reinstatement of the Court’s supervisory role and certain protections for grant beneficiaries. FUL intervened as second applicant, seeking relief to further discipline the proposed contractual arrangement between CPS and SASSA. The matter had clear implications for the rule of law and the obligations of a constitutional democracy. A ruling of the highest court of the land, carefully structured so as to best protect the rights and interests of the most vulnerable in our country, had been cynically disregarded. Instead the security of those dependent on social grants had been recklessly imperilled in a bid to ensure the interim contracting process escaped scrutiny and oversight.

The Court granted relief in line with the applicants request: the contract was extended for a period of 12 months, sufficient only to allow that a lawful competitive bidding process be put in place and that SASSA capacitate itself so that it can take over the grant payment system. The contract was also extended on the basis of the no-benefit principle requested by FUL i.e. the same terms and conditions as the original agreement. The Court also reassumed its supervisory function and called on the Minister of Social Development to show cause why she should not be liable for the costs of the application in her personal capacity.

Following the Constitutional Court’s judgement, FUL made submissions to the court regarding the appointment of experts to monitor the extension of the contract. In response to parties’ submissions, including FUL’s, relating to the Minister’s personal liability, the Constitutional Court has ordered an inquiry in terms of s 38 of the Superior Courts Act.

Experts, among them several of those proposed by FUL, were appointed by the Court to monitor the transition period. They make reports on a quarterly basis. The reports submitted thus far have been deeply alarming, pointing to the lack of appropriate expertise within SASSA and the Ministry of Social Development to oversee the transition to a new grants regime system and indicating that information required by the panel to fulfil their monitoring role has been purposefully withheld from them. FUL has reviewed those reports as they are submitted to the Court. It wrote to the Court following the submission of the first expert report, urging the Court to urgently issue directions ensuring that the panel was given the cooperation and information it required in order to discharge its monitoring function. Such directions were given.

At present, the section 38 inquiry is underway with Justice Nogoepe presiding.