http://www.politicsweb.co.za/documents/going-off-the-rails--irr

Goingofftherails-IRR

JohnKane-Berman-IRR|

02November2016

JohnKane-BermanontheslidetowardsthelawlessSouthAfricanstate

GOINGOFFTHERAILS:THESLIDETOWARDSTHELAWLESSSOUTHAFRICANSTATE

SETTINGTHESCENE

South Africa is widely recognised as a lawless country. It is also a country run by agovernment which has itself become increasingly lawless. This is so despite all thecommitments to legality setout in theConstitution.Notonly is thepost–apartheidSouthAfricafoundedupontheprincipleoflegality,butcourtswhoseindependenceisguaranteedare vested with the power to ensure that these principles are upheld. Prosecutingauthoritiesareenjoinedtoexercisetheirfunctions“withoutfear,favour,orprejudice”.Thesameduty is laiduponother institutionsestablishedbytheConstitution,amongthemthepublic protector and the auditor general. Everyone is endowed with the right to “equalprotectionandbenefitofthelaw”.Weareallalsoentitledto“administrativeactionthatislawful,reasonable,andprocedurallyfair”.UnliketheoldSouthAfrica–nodoubtbecauseofit–thenewRechtsstaatwasonewheretheruleoflawwouldbesupreme,powerwouldbelimited,andthecourtswouldhavethefinalsay.

This edifice, and these ideals, are under threat. Lawlessness on thepart of the state andthosewhorunitisontheincrease.Theculpritsrunfromthepresidentdowntoclerksofthecourt, fromdirectors general to immigration officials, frommunicipalmanagers to prisonwarders, from police generals to police constables, from cabinet ministers to pettybureaucrats.Lawlessnessrangesfromprotectingthecriminal,tohoundingtheinnocent,tocrushing the poor. It runs from the unconstitutional to the outright criminal, from thebrazenanddefianttothenegligentorignorant.Itembracesslammingdownthetelephoneonjudgesaswellasvictimisingtrafficpolicemenwhoflagdowncelebrities.

It ranges from violations of parliamentary procedure, to breaches of the Public FinanceManagementAct,tooutrightskulduggeryandcorruption.Itsvictimsincludetaxpayerswhoget fleeced,miningcompanieswhose licenceapplicationsareunlawfullydenied,supplierswhodonotgetpaidfortheirservices,andmotoristswhoareforcedofftheroadbyrecklessgovernmentdrivers.Thevictimsalsoincludeprisonersdeniedmedicaltreatment,refugeesforced to pay bribes, hawkers whose goods are unlawfully confiscated, and poor peopleunlawfullyevictedfromshackswhicharethenunlawfullydemolished.

Somepeopleareunlawfullyappointed,someunlawfullydismissed,someboth.Othersareunlawfullydeniedappointmentorpromotion.Acriminalrecordisnobartoappointmentorpromotion, even in agencies designed to combat crime. Physical torture seems to bepervasive. Perpetrators of crime often get away with it. Some victims are able to seekredressinthecourts,otherssufferinsilence.Manycasesoflawlessnessarereportedinthenewspapers,buttheyareprobablythetipofquitealargeiceberg.

The courts are theultimateguarantorsofour rightsandof legalitybut theyare insulted,their orders are sometimes ignored, and their decisions are frequently taken on endlessappeals.Sometimes insteadofbowingtothecourtsandthe law,thegovernmentseeks–unlawfully – to change the law. Statutory organisations designed to apply the law aredeliberately undermined,whilewatchdogs andwhistleblowers seeking to uphold the lawaresubjectedtointimidation.LawlessnesspredatesPresidentJacobZuma’sassumptionofpower in 2009, but it has intensified during his rule as more and more people andinstitutionsfollowhisexampleandtheexamplesofthosewhocondonehisbehaviour.

SOURCESANDCAVEATS

Newspapers and websites are the major sources of the information in this report,supplemented sometimes by reports from various organisations. To probe any furtherwould have been impossibly time–consuming. Where allegations are made, these areincludedingoodfaith.Thesameappliestocommentsbyvariousspecialistorganisationsorinformed individuals. Although the previous government frequently dismissed allegationsaboutwhathappened inpolicecells, thesewereoften laterfoundtobetrue.Wesuspectthatsimilarallegationsmadetoday,althoughalsodifficulttoprove,arealsotrue.

Thereisplentyofoverlapbetweenthevariouscategoriesintowhichtheentriesbelowhavebeensubdivided. Itemsunderaparticularheadingcouldeasilyfitsomewhereelse insteadorinaddition.Repetitionissometimesunavoidabletoensureclarity,butithasbeenkepttoaminimum. Some cases are borderline: it is often not clear how far action described as“irrational” or expenditure described as “irregular” is a technical breach or seriouslyunlawful.

The state is broadly defined to include government at all levels, along with statutoryinstitutions, and state–ownedenterprises. It is not alwayspossible todeterminewhetheractionsorstatementsreportedareundertakenbythepeoplecitedintheirofficialcapacitiesonbehalfofthestateorundertheirownsteam.Officialstakingbribesarepresumablynotactingunderdepartmentalinstructions,butwhenprosecutorsactorfailtoactinparticularcasestheymaybeoperatingundertheinstructionsofsuperiors,oratanyrategivingeffecttowhat they think their superiors desire.Government drivers in “blue–light”motorcadesfeelentitledtoendanger the livesofothersbecausetheministerssitting in thebackseatthinkthemselvesabovethelaw.

Thispaperhaslessinformationonthefailureofthestatetoimplement“socio–economic”rights than it has on other forms of lawlessness. Although the Constitution guarantees awholerangeofsuchrights,theirimplementationissubjecttowhatthestatecanafford.Forthe courts to issue orders to provide “adequate housing”, for example, is far morecomplicatedthanorderingahaltto illegalevictions.OnejudgewentasfarassayinginaninterviewwiththeJudicialServiceCommissionthatsomeoftheordersissuedbythecourtsonsocio–economicmatterswerenot“practicallyimplementable”.

The items listed under each sub–section below generally appear in reverse chronologicalorder,with themost recent on top of each list. However, this general rule is sometimesbrokeninordertokeepentriesonthesametopictogether.Therelativepaucityofentriesfromearlieryearsmaybebecausetherewaslesslawlessnessthen.Butitalsoreflectstheneed toavoidmaking thepaper too long.The fact that therearemoreentriesabout theJohannesburgcitycouncilthanaboutcouncilsinotherpartsofthecountryarisesfromthefact that the paper relies mainly on newspapers published in Johannesburg. It is notdesigned to suggest that the Johannesburgcouncil ismoreprone todisobeycourtordersthan someof those elsewhere. Someof the decisions referred to in thepapermayhavebeen reversed or upheld on appeal. If this is not recorded, the reasonmay be that theappealwasnotaswidelyreportedastheoriginaldecision.

BLOW–BY–BLOWACCOUNT

Unconstitutionalaction

AttheendofMarch2016theConstitutionalCourthandeddownaunanimous judgementthatPresident JacobZumahad“failed touphold,defend,and respect theConstitutionasthesupremelawofthe land”.Hisfailurewas“manifestfromthesubstantialdisregardfortheremedialactiontakenagainsthimbythepublicprotectorintermsofherconstitutionalpowers” after she hadmade adverse findings against him in a report stipulating that heshouldrepaypartoftheR264millionspentfrompublicfundsonhisprivatecountryestateatNkandlainKwaZulu–Natal.(HethenpaidbackR7.9million,havingevidentlyobtainedthefundsagainstamortgageonthepropertyheldbythehithertounknownVPSMutualBank,in which the Public Investment Corporation has invested on behalf of the GovernmentEmployeesPensionFund.)

Thecourtalso ruled thatParliamenthadviolated theConstitutionbypassinga resolutionpurporting to absolve Mr Zuma from complying with the public protector’s report onNkandla.

As of the end of September 2016, President Zuma had still not signed the FinancialIntelligenceCentre(FIC)AmendmentBillintolawdespitethefactthatithadbeenpassedbyParliamentinMay.Thebill isdesignedtotightenupthecountry’sfinancialcontrolsystemto combatmoney laundering and other crimes and ensure that itmeasures up toworldstandards,especiallyinmonitoringinfluentialandprominentpersonsinboththepublicandtheprivatesector.Afinancialjournalist,BruceWhitfield,saidthatthebillwasdesignedtokeep politicians honest and to put the monitoring of “dodgy–looking transactions on tofinancial institutions” but that it had been delayed through “intense lobbying”. Somelobbyistsclaimedthatthebillwasunconstitutional,buttheCouncilfortheAdvancementoftheConstitutionsaidthatifMrZumahadreservationsabouttheconstitutionalityofthebillhe was obliged to refer it back to Parliament, failing which he had to sign it. A formerfinanceminister, TrevorManuel, saidMrZumawouldbeviolatinghisoathofoffice if hefailedtosign.TheFICsaidthatin2015/2016ithadreceivedreportsofmorethan180000suspicioustransactions,blockedR185million insuspectedproceedsofcrime,andassistedwithnearly2000nationalandinternationalcriminalinvestigations.

InSeptember2016theSupremeCourtofAppeal(SCA)ruledthatParliament’spolicyofnotallowingdisruptionsof itsproceedings tobebroadcastwasunconstitutionalas it violatedtheprincipleof anopenparliament.Alsounconstitutional, said the court,was theuseofsignaljammingequipmenttoblockmobiledeviceswithoutthepermissionofthespeakerofthe National Assembly and the chairperson of the National Council of Provinces (NCOP).Rejectingthespeaker’sargumentthatthepolicywasreasonableasitprotectedthedignityofParliament, JudgeCaroleLewissaidonbehalfofaunanimouscourtthat itwasnotthebroadcastthatimpairedParliament’sdignitybutthebehaviourofitsMPsandparliamentaryofficials.Parliamenthadblockedtelevisedbroadcastsand jammedothersignalswhentheEconomicFreedomFightersdisruptedproceedings in2015demandingthatMrZuma“paybackthe[Nkandla]money”,leadingtofisticuffsandtheirbeingforciblyremovedbysecuritypersonnelsummonedbytheministerofpolice(seebelow).

TheWesternCapeHighCourtruledinSeptember2011thattheJudicialServiceCommissionhad actedunconstitutionally inApril that year in failing to fill two vacancies on theCapebenchwhenthereweresuitablecandidatesavailable.

AnattemptbyMrZumatoreappointSandileNgcoboforafurthertermaschiefjusticewasthwarted in August 2011 when Judge Ngcobo himself withdrew his acceptance of theinvitation to extend his term for five years. His term could only have been extended bylegislationchallengedasunconstitutional.JudgeNgcobosaidhedidnotwishtobeapartyinlitigationastowhetherornotheshouldcontinueinoffice.

InMarch2011theConstitutionalCourtdeclaredsectionsofthelegislationthatestablishedthe “Hawks” to be unconstitutional. The Hawks, officially known as the Directorate forPriorityCrimeInvestigation,areaunitoftheSouthAfricanPoliceService.Theyreplacedthe“Scorpions”,officiallyknownas theDirectorateofSpecialOperations,whowereaunitofthe National Prosecuting Authority (NPA). The court said that the Hawks were notsufficiently protected from political meddling and instructed Parliament to bring the lawintolinewiththeirjudgementwithin18months.AbolitionoftheScorpionsin2008followedadecision takenby theANCat its conference inPolokwane inDecember2007after theyhadpursued18criminalchargescomprising783itemisedcountsagainstJacobZumawhichthe NPA then dropped, clearing theway for him to become president of South Africa in2009(seefurtherbelow).

Despite being instructed to remedy the defects in the legislation within 18 months,Parliament failed to do this. It was then given another year, but the result was stillunsatisfactory.Accordingly,inNovember2014theConstitutionalCourtrewrotesectionsofthelegislationitselfinanattempttoinsulatetheHawksfrompoliticalinterference.

In January 2012 it was alleged by security specialists and constitutional lawyers that theSouth AfricanNational Defence Forcewas being unlawfully used in both Cape Town andJohannesburg in support of the police in conducting drug raids and seizing counterfeitproducts. The Ministry of Defence claimed that that the law allowed for soldiers to doanythingas longastheywereaskedtobythepolice, thatthiswas“standardprocedure”,and that soldiers had been used in terms of a general co–operation agreementwith thepolice dating back to 2001. The Constitution, however, stipulates that only the presidentmay authorise the deployment of the defence force and that he must promptly informParliamentwhenhedoessoandforhowlongdeploymentwilllast.

Unconstitutionallaws

InOctober2016Parliament’sportfoliocommitteeonmineralresourcesdismissedPresidentJacob Zuma’s objections that sections of the Mineral and Petroleum ResourcesDevelopmentAmendmentBill of 2013wereunconstitutional and inconsistentwith SouthAfrica’sinternationalobligations.ThecommitteerecommendedthattheNationalAssemblyputthebilltoavotebeforesendingittotheNCOP.

TheConstitutionalCourt in September2016 struckdownpartsof the IndependentPoliceInvestigativeDirectorate(IPID)Actof2011permittingtheministerofpolicetosuspendthehead of IPID. It said they did not insulate him sufficiently from political interference and

gaveParliamenttwoyearstoamendtheacttobringitintolinewiththeConstitution.Theminister, Nkosinathi Nhleko, subsequently asked Parliament to consider institutingdisciplinaryproceedingsagainsttheheadofIPID,RobertMcBride,butitmissedthedeadlinefor doing so, and Mr McBride returned to work when his suspension lapsed on 19thOctober.

AccordingtoMartinvanStaden,SouthernAfricanregionaldirectorofAfricanStudentsforLiberty, certain sectionsof theSouthAfricanCitizenshipActof1995areunconstitutional.This isbecause theyempower theministerofhomeaffairs to“deprive”SouthAfricansoftheir citizenship on certain grounds, among them “public interest”, even though theConstitutionitselfprovidesthatnocitizenmaybedeprivedofcitizenship.

In 2010 theNorthGautengHigh Court invalidated regulations establishing a price list forprivatehealthcare.ThehealthdepartmenthadfailedtocomplywiththeConstitutionandhadacted inaprocedurallyunfairmanner,withanattitudeof“disdainanddisregard”fortherightsoftheHospitalAssociationofSouthAfrica.

InMay2012MaxSisulu, speakerof theNationalAssembly,expressedhis“deepconcern”overthevolumeoflegislationbeingreturnedtotheassemblyforcorrectionaftertheNCOPor the courts had found it to be unconstitutional. He referred in particular to legislationdealingwithstateinformation,filmsandpublications,traditionalcourts,andlegalpractice.

Unconstitutionalpolicies

The policy of promoting a National Democratic Revolution in South Africa, to which theAfrican National Congress (ANC), the South African Communist Party (SACP), and theCongress of South African Trade Unions (Cosatu) are committed, has been criticised byvariousorganisations,amongthemtheSouthAfrican InstituteofRaceRelations (IRR), theFW de Klerk Foundation, and Accountability Now as in conflict with the Constitution.WhereastheConstitutionembracestheprincipleoftheseparationofpowers,revolutionaryideology envisages the capture of all centres of power by the ANC and its allies and theconflationofpartyandstate.Thisposesa threat to the independenceof the judiciary,aswellasofotherinstitutionssuchastheNationalProsecutingAuthority(NPA).

AlsoinconflictwiththeConstitutionistherevolutionarypolicyofdeployingloyalcadresoftheANCanditsalliestoallcentresofpower,aswellastojobsinnational,provincial,andlocalgovernment,andstate–ownedenterprises.Oneconsequenceofthisisthatloyaltiesofpublicservantsareoftentopoliticalparties,inconflictwiththeconstitutionalrequirementthatpublicadministrationbeimpartialandwithoutbias.

Strict application of racial considerations in appointments and promotions in the publicsectormayalsobeinconflictwiththeconstitutionalrequirementthatpublicadministrationneedstobeonly“broadlyrepresentativeoftheSouthAfricanpeople”.Courtcasesarisingfromsomeofthesepoliciesaredealtwithinvarioussectionsbelow.

Unlawfulorders

Thepublicprotectorstatedthatadirectivebytheministeroftransport,DipuoPeters,tothePassenger Rail Agency of South Africa (Prasa) to halt a forensic investigation into tender

irregularities was unlawful. The chairman of Prasa, Popo Molefe, who ordered theinvestigationafterreceivingareportfromthepublicprotector,saidthattheministerhadnopowertostoptheinvestigationandthatherinstructionwasaviolationoftheConstitutionandofthePublicFinanceManagementActof1999.

Mr Zuma ordered in 2015 that there should be no fee increases at universities in 2016.AccordingtoBelindaBozzoliMPoftheDemocraticAlliance(DA),theofficialparliamentaryopposition, his declaration “usurped the statutory rights of universities”. However, nouniversitychosetochallengeit.

Law–makingproceduresnotfollowed

InJuly2016theConstitutionalCourtstruckdowntheRestitutionofLandRightsAmendmentAct of 2014 on the grounds that Parliament had not allowed for sufficient publicparticipationasrequiredbytheConstitutionbeforeenactment.

PeterLeon,aleadinglawyer,saidinAugust2016thatthreeotherbillshadalsobeenrushedthrough Parliament “without adequate public input”. These were the Private SecurityIndustry Regulation Amendment Bill of 2012, the Mineral and Petroleum ResourcesDevelopmentAmendmentBillof2013,and theExpropriationBillof2015. (At the timeofwriting,noneof the threebills hadbeen signed, evidentlybecauseMrZumawashimselfconcerned about the constitutionality of these measures and the absence of adequatepublicconsultation.)

Parliamentaryrulesviolated/institutionsundermined

Opposition parties accused the minister of energy, Tina Joemat–Petterson, of failing tocomplywithparliamentary rules requiringher tohandovervariousdocuments requestedby Parliament’s portfolio committee on energy. Theminister said that the documents inquestion, relating to procurement of nuclear energy, were privileged. Confusion,controversy,andspeculationhavebeenrifeoverthepastfewyearsoverwhetherornotthegovernmenthascommitted itself toprocuring9600megawattsofnuclearenergy fromaRussiancompany,Rosatom,whileendeavouringtokeepitsdealingssecret.Thechairmanofthecommittee,FikileMajola,saidthatParliament’s legaladvisershadtoldhimthatitwasuptohimratherthantheministertodeterminewhetherdocumentsshouldbeclassifiedornot.Hesaidhewouldasktheministertosupplythemby11thOctober2016.“Parliamentwillhavetoseeallthedocuments,”hesaid.Theministerthensuppliedthedocuments.

However,shehadstill failedtosupply thecommitteewitha fullcopyofa forensic reportintoPetroSA’sIkweziproject,whichhadresultedinalossofsomeR14.5billion.

Lindiwe Sisulu, minister of defence and military veterans, said in 2010 that she wouldboycott theparliamentarystandingcommitteeonpublicaccounts (Scopa) fortreatingherlikea“recalcitrantchild”afterthecommitteehadreprimandedherforbeingunavailableonthreeoccasionstoattendmeetingstoanswerquestions.

An investigation by Scopa into a series of arms purchases worth almost R47 billion wasthwarted by the government, the ANC, and the speaker of theNational Assembly, FreneGinwala, soon after Scopa began its probe in 2000. Although the committee, chaired as

usualbyanoppositionMP,beganitsworkinanonpartisanfashion,theANCsoonuseditsmajoritytoblockitswork.ThisincludedthedemotionoftheseniorANCmemberofScopa,AndrewFeinstein.Thecommittee’schairman,GavinWoodsoftheInkathaFreedomParty,who later resigned, said that the government had gone to “extraordinary lengths tosabotagetheinvestigations”.PresidentThaboMbekidenouncedcriticsofthearmsdealasracists, while the finance minister, Trevor Manuel, was among those who defended thedeal.JacobZuma,thendeputypresident,alsodenouncedScopa.

Courtordersignored/flouted/contradicted/defied/appealed

In March 2016 the SCA confirmed a ruling by the North Gauteng High Court that thegovernment had acted unlawfully in failing to arrest the Sudanese president, Omar al–Bashir, when he visited South Africa in June 2015.Mr Bashir was helped to leave SouthAfrica in defiance of a court order that he be arrested ashe had been indicted by theInternationalCriminalCourt(ICC)forwarcrimes,crimesagainsthumanity,andgenocideinwhich 300 000 people had died, tens of thousands of women had been raped, and 2.5millionpeoplehadbeenrenderedhomeless.Althoughthegovernmentclaimedthatvisitingheadsofstateenjoyeddiplomaticimmunity,theSCAsaidthatsuchimmunitywasexpresslyexcludedinthiscasebySouthAfricanlegislation,theImplementationoftheRomeStatuteoftheInternationalCriminalCourtActof2002.

Commenting on the government’s failure to comply with the initial high court order byJudgeHans Fabricius, JudgeDunstanMlambo said onbehalf of a full benchof theNorthGautengHighCourtthat“ifthestate,anorganofstate,orastateofficialdoesnotabidebycourtorders,thedemocraticedificewillcrumblestonebystoneuntilitcollapsesandchaosensues”.TheRomeStatute,havingbeendomesticatedintoSouthAfricanlaw,couldnotbe“displaced by a notice promulgated by the minister nor by a cabinet decision”. JudgeMlambo invited thenational director of public prosecutions to considerwhether criminalproceedings were appropriate. A former judge of the Constitutional Court, RichardGoldstone, said that allowing the Sudanese president to leavewas the first clear case inwhichthegovernmenthadfloutedanorderofoneofthecourts.

In October 2016 the minister of justice, Michael Masutha, announced that South Africawouldwithdrawfromthe ICC.Abill torepealtheRomeStatuteActwouldbe introduced,whilethegovernment’sapplicationtotheConstitutionalCourt for leavetoappealagainsttheal–Bashirdecisionswouldbewithdrawn.TheDAsaiditwouldgotocourttochallengethedecision toquit the ICCon thegrounds that thedecisionhadnotbeenauthorisedbyparliamentaryresolution.

InMay 2016 the SCA ruled against theminister of communications, FaithMuthambi, on“encryption”ofset–topboxesontelevisionsets.TheCabinetdecidedthatencryptionwasnecessary,butshehadpublishedspecificationsexcludingit.However,theministerarguedthather interpretationof theCabinet’spolicywascorrect,andthat the judgementwouldmakelittledifferencetoitsimplementation.

InApril2016theSCAsentencedaformercommissioneroftheCompensationFundtothreemonths’ imprisonment suspended for five years after finding him guilty of contempt ofcourt.Hehadfailedtocomplywithanearliersettlementordertopayacompanyhandling

payment claims fromdoctorsproviding services topersons injuredatwork. The SCA saidthattheformercommissioner,ShadrackMkhonto,hadrepeatedlybreachedtheorderandfloutedadirective froma lowercourt. “It shows theutterdisdainof thecommissioner,aseniorstateofficialentrustedwithavitallyimportantsocialwelfareresponsibilityandvastpublicfunds(unnecessarilywastedbyhispersistentlycontemptuousconduct),forthecourtprocedures and its orders. The worst affront to the court is that he could not even bebothered to explainwhyhe failed to complywith its order.” The company acting for thedoctors said it had submitted 98 000 claims totalling R278 million that had yet to beassessedbythefund.Itwasstillawaitingpaymentofafurther36000claims,worthR180million, forwhichthefundhadaccepted liability.Since leavingthefund,MrMkhontohadbecomechiefoperationsofficerintheDepartmentofLabour.

TheSCAdeclared in2015that itwas“amostdangerous thing fora litigant,particularlyastatedepartmentandseniorofficialsinitsemploy,towilfullyignoreanorderofcourt”.ItsjudgementupheldthatoftheEasternCapeHighCourtin2012orderingtheDepartmentofHomeAffairstoreopenarefugeereceptioncentreinPortElizabethithadcloseddown.Thedepartmenthadignoredtheorder,andthenappealedtotheSCAagainstanenforcementorderwhichhadalsobeengrantedagainstit.

LawyersforHumanRightssaidthattheparliamentaryportfoliocommitteeonhomeaffairs,whichissupposedlythewatchdogoverthedepartment,hadprotectedthedirectorgeneralofhomeaffairs,MkuseliApleni,fromansweringanyquestionsaboutnumerouscourtordersstriking down various decisions to close refugee reception offices in Johannesburg, PortElizabeth,andCapeTown.Thecommitteehaditselfalsobeenquietaboutthedepartment’s“near–dailyfloutingoftheImmigrationAct[of2002]anditsregulations,theRefugeesAct[of1998]and its regulations, and theCitizenshipAct”. Thedepartment’s actions included“theunlawfuldetentionanddeportationofasylumseekersandrefugees”.Thedepartmenthadalsofailedtoabidebycourtorderstoreleaseunlawfullydetainedchildren.

InApril2015theConstitutionalCourtupheldthejudgementofalowercourtthattherehadbeen a transfer of business between City Power in Johannesburg and another company,Grinpal,andthatCityPowerwasobligedtoabsorbGrinpal’semployees,whichithadfailedtodo.Someoftheemployeeswerenowdestitute,whiletheirinsurancepolicieshadlapsed,leadingtotheirbeingblacklisted.Afterlosinganearlierappeal,CityPowertookthecasetotheConstitutionalCourt,whereitlostagain.

InDecember2015theSCAdismissedtheappealof theministerofbasiceducation,AngieMotshekga, against a decision of the North Gauteng High Court ordering her to delivertextbookstoschoolsinLimpopobythemiddleof2012.TheSCAsaidthatfailuretosupplythetextbookswasaninfringementofpupils’rightstobasiceducation.“Inthiscasewearedealing with the rural poor and with children,” the SCA said. “They are deserving ofconstitutionalprotection.”InOctober2016theLegalResourcesCentrepreparedtolaunchanactionagainsttheministeronbehalfofpupilsattwohighschoolsintheEasternCapefornon-deliveryoftextbooks.

The Eastern Cape High Court in December 2014 ordered the Eastern Cape educationdepartmenttohireanadministratortoensurethatitobeyedanordertopayR81milliontomorethan90schools.

InApril2012theNorthGautengHighCourtorderedthegovernmenttopayR400000toaprivate company after the police failed to carry out an interdict. The order was to keepstrikingworkersaway fromamineentranceandsoallowunhinderedaccess to themine.Butthepoliceofficerinchargeignoredtheorderandsaidithadnothingtodowithhim.TheCitizencommentedinaneditorialthatstrikersinSouthAfricagotawaywithmurder,whilescarcelyanyarrestshadbeenmade.“Partoftheproblemisobviouslygrossderelictionofdutybypolice.”

In January 2010 amember of the SouthAfricanAbalone IndustryAssociation brought anapplication for contempt of court against the then agriculture, forestry, and fisheriesminister, Tina Joemat–Petterson, for failing to obey an order of theWestern Cape HighCourtthathebeissuedwiththreepermits.Thepermitswerethenissuedfollowinganout–of–courtsettlementwhichwasmadeanorderofcourt.

In October 2010 Jackie Mackay, deputy director general of immigration services in theDepartment of HomeAffairs (DHA),was found guilty of contempt by theNorth GautengHighCourt.Hehadignoredtwoordersbyanactingjudgetoreleaseawomanwhohadbeenunlawfully detained. The woman, a Chinese national, had visited China to see a newgrandchild.However,onherreturntoSouthAfricawithavalidworkpermit,attemptshadbeenmadetocarryherforciblyontoanaircrafttodeporther.DHAofficialsdismissedtheorderforherreleaseas“justapieceofpaper”,promptingatelephonecallfromthejudge,on whom Mr Mackay slammed down the telephone. It was only when a third courtapplicationwasthreatenedthatthewomanwasreleased.

The premier of Gauteng, NomvulaMokonyane, delayed for a year (until February 2012)beforecomplyingwithahighcourtorderinstructinghertopayR9millionindamagesforachildwhohadsufferedbraindamagethroughthenegligenceofaprovincialhospital.

In May 2012 the deputy chief justice, Dikgang Moseneke, criticised the “tardiness ofgovernment institutions in implementing court orders promptly”. He said that theConstitutionalCourt,ratherthanthegovernment,hadbeenattheforefrontofgivingeffecttothe“pro–poorstance”intheConstitution.

BusinessDaycommentedinaneditorialinNovember2013that“therehavebeennumerouscasesofcabinetministersignoringcourtorders”.

ResidentsoftheJohannesburgsuburbofBordeauxSouthobtainedacourtorderagainstthecity council in March 2010 allowing them to erect structures to control access and socombatcrime.Thecitytoldthemitintendedtoremovethestructuresanyway,forcingthemto return to court for another order, against which the city said it would appeal. Theresidents’attorneyaccusedthecouncilof“vexatiouslitigation”.

InJuly2015theSocio–EconomicRightsInstituteofSouthAfricaaccusedtheJohannesburgCityCouncilofrepeatedlyignoringcourtorderstoprovideemergencyshelterto180peoplelivingin“deplorable”conditionsinthecity.Thepeopleinneedofshelterhadagreedtoanevictionorderprovidedtheyweregivenalternativeaccommodation,whichthecouncilhadundertaken to supply. The institute said that the city had not only failed to complywith

courtordersbutthatithadalso“failedtocomplywithcourtordersseekingtocompelittocomplywithothercourtorders”.

InDecember2010afullbenchoftheSouthGautengHighCourtfoundtheevictionof253people from a building in Jeppe Street in Johannesburg to have been illegal as it wasimplemented without a court order. The court said that the owners of the building, thesecurity company that carried out the eviction, and the local police station commanderwere in contempt of court for evicting the occupantswithout an order. Theywere givensuspendedsentencesoffinesandimprisonment.TebohoMosikili,anattorneyrepresentingthe occupants, said that unlawful evictionswere common occurrences in Johannesburg’sinner city, which was “undergoing a process of gentrification with no affordable decentaccommodationavailabletopoorpeoplecurrentlylivingthere.”

In July2010 the SouthGautengHighCourtordered the Johannesburg city council and itsmetropolitanpolicetorebuildhomesinKliptowntheyhaddestroyedwhilecarryingoutanunlawfuleviction.Thecitysaiditwantedtoupgradethearea,whichispartofSoweto,andthattheresidentswereunlawfuloccupierswhowerebeingobstructive,makingthesuccessofhousingdeliveryprojectsahugechallengeforthecity.

InAugust2007theNorthGautengHighCourtfoundthattheministerofsafetyandsecurity,Charles Nqakula, had failed to comply with an order of the SCA that the police shouldrebuildshackstheyhadearlierburntdown.JudgeBillPrinsloosaidtheministershouldgotoprison until such time as the shacks were rebuilt. The sentence was suspended and theministerlodgedanappeal.Thejudgesaidthatthetimehadarrivedforahighercourttogiveguidanceonthecircumstancesinwhichaministerorotherofficialcouldbeimprisonedforcontemptofcourt.

InMarch2010ZureenaAgulhas,masterof theWesternCapeHighCourt, failedtoobeyajudgement instructing her to pay more than half the tariff rate to the liquidator of aninsolventcompany.MsAgulhasclaimedtherightto“interpret“thejudgementandpaidonlythetariffrate.Whenthematterwentbacktocourt,JudgeWilfridThringsaidthatshehadoptedtodisobeyacourtrulingandhadacted“unlawfullyandwithgrossimpropriety”.

In2008theSouthGautengHighCourtorderedtheNationalProsecutingAuthoritytoreturnassetsworth someR280million seized from a businessman in the run–up to his trial fordefrauding theSouthAfricanBankofAthensof someR10million.ByDecember2010 theassetshadstillnotbeenreturned,obligingthebusinessmantobringacivilclaimagainsttheNPA.

In August 2006 the KwaZulu–Natal High Court said that the ministers of health andcorrectional services were in contempt for failing to heed an instruction to supplyantiretroviraltreatmenttoHIV–positiveinmatesoftheDurban–Westvilleprison.

Attacksonthecourts

In an interview shortly after hewas elected president in 2009, Jacob Zuma criticised theConstitutionalCourtforregardingitselfasbeing“closetoGod”.Heprofessedperplexityastowhythecourtshouldexerciseauthorityoverthewishesofthepopularlyelectedmajority

party. In July2011hewarned the country’s judges to stayon their sideof the fenceandleavepoliticstopoliticiansandgovernancetothegovernment.

InJanuary2016MrZumacriticised“lowintensitylaw–fare”intheformofcourtchallengesaimedatdiverting“legitimatedemocraticoutcomes”.

Over the years there have been numerous public attacks on the courts byministers andotherpoliticians. InAugust2011thesecretarygeneralof theANC,GwedeMantashe,saidthat the judiciarywas becoming a form of opposition: “You cannot have a judiciary thatseeks to arrest the functioning of government.” The following year he said that courtsshould not interferewith themanner inwhich the governmentmanaged its finances. In2015, following the ruling of the High Court on failure to arrest Omar al–Bashir, he saidsectionsofthejudiciaryweredrivento“createchaosforgovernance”.

In 2015 BladeNzimande, secretary general of the South African Communist Party (SACP)andministerofhighereducation,calledon judgestostop“ideologicalblackmail”becausetheywere running “the danger of undoing our constitutional democracy through judicialoverreachthatunderminesprinciplesofmajorityruleandseparationofpowers”.

A meeting of the ANC, the SACP, and Cosatu said that “certain regions and judges areconsistentlyagainstthestate”.

In August 2015 a former national director of public prosecutions, Vusi Pikoli (see below),saidthatthereasontheexecutivebranchofgovernmentfrequentlyfound itselfhavingtoanswer to the courts was that politicians were loath to obey the law. In answer togovernmentcriticismsof“judicialoverreach”andthatthecourtswerenot“respectingtheseparation of powers”, Mr Pikoli said they were empowered by the Constitution toadministerjusticetothosewhosoughtit.

Warningsbyjudges

FollowingrenewedattacksonthecourtsinthewakeoftheOmaral–Bashirjudgement,27of the country’smost senior judges jointlywarned against “the dangers of repeated andunfoundedcriticism”.Thechiefjustice,MogoengMogoeng,saidthattheruleoflawwasthecornerstoneofconstitutionaldemocracyandthat“asanation,weignoreitatourperil”.Heand his colleagues wished to assure the nation and theworld that South Africa’s judgesremainedsteadfastintheir“sacred”obligationstoupholdandprotecttheConstitutionandtheir oaths of office. Judge Mogoeng added that court orders had by and large beenhonouredbyotherarmsofstate,butthat inthe“fewinstances”wheretheyhadnot,theeffectwastounderminetheruleoflaw.

Statutoryinstitutionsundermined/attacked

By October 2010, according to the public protector, Thuli Madonsela, instances of“government stonewalling” of her queries, recommendations, and directives had risen tosome1700.ByJune2011thesituationhadlittleimproved,promptinghertowarnagainstallowingthis“recipeforimpunity”topersist.

In March 2011, some two years into her non–renewable seven–year term of office, MsMadonsela was the target of a visit by two crime intelligence officers which the ANCdescribed as a “suspicious raid.” The visit followed her finding in February 2011 that thethenpolicecommissioner,GeneralBhekiCele,hadplayeda role in signingaR500millionleasefornewpoliceheadquarterswhichneverwentouttotender.

InJuly2011therewerereportsthatMsMadonselawasabouttobearrestedonchargesofcorruption(whichnevermaterialised).

Shortly before these reports, she had said that the government failed to implement the“remedialaction”sherequiredincasesinvolvingcorruption,unethicalconduct,andabuseof power and state resources. Ignoring such action meant there would be no realaccountability or incentive to change; it was a recipe for impunity. Her office said thatorgans of state ignored the constitutional and statutory rights of complainants to followcost–free routes as opposed to court processes that would cost more money. Even theSouthAfricanBoardforSheriffshadfailedtocomplywithherfindings.Someofthelawyersadvising thestatewerepartof theproblem,becausetheyhadbecome“superimposedasreviewpanels”ofherdecisions.However,shesaid,onlycourtscouldreviewherdecisions.TheseproblemspersisteduntiltheexpiryofMsMadonsela’stermofofficeinOctober2016.

In2014adeputyministerinsinuatedthatMsMadonselawasaCentralIntelligenceAgency(CIA) spy chargedwith creating a puppet regime in South Africa for theUnited States ofAmerica. In 2015 she said that her office had received unprecedented “vitriolic attacks”afterherfindingsagainstMrZumainrespectofhisNkandlaestate.

In2016shesaidthatpeopletendedtolightfiresbehindherbackeverytimesheconductedinvestigationstheywerenothappywith.

GlynnisBreytenbach,aformerseniorprosecutorintheNationalProsecutingAuthority,wasfacingchargesatthetimeofwritingfordefeatingtheendsofjustice.MsBreytenbach,nowan opposition MP, had earlier been cleared on disciplinary and other charges levelledagainst her in connection with her investigations of the Kumba/Imperial Crown Tradingissue (see below). She had resigned after being suspended for refusing to drop criminalcharges against Lieutenant–General Richard Mdluli (see below), a former head of crimeintelligence known for his pledges of loyalty toMr Zuma. She had been the victim of anattempttoforceherofftheroad,andhadbeenshotatbyunknowngunmen.Deadcatshadalsobeenfoundhangingonhergate.

Mxolisi Nxasana,who served as national director of public prosecutions for about a yearbefore leaving with a payout of R17.3 million in 2014, was asked to resign after it wasdiscoveredthathehadnotdisclosedamurderchargeonwhichhehadbeenacquitted30years earlier. The Black Lawyers’ Association asked why he was being pursued after hisappointment for things that should have been investigated beforehand. Paul Hoffman ofAccountability Now suggested thatMrNxasana had been elbowed out to saveMr Zumafrom answering the charges brought against him. Ms Breytenbach suggested that thereasontheministerinthePresidency,JeffRadebe,wantedMrNxasanaout,wasthathehadrefused to lay criminal charges againstherwhile alsowithdrawing theappeal against theacquittalofGeneralBooysens(seebelow).Shesaid,“Hesawthattherewasnocaseagainst

me.HeisanindependentmanandIthinktheyarenolongerhappythatheisnotplayingaccordingtotheirrules.”

InApril2014aLabourCourtjudge,RobertlaGrange,orderedthepolicetoredeployColonelKobus Roos to an audit job from which he had been removed by General Mdluli afterproducingadossieralleging thatcrime intelligencememberswere involved incorruption,looting,andothercrimes.ColonelRoossaidthatthefraudhehaduncoveredwasonly“thetipoftheiceberg”.Thejudgesaidthatinsteadofbeingpraisedforhisexcellentworkhehadbeen“placedinastateofinternalexile”whenhewasmovedtoa“meaningless”jobwherehehadsatidle.

Attacksonprivatewhistleblowers

PaulO’Sullivan,aForensicConsultant lookingintoofficialcorruption,wasarrestedinApril2016by15HawksofficersonanaircraftabouttoleaveforLondon,whereheintendedto“telltheworldthatSouthAfricahasbeentakenoverbyacorruptregime”combiningJacobZuma and the Gupta family. He was charged with contravening the Citizenship Act byleavingSouthAfricaonaforeignpassport.Animmigrationlawyersaidhehadneverheardofanarrestonthesechargeseventhoughthelawhadcomeintoforcetenyearspreviously.The normal procedure was a warning. Mr O’Sullivan’s arrest appeared to be a case ofselectiveenforcementofthelaw.TheDepartmentofHomeAffairswasunabletosayhowmanypeople hadbeen chargedunder theAct, but that “wehad to apply the law to theletter”.

InSeptember2016MrO’SullivanlaunchedanapplicationforaninterdictagainsttheHawks,the NPA, the police, and the Department of Justice and Constitutional Development,claimingthattheirinvestigationsintohisaffairswerepoliticallymotivated.InOctober2016MrO’Sullivan’s lawyersclaimedthatcorruptpoliceofficialshadbeeninvolvedinattemptstokillhimonatleastsixoccasionsandthattheyhaddeliberatelybungledatraphehadsettocatchcriminalconspirators.

In March 2016 robbers broke into the offices in Johannesburg of the Helen SuzmanFoundation and removed its computers. The director of the foundation, Francis Antonie,linked the robberywith theeffortsof the foundation to interdict theheadof theHawks,Major–GeneralMthandazoBerningNtlemeza,fromexercisinghispowerspendingareviewoftheprocessesleadingtohisappointmentdespitejudicialfindingsimpugninghisintegrity,honesty,andfitness(seebelow).ThefoundationhadalsochallengedtheconstitutionalityofthelegislationgoverningtheHawks.Inaddition,ithadgonetocourttoseekacommissionofenquiryintothearmsdealconcludedin1999.

InJuly2015eightpoliceofficersraidedtheJohannesburghomeofHughGlenisterwithoutawarrant.MrGlenisterhadspentR3.5millionofhisownmoneymountingalegalchallengeto the disbanding of theScorpions while also challenging the legislation establishing theHawks.Hesuggestedthattheraidcouldbelinkedtohishistoryoflitigationandvociferouscriticismof somepoliticians. The police said they had acted on a tip–off that thereweredrugsonhisproperty.

Unlawfulharassment/prosecution

A former judgeof theConstitutional Court and current chairmanof Freedomunder Law,JohannKriegler,wrote inAugust2016 that the financeminister,PravinGordhan,was thetargetof“persecution”bytheHawks.Despitehavingansweredseveraldetailedquestionsearlier in the year, anddespitehavingbeen told inMayby theHawks thathewasnot asuspect, Mr Gordhan was summoned by them in August for a “warning statement”.However, said JudgeKriegler, theHawkshadnopower to issuesuchasummons. If therewereany chargesagainstMrGordhan, theproperprocedurewas to formulate themandsummonhimtocourttoanswerthem. InsteadtheHawkshadmountedapublicrelationsexerciseintheglareofpublicityandthe“hintofsomethingsuspicious”.Itwasa“charade”,andan “affront to the ruleof law” calculated to “smear”and “intimidate”MrGordhan–whodeclinedtopresenthimself to theHawks,butsaidhewouldcooperate inany“bonefideinvestigation”.

ThecasethatMrGordhansupposedlyhastoansweristhatheestablisheda“rogueunit”atthe South African Revenue Service (SARS) in 2007 when he was commissioner there.Although various accusations have been levelled against the unit, another formerconstitutional court judge, Zak Yacoob, said he had advisedMr Gordhan that there wasnothingunlawful,letalonecriminal,aboutit.JudgeYacoobblamedPresidentZumaforthedecision to pursueMrGordhan andothers involvedwith theunit seeking to uncover taxevasion.

ThepursuitofmembersoftheunitbytheHawkswasinitiatedbyMrTomMoyane,whoastax commissioner is supposedly subordinate toMrGordhan as financeminister, butwhoinsteadenjoysthesupportofMrZuma,asdoestheheadoftheHawks,GeneralNtlemeza.HavingcompletedtheirinvestigationofMrGordhan,theHawkshandedtheirdockettothenationaldirectorofpublicprosecutions,ShaunAbrahams,towardstheendofSeptember.

MrGordhantoldsomeofhisstaffthathewasbeingpersecutedfor investigatingirregularcontracts with companies owned by the Gupta family but that hewould not back downeven if it meant dying to save the country from the “thieves”. A former ANC MP andmemberoftheSouthAfricanCommunistParty,RaymondSuttner,saiditappearedthatMrGordhanandtheNationalTreasury“standasabarrierpreventingwholesalelootingofstateresources”.

InOctober2016MrGordhanwaschargednotinconnectionwiththe“rogueunit”butwithfraudandtheftarisingfrompaymentstoapensionfundonbehalfofaformerSARSofficial,whowas thensupposedlyunlawfully re–employedafter takingearly retirement. FreedomunderLawdismissedthechargesas“legallyflawedandfactuallyunfounded”.Thisviewwaswidelyechoed,andanumberofseniorANCfiguresdeclaredtheirsupportforMrGordhan.MrAbrahamswaswidelycondemnedforbringingtrumped–upcharges,whichMrGordhan“invited” him to withdraw after declining his invitation to make representations. AaronMotsoaledi, the health minister, described the decision to prosecute Mr Gordhan as “adeclarationofwar:Wewantlawandorder–notinstitutionsusedtofightnefariouspoliticalbattles”.

In September 2016 the former head of the supposed “rogue unit”, Johann vanLoggerenberg, published a book entitledRogue: The Inside Story of SARS’s Elite Crime–bustingUnit.MrVanLoggerenbergandhis teamof investigatorshadbeenforcedtoquit.

Judge Kriegler said that “impairing SARS’s capacity by blunting its investigative edge hasbeen tantamount to sabotage”. Reviewing the book, a journalist onBusinessDay, FrannyRabkin, said its central premise was that the stories of the rogue unit were strategicallyplaced leaksbysectionsofSouthAfrican intelligence incahootswithorganisedcrime– inparticular, the illicit tobacco industry – to shut down one of themost successful crime–bustingunits.

Mzwanele(Jimmy)Manyi,aformerdirectorgeneraloflabourandgovernmentspokesmanwhonowheadstheDecolonisationFoundation,lodgedaformalcomplaintinOctober2016withtheHawksagainstKennethBrown,chiefprocurementofficerofthetreasury.MrManyiquestionedcertaindepositsintoMrBrown’sbankaccount.Theallegationscameatatimewhen Mr Brown said that fraud and waste accounted for between 30% and 40% ofgovernment procurement spending. The treasury said that it viewed the allegations in aseriouslightandthatithoped“MrManyiisraisingthismatteringoodfaith”andthatitwasnot“adeliberateattempttosowseedsofsuspicionontheintegrityofthetreasuryandcastaspersionsonMrBrown”.ItsaidithadwrittentoMrManyiandhisfoundation,aswellastotheheadoftheHawks,GeneralNtlemeza,togetthe“purporteddossierthatsupportstheseallegations”.

TheKwazulu–NatalHighCourtinSeptember2016grantedanapplicationbyMajor–GeneralJohan Booysen, head of the Hawks in KwaZulu–Natal, to have charges of murder andracketeering against him set aside. The judge said that decisions by the acting nationaldirector of public prosecutions, Nomgcobo Jiba, to prosecute General Booysen werearbitraryandunconstitutionalinthattheyoffendedtheprinciplesoflegalityandtheruleoflaw (seebelow).General Booysenhad long claimed thathewas the focusof a campaignoverseveralyearstogetridofhimbecauseofhisdeterminationtopursuecriminalsinhighplacesorwithtop–levelpoliticalconnections.Thecampaignincludedthereinstatementofcriminal charges previously overturned in court. Hewrote a book entitledBlood on TheirHandsinanattemptto“exposethosedestroyingthecriminaljusticesystem”.

Thenationaldirectorofpublicprosecutions,VusiPikoli,wassuspendedbyPresidentThaboMbeki in 2007 and then fired by President Kgalema Motlanthe in 2009 for refusinginstructions to desist from prosecuting the then police commissioner, Jackie Selebi, forcorruption. Mr Pikoli was dismissed despite the finding of an enquiry under the formerspeakeroftheNationalAssembly,FreneGinwala,thathewasapersonofunimpeachableintegrityandshouldbereinstated.Hechallengedhisdismissalincourt,butthensettledfora payout of R7.5million, so that the legality or otherwise of his dismissal never came tocourt.

In June 2016 Freedom Front Plus, a small opposition party, laid charges against PanyazaLesufi,MECforeducation inGauteng, forviolatingtheChildren’sActof2005byexposingyoung children to psychological and social harm when he publicly attacked a crèche inCenturionoutsidePretoriaas“racist”andurgedhisfollowerstovisitthecrèchewithhim,sayinghewould“jumpthefenceifnecessary”.Theincidentfollowedmisrepresentationofaphotographshowingablack toddlersittingaloneata table.Theownerof theschoolsaidthat shehad subsequently receiveddeath threats andhatemail. AntonAlbertsMPof FFPlus said thatMr Lesufi should have conducted a proper investigation before finding theschoolguiltyand“tweeting”20000followersaboutit.

InAugust2012twopolicemenwhohadbeenaccusedofintimidation,assault,andpointingafirearmatthedriverofWinnieMadikizela–Mandelatwoyearspreviouslyhadthecriminalcase against them withdrawn. They had pulled over Mrs Madikizela–Mandela’s car forspeeding but an altercation followed and she demanded that they apologise.When theyrefused theywere charged. SaidConstableAbel Twala: “Iwill not apologise fordoingmyjob.” The case dragged on for two years in the face of claims that there was politicalinterference,asseveralprosecutorswithdrew.

Carolyn Raphaely, a member of the Wits Justice Project, said that the minister ofcorrectional services, Nosiviwe Mapisa–Nqakula, had acted contrary to the CorrectionalServices Act of 1998 by parading three prisoners before themedia inMarch 2012 in anapparent “naming and shaming” exercise. The act, Ms Raphaely said, prohibited theparadingofprisoners in frontofcameraswithouttheirconsent.TheLawSocietyofSouthAfricacriticisedtheministeronthesamegrounds.

Institutions/officialsbehaveunlawfully/arrogantly/abovethelaw

InAugust2016theHighCourtoverruleda9.4%electricitytariff increaseapprovedbytheNational Electricity Regulator of South Africa (Nersa) as “irrational, unfair, and thusunlawful”.EskomandNersahavesoughtleavetoappeal.

TheLabourCourt in July2016ordered the reinstatementofeightSABC journalistswhosedismissal had been unlawfully set aside. They said that the SABC’s policy of banningcoverageofpublicprotestswasunconstitutionalandthatParliamentwas inbreachoftheConstitutionfornotholdingthepublicbroadcasteraccountable.

InJune2016theConstitutionalCourtruledthattheIndependentElectoralCommission(IEC)hadunlawfully failed to record and keep the residential addressesof voters.However, inorder toenable thenationwidemunicipalelectionson3rdAugust togoahead, the courtsuspendeditsorderofinvalidityfortwoyearssothattheywouldbereadyintimeforthegeneralelectionin2019.Thecasehaditsoriginsinallegationsthatvotershadbeenbussedinforby–electionsinsomeofthewardsintheTlokwe(NorthWest)municipalityin2013.InanearlierdecisionthecourthadsaidthattheIEChadadutytoprovidetheaddressesofallvotersontheroll,aninstructiondatingbackto2003,andthatitsfailuretodosoamountedtounlawfulconduct.

InAugust2015theNorthGautengHighCourtorderedtheDepartmentofLabourtohandoverasafetyreportithad“unlawfullyandinvalidly”withheld.Thereportdealtwithafirewhichleft13peopledeadbutthedepartmenthadrefusedtomakethereportavailabletotheirfamilies.

DavidLewis,executivedirectorofCorruptionWatch,saidinMay2015thatimmigrantsfromelsewhereon thecontinentweresubject to repeateddemands forbribesatborderpostsandbyofficialsoftheDepartmentofHomeAffairs.Thosewhosetupsmallbusinessessoonencounteredmetropolitanpolicewho rewarded themwith “abroken skull anda trashedstreetstall”iftheytriedtoasserttheirrights.

AreportinJuly2015byLawyersforHumanRightsandtheAfricanCentreforMigrationandSocietysaidthatalmostathirdofthepeoplewhohadtodealwithSouthAfrica’srefugeereceptionofficeshadbeenaskedforbribes.

InJuly2011thedeputyministerofco–operativegovernanceandtraditionalaffairs,YunusCarrim, said that senior managers in municipalities often refused to act on certain keyinstructions frommayorsor senior councillorson thegrounds that “theparty”whichhad“deployed”themhadnotagreed.

InFebruary2011JohannMettler,whohadbeenappointedbytheKwaZulu–Natalprovincialgovernment to intervene in the maladministration of the Msunduzi (Pietermaritzburg)municipality,saidthathehadbeenshockedattheextentoflawlessness,non–compliance,and corruption. He said that “everyone from top to bottom had a sense of entitlement,werenotanswerabletoanyone,andcoulddowhattheypleased”.

The Human Rights Commission reported in 2010 that 93% of local authorities failed tocomplywiththereportingrequirementsof thePromotionofAccess to InformationActof2000.Only44%ofnationaldepartmentscompliedwiththeirreportingrequirements.

Aconfidentialreportbytheauditorgeneralin2010foundthatatleast58armstransactionswithclientsinatleast26countrieshadtakenplaceintheyearendingMarch2008withoutthelegallyrequiredinputbyrelevantgovernmentdepartments.Thereportsaidthatthelawrequiredeachtransactiontobeapprovedbyaspecialcommitteeofcabinetministers,butthatthishadnotbeendone.NorhadtherelevantreportsbeenmadetoParliamentsince2006.

AhighcourtjudgeruledinJanuary2010thatthepolicyoftheDepartmentofCorrectionalServicesofkeepingprisonersinjailaftertheyqualifiedforparolewasillegal.Orderingthereleaseof amanwhohadbeen imprisoned formurder, the judge said therehadbeena“complete and utter disregard” by prison officials and the state attorney for legalprocedures,therightsofprisoners,andtheauthorityofthecourt.

APretoriamotoristwastoldinJuly2015bytheTshwaneMetropolitanPoliceDepartmentthathecouldnotrenewhismotorvehiclelicencebecauseawarranthadbeenissuedforhisarrest for “underpaid e–toll infringements”. The South African National Roads Agency,whichisresponsibleforcollectinge–tolls,saidthatthisshouldnothavehappened.

BusinessDaycommentedinaneditorialinMarch2015thatthepresidentwasoftendrivenatveryhighspeedsevenoncongestedmotorways,hisownandotherofficialdriversposingdangerstoothers.“Itseemstheprivilegetoignoretherulesoftheroadhasbecomeaperkofbeingintheexecutive,regardlessoftheconsequences.”

Incidents inearlier years include: thekillingof cyclistsbypolice vehicles;brain injuries toThomasFerreira,ateenagerwhowashitbythehigh–speed“bluelight”vehicletransportingtheGautenghousingMEC,HumphreyMmemezi,in2011;motoristspushedofftheroadbyoncoming“blue–light”vehicles;andassaultsbybodyguardsordriversofofficialvehicles.Inan editorial in January 2012,The Citizencomplained that “official drivers get away withmurder”.

In July 2012 the Department of Justice and Constitutional Development said that theNationalRoadTrafficActof1996allowedforministers’driverstoexceedthespeedlimit.Anumberofministershad replied toquestions inParliament indicating that theyhadbeenexempted from paying R207 740 in fines. The worst offender was the then mineralresourcesminister, Susan Shabangu,with R64 060 in fines. Also high on the listwas theminister of agriculture, forestry, and fisheries, Tina Joemat–Petterson,with R30 400. Herdepartmentsaidthatthefinesweresenttothepolice,asshewasonlyapassenger.Otherdepartmentssaidtheyhadpaidthefinesorhelddriversresponsible.

In April 2012 an SABC journalist, Tim Ncube, was killed in a head–on collision when themotorcade transporting theZulumonarch,Goodwill Zwelithini, overtook in theoncomingtrafficlane.Alsokilledwastheking’sVIPdriver,ThembinkosiMpanza.

TheSouthAfricanVehicleRentingandLeasingAssociationreportedinNovember2010thatthe Johannesburg and Cape Town metropolitan traffic police were unlawfully lockingmotorists up for unpaid fines. The transport minister, Sbu Ndebele, said that “driversarrestedforanyoffencemusthavetheirdrivinglicencesseizedaswellassuspendedand/orcancelled.”His spokesman,however,pointedout that licences couldbe removedonlybycourtorder.

The minister of international relations and co–operation, Maite Nkoana–Mashabane,refused to complywith securityprocedures at theairport inOslo (Norway) in September2011.Shedeclinedtoallowherhandbagtopassthroughanx–rayscannerandthenmissedher flight, chartering a private aircraft instead at a cost of more than R235 000. TheNorwegianairportauthoritiessaidthateventhecountry’sprimeministerhadtogothroughairportchecks;onlyroyaltyandheadsofstatewereexempt.

PresidentJacobZumarefusedtoaccountforbeingsixmonthslatein2010withhisreportonhisinterests,assets,andliabilitiesasstipulatedbytheExecutiveEthicsActof1998.

Power/licensing/regulatorabuses/over-reach

TheshadowministerofeconomicdevelopmentintheDemocraticAlliance,MichaelCardo,saidinApril2016thattheministerofeconomicdevelopment,EbrahimPatel,wasusurpingthepowerof competition regulators in theproposedmergerofSABMillerandAnheuser–Busch InBev by prosecuting his own policy agenda on the pretext of “development” and“public interest”.Effectiveregulationrequiredclearandpredictable institutionalrulesandadministrative processes, Dr Cardo said, but Mr Patel was “riding roughshod overthem”.BusinessDaywroteinaneditorialinMay2015thatsomeofMrPatel’sinterventionswere hard to justify in terms of competition issues. The retail sector was intenselycompetitive,sotheminister’szealforyetanotherprobewas“puzzling”and“baffling”.Thepapersaidthatitcouldonly“speculateonthemotivesbehindit”.

RobertVivian, professorof financeand insurance in theUniversityof theWitwatersrand,wroteinApril2012thatthatthecompetitionauthoritiesweregarneringbillionsofrandsforthegovernmentwithoutmeetingtheconstitutionalrequirementsofdueprocess.Thiswasbecause accused companies were persuaded to admit guilt and pay enormous fines,sometimes inexcessofR1billion. Insteadoftrialbeforean impartial judiciaryadheringto

historically established procedures, adjudication was “carried out in–house by theCompetitionTribunal”,whichwasnotpartofthejudiciary.

Patrick Bracher, senior partner in a law firm, wrote in August 2012 that the NationalConsumer Commission had lost several major hearings before the National ConsumerTribunalbecause ithadactedbeyond itspowers, interaliaby issuingsummonseswhen itwasnotentitledtodoso.Thesummonseshadbeensetaside,thetribunalpointingoutthatthe commission was required to act lawfully and reasonably and in a procedurally fairmanner.Thesewere“seriousindictmentsagainstaregulatoryauthority”,wroteMrBracher,since it was “not difficult to be a good regulator”. The tribunal, which is responsible forensuringthatthecommissionactswithintheframeworkoftheConsumerProtectionActof2008, said that businesses had had to battle against illegal compliance notices,while thecommissionhadalso failedtomeet itsmandateofensuringthatconsumershadeffectiverecourseagainstinfringementsoftheact.

The chief executive of Telkom, Sipho Maseko, complained in August 2016 that theIndependent Communications Authority of South Africa (Icasa)was “making rules on therun”onthespectrumlicensingprocess.Therewerebillionsofrandatstake.“Ifrulesarenotclearbutrandomanderratic,itcreatesdiscomfort.”Behaviourlikethismeantthatalmostallthebigdecisionsendedupincourt.

Hulme Scholes, a mining lawyer, said in August 2015 that the Department of MineralResources(DMR) “abused theopen-endedand vagueprovisionsofmining charters to tryandpersuademining companies tomeetunwarranteddemands”.Victimisationofminingcompaniesoftentooktheformofthedepartment’s“instructingitsminehealthandsafetyinspectors to issues spurious notices” to suspend operations “as retribution”,Mr Scholessaidinanaffidavit.

Several times in the past few yearsmining companies have suggested that the DMR hasorderedshutdownsofentiremineswhensafetyissuescouldbeaddressedwithoutstoppingoperations.Oneminingexecutivesaidin2015thatifstoppages,issuedunderSection54oftheMineHealth and Safety Act of 1996,were challenged, “you get bullied, audited, andstopped to death”. The Chamber of Mines said it supported the justified application ofstoppagenotices,butthatinsomecasestheywereappliedinconsistentlyandunfairly,andoften involved the shutting down of unaffected areas. AngloGold Ashanti complained inAugust2016thatonlysixofthe77stoppagenoticesissuedtoitinthefirsthalfoftheyearrelated to fatal accidents, the rest being the result of audits and inspections and ontechnicalities.TheDMRsaiditdidnotissuestoppagenoticestovictimiseminingcompanies,butasacorrectivemeasuretoprotectthelivesofmineworkers.

The North Gauteng High Court in February 2012 criticised officials of the mininginspectorateforgrosslyabusingtheirpowersbyclosingdownabrickmanufacturerbecauseofaworntyreonaforklift,causingthecompanytolosemorethanR1million.Thejudge,BrianSouthwood,grantedanorderthatthebrickworkswerenotamine.Oneofficialhaddismissedapreviouscourtrulingtothiseffectas“themereopinionofajudge”.

InOctober2016KumbaIronOrefinallywonaneight–yearbattleforaminingrightwhichithad been unlawfully denied in 2009 in an abuse of the “first–in first–assessed” principle

supposedlygoverningthegrantingofminingrights.AprospectingrighthadbeenunlawfullyawardedtoImperialCrownTrading,acompanylinkedtotheGuptafamily.Thisnecessitatedchallenges by Kumba through the courts which eventually ended with a ruling by theConstitutional Court in its favour in 2013 – although it took theDMR three years to giveeffecttothecourt’sdecision.

Inarecentsurveyofminingjurisdictions,theFraserInstitutereportedminingexecutivesashavingsaidofSouthAfrica that“theentireprocessof theadministrationof,andapplyingfor,andawardingof,explorationrightsisprotected,corrupt,arbitrary, inconsistent,andanightmare.

InMarch2014theMpumalangadepartmentofpublicworksabandoneditsplantoevict13business ownerswhohadoperated in thehistoric gold–mining townof Pilgrims’ Rest fordecades.Theownershadbeenissuedwithsummaryevictionnoticesin2012andhadbeentold the leasesover their shopshadbeen transferred tonew tenants.Ahigh court judgedescribed the department’s tender process as a “shambolic” and halted the evictionspendinga review.Theproposedevictionswereabandonedafter thepublicprotectorhadreportedthat“theprocesswascharacterisedbygrossirregularitiesandmaladministration”.

In January 2013 the Department of Social Development unlawfully cancelled theregistrationsofsome37000non–governmentalorganisations(NGOs).Followinganoutcrythe registrationswere reinstated, although itwas not clearwhether deregistrationwas abona fide mistake or designed to intimidate NGOs, some of which have incurred thegovernment’swrathbycriticisingitortakingittocourt.

TheConstitutionalCourtinJuly2013ruledinfavouroftwoFreeStatehighschoolsthathadbeenforcedbyprovincialeducationofficialstoreadmittwopupilswhohadfallenpregnantandwhomtheyhadexcluded.Thecourtruledthattheofficialshadnotfollowedrequiredprocedures in ordering the readmissions. It said that state functionaries, nomatter howwell–intentioned, could do only what the law empowered them to do. The court alsoorderedtheschoolstoreviewtheirpregnancypoliciesastherewereconcernsabouttheirconstitutionality.TheSCAhadruledthepreviousyearthatdepartmentalofficialscouldnotsimplyoverridethepoliciesofschoolgoverningbodies.

In2012theFreeStateHighCourtinvalidatedadecisionbytheministerofhighereducation,Blade Nzimande, to fire the vice chancellor of the Central University of Technology andreplacehimwithanadministrator.JudgeJohannDaffuesaidtheministerhadexceededhispowersbythese“drastic”actionsandthathehadtoaccepttheautonomyofuniversities.DrNzimandesaidthatthejudgementriskedmakinguniversitieslawsuntothemselvesandwarned that he might amend the legislation to give himself powers to intervene whenuniversityadministrationscollapsed,awarningwhichhehassubsequentlyimplemented.

Theministerofpolice,NkosinathiNhleko,confirmedthathesummonedtheriotpolicetoParliament in August 2014 to deal with disruptions by the Economic Freedom Fighterswithoutconsultingthespeaker,despitethefactthatparliamentarylegislationstatesthatnomembersofasecurityservicemayentertheparliamentaryprecincttoperformanypolicingfunctionwithoutherpermission.

Theministerofdefenceandmilitaryveterans,NosiviweMapisa–Nqakula,wasreportedtohavedeclaredthatshehadprovidedpassageinastateaircraftforafugitivefromBurundiwhousedforgedpapers,apparentlyprovidedbytheminister’ssister,toenterSouthAfricaillegally in January 2014. She said that in order to give the apparently abused fugitive“educationandlove”shewoulddothesameagainifnecessary(seebelow).

Bendingtherules/selectiveenforcement/dilatoryconduct/paymentfailure/impunity

A columnist onBusiness Day, Bronwyn Nortje, questioned selective enforcement of theMedical SchemesActof 1998by theCouncil forMedical Schemes. Private schemeswereforced to bring their solvency reserves up to the statutory minimum of 25%, but theGovernmentEmployeesMedicalScheme(GEMS)hadbeenallowedtoremain“stubbornlybelow” the statutoryminimum for almost adecade.MsNortje suggested inAugust2016thatthereasonwasthatGEMShadthetreasuryasabackstop“whenthingsgoawry”.

Thestate–ownedarmsprocurementcompany,Denel,soughtpermissioninSeptember2016tobeexemptfromtreasurylawsandregulationsgoverningirregularexpenditurethatithadpreviouslyignored.

InMay2016theFinancialIntelligenceCentre(FIC)handedareporttothecommissioneroftheSouthAfricanRevenueService (SARS),TomMoyane, totheeffect thathissecond–in–command,JonasMakwakwa,shouldbeinvestigatedinconnectionwithR1.2millionworthof “suspicious and unusual” deposits into his bank account. The report said that thepayments should be probed to ascertain whether they were the proceeds of corruptactivitiesorothercrimes.MrMoyanesaidthathehadgiventhereporttoMrMakwakwa.However, itwasnotuntil theunusualbankdepositshadbeenreported in themediaandquestions had been asked in Parliament in mid–September that Mr Makwakwa wassuspended from his post. The FIC is a statutory body set up in 2003 to combat moneylaundering,thefinancingofterroristactivities,andothercrimes.BusinessDaywonderedinan editorial why the Hawks had not acted, contrasting the dilatory handling of theMakwakwacasewiththeswiftactionsagainstPravinGordhan.ItalsopointedoutthatMrMoyanehadalsobeenquick tosuspendotherofficials inconnectionwith thesupposedlyunlawful “rogueunit” set up while Mr Gordhan was at SARS before his appointment asminister of finance. David Lewis, executive director of Corruption Watch, said that MrMoyanewashimselfpossiblyguiltyofanoffenceunder thePreventionandCombatingofCorruptActivitiesActof2004fornotswiftlyreportingMrMakwakwatothepolice.

InSeptember2016theMailandGuardiancontrastedtheHawks’“doggedhounding”ofMrGordhanwiththefactthatithadassignedonlyasinglepolicemantoinvestigateallegationsof“acomplexmultibillionrandfraudandcorruptionscandal”atthePassengerRailAgencyofSouthAfrica.

The chairman of the agency, PopoMolefe, expressed concern that political pressurewasbeing brought to bear on the investigation, towhich he and the treasury had assigned alargeteamoflawyers,forensicauditors,andinformationtechnologyspecialiststoscrutinisedocuments relating to142 tenders said tobe “dodgy”witha contract valueof someR24billion. The newspaper said that some of the officials at the agency were refusing tocooperatewiththeinvestigation.

InOctober2016theFreeMarketFoundation(FMF)contrastedthe“extraordinary”effortsoftheHawksininvestigatingPravinGordhanwiththeirfailuretoinvestigatetheillegaluseofanaircraftbythedefenceministerinJanuary2014.TheFMFalsoqueriedthefailureofthe Hawks to investigate the unlawful sale of the country’s strategic oil stockpile (seebelow).

Phephelaphi Dube, director of the Centre for Constitutional Rights, suggested that thefailure of the National Prosecuting Authority to launch an investigation into some of theR6.8billionworthoffinancialtransactionsoftheGuptafamilyleadingtotheclosureoftheirbankaccounts(seebelow)mightbeacaseof“selectiveprosecution”.

Parliament’s standing committee on public accounts (Scopa) was severely critical of theworkofaspecialanti–corruptiontaskteamco–chairedbytheheadoftheHawks,GeneralNtlemeza, when he appeared before it in September 2016. Members of Parliamentcomplained that the task teamhad tackledcases to thevalueofonlyR10billionsince itsinception in 2010, while the quantum of irregular, wasteful, and fruitless expenditureidentified over that period by the auditor general was estimated at R150 billion. ThecommitteewasreportedlyshockedtolearnthattherehadbeenfewconvictionsunderthePublic Finance Management Act, suggesting that only lower–level offenders were beingprosecutedratherthanaccountingofficers.

In June 2015 Pravin Gordhan, then minister of co–operative governance and traditionalaffairs, said of irregular awards of tenders by municipalities that lack of punishment forwrongdoerswasamajorconcern.

InSeptember2015BernardAgulhas,chiefexecutiveofthe IndependentRegulatoryBoardforAuditors,saidthatauditorsweredoinganexcellentjobofreportingwhite–collarcrime,whichwasescalating,butthattheauthoritiesdidnotdoanythingaboutit.Hisboardcouldactagainstauditorswhofailedtoreportirregularities,buttherewasnothingitcoulddoifthe police failed to respond. One large audit firm, Deloitte, said that the rise in fraud,corruption,andmoney–launderingwashavinga“devastating”effectontheSouthAfricaneconomy.

InAugust2015ShaunAbrahams,whohadbeenappointedafewmonthsearlierasthenewnational director of public prosecutions, announced the withdrawal of perjury and fraudchargesagainstNomgcoboJiba,wholaterbecameadeputynationaldirectorintheNationalProsecutingAuthority.MrAbrahamssucceededMrMxolisiNxasana,whoresignedafterlessthanayearinofficeafterreceivinga“settlement”ofR17.3millionfromthestate.

InSeptember2016JohanBurgeroftheInstituteforStrategicStudiessaidthatmanypoliceofficialshadbeendisciplinedanddismissedforlesserincidentsofmisconductandwithfarlessevidenceavailablethanwasthecasewiththeheadofthecrimeintelligencedivisionofthepolice,GeneralRichardMdluli,whohadmerelybeensuspendedonfullpaysince2012whilefacingcriminalprosecution.

In April 2012 the acting national police commissioner, Lieutenant–General NhlanhlaMkhwanazi,toldParliamentthat“high–ups”tellthepolicewhomtoinvestigateandwhomnot.

After thepolice failed toact, theHighCourt inOctober2015grantedAngloAmericananurgentorderfortheevictionofpeoplewhohadunlawfully invaded its landaroundacoalminewestofEmalahleni(Mpumalanga),landwhichthecompanysaidwasuninhabitable.

InareportpublishedinDecember2014thepublicprotectorfoundthattheJohannesburgCity Council had failed to take action against anANC councillorwhohad encouraged theillegaloccupationofabuildinginthecity,withtheresultthatthelawfulowners,whohadwishedtoestablishashoefactorythere,wereruined.Thecouncilhadfailedtodisconnecttheelectricityoftheillegaloccupants,butinsteadsentthebillstothelawfulowners,whocouldnotsellthebuildingwithoutpayingthem.“Hijackingofbuildingshasbecomeamajornightmareforinvestors,”thepublicprotectorsaid.

Followingpressure fromthepolice,a farmeron theKwaZulu–Natal southcoastwithdrewchargesagainstasuspectedcablethiefin2010.Thefarmerhadcaughtthethiefandtakenhimtothepolicestation.HoweverthestationcommanderthenpersuadedhimtodropthechargesasthelocalANCwardcouncillorhadsaidthecommunitywasnothappyandthatallwhiteswouldbechasedawayorkilled.Thecommunityalsothreatenedtotestifythatthefarmerhadassaultedthesuspectbeforetakinghimtothepolicestation.TheANCcouncillorwashimselflaterarrestedforbeinginpossessionofcounterfeitmoney.

The then justice minister, Jeff Radebe, said in Parliament inMarch 2010 in answer to aquestion,thattheprovinceshadspentR237milliononlegalfeesforstateattorneysinthepreceding11monthsdefendingcaseswhereprovincialgovernmentsweresuedforfailingtopay bills. There had been 106 cases where provinces were sued for non–payment aftercourtsorderedthemtopay.OnlytheWesternCapewasnotsued.TheworstprovincewastheEasternCapeandtheworstdefaultertherethehealthdepartment.Thoseresortingtothe courts to seek redress varied from hotels and resorts to optical companies, securitycompanies,banks,investmenthouses,constructioncompanies,andprivateindividuals.

In August 2015 the SCA criticised the “unbridled bureaucratic arrogance” of a Free StateMECwhohadrefusedtopayacontractorforworkdoneonthegroundsthattheprovincehad “failed tobudget for theproject”. JudgeEric Leachaskedwhowould invest in SouthAfricaifthegovernmentrenegedonitscontractsandthentooklegalpointsinthehopeofpersuadingthecourtstosupportitsnon–payment.

InJuly2012aconstructioncompany,SanyatiHoldings,wasforcedintobusinessrescueafternon–paymentofcontractsbydepartmentsinthreeprovinces,theFreeState,Limpopo,andKwaZulu–Natal.Thecompany,employing2500staff,saidthat“anybankwilltellyoutheirclient base is littered with this kind of problem – because the government has not paidtimeously.”Hedeniedallegationsbytheprovincesthatcontractors’workwasshoddy,andsaidthatcorruptioninprovincialdepartmentswasthemainproblem.Companiestryingtogetpaidwereconfrontedwith“deceit,heavy–handedness,brokenpromises,andstringingyoualong”.

InJune2015CliveDerby–Lewis,whowasservingalifesentenceforhisroleinthemurderin1993ofChrisHani,secretarygeneraloftheSouthAfricanCommunistParty,wasreleasedonmedicalparoleonordersof theNorthGautengHighCourt.SelbyBaqwaordered thatMrDerby–Lewis,whowassufferingfromterminalcancer,hadtherighttodiewithdignityas

stipulatedintheConstitution.Insettingasidethedecisionearlierintheyearbytheministerof justiceandcorrectionalservicesnottoreleasehimdespitetherecommendationoftheMedical Parole Advisory Board, Judge Baqwa said the process followed was flawed andprocedurallyunfair.ThiswasthefifthtimeMrDerby–Lewishadapproachedthecourtswitha parole application. The first was in 2007, but although the local parole board hadrecommendedthathebereleasedthefollowingyear,theministerdeclinedtoreleasehim.This was despite the fact that he had served the required minimum of 15 years of hissentence.Hisattorney,MariusCoertze,blamed“politicalvindictiveness”.

Although the governmentwas determined to keepMr Derby–Lewis in prison until JudgeBaqwa came to his rescue, a former national commissioner of police, Jackie Selebi, wasreleasedonmedicalparolein2012afterhavingbeensentencedtwoyearspreviouslyto15years’ imprisonment for corruption. Schabir Shaik, a close associate of Jacob Zuma, wasreleasedonmedicalparole in2009afterservingonlytwoyearsandfourmonthsofa15–yearsentenceforfraudandcorruption.Thejudge,HilarySquires,madeitclearthattherewas overwhelming evidence of a corrupt relationship between Mr Shaik and Mr Zuma,followingwhichPresidentMbekidismissedMrZumafromthedeputypresidencyin2005.

InJuly2016,theNorthGautengHighCourtorderedthereleaseonparoleofJanuszWalus,whohadbeenconvictedofmurderingMrHani.Hehadbeenentitledtoparoleeightyearspreviously and the local parole board had recommended it in 2013. The judge, NicoleneJanse van Nieuwenhuizen, asked why the state wasted money and time going throughparole processes if the fact that Mr Walus had murdered Mr Hani would always countagainst him. She denied the minister leave to appeal against her order, but he thensuccessfullypetitionedtheSupremeCourtofAppealforleave,withtheresultthatMrWalusremained in prison. Julian Knight, Mr Walus’s attorney, said that many other convictedprisonerswhohadcommittedmurdershadbeenreleasedonparolemuchearlierthantheapplicant.Hesaidtheministerappearedtobebowingtopoliticalpressuretokeephisclientinjailaslongaspossible.

The Wits Justice Project said in September 2016 that prisoners were sometimes deniedparolebecauseoftheirrefusaltoadmitguiltincrime.However,theprojectsaid,refusaltoadmitguiltwasnotaconditionofparoleinlawalthoughithadbecomeoneinpractice.

InSeptember2016JamesLorimer,shadowministerofmineralresourcesintheDemocraticAlliance,reportedallegationsof“top–levelofficialinvolvement”inillegalgoldmininginthearea between Langlaagte and Roodepoort, west of Johannesburg. This, he suggested,helped explain why there was “suspiciously little official action to prevent illegal goldmining”.

Illegalappointment/dismissal/suspension/failuretoappoint/promote

The Democratic Alliance claimed in October 2016 that DuduMyeni had been unlawfullyappointedforanadditionaltermaschairmanoftheuMhlatuzeWaterBoard.MsMyeni isalsochairmanofSouthAfricanAirwaysandoftheJacobGZumaFoundation.

In October 2016 the deputy minister of international relations, Luwellyn Landers, askedParliament totake action against his department for having appointed a convicted drug

trafficker, Hazel Francis Ngubeni, as South African high commissioner to Singapore. MsNgubeni is thedaughterof a formeroperativeofUmkhontowe Sizwe, but it is not clearwhether or not her conviction and two–year prison sentence in the US, which werereportedinSouthAfrica,weretakenintoaccountatthetimeofherappointment.

TheConstitutionalCourtruledinSeptember2016thattheministerofpolice,NathiNhleko,didnothavethe legalpowertosuspendRobertMcBride,headof the IndependentPoliceInvestigative Directorate.MrMcBride had been suspended inMarch 2015 on allegations(which he denied) that he had doctored a report on unlawful renditions of Zimbabweannationals.Heclaimedthatthereasonforhissuspensionwashispoliticalindependenceandwillingnesstocombatcrimeswithinthepolice force.Thecourtsaidtheminister’spowerswere “invasive” and that his unilateral actiondestroyed the confidence thepublic shouldhave that IPID would be able investigate complaints against the police fearlessly andwithoutfavourorbias.Followingthejudgementagainsthim,theministeraskedParliamentto initiated proceedings againstMrMcBride. As noted above, however, the deadline fordoingsolapsedandMrMcBridereturnedtowork.

Zahhele Mbhele, shadow minister of police in the Democratic Alliance, said that MrMcBride’sreturnwasa“victoryforconstitutionandtheruleoflaw”againstaministerwhohad “fallen foul of the law so many times”. Mr Nhleko had succeeded in capturing theHawks, butMrMcBride’s return to dutywouldmake itmore difficult for him to captureIPID.

In September 2016 theminister of policewrote to the speaker of theNational Assemblyasking that Parliament condone his failure to inform it of his appointment of GeneralNtlemezaasheadoftheHawks.AlthoughParliament’sapprovaloftheappointmentisnotrequired,theministerwasobligedtoinformitwithin14days.Hefailedtodosofornearlyayear. General Ntlemezawas appointed after theminister had dismissed his predecessor,Lieutenant–General Anwa Dramat, in 2015. Mr Dramat was dismissed for his supposedunlawful rendition of Zimbabwean fugitives, but he himself claimed the dismissal wasbecausehehadbeenconductinghigh–levelinvestigationsinvolvingstatetenders.

InacasearisingfromtheDramatdismissal,ajudgeoftheNorthGautengHighCourt,EliasMatojane,describedGeneralNtlemezaas“biasedanddishonest”andlacking“integrityandhonour”.Hehadalsomade“falsestatementsunderoath”.

ItwasreportedinSeptember2016thataregionalcourtpresidentinKwaZulu–Natalwasstillservinginthatpositionayearafteracomplainthadbeenlodgedagainsthimfortakingcashandsexualfavoursinexchangeforgivingamagistrateajob.

InSeptember2016theSCAdeniedtheSABC’schiefoperatingofficer,HlaudiMotsoeneng,leave toappealagainstahighcourt judgement thathisappointmenthadbeen“irrationaland unlawful”. The judgement followed a finding by the public protector that MrMotsoenenghad liedabouthisqualifications,abusedpowerby increasinghissalarythreetimes in the year,made unlawful appointments, and purged senior staff. Theminister ofcommunications,FaithMuthambi,hadappointedhimaspermanentchiefoperatingofficerdespitethepublicprotector’sfindings.TheSABCboardreactedtotheSCA’sjudgementbyappointingMrMotsoeneng as group executive responsible for corporate affairs. But the

Cabinet said this bordered on “violating the constitutional principle of legality andchallengedtheconstitutionally–assignedjudicialauthorityofourcourts”.MsMuthambiwasdirectedtotake“urgentsteps”toaddressthestateofaffairsattheSABC,butshehasfailedtodothisandMrMotsoenengwasstillinofficeatthetimeofwriting.

The Labour Appeal Court reserved judgement in September 2016 on an appeal by thelabourminister,MildredOliphant,againstanorderbytheLabourCourt lastyearthatshereinstateaseniorofficialwhomshehadunlawfullyremoved.Thejudgesexpressedconcernaboutherpoliticalinterferenceinobjectingtotheofficial’sactionagainstatradeunionwithsomeofwhoseleadersshewasbelievedtohavelinks.

In September 2016 the Commission for Conciliation Mediation and Arbitration (CCMA)foundthattheDepartmentofCorrectionalServiceshadunlawfullydiscriminatedagainstawhitemanpassedover foravacantdirector’sposition intheNorthWestprovinceonthegrounds thatwhiteswereover–representedat that level. TheCCMAsaid that refusing toshortlistsomeonebasedonraceorgenderplacedanabsolutebarrierontheiropportunitiesfor involvement in theworkplace,whichwasprohibitedby theEmploymentEquityActof1998.

InJuly2016theConstitutionalCourtorderedtheDepartmentofCorrectionalServicesintheWestern Cape to promote and retroactively remunerate seven coloured employees whohad been unlawfully denied promotion on racial grounds. The case, dating back to 2012,wasbroughtontheirbehalfbytheSolidaritytradeunion,whichsaidthatthedepartment’suse of national rather than regional racial demographics was unlawful. Solidarity said itsmembers consistently faced unfair discrimination based on the use of nationaldemographics inemploymentequityplanning. This, it argued, inevitably led toplans thatamountedtoquotas,incontradictionoftheEmploymentEquityAct.

In January2016 the LabourCourtheld that thepreviousequityplanof theSouthAfricanPoliceServicewas inconsistentwith theEmploymentEquityActand theConstitutionandgranted Solidarity an interdict suspending the filling of 3 000 advertised posts on thegroundsthat its2015–2019planwasnotsufficientlyflexibleandthereforeamountedtoaquota system. Quotas are more rigid than goals or targets, and are therefore unlawful.Followingthecorrectionalservicescasereferredtoabove,Solidarityandthepolicereachedanagreementthattheemploymentequityplanwouldbeamended.Inaddition,morethan30individualaffirmativeactioncasesbeingbroughtbySolidaritywouldbeinvestigated.

InApril2016theLabourCourtorderedtheTshwanemetropolitanmunicipalitytopromoteawhiteman to a foreman’s job fromwhich he had been excluded on racial grounds. ThecourtsaidthatredressassetoutintheEmploymentEquityActwasnotmeanttofunctionasaquotasystem,andthatthereforetherecouldbenoabsolutebarriertopeoplenotfromdesignatedgroups.

TheEasternCapeHighCourtorderedtheAmatholedistrictmunicipalityin2008toappointas municipal manager a person whom it had previously denied the appointment after“succumbing to a political directive” froman external body, theANC’s regional executivecommittee.Thecommitteehaddisregarded“themeritsofthematter”despitethefactthat

the municipality’s recruitment policy required that appointments be fair and based onmerit.

A Cape Townattorney reported in July 2015 that itwas now commonpractice for state-ownedcompaniestodismissemployeesandexecutivesprematurely,butthenpaythemofffortheirsilenceandtoensurethattheydidnotchallengedismissal incourt.Thetaxpayercarried the costs of these “dodgy” dismissals, and the individuals in questionwere neverprosecutedforpossiblecriminaloffences.

Inacasein2013involvingtheunlawfuldismissalofagamblingboardbyanMEC,theSCAsaidshehadadutynottofrustratetheenforcementbythecourtsofconstitutionalrightsandthatthestateshouldindeedbea“modelofcompliance”.Itwastime,theSCAsaid,forcourts to seriously considerholdinghighhandedofficials suchas theMEC to account andmakethempersonallyliableforcostsincurred.

Police officials revealed in answer to a parliamentary question in 2013 that 306 policeofficers had been appointed subsequent to conviction for crimes includingmurder, rape,housebreaking,anddrugtrafficking.

ApoliceofficerinGauteng,JanetBasson,waspromotedfrombrigadiertomajorgeneralinMay2016despitethefactthatchargesofperjury,fraud,anddefeatingtheendsofjusticehad been opened against her the previous month. Ms Basson said that the allegationsagainstherwereridiculous.

In2010aseniornavalofficerwasrestoredtoaseniorpositionasareservist intheSouthAfricanNationalDefenceForce (SANDF)afterhaving resigned in2008uponconvictionbymilitarycourtforfraudandassault.SANDFregulationsstipulatethatnobodywithacriminalrecordmayenrolasareservist.

InOctober2012theConstitutionalCourtsetasidetheappointmentofMenziSimelaneasnational director of public prosecutions on the grounds that the appointment had beenmade despite findings questioning his integrity andwas therefore irrational.Ms Jibawasthenappointedasactingnationaldirectoreventhoughherfitnessforthatofficewasopentoquestion.MrNxasanawas thenappointedbut soonelbowedout in June2015andMrAbrahamswas put in. In October 2016Mr Nxasana said that he suspected he had beenremovedandreplacedbya“lackey”becauseMrZuma’sinsidersfearedhewouldreinstatethechargesagainstthepresident.

Irregular/wastefulexpenditure/sales/misappropriation/procurement

ThechairmanoftheCentralEnergyFundwasdismissedinSeptember2016bytheministerofenergyforhisroleinanabortiveattemptbytheStrategicFuelFundtoacquiretheSouthAfrican assets of the American oil company Chevron. The minister claimed that herinstructions that thestatewouldnotparticipate in the transactionhadbeen treatedwith“contempt”.InMay2016theminister,TinaJoemat-Petterson,authorisedthesaleofSouthAfrica’s strategic stockpile of 10million barrels of oil in a closed tender even though thenecessary authorisation of the minister of finance had not been obtained. The auditorgeneral subsequently found thedeal tohavebeen illegal.Healso said that theminister’sclaimthattheoilhadbeensoldforR5billionwaserroneous,astheactualamountreceived

wasR3.9billion.Thesaletookplaceatapriceof$28abarrelwhenthemarketpriceofoilwas between $37 and $44. The loss to the state (as owner of the oil) was estimated atbetween$1.5billionand$2billion.

ThetreasurysaidinApril2016thataproposedjointventurebetweenDenelandVRLaserAsia,aGupta-associatedcompany,wasnotlegalasDenelhadnotreceivedthepermissionof the finance minister to proceed with the transaction, such permission being arequirementofthePublicFinanceManagementAct.

Referring to state-owned enterprises, theminister of finance, Pravin Gordhan, said afterdeliveringhisbudgetspeechinFebruary2016thatthesehadbeen“captured”totheextentthat controlmechanisms had been lost. “Those driving a particular deal had virtually noresistance, no accountability, no transparency, and no oversight over what actuallyhappens,anditisapotentialdisaster”.

Mmusi Maimane, leader of the Democratic Alliance (DA), claimed that his party had“uncovereda truly staggeringdisplayofwasteandcorruption” in thecity councils it tookover after themunicipal electionon3rdAugust 2016.Mostwerebeingused “asbloatedemploymentagenciesforANCcronies”.

Eugene Zungu, a senior official in the auditor general’s office, said inOctober 2016 that,despite strong legislation and regulations,many people got awaywithmisconduct in thepublic sectorbecause thepenaltieswerenot enforced. Lackof consequencesmeant thatthere was widespread looting as well asirregular and wasteful expenditure in variousgovernmentdepartments

The auditor general, Kimi Makwetu, reported in June 2015 that R781 million worth oftenders had been awarded in 2013/14 to close family members of employees andcouncillorsofmunicipalities.MrMakwetusaidthat99%ofthetotalR11.3billioninirregularexpenditurewastheresultof“non-compliance’withtenderrules.

Theaccountantgeneral,FreemanNomvalo,saidinFebruary2013thatirregularexpenditurebygovernmentdepartmentshaddoubledeachyear for thepast threeyears.Peoplewithpoliticaloradministrativeauthoritywere“gettingmoreandmoredisrespectfuloftheirownlegislation”. This opened opportunities for looting and for “tender-rigging to become theorder of the day”. Corruption, Mr Nomvalo said, “happens because the pressure comesfromthetop–itcomesfromthepoliticalauthorities.”

The director general of higher education said in September 2016 that the National SkillsFund had been approached tomake funds available for technical and vocational collegesthatwereunderfinancialstress.Thefundisfinancedbyaskillsdevelopmentlevycollectedas a payroll tax and is paid to the country’s 21 sector education and training authorities(Setas).IvorBlumenthal,aformerchairmanofonesuchauthority,saidinJune2016thattheDepartmentofHigherEducationandTrainingwas involved in“levycapture” todivert thefundsfromemployersusingthemforskillstrainingtouniversitiesandtothecolleges.

In 2011 the department decided to appeal against a ruling by the High Court that theminister of higher education, Blade Nzimande, had acted unlawfully in suspending DrBlumenthalaschiefexecutiveof theServicesSetaandappointing twootherpeople to its

board, one of them the wife of the secretary general of the ANC, Gwede Mantashe.According toaneditorial inBusinessDayinMay2011, thedepartmentappeared tobe“intheprocessofremovinghugesumsofmoneyfromthe[Services]Seta’saccount”.

ThepublicprotectorsaidinJuly2011thatleasesofofficeaccommodationforthepoliceinPretoria and Durban were “unlawful” and “improper” as they were in breach of theConstitution,thePublicFinanceManagementAct,andtreasuryregulations.However,therewasinsufficientevidencetoestablishcriminality.TheunlawfulleasesincludedR500millionfor a new police headquarters. Several officials who had tried to halt the unlawful dealsweresuspended.GeoffDoidge,theministerofpublicworks,wasfired.ThedealshadbeensignedwithRouxShabangu,abusinessmanreportedtobeafriendofMrZuma.

Citing a 2014 report by the public protector, a paper published by the Helen SuzmanFoundationinSeptember2016saidthatgenerous“goldenhandshakes”paidbytheSABCinrespectofstaffirregularlysuspended,dismissed,orforcedtoresignamountedto“fruitlessand wasteful expenditure”. The paper suggested that criminal prosecutions could beinstitutedagainsttheboardforfailuretocomplywiththePublicFinanceManagementAct.

FrancisAntonie,directorof the foundation,whichhasbeen involved in several successfulcases against the government, said that the government had often “foolishly engagedpartiesinfruitlesslegalbattlesthatcosttaxpayersmillions”.

BenWinks, an independent constitutional consultant, said in September 2016 that therewerewidespread examples of the government opposing valid lawsuits and that the statehada“hopelessrecord”inembarkingonappeals.MrWinkssaidthestateattorney’sofficewouldsometimeswastethestate’stimeandmoneyinpresentingcaseswithoutlegalmerit.

Unlawfulaction/behaviour/confiscationofgoods/assets

Shortlyafter thefraudandtheftchargesagainstMrGordhanwereannounced inOctober2016,helaunchedanapplicationintheHighCourtinconnectionwith72transactionsinandout of bank accounts belonging to members of the Gupta family and their businessassociates. The transactions were said to be worth R6.8 billion. The application wasdesignedtoconfirmthattheCabinethadnoauthoritytointerveneindecisionsbythebankstoclosetheGuptaaccounts,despitethefactthataministerclosetotheGuptas,MosebenziZwane,hadbeentryingtogettheCabinettointervenewiththebanksontheirbehalf.

OneofthesuspicioustransactionswasthetransferofR1.3billionfromaminerehabilitationtrust fund to a Gupta company. Such funds are ring–fenced for rehabilitation purposes.TransferwouldhaverequiredthepermissionofMrZwaneasministerofmineralresources.

DespitehavingbeeninformedbyMrGordhanthatitwouldnotbelawfultointervenewiththebanksonbehalfoftheGuptas,MrZwaneattemptedtodoso.

In 2015 in an application brought by theUniversity of Stellenbosch Legal Aid Clinic, SirajDesaiof theWesternCapeHighCourt foundthatanumberofgarnisheeorders issuedbymagistrates’ courts were unlawful. The orders purported to enable creditors to obtainrepayment ofmoneys owed to them by compelling employers tomake deductions fromsalaries. They had, however, been illegally given not bymagistrates but by clerks of the

court working in conjunction with unscrupulous credit providers, causing enormoushardshiptoindigentdebtors.Anexecutiveofadebtmanagementcompanysaidthatmanyordershadbeen issuedat “certain specific courtswhere corrupt clerksof the courtwerehappytoissue[them]tomicro–lendersorothercreditorsinreturnforbribes”.Acompanythat audits payrolls for suspect garnishee orders said 40% to 50%were issued in wrongjurisdictions, making them illegal. Wendy Appelbaum, a businesswoman who helped tobringthecasebeforeJudgeDesai,saidmanygarnisheeorderswereobtainedincourtsfarfrom where people lived and borrowed money, opening the whole system to abuse aslenders bribed clerks in small towns. In 2016 the Constitutional Court ordered that therehad to be oversight bymagistrateswhen an orderwas granted. George Devenish, a lawprofessor,saidthatoneoftheeffectsoftheConstitutionalCourt’sdecisionrequiringjudicialoversightwasthatcreditorswouldnowhavetoavoidlendingrecklesslyastheymightnotbeabletorecovertheirdebtssoeasily.

AccordingtoareportbytheSocio–EconomicRightsInstituteofSouthAfrica,officersoftheJohannesburgmetropolitanpolice had confiscated goods from some7 000 Street tradersbetweenSeptemberandOctober2013 inOperationCleanSweepdespitea constitutionalcourt ruling that thiswas illegal and degrading. InOctober 2016 the institute announcedthatithadlaunchedadamagesclaimagainstthecityauthoritiesonbehalfof1652informaltradersforR120million. Itsaidthattheyhadbeenunlawfullyevictedfromtheirplaces inthe innercityduringtheoperation.Theevictionshadtakenplacedespitethecourtrulinganddespitethefactthatthetradershadbeengivenpermits.Manyhadbeenassaultedandhadtheirgoodstrashed,andalllostlargequantitiesofstock.

Illegaldeportation/rendition/entryrefusal

HansFabricius,thejudgewhoorderedthearrestofOmaral–Bashir,saidthatimmigrationofficialshadpreviouslyignoredhighcourtorders.

An immigration officer at Cape Town airport refused to complywith an order by DennisDavis of the Western Cape High Court in November 2011 to stop the deportation of awoman fromUzbekistanwho had been refused entry into South Africa despite having avalid visa. The officials refused even to take a phone call from the judge to explain theimplicationsofhisorder,andputthewomanonthenextTurkishAirlinesflightoutofthecountry.JudgeDaviessaidthatifcourtorderswereignored“ourconstitutionaldemocracywillbedestroyedinthefinalanalysis”.

In January 2010 three officials of theDepartment ofHomeAffairs arrested a family nearMeyerton(Gauteng)anddrovethemthroughthenighttoaborderpostwithMozambique.Thefamilywasnotpermittedtotakeanybelongings,notevenachangeofnappyfor the18–month–old baby, and their house and vehiclewere left abandoned. According to theDisplaced and Migrant Persons Support Programme, there had been “no warrant, nodocumentation,noprocedures.Just loaduponespecificfamilyatoneinthemorninganddrivetotheborder.”

Obstructionofjustice/delay/interference/unlawfuldroppingofprosecutions

In June2016 itwasrevealedataboardofenquiry that thenationalpolicecommissioner,Riah Phiyega, had issued police lawyers with instructions not to comply with certainrequests of the commissionof enquiry into the shootings atMarikana inAugust 2012, inwhich34peopledied.MsPhiyegawassuspendedfromofficefollowingarecommendationbythecommission,headedbyaretiredjudge,IanFarlam,thatherfitnesstoholdofficebeinvestigated.

InSeptember2016thedeputynationaldirectorofpublicprosecutions,NomgcoboJiba,wasstruckofftherollofadvocatesbytheNorthGautengHighCourt.Alsostruckoffwasoneofherseniorcolleagues,LawrenceMrwebi,headofthecommercialcrimesunitattheNationalProsecutingAuthority(NPA).Thecourt’sdecisionwasmadefollowinganapplicationbytheGeneral Council of the Bar of South Africa that the two officialswere not fit and properpersons to bemembers of the bar. The case arose from the efforts of the two to shieldGeneralMdluli fromprosecutionbydropping the charges against him. The judge, FrancisLegodi, said he could not believe that the two advocates as “officers of the court” could“stoopsolowfortheprotectionanddefenceofoneindividualimplicatedinseriouscrimes”.Bothfiledapplicationsforleavetoappealagainstthejudgement.InOctober2016PresidentZumaservednoticeofhisintentiontosuspendthempendinganenquiryintotheirfitnesstohold office. (The charges against him having been reinstated by the North Gauteng HighCourt, General Mdluli is currently on trial for assault, intimidation, kidnapping, anddefeatingtheendsofjustice,amongotherthings.)

Ms Jiba has previously been severely criticised in the courts on several occasions, and isbelievedtohavebeenpartofthedecisionbytheNPAin2009todropthechargesagainstMrZuma.Shehasalsobeenaccusedofvictimisingaseniorpoliceman,Major-GeneralJohanBooysen,andotherprosecutionofficials,amongthemGerrieNelandGlynnisBreytenbach.MrNelhadsuccessfullybroughtJackieSelebitobook,whileMsBreytenbachhadrefusedtodropchargesagainstGeneralMdluli.

In November 2012 the minister of agriculture, forestry, and fisheries, Tina Joemat-Petterson, said during a strike among farmworkers in the Western Cape that thegovernmentwould ensure that noworkerwould face criminal or disciplinary charges forparticipation in the strike. “We will speak to the NationalProsecuting Authority and thepoliceministertoensurethatallcasesofintimidationandpublicviolencearewithdrawn.”

Since2003,MrZumahasfacedthepossibilityofprosecutionforcorruptionarisingfromthearms deal first announced in 1999. The first national director of public prosecutions,BulelaniNgcuka, said therewas aprima facie case against himbut that hewouldnotbecharged as the case was unwinnable. Mr Zuma’s associate Schabir Shaik was in factconvicted in June 2005 of having made some R1,2 million in corrupt payments to him.Charges were then laid against Mr Zuma but these misfired and were not successfullyreinstateduntilDecember2008onordersoftheSCA.InAprilthefollowingyear,however,the acting national director of public prosecutions, Mokotedi Mpshe, decided not toproceedwiththe18charges,comprising783countsoffraud,corruption,andracketeering.His saidhisdecisionwasbasedon improperbehaviourof theprosecutingauthoritiesandthepolice,asrevealedinsecretintelligencetapes(the“spytapes”)suppliedbyMrZuma’slawyers. Shortly after this decision to drop the charges,Mr Zuma was elected presidentfollowingthegeneralelectionthatsameAprilof2009.

Inthemeantimeattemptsbytheofficialoppositionandotherstoobtainthespytapeswererepeatedly thwarted byMr Zuma (who had obtained them unlawfully in the first place).However, they were eventually obtained. In April 2016, seven years after Mr Mpshe’sdecisiontodropthechargesagainstMrZuma,theywerereinstatedbytheNorthGautengHighCourtonanapplicationbroughtbytheDemocraticAlliance.ThecourtsaidMrMpshehadfoundhimselfunderpressuretodiscontinuetheprosecutionandthathehadignoredhisoathofoffice,whichrequiredhimtoactindependentlyandwithoutfearorfavour.Theprosecutionwasnottaintedbythespytapes,andthedecisiontodropitwasirrational.Thecourtaccordingly set thatdecisionasideand refused leave toappeal.MrZuma, it added,“shouldfacethechargesassetoutintheindictment”.

The state then applied for leave to appeal against this judgement, but the ConstitutionalCourtrejectedtheapplicationonthegroundsthatitwas“notintheinterestsofjusticetohearthematteratthisstage”.MrZumaseparatelyappliedtotheSupremeCourtofAppealfor leave to appeal against the judgement reinstating the charges. On 12thOctober thatcourtorderedthatthepartiesbepreparedtoarguethemeritsofthematterbeforeitorallyifcalledupontodoso.Theyweregiventhreemonthstofiletherelevantpapers.

InFebruary2012ahighcourtjudge,KathySatchwell,attackedthe“grossincompetence”ofthe Department of Justice for a six-year delay in giving three prisoners documentationrelatingtojudgementsagainstthem,sopreventingthemfromlodgingpetitionsforleavetoappeal.Shewas“appalled”and“aggrieved”bytheinjusticeand“disaster”inflictedonthemenbythedepartment,whichwasriddledwith“mismanagement”.Ifthejudgementswerenothandedinwithinsixweeks,shetoldthethreemen,“Iwillreleaseyou”.

InMarch2012theWitsJusticeProjectcomplainedthat11peoplechargedwithmurderandarmed robbery committed in 2007 had had their case postponed nearly 50 times in 166courtsessions.

Unlawfularrest/detention/banning/surveillance/treatment/escape

InOctober2016MelanieDugmoreoftheAfricanPolicingCivilianOversightForumreportedthatthenumberofescapesfrompolicecustodyhadrisenfrom697in2014/2015to949thefollowing year. She said that there were 389 disciplinary cases against police officials inrelationtoescapes.

According to a report tabled inParliament inOctober2016by theDepartmentof JusticeandCorrectional Services, thegovernmenthas spentalmostR1billion in legal fees in thepastyeardefendingitselfagainstcivilclaims.ThepolicehavelargelybeensuedforwrongfularrestsandtheDepartmentofHealthfornegligence.

InSeptember2016ahighcourtjudgeawardedanunemployedmanR2.8millionindamagesagainst the police and justice ministers after he had been unlawfully arrested and thendetainedinprisonfor226days,anexperiencewhichhadtraumatisedhim.

Alsoin2016,theministerofpolicetoldParliamentthatthepolicehadpaidoutmorethanR203millionforwrongfularrestsinthe2015/16financialyear.

InAugust2014theNorthGautengHighCourtawardedR266000indamagestoMrsGayeDerbyLewis, wife of Clive Derby-Lewis, for unlawful arrest and detention and maliciousprosecutionforallegedpossessionoffirearmsandammunition.Shehadbeenacquittedofallchargesin2003.

TheHighCourt inAugust2010ordered the releaseofMzilikaziWaAfrika,a journalistontheSundayTimes,onthegroundsthatdetaininghimoneminutelongerwouldnotbeintheinterestsoftheruleoflaw.EventhoughtheNationalProsecutingAuthoritysaidtherewasnocaseagainsthim, theHawks refused to releasehimuntil the judge’sorder.Thearrestfollowed a report written by Mr Wa Afrika about the alleged flouting of due tenderprocedures by the police commissioner, Bheki Cele. The newspaper’s editor, RayHartley,saidthe incidenthadnoseriouspurpose,amountedto“detentionwithouttrial”,andwasfromtheoutsetdesigned to intimidate.ThepapercalledonMrZuma to instructGeneralCele to halt his campaign of intimidation. Earlier in the year Tshepo Lesole, anotherjournalist, was threatened by the police’s VIP protection unit and forced to deletephotographshehadtakenofMrZuma’smotorcadeoutsideBaragwanathHospital.

LawyersforHumanRights(LHR)saidin2010thatithadbroughtmorethan60urgentcourtapplicationsinthepast18monthsforimmediatereleaseofasylumseekerswhoshouldbeheldonlyinexceptionalcircumstances.TheDepartmentofHomeAffairshadlostallbuttwoof the cases.According to LHR, thedepartment “repeatedlydisregards the law,detainingpeople formonths or even yearswithout bringing thembefore a judge”. It also opposedcourtapplicationsofdetaineesatgreatpersonalcosttoindividualsaswellastotaxpayers.

In 2012 the Constitutional Court awarded R270 000 in damages to a Cape Townbusinessman,DudleyLee,whohadcontractedtuberculosis(TB)inPollsmoorprisonoutsideCape Town while awaiting trial. The court ruled that the Department of CorrectionalServicescouldbeheldresponsiblewheninmatescontractedTBbecause ithad ignored itsownregulationsonscreening,ventilationofcells,andothermatters.

After a visit to the prison in 2015, Edwin Cameron, a judge on that court, said thatconditionsconsideredintheLeecasewerestillunaddressed.Therewereveryfewwindowsand insufficient ventilation. Judge Cameron said that “the extent of overcrowding,unsanitaryconditions,sickness,emaciatedphysicalappearanceofthedetainees,andoveralldeplorable living conditions were profoundly disturbing.” Among other things, his reportfound that there were persistent shortages of basic medical supplies, including TBmedication.LittleHIVtestingoccurred.Subsequentlytohisreport,severalprisonersdiedofleptospirosis,aninfectiousdiseasespreadbyrats.ConditionsintheprisonweresaidtobeinclearviolationbothoftheBillofRightsandoftheCorrectionalServicesAct.

In September 2014 Ronnie Kasrils, a former intelligence minister, said that he haddiscovered that various intelligence agents were working not for the state, but for ANCheadquartersatLuthuliHouse.

In2014theofficesofanumberofacademics,aswellasatradeunionoffice,werebrokeninto after accusations that they had been working to effect “regime change” and/ordestabiliseSouthAfrica.

InMarch 2014 the parliamentary joint standing committee on intelligence reported thatthousandsofSouthAfricanshadprobablyhadtheire-mailsandtelephoneandcellphonecallsunlawfullyintercepted.

InOctober2011the leaderof theDemocraticAlliance,HelenZille, said that“governmentagents are abusing their power to spy on individualswithout permission froma judge asrequiredbylaw”.

InOctober2012anattorneyatEversheds, a law firm, reported that therewasagrowingtendency of several municipalities in Gauteng to misinterpret legislation to “ban publicgatherings altogether regardless of their purpose or nature”. To be protected by law,gatherings require adequate notice and they may not threaten disruption, injury, ordamage. However, the attorneys said, gatherings were being prohibited without properjustification.

In May 2014 Jane Duncan of the school of journalism and media studies at RhodesUniversitywrotethat“unlawful”protestswereontheincreasebecausemunicipalitieswere“making it increasingly difficult to protest lawfully”. Prohibitions were nevertheless theexceptionratherthantheruleandthevastmajorityofprotestswentoffwithoutincident.

Unlawfuluseofviolencebypolice/prisonwarders

A study led by Professor Mohamed Seedat, director of a research unit of the MedicalResearchCouncil inpartnershipwiththeUniversityofSouthAfrica,said inMay2016thatmost protesters in South Africa began their demonstrations peacefully, but that theyencountered“amilitarisedpolice force insteadof responsible leadership”,with the resultthatthepresenceofthepoliceoftenprovokedprotesters,whorespondedbyresortingtoviolence.AresearcherattheInstituteofSecurityStudiessaidthatshehadalsocometotheconclusionthatthepolicewereoneofthemaintriggersassociatedwithviolentprotests.

InMay2015theministerofpolice,NkosinathiNhleko,saidthatapolicepresencehadbeenrequiredat14740 incidents in thepast year, and that2289of the incidentshad turnedviolent.Theprotests“continuetostraintheresourcesofthepolice”,headded,notingthat86policeofficershadlosttheirlivesinthepreviousyear,35ofthemonduty.

A reportby thesocial changeresearchunitat theUniversityof Johannesburg inFebruary2014 said that 43protestershadbeen killedby thepolicebetween2004and2014.Howmanyofthesekillingswerelawfulandhowmanynotisnotclear.In2016theunitsaidthatthere had been 67 750 protests in the preceding 17 years, 80% of them orderly, 10%disruptive(suchasblockadingroads),and10%violent(withinjuriesordamage).Nearlyhalfthe protests were related to labour matters, while almost a quarter arose out ofdissatisfactionwith“servicedelivery”inparticularcommunities.

In 2014/15 altogether 396 people died as a result of police action. The single largestcategoryofdeaths(114)occurredduringthecourseofarrest,while106occurredduringthecourseof a crime. In the same year, therewere 44 criminal convictions of policeman forkillings, torture, assault and rape. Although years in which killings happen and those inwhichtrialsoccurdonotcoincide,thefiguressuggestthatabout10%ofreporteddeathsat

thehandsofthepoliceresultincriminalconvictions.Howmanyofthekillingsbythepoliceareunlawfulisimpossibletosay.

In2014/15some3856complaintsofassaultortorturewerelodgedwiththeIndependentPolice InvestigatingDirectorate (IPID) against thepolice. In that sameyear therewere19criminal convictions of police officers for torture and/or assault. Peter Jordi, a practisingattorney attached to the Law Clinic at theUniversity of theWitwatersrand (Wits), told ameetingattheIRRin2012thatthepoliceusedtortureonamassivescale.CarolynRaphaelyof the Wits Justice Project reported Professor Jordi as having said: “The police torturepeopleallthetime–intheirhomes,inpolicecells,intheveld,incars…Tortureisstandardpolice investigation practice. These policemen are serial criminals. They havemethods ofinvestigationthatareunlawfulandforwhichtheycouldbeprosecutedbuttheyneverare.PolicetortureisadailyoccurrencewhereIpractise.”

In 2011 and 2015 the IRR published two reports, themselves based on numerous pressreports, showing that the police were involved in serious and violent crime, includingmurder, armed robbery, rape, burglary, theft, and torture on a substantial scale. The IRRreportsalsofoundthatsignificantnumbersofpoliceofficersremainedintheemployofthepolice even when they had been convicted of serious crimes. The conclusion the IRRreachedwasthatpolicecriminalitywasnotacaseof“isolatedincidents”,buta“patternofcriminalbehaviour”.

Inthefouryearsbetween2011/12and2014/15,R1.73billionwasincurredbythepoliceinlegalcosts,courtorders inrespectofcivilclaims,andsettlementspaid.Howmuchofthiswasforunlawfulbehaviourisnotclear.

In April 2013 a spokesman for IPID, Moses Dlamini, said that the police’s disciplinarymeasuresandpunishmentswerelaughable.Hecalledfortougherinternalcensureofpoliceofficers found guilty of corruption, torture, and causing the death of suspects in theircustody.

A former minister of intelligence, Ronnie Kasrils, wrote in 2013 that he had long beenconcerned at reports of beatings and torture in police cells, attacks on protestdemonstrations,policecorruption,theuseofconspiracytheoriestodealwithopponentsofthegovernment,andmovestostrengthenthegovernment’s“securitycluster”.MrZuma,hesaid,shouldarrestthis“descentintopolicestatedepravity”bydismissinghisministerandcommissionerofpolice.

According to a report of the Institute of Security Studies in 2016, warders are inflictingtorture on prisoners using electric shock devices in violation of international agreementsprohibitingtorture.Referringtoincreasingnumbersofassaultsinprisons,LukasMuntinghoftheCivilSocietyPrisonReformInitiativesaid in2015thatageneralcultureof impunityexists” and that “it is a rare event that officials areprosecuted for assault and tortureofprisoners, even where the result was fatal”. It added that the judicial inspectorate forcorrectional services had complained of the lack of prosecutions. The previous yearProfessorMuntingh said that of 4 203 complaints lodgedwith the inspectorate, only 133disciplinarycaseshadbeeninstitutedagainstprisonofficials.

In August 2012 police shot dead 34miners during a strike at Lonmin’s platinummine atMarikana inNorthWest province. The shootings followed ten homicides during a violentstrike,someofthemofsecurityofficersandpolicemen,andothersofmineworkers.Manypeoplewhoviewedthepoliceshootingsontelevisiondescribedthemasamassacre.Someofthevictimswerereportedtohavebeenexecutedbythepolice,whowerealsoaccusedoftamperingwithevidenceandplantingweaponsonthedead.Itwasfurtherallegedthattheshootingshadbeenpremeditated. The commissionof enquiry under the chairmanshipofJudgeFarlamrecommendedafullinvestigationintopossiblecriminalliabilityonthepartofthepolice.However,atthetimeofwriting,morethanfouryearslater,therehadbeennoprosecutionsofanypolice.

Bycontrast,279otherminerswerearrestedonchargesofthe“plannedandpremeditatedmurder”of the34, supposedlybecause theyhadmadecommoncausewith thepolice tobringaboutthefatalshootingsoftheircolleagues.Thedecisiontriggeredsomuchoutragethatthechargesweredropped.TheIRRsaidthatsincetherewasnoprospectofobtainingconvictions,thecharges“wereanabuseofthecriminalprocess”.However,atthetimethisreportwasbeingwritten,16mineworkerswerefacingtrialformurderscommittedbeforeandaftertheshootings.

InApril2013sevenpoliceofficerswereacquittedonchargesofmurderingAndriesTatane,whohadbeenshotdeadduringademonstration twoyearspreviously inFicksburg in theFree State. Video footage showed thatMr Tatane,whowas unarmed, had been brutallybeatenwhilekneelingdefencelessonthegroundaswellasshot.TheInstituteforSecurityStudiessaidthepolicehadgone“completelyoverboard”.ThecourtsaidthattheviolenceusedtostopMrTatanehadbeen“disproportionatetohisactions,”butthatthestatehadfailedtoproveitscaseaftertwokeypolicewitnesseschangedtheirtestimony,possiblytoprotectthepolice.

InNovember2015eight formerpolicemenweresentencedto15years’ imprisonment formurdering Mido Macia, a taxi driver from Mozambique, who had died in a cell in theDaveyton (East Rand) police station in February 2013 after he had been handcuffed to apolice van and dragged through the streets. A high court judge, Bert Bam, described themurder as “barbaric” and said the community was entitled to protection against roguepolicemen.HeaddedthatMrMacia’sarrestforaminortrafficviolationwasunlawful.Theprosecutor saidduring the trial that hehadbeen sobadly assaulted that “therewerenoorgansthatwerenotdamaged”.

Commentingon theconviction for themurderofMrMacia,DavidBruce,an independentresearcherspecialisingincrimeandpolicing,saidthatlegalconsequencesforpoliceofficerswho used excessive force were the “exception to the general rule”. No one had beenconvicted for the killing of Mr Tatane, and no one even suspended for the killings atMarikana. “And these are just the high-profile cases.” TheMail and Guardiansaid in aneditorialthat“policebrutalityhasbecomeanentrenchedreality”duringthetermofNathiMthethwa,whohadbeen“instrumental” inMrZuma’sassumptionofpowerandwas“animportantmemberof [his]kitchencabinet”.Thenewspapersaidthatattemptstocombatthecultureofbrutalityinthepoliceforcehadcometolittle.MrMthethwawasministerofpolicefrom2009to2014.

InApril2008thedeputyministerofpolice,SusanShabangu, toldapolicegathering,“Youmust kill thebastards… Iwantnowarning shots. Youhaveone shotand itmustbea killshot…Iwillnottolerateanypatheticexcusesforyounotbeingabletodealwithcrime.Youhavebeengivenguns,nowusethem.”TwodayslaterherremarksreceivedthebackingofMrZumaaspresidentoftheANC:“Ifyouhaveadeputyministersayingthekindsofthingsthatthedeputyministerwassaying,thisiswhatweneedtohappen.”

“Statecapture”/”rogue”state/corruption

In October 2016 Afriforum launched an Anti-Corruption Unit in conjunction with PaulO’Sullivan.MoniqueTaute,headofthenewunit,saidthattheveryinstitutionssupposedto“protect us from crime have instead been infiltrated by criminals with badgeswho havedecidedtoratherformpartnershipswiththeunderworld”.TheunitandMrO’Sullivanthenprovided information on what they described as the corrupt dealings between RadovanKrejcir,aconvictedcriminal,andamagistrateandthreepolicegeneralswhomtheynamed.One of the generals was Richard Mdluli. None of Mr Krejcir’s crimes would have beenpossible,saidMrO’Sullivan,“withouttheassistanceandprotectionofseniorofficialswithinthe criminal justice systemwho, instead of locking him up, colludedwith him to commitfraud,corruption,racketeering,robbery,andmurder,andtodefeattheendsofjustice”.Hesaid he had opened multiple dockets containing volumes of evidence against the seniorofficialsbutthatnoneofthemhadbeenbroughttobook.Insteadhe,O’Sullivan,hadbeenattackedinthemostunsettlingofwaysandwithconsiderablestateresources.

Mr Krejcir, who had been sentenced in February 2016 to 35 years’ imprisonment forattemptedmurder, kidnapping, and drug dealing, offered to turn state witness and giveevidenceagainsttheofficialswithwhomhehadcolludedinreturnforconcurrentten–yearjailsentencesinrespectofadditionaloffencestowhichheofferedtopleadguiltyinatrialcurrently underway. The offerwasmade on 4thOctober to AndrewChauke, director ofpublicprosecutionsforSouthGauteng.Thematterwasalsoreferredtothenationaldirectorofpublicprosecutions,ShaunAbrahams,andtothedeputypresident,CyrilRamaphosa.

In October 2016 Sipho Pityana, chairman of AngloGold Ashanti and a former directorgeneral of labour and of foreign affairs, describedMr Zuma as the “sponsor–in–chief ofcorruption”andcalledonhimtoresign.

The secretary general of the ANC, Gwede Mantashe, said in September 2016 that theorganisation needed a candid debate on state capture to “save our movement”. Statecapture, he said, was a system where leaders of a movement got business people tosponsor them in their campaigns in return forwhich they served as proxies for businessinterests.Thestatewasalsoused to targetcertain individualsandpoliticalopponents forremoval,creatinga“mafiastate”.FollowingameetingofthenationalexecutivecommitteeoftheANCearlyinOctoberMrMantashesaidthattheorganisationwouldconduct“lifestyleaudits”ofpoliticalleadersandpublicservantstocountercorruption.

KgalemaMotlanthe, a former secretary general of the party (and later president of thecountryintheshortinterregnumbetweenThaboMbekiandJacobZumain2008and2009),said in 2007 that corruptionwas farworse than anyone imagined. “This rot is across theboard. It is not confined to any level or any area of the country. Almost every project is

conceivedbecauseitoffersopportunitiesforcertainpeopletomakemoney.”Despitetheseremarks,MrMotlanthe laterfiredVusiPikoli for institutingcriminalchargesagainstJackieSelebi.

BusinessDaywroteinaneditorial inMay2012that“it isnoexaggerationtosaythatthereare entire towns, and critical state departments, that are now in the hands of organisedcrimesyndicatesmasqueradingaspublicservants.Theirsoleaimisto loot,andcreatingaclimateofgeneraladministrativechaosisanexcellentsmokescreen.”

In August 2013 the executive director of CorruptionWatch, David Lewis, said thatmanypublic sectorinstitutions, fromnationaldepartments to rural schools,hadbecomesitesofaccumulationforpowerfulandwell–organisedsyndicates.

InApril2012aleadingjournalist,JusticeMalala,saidthatJacobZumawas“runningwhatisnow clearly a gangster state”. In August of that same year Reuel Khoza, chairman ofNedbank, said that corruptionwas “rife at the topof society.” In February 2016 SongezoZibi, editor ofBusinessDay, wrote that South Africa had become “effectively a gangsterstate”.

The followingmonthMzukisiQobo,associateprofessorat thePanAfrican Institute in theUniversityofPretoria,saidthatSouthAfricawasgraduallybeingtransformedintoa“mafia”state.

Whitewashes

The report in April 2016 of the commission of enquiry underWillie Seriti into the armsprocurementdealworthalmostR47billionannounced in1999waswidelydismissedasawhitewash when it failed to find evidence of irregularity or corruption. Suspicions ofwrongdoing in the arms deal surfaced almost as soon as the transaction became publicknowledge some 17 years ago. As noted above, attempts by the parliamentary standingcommitteeonpublicaccounts(Scopa)toinvestigateitwerethwartedbytheANC.SchabirShaikwasconvictedofbribingJacobZumaonbehalfofsomeofthesuppliers,but,asalsonotedabove,

Mr Zuma has hitherto escaped prosecution. A joint report in 2002 into the deal by theauditorgeneral, thenationaldirectorofpublicprosecutions,andthepublicprotectorwasdismissed as a whitewash after parts of it had been rewritten under pressure from theCabinetandPresidentThaboMbeki.AprobeintothedealbytheScorpionswasshutdownby the Hawks following the dissolution of the Scorpions. Suspected wrongdoing includesgenerouspaymentsnotonlytoMrZuma,butalsototheANCandothers,althoughtheonlymajor prosecution has been that ofMr Shaik. Several investigators and lawyers workingwith Judge Seriti’s commission, among them another judge, were removed or resigned,someofthemaccusinghimofpursuinga“secondagenda”toensurethatseniormembersoftheANCwerenotimplicated.CorruptionWatchandtheRight2KnowCampaignlaunchedanapplicationtohavetheSeritireportsetaside.

CONCLUSION

Whatisstrikingaboutalltheaboveexamplesishowwidelytheyrangeacrossthecountryandacrossthevariousfunctionsofthestate.Manyoftheseillegalitiesreceiveconsiderablemediaattention,whichmaysometimesresultintheirreversal.Thechargeslaidagainstthefinanceministermay have adverse consequences for the economy as awhole.However,whenordinarypeoplesuffer,theconsequencesmayhurtnobodybutthemselves.Evenso,theymaybedevastatingtoahawkerwhosestock isconfiscatedorthefamilyofapersonunlawfullyshotdeadbythepolice.ThemachinationsaroundthechargesfacingMrZuma,thecampaignagainstMrGordhan,andthemassivepublicityaroundtheproblemof“statecapture”havehelpedtoalertbusinessleaderstothepossibleeconomiccostsoflawlessnessonthepartofthestate.Penniesarealsodropping inANCcirclesasthepossibleelectoralconsequences ofMr Zuma’s behaviour are anticipated. Critically important is that SouthAfricahasarangeofnon–governmentalorganisations–andnewspapers–willingtostandup for the rightsof refugees,orprisonersdenied treatment,orofpeople torturedby thepolice.

AnendtotheruleofJacobZumamighthelptocurtaillarge–scalelawlessnessonthepartofthe Presidency, the Cabinet, and the NPA. But the challenge of restoring a culture andpracticeof legality rightacrossall theorgansofstateandagenciesofgovernmentwillbevery much greater. And it must take account of the interests of all the ordinary peoplewhose plight has been highlighted in this paper. All over again, it seems, we need toinculcateamongthosewhoruleustheideathattheyareentitledtodoonlywhatthelawempowersthemtodo,andthattheymusttodoitaccordingtotherulesthatcomprisethelaw.

—JohnKane-Berman

*Kane-BermanisapolicyfellowattheIRR

IssuedbytheIRR,2November2016