Brian Kazungu, 08/02/2021
In the twist and turns of the state capture drama which is continuously unfolding in South Africa, members of the public are suddenly being drawn into the discourse of civics matters on a daily basis as they are getting more informed on important issues of life in their communities.
The internet and social media has suddenly availed so much information to the common folk so much that they can now quickly check and trace what is happening with government resources even in the corridors of power.
One such issue at the moment is the issue of President Zuma’s refusal to appear before the Zondo Commission citing some irregularities in the Commission’s modus operandi and in even the basis and legality of its formation.
It has been argued in some circles that the formation of the Commission itself violated some provisions of the Constitution and as subtly hinted in the conversation below, Zuma’s appointment of Justice Zondo has been likened to putting a signature on a document when a gun is pointed on your head.
This conversation between a former lawyer Fredrick Kyle (Rikki) and a businessman (Mutumwa Mawere) is part of the legal literacy initiative of the Connections2Communities (C2C) community in search of a shared understanding on matters of interest to the community.
[2/6, 11:13 AM] Rikki: If your signature is on a document, but it was placed there with a gun to your head, it is indeed your signature. However, can one simply ignore the gun to your head because the first statement is true? In the absence of the real context, one can only make assumptions. No good comes from arguing on assumptions.
The scariest part is that despite us living in the age of information, we have never been so in the dark about this and even the Coronavirus.
[2/7, 8:47 AM] Rikki: The doctrine of separation of powers is a fundamental cornerstone in the provision of the South African Constitution.
If one has a dispute with another, including the state, one goes to the Courts who are supposed to be independent and impartial to resolve such dispute based on the law’s prescripts.
Where does one go when you have a dispute with the Courts/Judiciary? In a constitutional system based upon checks and balances surely there must be a check for this? Who supervises the Courts/Judiciary to make sure they are doing their job correctly?
[2/7, 8:53 AM] mdmawere1: In this case, is it true and fact that the Public Protector issued an extra-judicial order whose effect was to divest and deprive the President of the power to independently appoint a Commission of Inquiry?
If so, did the Chief Justice act in terms of the limitations imposed on him and the judiciary by proceeding to nominate Zondo and for Zuma to be limited in choice to the names given?
Zuma tried to challenge the judicial overreach but the judiciary closed the doors on him and proceeded to give orders that were ultra vires the Constitution.
In this case the equality promise of the 3 branches of the government was undermined by the judiciary. Indeed given these facts, what are the lessons, if any?
[2/7, 9:03 AM] Rikki: This could never have happened if the three-sphere of government acted independently and in terms of their constitutional mandate.
The cunningness of these extra-judicial orders are that the Judiciary washes their hands in the process and then claims authority to continue to adjudicate matters in respect thereof as they are independent.
They did not issue the order.
Just look at what happened in SMM. When Willis allowed such conduct in a South African Court, it should have been a big red flag to the South African citizens about what the powers think of their Constitutional mandates and the citizens’ rights entrenched therein.
[2/7, 9:06 AM] Rikki: South Africa is no longer and in fact, has not been a Constitutional State for many many years. So why does one try and resolve a dispute within a democratic framework, if it does not exist?
If the South African people do not step up to the plate and take control back, they will continue their demise.
[2/7, 10:27 AM] mdmawere1: Thanks for your insights. It is fact that the knowledge on constitutional matters is not commonly shared.
It could very well be the case that Madonsela could have been provoked by the evidence she had gathered that the relationship between Zuma and the Guptas was corrupt and as such in her considered opinion, he was no longer fit to be President.
Having concluded in this question, she may have reckoned further was left for the judiciary except to convict him.
It is this arbitrariness and unilateralism that has characterised the real enterprise of justice delivery in many countries.
[2/7, 10:53 AM] Rikki: Irrespective of Madonsela’s views or consideration, the power to remove a President is not hers to exercise nor that of the Judiciary.
If either was moved to act because they believed that Zuma was not fit to hold the president’s office, they were not impartial and everything they have done subsequently flawed. The power to remove a President lies with the Parliament.
The real problem is as you correctly identified the arbitrariness and unilateralism.
I believe that the Judiciary, like all other spheres of government, should be independent of each other, act strictly following the constitution but most importantly, be transparent and accountable to the people of South Africa.
[2/7, 11:58 AM] mdmawere1: Thanks again for your useful insights. It appears that the ears to listen are few and far between.
What is the correct interpretation of the cause that says the President has the right to appoint a Commission of Inquiry? Is it a discretionary or qualified right?
Did Madonsela possess the power and authority to order that a commission be established fully cognizant of the reserved nature of the authority?
What should have been the attitude of an independent and impartial judiciary?
[2/7, 12:02 PM] Rikki: It is a discretionary power bestowed specifically by legislation on the President, and as such, it can’t be delegated. An independent and impartial judiciary would have struck down her recommendations as being ultra-virus and unconstitutional.
[2/7, 12:06 PM] mdmawere1: Does the recognition and enforcement of an illegality taint the integrity of the courts?
If this is not cured, what are the implications on the rule of law?
[2/7, 12:12 PM] Rikki: A very difficult but important question. Considering that a Court is supposed to determine lawfulness or not, it would seem that it won’t taint the integrity as a Court found it to be lawful. It goes back to my previous question, where do you go if you are not satisfied with the Court?
[2/7, 12:13 PM] mdmawere1: Then you are f****d or you need to start from the bush.
[2/7, 12:14 PM] Rikki: Then the check and balances contained in the Constitution is not working or merely a smoke screen?
[2/7, 12:14 PM] mdmawere1: This is scary
[2/7, 12:33 PM] Rikki: Indeed very scary. If any one of the spheres of government like in this instance becomes unchecked, democracy failed and one is no longer in a democracy state
An analysis of Mr Mawere’s Commentary on Separation of Powers: A case of alleged State Capture under President Zuma
By Dr. Kernan Mzelikahle, PhD
The doctrine of separation of powers is a libertarian doctrine based on the need to seek a tripod balance among competing arms of government.
It is assumed that due to complementation, a system of checks and balances would allow power not to be concentrated in one arm of the government.
However, in many States, particularly in those that leapfrogged from non-democratic systems to democracy, the different arms begin to compete against each other rendering the exercise of checks and balancing difficult.
In the case of Jacob Zuma and the state capture allegations, it is without doubt that the judiciary encroached into the powers vested in the Executive arm. The question of why the judiciary would do such a thing lies not in the merit of the allegations, but in the possible vested interests within the judiciary.
In many cases, members of the judiciary have made public comments against corruption in South Africa. These comments have bordered closely to being political statements. It may, thus, be concluded that the South African judiciary is not devoid of political interest.
A statement by Chief Justice Mogoeng (March, 2013) titled “Corruption: A threat to our constitutional democracy” speaks strongly against corruption as a cancer that would betray the South African democracy.
However, this statement does not sound entirely a judicial assessment based on constitutionality alone but also based in opinion.
In that speech, Chief Justice Mogoeng said “when corruption becomes endemic in a country, the lifespan of a true constitutional democracy could not be guaranteed”.
The Chief Justice buttressed his assessment by highlighting that “the far-reaching implications of corruption tend to drive its victims to a boiling point and moves them to the level of desperation that renders even their resort to life-threatening measures or responses to corruption look like they are worth the sacrifice”.
Once judges wield opinions, it may be interpreted to say that they would have digressed from their primary position of impartiality. It is a fact of history that opinionation breeds political entrenchment.
This implies that the South African judiciary has a political perspective that it seeks to uphold. It therefore comes without surprise that Ms. Madonsela acted to satisfy her suspicions, without sufficient ground in the case against President Jacob Zuma.
Consequently, her possible political opinion weighed heavily, likely more than her judicial assessment, to the effect that she acted on possible political conviction rather than judicial procedure.
This implies that the South African judiciary, in a sense, undermined the Executive arm during President Zuma’s tenure.
Mr Mawere is correct in his assessment that President Jacob Zuma was left with nowhere to turn to, in order to seek redress of the situation.
In as much as corruption is a cancer that has the potential to undermine South African democracy, the undue interference of the South African judiciary may equally be a threat to the democracy.
Without doubt, South Africa, like many other leapfrogged democracies in Africa, need to find a sweet-spot of stability that balances out the role of checks and balances, as well as allowing sufficient space for the Executive to function in confidence.
To add to Mr Mawere’s observations, the problem with many democracies lies in the competition to attainment of power. In many such democracies, the Executive usurps power from both the Legislative branch and the Judiciary.
However, in South Africa’s case, it is the Judiciary that seems to spread tentacles beyond its mandated constitutional reach.
Given that “there is a strong view being expressed [in legal circles] that in terms of s84(2)(f), it is the President who is vested with the power to appoint a Commission of Inquiry and as such the order by Ms. Madonsela was ultra vires the Constitution”. A red flag is raised as to the motives of the Judiciary.
How long would South Africa limb before members of the Judiciary are seen participating in the political space, in one form or the other.
Mr Mawere stops short of drawing a possible conclusion that highlights what happened with President Zuma as an unconstitutional judiciary assisted transfer of power.
One would then have to wonder if the judiciary (if it continues in this path) would not become a threat to democracy itself.
Dr. Kernan Mzelikahle, PhD, is an apolitical analyst, and may be contacted by cell-phone on +263775195334, or by email on firstname.lastname@example.org, twitter handle is @Mzelikahle.
Former President, Jacob Zuma and Former Public Protector, Thuli Madonsela: Which One Had the Power to Form the Zondo Commission?
Mutumwa Mawere, 07/02/2021
Legal and constitutional questions that are inherent in the establishment of the state capture commission of inquiry are largely masked by the reality that former President Zuma acquiesced to the order by the former Public Protector, Ms. Thuli Madonsrla.
The former Public Protector, masterminded the establishment and appointment of a Commission headed by the Deputy Chief Justice Zondo.
In the C2C Civics and Legal Literacy group where this matter is heavily contested, a dispute is raging as to whether the Madonsela order passed the constitutional muster.
There is a strong view being expressed that in terms of s84(2)(f) , it is the President who is vested with the power to appoint a Commission of Inquiry and as such the order by Ms. Madonsela was ultra vires the Constitution.
If this view is accepted, then the dispute regarding the alleged defiance by President Zuma that he was a victim of state capture in relation to the appointment that he was forced to make by Ms. Madonsela with the complicity and constructive involvement of the judiciary will be justified.
In November 2016, the former public protector, Ms. Madonsela ordered that a commission of inquiry be instituted to establish the true facts in relation to state capture allegations.
This came after she had investigated allegations that the Gupta family wielded influence over Zuma and that cabinet ministers with links to this family were also subsequently appointed by Zuma,.
Zuma applied for an urgent interdict to stop the release of Madonsela’s report just a day before Madonsela was to release it, on her last day in office but his lawyers were only forced to withdraw the application in the North Gauteng High Court after establishing that the High Court had already ordered that the report be released.
This 335-page report informed the decision to set aside the limitation imposed in the Constitution that only the President in his discretion possessed the legal right to establish a commission of inquiry.
Ms. Madonsela substituted the President with the Chief Justice as a party clothed with the power to identify the Chair of the Commission leaving Zuma with the residual power to rubber stamp the process.
Some have argued that in relation to Trump who was also impeached, at no stage was he stripped of his powers based on untested allegations.
Although Ms. Madonsela was confident that she had uncovered evidence of corruption that justified the unprecedented decision to strip Zuma of powers reserved to him, there can be no legal and constitutional justification of the pathway chosen.
The involvement of the Chief Justice in a scheme that was patently unconstitutional, the judiciary cannot escape being accountable for this decision and prosecuting it.
A precedent had been set of judicial interference with executive decisions to permit any rational mind to conclude that Zuma had no grounds to challenge the process and outcome of a fatally defective scheme.
While commenting on the issue, Mr Chitambo said, “It is the role of journalists to unravel the mysteries behind what Zuma is alleging and the truth.
The same judiciary system prosecuted and convicted Mandela. So the onus is now on all progressive democratic forces to point towards the Truth. This should be a wake-up call to all Africans that we need a radical shift towards setting our own narrative of what it is the meaning of justice.”
South Africa’s Supreme Court of Appeal Judgement and Its Implications on the City Power, City of Johannesburg and Setheo Case
I was listening to a conversation between Mutumwa Mawere and another gentlemen where a dispute arose in relation to the rights and obligations of shareholders and directors of a company.
The other gentlemen was adamant of his assertion that shareholders can control the affairs of a company including the right to institute legal proceedings in the name of a company that they hold shares in and he believed that his view is supported by the law.
On the other hand, Mawere emphasised that the control and direction of a company is vested in the directors and not shareholders.
Pursuant to that conversation, Mawere later on shared two news articles (write-ups) in the C2C Legal Literacy platform in regards to a South African Supreme Court of Appeal (SCA) judgement under the title: Directors owe duty to their company, not to shareholders.
Clyde&Co who successfully represented the directors in this case wrote that “At the heart of the SCA’s decision is the concept of separate legal personality which is fundamental to company law. A company is an entity separate and distinct from its members. Loss sustained by a shareholder in the value of his/her shares is reflective of the loss suffered by the company. The shareholder does not suffer any personal loss, but rather a loss in the value of a company.
From the findings and ruling of that judgement, I can now clearly see and understand the clarity of law in the premise that if a wrong is done against a company, it is only the company in dispute which can sue for damages.
This then brings me to the long winding and twisted case involving City of Johannesburg, City Power and Setheo, including some employees of the last two.
There is a dispute before the Palm Ridge Magistrate Court involving a contractual relationship between Setheo Engineering and City Power.
Setheo Engineering signed a contract to upgrade the Eldorado Park Substation in 2015 with City Power, but in 2016, the then Mayor of Johannesburg, Herman Mashaba, under the belief that City as wholly owned by City of Johannesburg, thought that he had direct interest in any contract that City Power concluded with third parties.
He therefore thought it was in the jurisdiction of the City of Johannesburg to cause an investigation on contractual matters of City Power.
An agency of the City of Johannesburg, GFIS, based on what was alleged to be a complaint by Setheo’sub-contractors in the project conducted an investigation without the knowledge and consent of City Power resulting in the arrest of Setheo directors and City Power project coordinators.
The matter was investigated by the Hawks and is now before the Palm Ridge Magistrate Court with five accused in the case including Brighton Chifamba an employee of Setheo
A question that arose from various stakeholders in this matter which now seems to be getting addressed by the Supreme Court of Appeal judgement is whether City of Johannesburg can substitute City Power to become a complainant in this case which is before the courts.
Relative to the SCA judgement, we can see that in the dispute between City Power and Setheo, we can deduce that it is only City Power that can claim injury caused to it since City of Johannesburg does not have direct cause of action against the wrong doer.
It would then be expected of the authorities in City Power and City of Johannesburg to know the fundamental tenet of the rule of law which says that if a son commits murder, the parent cannot be held culpable for the crime.
This is because fiduciary duties of directors of City Power as codified in Section 76 Subsection 3 (s76 (3)) are owed to the company and not to shareholders (City of Johannesburg) since a company is separate and distinct from its members.
In the SCA judgment it is emphasised that where a wrong is done to a company, only the company alone may sue for damage caused to it and that shareholders do not have a direct cause of action against the wrong doer.
When taking into account the relationship between City of Johannesburg which owns 100% shareholding in City Power, it is important to understand that irrespective of the amount of shares held, City Power is still a separate and distinct legal entity from the City of Johannesburg.
As such, according to the said SCA judgement, when the loss sustained by a shareholder in the value of his/her shares is reflective of his loss suffered by the company, it shows that City of Johannesburg does not have any legal standing to claim that it suffered any personal loss as a shareholder resulting from the payment by City Power to Setheo.
If the City of Johannesburg had an assumption of loss, it is only in the value of loss by City Power and thus it’s legal recourse must be against the Directors of City Power and not against the contracting parties of City Power as is the case before the courts at the moment.
Iniafrica.com and its other affiliated publications regularly do write ups on literacy matters covering legal, corporate and civic matters in order to promote informed reasoning and action amongst its readers.
These legal literacy articles are part of the C2C legal and corporate initiatives that are aimed at developing a shared understanding on the identity as well as duties and obligations of shareholders and directors in relation to a company.
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