FUL Supports Opening of Candidate Registration for Local Elections

The Constitutional Court has recently been petitioned to make orders relating to the upcoming municipal elections. The latest application by the Democratic Alliance asks the Constitutional Court to set aside the Electoral Commission’s decision to reopen candidate registration.

Freedom Under Law maintains in its submissions as amicus curiae (friend of the court) that the Court is being used as a political boxing ring with each party deriding the others as well as the Electoral Commission and attempting to us the Court for its own political ends. This is to be deplored. The Court, as the ultimate guardian of the Constitution, is to be treated with the respect and deference that it deserves rather than as an arena for bald political contestation.

FUL also maintains that the Electoral Commission’s decision to reopen candidate registration is lawful and rational. Ordinarily in electoral administration, where candidacy is dependent upon inclusion in the voters’ roll, registration of candidates logically follows after the voters’ roll has been updated, challenged and verified, i.e.“closed” in electoral jargon.

This is essentially commonsense. The voters’ roll is the authoritative record of all the enfranchised voters in a particular voting district, and is therefore the authoritative source of reference in determining whether a particular candidate is resident in that voting district. If the voters’ roll is amended, the names of candidates may have been deleted and those of potential candidates may have been added. Names of individuals may also have been moved from one voting district to another, thus— where a residential qualification is required, as in our local government elections—allowing or disallowing those individuals to stand as candidates in particular voting districts. Registrability of candidates is determined against the latest closed voters’ roll. This means that if you change the roll, you have to reopen candidate registration.

FUL’s Intervention in Application to Postpone Local Elections

The Constitutional Court recently heard argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021.

The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy.

It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with.

Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia.

But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so.

Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution. 

Judge President Hlophe Matter

After a period of thirteen years since the then judges of the Constitutional Court directed a complaint to the Judicial Service Commission (JSC) alleging that Western Cape Judge President John Hlophe attempted to interfere with and influence their consideration of cases involving then Deputy President Jacob Zuma, the JSC finally held in August 2021 that Judge Hlophe is guilty of gross misconduct.  The process has now been referred to the National Assembly for it to begin the process of impeachment.

FUL has intervened at various stages in this process – in 2012 successfully obtaining a Court order to review and set aside an earlier decision on the part of the JSC not to proceed with the complaint against Judge Hlophe. Now that the JSC has finally determined that he is guilty of gross misconduct, Judge Hlophe is seeking to have that decision set aside and for the National Assembly to be interdicted from proceeding with the impeachment process.

FUL successfully applied to be joined as a party in the application brought by Judge Hlophe and will oppose his application. The review application is scheduled for hearing in mid-February 2022.

Richard Mdluli

In September 2020, Richard Mdluli, former head of Crime Intelligence in the SAPS, was sentenced in the High Court, Johannesburg to an effective five years imprisonment for counts of kidnapping, assault with intent to cause grevious bodily harm, assault and intimidation.

His conviction and sentencing follow a series of legal challenges over several years by Freedom Under Law to decisions which would have given Mdluli impunity and kept him in his crucial post.

The charges against him  (with other charges of fraud and corruption) had initially been withdrawn by senior prosecutors in the NPA, Nomgcobo Jiba and Andrew Chauke. In 2012 Judge Makgoba granted Freedom Under Law an urgent order directing that Mdluli stand down from his position pending the determination of a review of that decision.

In doing so, the Court stressed that a constitutional democracy could not tolerate a situation in which one of the country’s key crimefighters continued to perform his daily functions while himself facing serious allegations of criminality. That Mdluli had not been finally convicted of these grave crimes was not the issue.

In due course Freedom Under Law’s review of the prosecutors’ decision to withdraw charges too was upheld.

Mdluli’s trial ensued, and has extended over a lengthy period, culminating the September 2020 sentencing by Justice Mokgoatlheng.

In November 2020, Mdluli will appear in the Pretoria High Court to finally face charges of fraud and corruption relating to the Crime Intelligence slush fund.

His sentencing for offences relating to the kidnapping and assault of Oupa Ramogibe in 1999  is an important vindication of the rule of law in that one of South Africa’s most senior police officers has finally been held accountable for some of the crimes he has committed.

It is a cause for reflection that had Freedom Under Law, one of a group of civil society watchdogs active in this way, not challenged the decisions to withdraw charges and to keep former Mdluli at his desk, his impunity would have been assured.

For recent reports on the Mdluli matter, see here and here.

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.

Read here about subsequent testimony emerging from the Zondo Commission, implicating Ntlemeza in interfering with Hawks’ investigations.

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.

Read Mandy Wiener’s column on the ‘clean up’ of the NPA here.

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.

Click here for a media summary of the subsequent Constitutional Court judgment, hearing the parties’ leave to appeal; and confirming the High Court’s declarations of invalidity.

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.Following submission of the initial expert reports 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 fulfill their monitoring role has been purposefully withheld from them, FUL again engaged the Court urging it to urgently issue directions ensuring that the panel was given the cooperation and information it re- quired to discharge its monitoring function. Such directions were given.

The section 38 inquiry examining then Minister Bathabile Dlamini’s personal liability resulted in a personal costs order against her by the Constitutional Court.

The Constitutional Court also ordered rigorous auditing and verification requirements for CPS and SASSA at the contract’s conclusion. FUL came to learn that these auditing and verification re- quirements have not been fulfilled by the parties. SASSA’s auditors, Rain, were not given full ac- cess to the working papers of CPS’s auditors, KPMG and Mazars. And yet even with limited access,

Rain still estimates that CPS may have understated its profits for the duration of the contract in an amount of over R800 million.

Presented with these auditing and verification reports, Treasury has not, as it is required to do by the court, made a definitive determination of the profits.

FUL has now again approached the Constitutional Court asking for a rerun of the auditing and verification processes, this time with full access demanded so that Treasury can make an authoritative determination. Moreover, FUL maintains that the searching, rigorous auditing requirements could only have been imposed to ascertain with some degree of the certainty the true extent of those profits so that the determined amount can be ordered returned to Treasury.

This is in keeping with the no-profit principle, articulated by the court to mean that the beneficiary of an unlawful contract has no right to profit from such unlawfulness.

It is not feasible, of course, that every state awarded procurement contract, alleged to be unlawful, be subject to similar levels of scrutiny as that paid by the Constitutional Court to the CPS contract. That would consume too much of the time and resources of South Africa’s already overburdened judiciary. And, as courts would readily admit, they’re not best capacitated to provide this level of oversight routinely.

But should the Constitutional Court grant the order sought, it will stand as precedent and likely greatly enable the disgorgement of profits obtained through other unlawfully awarded contracts. It will certainly stand as strong disincentive to those who would seek to win such contracts in future.

FUL awaits judgement in this matter, which has been delayed as CPS has subsequently gone into liquidation.

The most recent media update on the CPS-SASSA matter can be found here.