/ 3 January 2020

What the law could clarify this year

New era: Nelson Mandela
New era: Nelson Mandela




It was 23 years ago last month that Nelson Mandela signed the Constitution into law, heralding a new era for South Africa. Though there have been 17 amendments to the Constitution, there has yet to be an amendment to the Bill of Rights. This looks set to change in 2020 with an amendment to section 25 on the cards — to allow for the expropriation of land without compensation.

The preamble of the draft Bill — published for public comment towards the end of November — specifically says the amendment is to “make explicit that which is implicit”: that, when the purpose of expropriation is land reform, a court may find that “nil” compensation is what is “just and equitable” under the Constitution.

The amendment will be a big symbolic moment, but whether it leads to land reform is another question. If the government had been serious about land reform all along, the courts would have long decided whether the Constitution already allows for expropriation without compensation as is suggested by the preamble. More importantly, according to the draft Bill, all the details will be contained in legislation, and it will be the drafting of this law where the real battle can be expected.

There is also likely to be a fight initiated about another piece of legislation that was signed into law this year — the Traditional and Khoi-San Leadership Act. The Act (more famously known as the “Bantustan Bill”) has been criticised for allowing traditional leaders to make deals with mining companies with no need for consent of those whose land rights would be dispossessed.

Last year saw an important legal victory in the high court affirming that mining rights may not be granted by the government without “the full and informed consent” of the relevant community, in this case the people of Xolobeni in the Eastern Cape. But this gain may be rolled back by the Act, which land rights activists say is unconstitutional.

The public protector also dominated the legal news in 2019 and this looks set to continue. Busisiwe Mkhwebane is in court battles on a least four fronts, all of which are highly political. There is the litigation over her report into the early pension payout of former acting South African Revenue Service commissioner Ivan Pillay during Pravin Gordhan’s tenure as finance minister, the fight over her report on a so-called “rogue unit” at Sars, and her dispute with President Cyril Ramaphosa over her investigation into his CR17 election campaign to be president of the ANC. In all three of these cases, Mkhwebane’s motives and integrity were questioned.

Then there is the employment dispute with her former chief operating officer, Basani Baloyi, in which Baloyi accused Mkhwebane of prioritising the “rogue unit” and CR17 investigations — thus shoring up the view that she had a questionable agenda as far as Ramaphosa and Gordhan are concerned.

Baloyi lost in the high court on the grounds of jurisdiction, but this is unlikely to be the end of the matter.

There is also Mkhwebane’s stand-off with Sars commissioner Edward Kieswetter about her power to subpoena taxpayer information, after she sought to subpoena the tax information of former president Jacob Zuma.

Some journalists and analysts have characterised these public protector court cases as the terrain of a much bigger political battle — between factions in the ANC, and which opposition party the Economic Freedom Fighters is exploiting. They have said that the public protector, now more powerful than ever after the Constitutional Court’s Nkandla judgment, has been wittingly or unwittingly “weaponised” to undermine Ramaphosa’s government.

Mkhwebane has strenuously denied this, instead suggesting in her own court papers that attacks against her were “part of a grand stratagem to prepare the ground to remove me for daring to investigate those who believe they are above the law”.

So far, things have not looked good for Mkhwebane, with Ramaphosa and Gordhan succeeding at least in obtaining interim interdicts against her, thus putting her far-reaching remedial action on hold.

There was also the high court finding that there did not “seem any logical and legitimate explanation” for narrowing the scope of her investigation into the Gupta-linked Estina dairy farm, the effect of which was to exclude the alleged involvement of Ace Magashule from the scope of her investigation. The former Free State premier and now secretary general of the ANC is widely reported to be part of an anti-Ramaphosa faction. Mkhwebane’s application for leave to appeal was refused but she is likely to petition the Supreme Court of Appeal.

Then there was the Constitutional Court’s damning judgment in Mkhwebane’s battle with the South African Reserve Bank, in which the court made a personal and punitive costs order against her, finding that she had been dishonest and acted in bad faith.

Indeed, this judgment could be what puts an end to Mkhwebane’s tenure as public protector. After it, Parliament adopted rules for the impeachment of the heads of Chapter 9 institutions and the new year will probably see a move to trigger such a process.

That would involve a quasi-judicial inquiry under the auspices of Parliament. Political analysts will be watching with interest to see how the ad-hoc committee envisaged in the rules will go about its work, because it may be an indicator of how strong Ramaphosa’s faction is in Parliament. Or, more cynically, it might give a sense as to which faction — in the minds of MPs — is the sinking ship. An impeachment of Mkhwebane would then require a two-thirds majority of Parliament.

Meanwhile, constitutionalists will watch anxiously for what these judgments will mean for the development of the law in the long term when it comes to the institution of the public protector. Will the Constitutional Court temper its findings in the Nkandla judgment? In particular, judgment is awaited from the Constitutional Court on how easy or difficult it should be to obtain an interim interdict against the remedial action of the public protector.

This might also be the year that Zuma stands trial for the corruption charges that have been dogging him since 2003 — although we won’t be holding our breath. The former president’s application for a permanent stay of prosecution failed this year, as did his application for leave to appeal. The high court also took a dim view of some of the statements made by his legal team in their appeal court papers and its earlier judgment is replete with references to the earlier litigation in the seemingly never-ending saga.

Justice: After 17 years former president Jacob Zuma may finally stand trial for the corruption charges he escaped all those years ago. (Rajesh Jantilal/AFP)

Zuma’s team will probably petition the Supreme Court of Appeal and the Constitutional Court to appeal and much will depend on how these courts will deal with these applications. Both Zuma’s team and the National Prosecuting Authority (NPA) have indicated they are ready to commence with the trial.

Zuma may not be the only politician facing prosecution in 2020. EFF leader Julius Malema also faces charges relating to firing a gun in public and assaulting a police officer.

The NPA also said it would prosecute On Point Engineers and its representative, Lesiba Gwangwa, for charges of tender fraud against the Limpopo government, dating back to 2014. The state had at one time accused Malema of having benefited from this alleged fraud, but has declined to charge Malema for now.

Ironically, Malema — who built his EFF political career demanding accountability from Zuma — is now in a similar position to Zuma, when the former president’s ex financial adviser Schabir Shaik was prosecuted for corruption. Zuma, implicated along with Shaik, was not prosecuted with him, which Zuma maintains to this day was unfair and the result of a political agenda against him.

The nation also waits with bated breath for more high-level arrests for state capture allegations. So far, we have seen the arrest of MP and former state security minister Bongani Bongo, but this was for a discrete allegation of trying to bribe the evidence leader in a parliamentary investigation. Rumours of “imminent arrests” swell and die down. But it is expected that the new year will see some action on the part of the NPA, even as the Zondo commission of inquiry into state capture continues to lumber through its mountain of work.

The new year will also probably bring some welcome clarity on what constitutes hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act. This year the Constitutional Court heard the Masuku case — which was about alleged anti-Semitic hate speech — and which was the first hate speech case to reach the highest court. Next year, the Qwelane judgment from the Supreme Court of Appeal — which struck down as unconstitutional the Act’s hate speech provision — will come before the Constitutional Court. The two judgments together will hopefully settle some of the confusion about what we are allowed by law to say to each other.