Opinion published in The Star on 25 October 2023 on page 17

 Conflict in Ukraine is war, in Gaza it's Terrorism

What has been happening in Ukraine and what is happening in Gaza are perfect illustrations to describe the difference between war and terrorism.

War is aimed at the landscape of a state and its sovereignty. Its aim is to collapse the economic infrastructures and army. It is not aimed at civilians. The civilians are collateral damage if they are caught in the belligerence.

For this reason, Russia first evacuated children and repatriated foreigners from Ukraine before attacking the buildings and army. We have seen civilians being moved to remote areas where they captured bombings far away from the incidents.

Just recently, Russian President Vladimir Putin met President Cyril Ramaphosa in Russia and stated how children were legally evacuated. Ramaphosa encouraged the evacuated children to be moved back at a "faster pace" after the war. What happened in Ukraine can be classified as war.

However, Russia contravened article 4 of the UN Charter which prohibits the attack of the sovereignty of another state. Putin has been charged at the International Criminal Court for contravening article 4 of the UN Charter and can be arrested for attacking the sovereignty of Ukraine.

Terrorism, on the other hand, is not aimed at the infrastructure of a state or its army. It is aimed at innocent civilians in large numbers. In this case, bombs are targeted at buildings occupied by a large number of civilians, without first evacuating them. Civilians are in this case targets, and buildings are collateral damage.

We have seen how in Gaza, bombs were targeted at hospitals occupied by patients and schools occupied by children. It has been reported that since October 7, more than 3 800 Palestinians have died and more than 13 000 have been injured as a result of the bombings in Gaza.

In addition, Gaza has been recognized by the international community, in a UN Security Council Resolution that was passed, as a territory belonging to the Palestinians. Therefore, Israel is also contravening article 4 of the UN Charter by attacking the sovereignty of Palestinians.

Professor Noam Chomsky, at the Massachusetts Institute of Technology has written numerous books about the Israel and Palestine conflict. In his book The Fateful Triangle: The United States, Israel and the Palestinians, he wrote that "since 1967, a broad international consensus has taken shape, including Europe, the USSR, and most of the non-aligned nations" to initially advocate for a settlement "to help assure peace and tranquillity".

This was envisaged in UN Security Council Resolution 242, which he further wrote, "from the mid 1970s", according to "(its) terms of the international consensus included the concept of a Palestinian state in the West Bank and Gaza Strip".

It is clear that the US fails to respond to Israel in the same way it has been responding to Russia under the same circumstances as Gaza was recognised as belonging Palestine according to a UN Security Council Resolution and also despite the fact that Israel was more atrocious in attacking Palestinians.

An Opinion Published in The Star on 22 August 2023

 A Free and Fair Media Essential to Fully Functioning Democracy

Abraham Lincoln once said democracy is "a government of the people, by the people, and for the people". But how can people participate in the government without a free media?

The role of a free media in our constitutional democracy is often underestimated. It can either strengthen our democracy or weaken it, and when it is weakened, leaders have the freedom and power to do as they please without being held into account.

The media has been essential. Without the media, many court cases would end up in bulky bound books in lawyers' offices and judges' chambers. These are the books behind lawyers and judges in interviews and photographs.

There is a principle in law that cases must set an example for decisions to be taken by judges in the future, and for this reason cases must be recorded and the full reasons for the judgments written down and preserved. That is one of the reasons they are readily available in lawyers' offices and judges' chambers. However, it is not enough that they end up there.

The media has been helpful in bringing cases through live broadcast to the people. All the facts are now being learnt from the live broadcasts of proceedings taking place in courthouses. When this happens, it becomes difficult for those in power to disregard the law without being held into account.

For this reason, we are now seeing former president Jacob Zuma being taken to prison and released later within the strictures of the law according to the constitution. We have also seen the judge who presided over the Senzo Meyiwa murder trial being suspended for the delays in the trial. It will now be difficult for the new judge to not serve justice, notwithstanding the fact that we have also been listening to the testimonies and learning the evidence presented.

It is, however, unfortunate that there are some darlings of the media who are not being reported on with the same enthusiasm. The Phala Phala scandal has not been reported in the same way as the Nkandla scandal, which has not helped in holding the president to account in the same way the former president was held into account. Former public protector Thuli Madonsela's errors have also not been reported, if reported at all, in the same way as suspended public protector Busisiwe Mkhwebane's errors. We have only learnt from her impeachment proceedings that there were errors made by Madonsela.

This shows that our media is not yet free and we must view it critically. Only a free media can provide the functioning democracy that the people need.

An Opinion published in The Star of 17 April 2023 on page 5

 PP's Office Deserves to be Independent

Former public protector advocate Thuli Madonsela was challenged by the last administration until the Constitutional Court ruled that her remedial action was binding. This ruling has set a precedent for constant litigation against the Public Protector's Office.

The Public Protector's Office is a Chapter 9 institution that protects the vulnerable from the abuses of power by investigating complaints received from the public. The protector then holds those who exercise power to account. It is not easy for those who are in power to admit that they are wrong and take responsibility.

The Public Protector of Zambia, advocate Caroline Zulu-Sokoni, testifying at suspended public protector Busisiwe Mkhwebane's impeachment inquiry on January 30, said "the public protector is in a vulnerable position (because) it investigates the executive" which both created it and funds it.

The executive, in attempting to evade responsibility, can now lodge application for review against the public protector's remedial action at the High Court. This happened when, for instance, the public protector found that the president breached paragraph 2 of the Members of Executive Code of Ethics and section 96(1) of the Constitution and required the Speaker of Parliament to demand publication of all donations received by the president in his CR17 campaign, but he lodged an application for review at the High Court.

President Cyril Ramaphosa gave permission for the suspension of the public protector after Mkhwebane sent him 31 questions about the Phala Phala affair. The protector challenged her suspension at the Western Cape High Court, where it was found that the "hurried nature" of the decision after the Phala Phala probe was retaliatory and unlawful, and the court ordered she be returned to office.

This appeal was heard at the Constitutional Court, where advocate Dali Mpofu argued that the president took the decision to suspend the public protector to evade responsibility and that, since he was being investigated by the public protector, he could have recused himself from taking the decision as there was bias. Judgment was reserved.

The public protector must also be accorded the same immunity and protection to be able to work independently, without favour, prejudice and fear, as judges are.

An Opinion published in The Star of 03 April 2023 on page 8

 Private Prosecution: Trial and Error

The hearing on March 20 of the application by advocate Billy Downer and journalist Karyn Maughn for the court to declare the private prosecution by former president Jacob Zuma against them unlawful and set aside echoed the President of the Republic of South Africa v Zuma and others heard on January 12, decided on January 16.

In that case, President Cyril Ramaphosa lodged an urgent application to interdict the court from giving effect to the nolle prosecui certificate of November 21, 2022 and summons issued with regard to it relating to him. It was an interim interdict as part A in his application, pending the hearing of part B which asks the court to declare the summons, nolle prosecui certificate (as far as it relates to the president) and private prosecution to be declared unlawful and set aside.

In the hearing of the President of the Republic of SA v Zuma and others case, advocate Dali Mpofu SC representing Zuma argued that there is a distinction between the criminal court and the civil court and that the current president cannot seek relief in the civil court but must challenge the title of the private prosecutor in the criminal trial court by raising a plea in terms of section 106(h) of the Criminal Procedure Act (CPA) to state that the private prosecutor has no title to prosecute, as the nolle prosecui certificate is invalid or the person brought before the court is not relevant to it.

Mpofu also argued that although the president was not mentioned directly in the certificate, he was an accessory after the fact in failing to respond in his capacity to investigate the conduct of the NPA and the media for publicising confidential information.

Advocate Ngwako Maenetjie SC, representing Ramaphosa, on the other hand, only argued that if the president subordinates himself to a criminal trial court, it would harm his fair trial right and personal freedom, and that an interdict sought aims to prevent that harm, especially when the president is not mentioned directly in the nolle prosecui certificate. Then on January 16, Deputy Judge President Roland Sutherland handed down the judgment by the court.

The court held that based on case law there is no distinction between criminal courts and civil courts. There is only one court for streamlining of management of both civil and criminal cases. The appearance of the judges wearing red robes in criminal courts and black robes in civil court is for organisational convenience.

It further held that this is because superior courts have an inherent jurisdiction according to section 173 of the Constitution to rule that a case be brought to "constitutional compliant forum and in accordance to constitutional compliant statute provided for the adjudication of criminal cases" and therefore that section 106(h) of the CPA cannot be the only legal route to challenge the title of the private prosecutor to prosecute.

This argument was raised again in the hearing of an application by Downer and Maughn when Mpofu argued again that the applicants cannot approach the civil court for a remedy but must subordinate themselves to a criminal trial court, and advocate Steven Budlender, representing Maughn, argued that section 34 of the Constitution, which provides for access to courts, makes no distinction between a civil or criminal court. It only states that any person has a right to bring "any dispute that can be resolved by application of law decided in a fair public hearing before a court."

An Opinion published in The Star of 24 March 2023 on page 7

 SA Deserves More Than Empty Promises

Political parties have started campaigning for the 2024 national elections. One could tell from the questions by the opposition parties and answers by the president in the recent question-and-answer session in Parliament.

The opposition parties will bring up old empty promises that have not been fulfilled by the ruling party and the ruling party will make new promises that it cannot account for. For instance, the ruling party has said before we will never experience loadshedding and the opposition has tried to hold it into account to that rhetoric in Parliament and the media. Although it has come up again, this time with the appointment of the minister of electricity for the sole purpose of fulfilling the promise of ending loadshedding - there is at least a plan.

However, the promises by the last administration have created a trust-deficit among the ruling party, the people and the opposition. In addition to this, the opposition parties have realised that they cannot hold the ruling party to its promises in Parliament because it has slight and subtle characteristics of oligarchy. The opposition have realised this and resorted to the courts.

On January 23 2023, the UDM, Build One South Africa, IFP and other organisations lodged an application in the North Gauteng High Court in Pretoria to interdict Eskom, the president, the minister of mineral resources and energy as well as the minister of public enterprise to stop loadshedding. They are requesting the court to order an interim relief that the government exempts or supports public health establishments, public schools, electronic communications networks, the SAPS, small and medium businesses and any entity responsible for water from loadshedding.

They are also requesting the courts to order the shutting down of certain power stations be reviewed and be set aside and that Eskom, the president, the minister of mineral resources and energy and the minister of public enterprises be ordered to account and provide specific actions that are being taken to end load-shedding, such as the budget allocated for it and the time it will take to end load-shedding.

The organisations are well within their right to approach a court that has competent jurisdiction because section 152(1)(b) of the Constitution states that the local government has to "ensure the provision of services to communities in a sustainable manner" and there are other rights in the Constitution such as the right to education, the right to life, the right to healthcare, food, water and social security, and the right to freedom of trade, occupation and profession that are impacted by loadshedding.

It was revealed by CEO of Eskom Andre De Ruyter's answering affidavit that there was a reconstruction and development programme to provide electricity to an additional 2.5 million households and when that target was achieved, a further surplus demand after demand growth. This means that the demand for electricity has increased to such an extent that Eskom has been unable to meet by providing electricity.

The opposition can also make these promises without accounting with a plan to assure the people that they can fulfil their promises. In this elections, therefore, the citizens deserve to be offered plans or policies, not empty promises, to allow them to make an informed choice at the voting booth.

An Opinion in The Star on 10 March 2023 on page 4

 ConCourt Serves Justice without Fear, Favour or Prejudice

When his name was struck off the roll of advocates in Society of Advocates of SA (Witwatersrand Division) v Fischer, lawyer and apartheid activist Bram Fischer, instead of appearing personally in court, wrote a letter to the court stating: "I accept, my lord, the general rule that for the protection of society laws should be obeyed, but when the laws themselves become immoral and require the citizen to take part in an organised system of oppression then... this compels one to refuse to recognise such laws." We have seen similar disobedience in the past two years.

Former president Jacob Zuma refused to appear at the state capture commission when he was summoned because its chairperson, Raymond Zondo, dismissed his request for his own recusal, basing his decision on stating that the alleged association to Zuma was so remote that it could not affect his mind. The commission applied to the Constitutional Court to order Zuma to appear before it.

Zuma defied the order by not appearing at the commission but instead issued a statement stating: "The Commission into Allegation of State Capture can expect no further co-operation from me in any of their processes going forward. If this stance is considered to be a violation of their law, then let their law take its course." The Constitution took it into account in giving the order for 15 months' imprisonment for contempt of court.

Zuma then applied to rescind the judgment according to Rule 42(1)(a) of the Uniform Rules of Court. This application can rescind a judgment if there is found to be an error in the granting of the judgment in the absence of party affected thereby. The application was dismissed because it was found that Rule 42(1)(a) only applies to parties excluded without notice or fair procedure, not to parties who elect to absent themselves from proceedings.

In another matter, we have also seen Chris Hani's widow, Limpho Hani, refuse to accept the judgment by the Constitutional Court after Janusz Walus's appeal to it to challenge the minister of justice and correctional service's refusal to grant him parole was granted. The SACP of which Hani was a member, assisted Limpho to also apply for its rescission and the application was also dismissed.

These two cases have sparked protests around the country against judgments by the Constitutional Court. After Zuma was arrested, there was civil disobedience around the country in July 2021 when rioters blocked roads essential to trade and investments to halt economic activity of the country and damaging trucks and looting stores to protest for his release, and in another matter, the EFF, ANC and SACP protested to stop Walus's release on parole and Walus was stabbed in prison, which delayed his release.

This is what we refer to as the counter-majoritarian dilemma. It is a situation when the Constitution overrules the will of the majority or democracy. Others argue that it is not a dilemma because we have a Constitutional democracy as the Constitution was voted for by the majority and so to deny the Constitution is to challenge the will of the majority.

One senses that our Constitution is anarchic. Perhaps it says a lot about the drafters of the Constitution. They were in a dictatorship at the whim of a group. Perhaps the reason why they wanted a written Constitution to rule and be supreme and ignore the normal rules of democracy and limit the power of a group is that they have experienced how a group can (to use the words of Bram Fischer) "organise a system of oppression". They have seen how men left to their devices, without a written Constitution, can become oppressive. Therefore they only wanted the law to serve justice and no one to be above that law.

Aristotle in his book Politics also wanted to find the best government for the city and realised that man is a "political animal"; that, deep within, he has also the desire or need to rule. Because of this, he found that democracy is not only good for giving people the freedom to govern themselves but also that it can be destructive because people can be misled by popularity instead of the law. Perhaps, this is also the situation that the drafters of the Constitution wanted to prevent when they drafted the rule of law that subjects everyone to the Constitution.

In Walus v Minister of Justice and Correctional Services and Others, Chief Justice Zondo, delivering the judgment, said: "When the fathers and mothers of a Constitutional democracy drafted our Constitution and included in it the Bill of Rights, they did not draft a Bill of Rights that would confer fundamental rights only on those who fought for democracy and not on those who had supported apartheid or those who were opposed to the introduction of apartheid in this country. They drafted a Bill of Rights that conferred fundamental rights to everyone."

He also made it clear in presenting the 2021/2022 financial year annual judicial report when he said: "The judiciary of South Africa, from the chief justice at the top down to the district court, will not be intimidated by anybody, no matter his or her position in society, into giving judgments that do not accord with the Constitution."

But one may ask how do we know that the law serves justice and is therefore justifiable? When the court is not subjective, does not favour or prejudice anyone and finds that the law is legitimate and reasonable without fear. The justices of the Constitutional Court take an oath that they will uphold the Constitution. They only interpret the law and demonstrate that it is reasonable within the parameters of the Constitution as a mathematician would work out his calculation in a formula to arrive at an answer. It is the Constitution that balances itself to protect everyone whether in the group or in the minority. The justices are, therefore, also ruled by the Constitution.

A Letter published in The Sowetan on 7 March 2023 on Page 10

 ConCourt Works without Prejudice

The Constitutional Court must be one of the best institutions we have in SA. The recent judgment from the ConCourt that dismissed President Cyril Ramaphosa's review application of the section 89 independent panel report brings to mind the EFF vs Speaker of National Assembly and Others judgment penned by former chief justice Mogoeng Mogoeng.

Mogoeng, despite being appointed by Jacob Zuma, ruled that the former president was bound by Thuli Madonsela's remedial action to pay back for security upgrades.

The Constitutional proves once again that it functions without prejudice, fear and favour. The fact that Ramaphosa is the president does not give him the privilege to avoid the high court and seek direct access to the Constitutional Court. It is only the magistrate's court that does not have jurisdiction to hear matters that relate to the conduct of the president. The high court has that jurisdiction.

Despite constitutional issues enjoying primacy at the Constitutional Court, it was held that all issues are constitutional because they flow from the constitution and so this has affected the Constitutional Court's approach. As a result, if the matter is ripe for the high court, it must be decided there.

Therefore, the president like any other person who has capacity to litigate, must follow the procedure.