WHAT BATHABILE DLAMINI PERJURY PROSECUTION TELLS US ABOUT JUDICIAL ABUSE UNDER PRESIDENT RAMAPHOSA

 

WHAT BATHABILE DLAMINI PERJURY PROSECUTION TELLS US ABOUT JUDICIAL ABUSE UNDER RAMAPHOSA

                 By: Paul M. Ngobeni

Both the substance and the suspicious timing of the criminal charges of perjury against the ANCWL president expose the political misuse of public institutions, especially the NPA in the time of the ANC’s “step-aside” to fight political battles against certain political enemies of President Ramaphosa. Where serious allegations of corruption are leveled against Ramaphosa’s allies, he has not forced the ANC’s much vaunted step-aside policy to be invoked against them. Ramaphosa’s refrain has been to rally to the defence of his loyalists and even amidst vociferous calls from ANC members that the step-aside policy must be applied even-handedly to those facing serious fraud and corruption allegations. Ramaphosa has repeatedly made it clear that he rewards political allies and could even remove their political rivals from office to ensure that any investigation against them is quashed.  That was done to Minister Sisulu when she initiated investigations into corruption implicating Eastern Cape Premier Mabuyane who is Ramaphosa’s hench-man.

 

Viewed with this prism, the NPA’s perjury prosecution against Minister Bathabile Dlamini is a political prosecution walking on stilts and having no prospect of success. Accordingly, it should come as no surprise that the NPA claims to be ill-prepared for such a supposed slam-dunk case.  It is a damning indictment proving that political machinations and not the law are the motivating factors in such cases. Low level prosecutors are sometimes pressured by their superiors such as the Director of Public Prosecutions to bring meritless cases they clearly lack the will and skill to prosecute.  That form of abuse must be halted forthwith though a change in leadership of the country.

 

The ANC has many competent women leaders such as Minister Lindiwe Sisulu who are capable of leading this country to build a capable state within an appropriate ethical framework and the required competent and incorruptible judiciary. The ANC Women’s League has recently declared that it will continue its fight to have a woman elected president of the African National Congress and the country. The abuse of rights by some in the judiciary and the NPA must be tackled and dealt with decisively.

 

It comes as no surprise that the presiding Magistrate in the perjury trial has rejected the NPA’s request for postponement of the case to February 2022.   Magistrate Khumalo was displeased with the state’s “dilly-dalying” and dilatory tactics which had the effect of wasting the Court’s valuable time.  The NPA, which is never short of frivolous excuses, requested a one day as it claimed it could not proceed with trial as it had not consulted with a witness, identified as Zodwa Mvulane. Magistrate Khumalo granted the request only for the state to declare overnight that it would no longer use the witness whose consultation was the basis for the postponement.  

 

 Thereafter the NPA made another outlandish request which reveals that the NPA is not genuinely interested in prosecuting the case as it was never about perjury or Minister Dlamini’s malfeasance in the first place. The NPA claimed it would need at “least four weeks to make travel and accommodation arrangements for a witness based in KwaZulu-Natal.” In a sheer display of chutzpa, the NPA requested a postponement of the case to February 2022 on that basis. But Magistrate Khumalo was visibly not impressed with the delays, saying she was not seeing "any efforts on the side of the State to secure witnesses". This means that Minister Dlamini’s lawyers must press for a dismissal with prejudice if the NPA is still not ready when the matter resumes on Friday 26 November 20221. They must not repeat the mistake made by President Zuma’s lawyers in 2006 when Justice Msimang struck a matter from the roll after severely criticizing the NPA for violating Zuma’s constitutional rights. Striking a matter from the roll is simply not enough where the state has engaged in dilatory tactics and has severely prejudiced a person’s fair trial rights.  The magistrate has already taken notice that the State has not “put in efforts," to ensure that its witnesses were present in court.

 

But for now, I shall only highlight the plethora of legal blunders, substantive and procedural, by both the Constitutional Court and the NPA in framing the perjury charges and the latter’s handling of the perjury case against Minister Dlamini. The circumstances surrounding the genesis of the bizarre unsustainable perjury charge against Minister Bathabile Dlamini, president of the ANC Women’s League are detailed in the Concourt case Black Sash Trust (Freedom Under Law Intervening) v Minister of Social Development and Others [2018] ZACC 36.  By way of background, the judgment deals with the issue of costs left open in Black Sash 1 where costs were reserved and Minister Dlamini was called upon to show cause on affidavit as to why she should not be joined to the proceedings in her personal capacity and why she should not pay the costs of the application out of her own pocket. In response, affidavits were filed that raised conflicts of fact in relation to an alleged parallel process of responsibility initiated by Minister Dlamini.  Eventually the Court ordered that Minister Dlamini be joined in her personal capacity and that the parties report to the Court on whether they agreed to a process in terms of section 38 of the Superior Courts Act to determine the issues relating to Minister Dlamini’s role and responsibility in establishing the parallel decision-making and communication processes. The parties agreed on a referee and retired Judge President Ngoepe (Ngoepe JP) was appointed to conduct the fact finding inquiry.

 

Because the NPA chose to charge Dlamini with “perjury” it is important to clearly identify what the Ngoepe inquiry did or did not say about Dlamini’s conduct. In his report, Ngoepe alleged that Dlamini was an evasive witness."... I simply could not understand why the minister was not properly answering such a simple question," Ngoepe said.  He also said that Dlamini would "unjustifiably answer with 'I don't know/remember' to important questions". Further, he said: "She would simply not answer some of the questions. Instead of answering the questions, she told counsel to proceed to the next one. He claimed that she gave long answers, which did not speak to the question asked. Ngoepe stated: “It is difficult to understand how the minister could have justifiably leave out the issue of the appointment of streams, their role, who appointed them, when and to who they reported; especially when she was the one who had instructed that they be appointed, and identified specific individuals to be appointed.” None of these findings constitutes the elements of the crime of perjury.

 

The crux of the Court’s finding against Dlamini is contained in the following paragraphs of the Ngoepe Report:

 

 “14.1 The Minister’s answer to the question is the following: She did not understand the Court’s request as asking of her to give an overview of the work during 2016. She says her focus was on what she understood the call to be, namely, why she should not be made to pay the applicant’s costs personally. She denies that the reason she did not disclose the appointment of the individuals to work streams, and that they reported to her, was because she was responsible for the crisis experienced in March 2017. It is also submitted for the Minister that this question is predicated on the premise that the work streams reported to the Minister and not to SASSA. This aspect has already been dealt with above: the work streams did report directly to the Minister and not to SASSA, which was why Mr Magwaza, the CEO, complained; as did Mr Dangor.

14.2 To answer the question ‘why’, I have to, inevitably, consider the Minister’s explanation for the non-disclosure of the information in question. Her explanation is unconvincing and therefore falls to be rejected: The appointment of work streams and their role was central to the whole exercise of meeting the deadline. Therefore, in dealing with any aspect relating to the crisis, it is difficult to understand how the Minister could justifiably leave out the issue of the appointment of work streams, their role, who appointed them, when and to whom they reported; especially when she was the one who had instructed that they be appointed, identified specific individuals to be appointed and ordered that they report to her directly. Add to that the fact that Ms Mvulane reported to her regularly about her activities.

 

14.3 Back to the question ‘why’: In contesting the Minister’s reasons for the non- disclosure, her opponents came up with a variety of reasons; for example, fear of loss of office, fear of loss of standing in the public’s eye and within own party, protecting the government and own political party, reluctance to take the blame for the crisis and of course fear of being personally mulcted in costs. Mr Semenya argued that all these were mere conjecture. He argued that the Minister furnished the inquiry with a certain set of facts, which constituted her explanation. Those facts, he argued, could not be contrasted with mere conjecture. Therefore, he argued, in the event the Minister’s explanation fell away, I would be left with no answer to the question ‘why’; under those circumstances, he argued, I should declare myself unable to tell the reason for the non-disclosure, and report [same to] the Court. I disagree. I have been asked ‘to enquire and report on’ . . . the ‘reason why the Minister did not disclose.’ The Inquiry’s mandate can’t simply be restricted to recording the explanation given. To complete the mandate ‘to enquire and report,’ I must look into the soundness or otherwise of the reason given. If it is good, I so report. If it is not, I don’t just stop there; I must, on the evidence I took the trouble to listen to, establish the real reason for the non-disclosure if that is possible, and report accordingly. I therefore proceed to deal with what appears to be the reason why the Minister did not disclose the information in question.

 

14.4 There were two things, and two things only, which the Minister was called upon by the Court to fend off: being joined in her personal capacity, and, that happening, being mulcted in costs in her personal capacity. The reason for not giving the information in question can therefore only be related to these two things. In contrast, all other conceivable reasons, conjectures etc, fear of the two is therefore not something sucked from the thumb. We now know that the Minister has already been joined in her personal capacity; but at the time she made the affidavit which did not disclose the information sought, this was of course not yet the case. Fear of being joined must therefore be factored in.

14.5 The two issues were the only ones the Minister was answering to. On the face of it, the information not disclosed was inimical to the Minister’s case in fending them off; the fear of them as the reason for the non-disclosure therefore commends itself more readily to mind than any other reason. That then, to me, is ‘the reason why the Minister did not disclose . . . that these individuals were appointed at her instance and that they had to report directly to her’.”

 

Judge Froneman who made the ruling in the Concourt and referred the matter to the NPA for perjury prosecution appears to have grossly misunderstood the crime of perjury as evidenced by his statements. He sated in paragraph 6 of the Judgment the following: In relation to the last question, namely “[t]he reason why [Minister Dlamini] did not disclose to this Court that these individuals were appointed at her instance and that they had to report directly to her,” the report was diplomatic but nevertheless damning. In essence it found that Minister Dlamini had failed to make full disclosure to this Court.

 

The Concourt was hinting at a new species of perjury unknown in South Africa law, namely, perjury by omission or non-disclosure. But that kind of jurisprudence has been rejected in more advanced democracies. See Bronston v. United States, 409 U.S. 352, 360, 362 (1973) (holding that “the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner—so long as the witness speaks the literal truth”).  The literal truth defense forbids using a literally true but unresponsive statement to form the basis of a perjury conviction. The purpose of the defense is to protect witnesses who misunderstand a question while permitting the law to punish individuals who clearly lie. In creating the literal truth defense, the Court noted that it is not surprising for witnesses to give answers that are not “entirely responsive” under the “pressures and tensions of interrogation.” Although the Court acknowledged that it might be possible for an unresponsive answer to mislead a questioner, it ultimately concluded that unresponsive answers should alert the questioner to continue his inquiry until obtaining the desired information. When the questioner fails to do so, a defendant can take advantage of this defense and utilize it even when he intended to mislead the questioner or provided an answer that created a false-negative implication.  Ngoepe was appointed as a referee and had the duty to ask probing questions but he failed to do so by his own admission.

 

Under modem case law, it is clear that a statement constitutes neither perjury nor a false declaration unless it is found to be literally false. The leading contemporary case is Bronston v. United States 409 U.S. 352 (1973).  Bronston was president of a movie production company that petitioned for bankruptcy. At a bankruptcy hearing, Bronston was asked, "Do you have any [Swiss bank accounts]?," to which heresponded "no"; and "Have you ever?," to which he responded, "The company had an account there for about six months, in Zurich." The truth was that Bronston had had Swiss bank accounts for five years, but did not have any at the time of the trial, and so his first answer was correct. As for his second answer, had he said "no," he would have been guilty of perjury. Instead, he gave a literally true answer to a question that had not been asked-namely, whether his company had ever had a Swiss bank account-which was misleading as an answer to the question actually asked. In overturning Bronston's conviction, the US Supreme Court held that the perjury statute is not meant to apply to: (1) statements that are literally true; (2) statements that are untrue only by "negative implication" (i.e., literally true, but evasive, answers); and (3) literally true but misleading or incomplete answers. Under the Court's reasoning, although a witness' testimony might be misleading, it is the responsibility of the questioning lawyer to probe until the truth can be uncovered. If the lawyer fails to do so adequately, the witness is not guilty of perjury.  That is Ngoepe, the referee failed to do.

 

Another outrageous example is the Fourth Circuit's decision in United States v. Earp. 812 F.2d 917 (4th Cir. 1987). During the course of his testimony before a grand jury, defendant, a member of the Ku Klux Klan, was asked whether he had ever burned a cross at the home of an interracial couple. He denied that he had. The truth was that he had attempted to burn a cross, but had fled before it was lit. The court, following Bronston, reversed his conviction on the grounds that defendant's testimony, though obviously misleading, was nevertheless literally true, and therefore not perjurious.

 

A lawyer who fails to clarify evasive or nonresponsive statements from a witness bears even more responsibility for improper inferences than does a listener in everyday conversation. As Bronston put it:

[I]t is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. Bronston, 409 U.S. at 358-59

 

This is in accordance with the idea that perjury requires lying, and that the witness who makes an evasive or unresponsive, but literally true, statement has not lied, and therefore has not committed perjury. The Bronston case influenced thousands of further perjury trials. This case was also used later in the perjury proceedings involving President Bill Clinton, which raised a huge public controversy.  The total sum of Ngoepe's complaints against Minister Dlamini is that she was evasive and a difficult witness - that is not tantamount to perjury.

 

US federal courts have consistently drawn the line when dealing with perjury cases. In United States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994), a case involving a defendant's challenge to a two-level enhancement under the sentencing guidelines for perjury, the court states that "a defendant's truthful answer to a reasonable interpretation of an ambiguous question does not constitute perjury." Id. at 1519. It also quoted Bronston approvingly:

 

Under the pressure and tensions of interrogation, it is not uncommon for the most earnest witness to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. . . . It is the responsibility of the lawyer to probe: testimonial interrogation, and cross examination in particular, is a probing, prying, pressing form of inquiry.

 

Hilliard, 31 F.3d at 1519 (quoting Bronston, 409 U.S. at 358).

 

 

Under South African law our judges have struggled with the distinction between perjury and a finding that a witness’ testimony is unsatisfactory, that she is evasive and that her evidence falls to be rejected. See,  PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v SOUTH AFRICAN RUGBY FOOTBALL UNION AND OTHERS 1999 (4) SA 147 (CC).  There then Justice William de Villiers said that the evidence of former President Nelson Mandela was unsatisfactory because he refused to answer certain questions, answered back and used the court for political rhetoric. Mandela was incensed at being called a liar and he made that very clear when he stated: “'Let me say, Judge, I never imagined that Dr Luyt would be so insensitive, so disrespectful, so ungrateful as to say of the President of this country that when I gave my affidavit and signed it under oath, I was telling lies. I was not being honest because that is what he says. I never imagined that he would do a thing like that.'

 

In a scathing judgment, De Villiers called Mandela an "often argumentative" and "less than satisfactory" witness whose overall demeanour was subject to material criticism. He said Mandela flatly refused to answer certain questions and used the court as a "podium for political rhetoric". In his ruling, Mr de Villiers stopped just short of calling the late president a liar, saying that Mr Mandela's testimony lacked credibility on a number of issues. "His overall demeanour is, to my mind, subject to material criticism," the judge said of the president.

 

Mandela succeeded in appeal to the Constitutional Court which ruled that de Villiers had made key errors of law and fact in compelling Mr Mandela to testify in court and then all but calling him a liar. The head of Sarfu, Louis Luyt, launched a court challenge to Mr Mandela's right to appoint the commission and questioned whether he had followed proper procedures. Mr Luyt shocked many South Africans when he attempted to humiliate Mr Mandela by demanding that a president testify in a civil case for the first time. A Pretoria high court judge, William de Villiers, compelled Mr Mandela to take the stand.

 

Just to be clear Minister Dlamini is not the first witness to be criticized by a judge or to be accused of lying as the Mandela example shows. The perjury case is proving difficult for the NPA because it was driven by a political narrative and not the evidence.

 

To be fair to Judge Ngoepe, he did not make any findings that remotely suggested that Minister Dlamini had committed perjury. But his unanswered questions suggested that he misapprehended his duties as a referee under Section 38. It was his duty to probe with the assistance of the lawyers, to delve deeper into the answers given by Ministter Dlamini. That he did not do. Equally at fault were the lawyers who were lollygagging and asleep instead of heeding the Bronston admonition that “is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.”

 

In any event, the allegations of non-disclosure in motion proceedings where the Minister was responding to the applicants’ case as she understood it cannot be equated with perjury.  See, the recent case of Koni Multinational Brands (Pty) Ltd v Beiersdorf AG (SCA) (unreported case no 553/19, 19-3-2021) (Schippers JA (Cachalia JA and Sutherland and Unterhalter AJJA concurring)), where the Supreme Court of Appeal (SCA) referred a matter to the Legal Practice Council [LPC], Pretoria, “to investigate the circumstances in which the respondent’s attorneys, [and the customer who gave the evidence], failed to disclose [the customer’s] association with the respondent’s attorneys to the Gauteng Division of the High Court, Johannesburg and this court, when filing an affidavit by her as a member of the public, and to take whatever steps it deems appropriate in the light thereof’.”

 

In the original court proceedings, the respondent’s legal practitioners relied on evidence obtained from a customer believed to be a member of the public. According to the affidavit, the customer thought she was purchasing the applicant’s shower gel, when she was actually purchasing the respondent’s shower gel. The customer claimed that she realised the error after closely inspecting the product at home and after her husband had already used it. During the hearing in the SCA, an astute judge inquired whether the customer was associated with respondent’s legal practitioners of record, which the counsel confirmed. The customer’s identity was then revealed. As it turned out, the customer was a legal practitioner, who at the time, worked for the law firm, Adams & Adams, the respondent’s legal practitioners. This then prompted the appellant’s legal practitioner to submit that the conduct of the respondent’s legal practitioners had constituted a serious and material non-disclosure. Differently formulated the argument was, that the respondent’s legal practitioners failed to disclose a material fact. Non-disclosure certainly raised a question of whether the presentation of misleading evidence was deliberately planned.

 

As the High Court noted in Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 BIP 23 (GJ), per Makgoka JA, ‘Beiersdorf knew very well that had it disclosed [the customer’s] true identity, her evidence would have carried little, if any weight at all’. The court reasoned that ‘in the absence of any explanation, an irresistible inference must be that this was a conscious effort to mislead the court’. But it cannot be said that the legal practitioners committed perjury - the conduct in question does not meet the legal definition of perjury.  In motion proceedings where the applicants bear the burden of pleading their own case and relying on evidence they have it is a bit far-fetched to argue that Minister Dlamini had the obligation to disclose the workings of the teams she established and that her non-disclosure amounted to perjury.

 

The Constitutional Court’s ruling was also an unprecedented and baffling case of serious judicial incompetence  where the apex court imposed a hefty financial penalty of R650 000 on Minister Dlamini for alleged “failure to disclose facts to the Court” and the same court referred the matter to the NPA for perjury prosecution on exactly the same set of facts. Apparently Justice Froneman who wrote the unanimous judgment had never heard of the double jeopardy principle in our Constitution.  In brief, the applicant, Black Sash Trust submitted that Minister Dlamini’s actions amounted to bad faith. This was on the basis of “five factors arising out of the findings of the report, all of which relate to the Minister’s failure to disclose the truth relating to her interference with governance in relation to the work streams, despite filing affidavits under oath with this Court.” Freedom Under Law submitted similarly, that the non-disclosure by Minister Dlamini evinces her bad faith.The Concourt then opined that the common-law rules for holding public officials personally responsible for costs are now buttressed by the Constitution:

 

“Within that constitutional context the tests of bad faith and gross negligence in connection with the litigation, applied on a case by case basis, remain well founded. These tests are also applicable when a public official’s conduct of his or her duties, or the conduct of litigation, may give rise to a costs order.”

 

The Court explained the serious import of the factual dispute about the alleged parallel process:

 

“These are serious allegations. If it is correct that the Minister appointed the members of the work streams and that they reported directly to her in contravention of governance protocol, then her failure to disclose this to the Court bears strongly on whether she has acted in good faith or not.”10

[12] The Inquiry Report’s finding that the Minister’s failure to disclose this information was her fear of being joined in her personal capacity and being mulcted personally in costs has not been, and cannot, be faulted.11 The inference that she did not act in good faith in doing so is irresistible. At best for her, her conduct was reckless and grossly negligent. All that is sufficient reason for a personal costs order.

 

The Court then ruled that “it is proper that Minister Dlamini must, in her personal capacity, bear a portion of the costs. It would account for her degree of culpability in misleading the Court - conduct which is deserving of censure by this Court as a mark of displeasure - more so since she held a position of responsibility as a member of the Executive. Her conduct is inimical to the values underpinning the Constitution that she undertook to uphold when she took up office.” 

 

Further, the Court concluded that the “report by Ngoepe JP revealed that the Minister misled the Court to protect herself from the consequences of her behaviour. She allowed a parallel process to occur knowing that she withheld information that would lead to her being held personally liable for the social grants disaster.” It stated further, that it was “difficult to determine the proper extent of the personal costs order. The determination is a discretionary one. We have to consider Minister Dlamini’s personal responsibility, arising from the parallel process she set in motion, and her shielding this truth from the Court, against the fact that ordinarily state officials do not bear personal responsibility for the good faith performance of their official functions. It is a novel matter to hold a cabinet minister personally responsible for the costs of litigation. In the circumstances it will be appropriate to order that she must pay 20% of the taxed costs.”

 

The ruling falters as its narrative is devoid of logic.  At the time Minister Dlamini filed her pleadings in court, she had not been joined as a party and the issue of her  personal liability for costs was not in the picture.  Ngoepe’s report stated: We now know that the Minister has already been joined in her personal capacity; but at the time she made the affidavit which did not disclose the information sought, this was of course not yet the case.” Even with the benefit of hindsight, it is simply illogical for the Court to rule that “she withheld information that would lead to her being held personally liable for the social grants disaster.” Conjecture and rank speculation cannot be a substitute for a reasoned, logical and coherent judgment from the apex court.

 

In referring the matter to the NPA the Concourt reasoned that the “Inquiry Report’s findings suggest very strongly that some of Minister Dlamini’s evidence under oath in the affidavits before this Court and orally before the Inquiry was false. The Registrar of this Court must be directed to forward a copy of the Inquiry Report and this judgment to the National Director of Public Prosecutions, to consider whether Minister Dlamini lied under oath and, if so, whether she should be prosecuted for perjury.”  But the Concourt overlooked an important provision of the law. Namely

Section 38 of the Superior Courts Act 10 of 2013 which provides:

(b) Any person who, after having taken an oath or having made an affirmation, gives false evidence before a referee at an enquiry, knowing such evidence to be false or not knowing or believing it to be true, is guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.

 

Once again, the Court is waffling between saying that the real offence was non-disclosure in the affidavits filed in Court before the matter was even referred to the referee Ngoepe and implying that the lying was in her testimony before Ngoepe. The latter did not make any such finding of lying – he made adverse findings against Minister Dlamini as a witness but did not say she committed perjury.  The Court itself stated that “the report was diplomatic but nevertheless damning. In essence it found that Miniter Dlamini had failed to make full disclosure to this Court.” Importantly, the Report itself mentioned Minister Dlamini’s explanation for the alleged non-disclosure which was focused on the allegations made by the applicants.

 

The International Covenant on Civil and Political Rights recognises, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." Section 35(3)(m) of the South African Constitution provides that an accused person has the right not to be tried for an offence in respect of any act or omission for which that person has previously been acquitted or convicted – a right that entrenches the common law right expressed in the maxim ‘nemo debet bis vexari pro una et eadem causa’. The right is of ancient origin and is almost universally applied. It is based on two main values. First, the need to ensure that matters reach finality, both in the interests of an accused and of the State. Second, the need to safeguard an individual against State oppression by placing constraints on the prosecuting authority to avoid successive prosecutions for the same conduct.

 

In Grayston Technology Investment (Pty) Ltd and Another v S (A225/2014) [2016] ZAGPJHC 249; [2016] 4 All SA 908 (GJ) (23 September 2016) the Court opined that there “would appear to be a constitutional safeguard against double jeopardy irrespective of whether the forum empowered to impose the sanction is a criminal court, a civil court or an administrative tribunal. Section 35(3)(m) of the Constitution gives expression to a fundamental principle which transcends the confines of purely criminal procedure. The provisions of that section are illustrative of the broader concept which underpins the plea of autrefois convict and acquit, and also res judicata; nl, “. . . die eenvoudige feit dat dit weersinwekkend is vir ons gevoel van billikheid en regverdigheid, dat . . . die gestrafte vir die tweede maal . . . weens dieselfde misdaad vervolg sou word” R v Manasewitz 1933 (AD) 165 at 177.

These doctrines give expression to the same legal sentiment; a person should be protected from being repeatedly brought to answer in respect of the same conduct. They are intended to secure justice and reasonableness through the finality of proceedings.

 

Here the Constitutional Court ruling was also an unprecedented and baffling case of serious judicial incompetence  where the apex court imposed a hefty financial penalty of R650 000 on Minister Dlamini for alleged “failure to disclose facts to the Court” and the same court referred the matter to the NPA for perjury prosecution on exactly the same set of facts.  Those who continue to ignore obvious injustice while shouting rule of law and respect for the judiciary must one day answer this very simple question: what happens when the judiciary itself operates outside the law and violates people’s constitutional rights with impunity?

 

President Zuma’s Tax Judgment – The Saga of Undisciplined and Incompetent Judiciary Continues

 

President Zuma’s Tax Judgment – The Saga of Undisciplined and Incompetent Judiciary Continues

            By : Paul Ngobeni

 

 

Make no mistake about it – Judge Norman Davis’s judgment on SARS duty to disclose President Zuma’s tax affairs is woefully flawed and exposes his incompetence as a judge. It evinces the tendency of some white activist judges to resort to their own policy preferences instead of faithfully following existing laws passed by a black majority Parliament, and their tendency to disregard established precedent and rules of evidence.  It is an unprecedented case where busy-bodies posing as journalists are given free reign and the written word of white reporters or book authors is taken as gospel truth. Judge Davis went so far as to ignore a binding Constitutional Court order on the very same issue involving the Zuma tax liability.

 

Judge Davis’ Jurisprudence and Background

 

Judge Davis, a white male, was appointed to the bench in January 2018 after previous unsuccessful attempts in 2015 and 2016.  He admitted he served in the Apartheid Airforce during the ultra-violent 1980s and actually stated in his 2016 interview that “he perceived, at the time, that the law was about protecting the country” and that he felt it correct at the time, although “it was unjust in how we went outside our borders and committed what we did”. 

 

During Davis’ 2017 interview, Western Cape Judge President John Hlophe asked him penetrating questions probing his views about racism. Hlophe JP asked Davis if racism still existed in the country and in the judiciary. If this was the case, Hlophe continued, then why? Tellingly, the racism denialist Davis responded: “I have never seen or experienced any racism” in the Gauteng High Court sitting in Pretoria. That response was a lie! Hlophe swiftly enquired whether Judge Mabel Jansen, who was involved in a highly publicised social media racism incident, had not sat on the Pretoria Bench, before her subsequent resignation? Davis sheepishly conceded that she did.  But Davis was clearly disassembling to cover up his own insouciance towards racism.  Just a few months before the interview, in April 2017, the Judicial Service Commission (JSC) had publicly announced that it decided that Pretoria High Court Judge Mabel Jansen must face a tribunal to investigate whether her statements on Facebook about race and black culture amounted to impeachable conduct. See, https://mg.co.za/article/2017-04-07-judge-mabel-jansen-to-face-impeachment-tribunal-over-facebook-comments/   But Davis claimed a mere five months later that he had seen nothing and heard nothing!

 

A month later in May 2017, Mabel Jansen resigned as a judge with immediate effect. https://mg.co.za/article/2017-05-04-mabel-jansen-resigns-as-judge/  The newspapers reported that: “Jansen has been unable to escape allegations of racism following a public discussion on Facebook in 2015 with filmmaker Gillian Schutte, where she said that 99% of criminal cases she heard were about “black fathers, uncles, brothers raping children as young as five”. She continued: “Want to read my files: rape, rape, rape, rape, rape, rape of minors by black family members. It is never-ending.” Id.

 

Incredibly, the sleep-walking Judge Davis claimed at his interview that he had “never seen or experienced any racism” in the Gauteng High Court sitting in Pretoria.  Later, Justice Minister Michael Masutha expressed his concern about the candidate’s “emphatic response to the existence or otherwise” of racism in the division. “Does it have to be displayed to you for it to exist?” asked Masutha. Davis said, “Perhaps I put her and her conduct out of my mind and did not remember it”. He then went into detail about the attempts he had made to meet, head-on, the opposition to transformation he had encountered in the legal profession while chairperson of the Pretoria Bar.

During the October 2016 interview Julius Malema asked Davis why he had agreed to conscription into the apartheid-era South African National defense Force rather than becoming a conscientious objector or “picking up an AK47” as Joe Slovo and others had done. Davis said “he perceived at the time that the law was about protecting the country” and that he felt it correct at the time, although “it was unjust in how we went outside our borders and committed what we did”.

 

Incredibly, the JSC still appointed this somnambulist jurist to the bench where he has continued to wreak havoc and serve as an unmitigated disaster.

 

 In April 2020, several lawyers and law firms who were until recently on the Road Accident Fund (RAF) panel of attorneys, filed a complaint of alleged misconduct with the Judicial Service Commission against Davis. See, https://www.iol.co.za/pretoria-news/lawyers-take-misconduct-gripe-against-judge-norman-davis-to-judicial-service-commission-47281711  They alleged that Davis presided over a case in which he was conflicted and biased and ruled against the complainants. The lawyers said in their complaint that what Judge Davis did not disclose, was that he “had more than one meeting with the fund, which was the respondent in this matter”. They added the judge also presided over several other similar matters which were placed on his roll for that week. The lawyers said it was only after he had issued his judgment against them, that the minutes of several meetings held a year ago with the RAF came to their attention, in which the future of the fund was discussed and where Judge Davis and other judges were present. They said according to the minutes, Judge Davis did at the time make negative reference to the panel of lawyers. The lawyers said Judge Davis should have disclosed these meetings before he heard their urgent application. “In our view he breached an elementary ethical duty as a judge when he failed to disclose that he attended a meeting with one party of the litigation.” They said in their opinion the judge was guilty of gross misconduct and his conduct amounted to a wilful or gross breach of the judicial conduct code. 

 

Hardly two months after the JSC complaint, the sleep-walking jurist and politician in judicial robes revealed his monumental judicial incompetence in a bizarre case dealing with the lockdown regulations at the height of the Covid-19 pandemic. The case was brought by Reyno de Beer and an organisation called Liberty Fighters Network, during level four of the lockdown. These Covid-19 denialists asked the court to strike down as unconstitutional the declaration of a national state of disaster and all the regulations under it.  They claimed that the government’s response to the Covid-19 pandemic was a “gross overreaction”.

 

Davis obliged them and declared most of the lockdown regulations to be invalid and unconstitutional but did so without considering the admissibility of the applicants allegations or their evidential weight. That is right –legal rules of evidence and procedure do not matter to ideologue judges because they first arrive at a predetermined outcome and then invoke their own hairy-brained philosophy to justify the result. In short, Davis ordered that “the regulations promulgated by the minister of cooperative governance and traditional affairs … are declared unconstitutional and invalid”.  He suspended his order for 14 days to allow Cooperative Governance Minister Nkosazana Dlamini-Zuma time to “review, amend and republish” some of the regulations. At the centre of his judgment was that each and every regulation under the Disaster Management Act had to be both rational in law and justifiable under the Constitution.  According to Davis, key evidence in the form of an affidavit from the co-operative governance and traditional affairs director-general on behalf of the minister did not show that Dlamini-Zuma had considered each of the regulations individually in terms of their constitutionality. He derisively and dismissively concluded: “The director-general’s affidavit contains mere platitudes in a generalised fashion in this regard, but nothing of substance.” He assumed the role of a super-legislator and asserted: “The clear inference I drew from the evidence is that once the minister had declared a national state of disaster … little or, in fact, no regard was given to the extent of the impact of individual regulations on the constitutional rights of people.”

 

In his myopic view, the government had to look at “every instance” where rights were being encroached on and inquire whether the encroachment was justifiable.  It mattered not that the Covid-19 pandemic was an emergency where government did not have the luxury of conducting meticulous scientific studies in individual cases and tailoring the regulations to suit those particular circumstances.  Davis ruled. “Without conducting such an inquiry, the enforcement of such means, even in a bona fide attempt to attain a legitimate end, would be arbitrary and unlawful.” For Davis, it was irrational that a hairdresser, willing to comply with preventative measures, had to “watch her children go hungry while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon”.  Davis continued: “To put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade, but were one to [set] foot on the beach, it will lead to rampant infection.”  

 

The matter came on appeal before the Supreme Court of Appeal and is reported as Minister  of Cooperative  Governance  and  Traditional  Affairs v  De Beer and Another(Case no 538/2020) [2021] ZASCA 95(1 July2021).  The SCA judgment started of by a cautionary note:  “This case,  as we will show, is an object  lesson as  to  how  a  constitutional challenge to promulgated regulations should not be brought. It also serves to demonstrate that there should be a disciplined and cautious  curial  response,  lest diffuse,  rhetoric-laden, emotive and jurisprudentially unfocused litigation is encouraged. All the more so in this case, as it raises issues of national and international importance.” This was a polite way of saying Davis was bamboozeled by applicants’ rhetoric and could not distinguish chaff “rhetoric-laden, emotive and jurisprudentially unfocused” litigation from the real substance and facts supported by admissible evidence. 

 

The SCA dealt with the side issue of the Respondents’ conduct as they had adopted an uncompromising position. They made what can only  be described as a “scandalous accusation: that in the event that the Court proceeds with a virtual hearing, this Court will have become a mere ‘extension of the Appellant’s argument and that consequently the SCA is no longer independent’.” Para.50.  The SCA also noted a bizarre and insulting communication from De Beer and his crew as follows:

           

[117] As indicated earlier, it is now necessary to deal with the response by Mr de Beer and the LFN to the apology tendered by the Registrar to Mr de Beer and the LFN. On 18 June 2021, Mr de Beer wrote to the President of this Court. Once again, it is necessary to reproduce the written response in its entirety. It reads as follows:

‘1. The email dated 17th instant received from the Chief Registrar, Ms. Van der Merwe, which carried your answer to our letter dated 10th instant, refers.

2. After careful consideration of your official response, writer has decided to herewith inform you that the entire Supreme Court of Appeal may stick its fictitious “apology” to us in its arse.

3. As the leader of the institution, you have allowed the COVID-19 flimflam to take over the Court’s judicial functionality and for it to desecrate the institution to the point of pure codswallop which it is today – nothing but a mere extension of Government’s narrative; a Court which has lost its independence and which has become incapable of protecting the Constitution of the Republic of South Africa and of protecting the very rights which Constitution and Bill of Rights afford the people.

4. Let writer remind you, Madam President of the Court, that neither you nor anyone of your judicial colleagues are divine and that the Court still belongs to the people of South Africa, and not the Government, which acts merely as their steward.

5. Even if the judgment in our very matter should be in our favour, LFN and writer shall appeal it as, either way, it will have come about by improper means and your bench will have made a charade of what was supposed to be a proper adjudication. Neither LFN nor writer are able to respect a judgment not rooted in true justice, as would normally have been delivered by the Appellate Division, something which the SCA used to be not too long ago.

 

The SCA referred to the “stick …in its arse” comment as “crude, gratuitously insulting, clearly contemptuous and intended to denigrate this court.”

 

On the merits the SCA slammed Davis for a number of reasons which revealed his incompetence. First, the judge set aside the regulations under both level four and level three. Yet the level three regulations were not before him: when the application was made and answered, the level three regulations had not been promulgated. The SCA stated: “Accordingly, it was impermissible for the high court to have considered and made a determination in respect of the Level 3 regulations, which were not properly before the high court. What is more, it arrived at its conclusion without affording the Minister an opportunity to be heard. The breach by the high court of something so fundamental as the right to be heard taints the high court’s judgment.” Id. at para. 82.   Further, the SCA continued: “Nor was it permissible for the high court to strike down regulations which it had not examined for want of legality. Extrapolation may take place in drawing factual conclusions on the basis of inference. The legal invalidity of a body of regulations cannot be determined on the basis that since certain specific regulations are found wanting, all such regulations stand condemned.” In short, Davis’ damnable approach was akin to determining legal cases by flipping a coin- he pronounced on regulations which were not properly before him and which he had not seen. The SCA summed up Davis inept approach as follows:

[84] At the hearing of the matter, neither the high court nor the parties had even so much as seen the Level 3 regulations. Indeed, the high court had observed that the Level 3 regulations ‘have neither been placed before me nor have the parties addressed me on them’. That notwithstanding, the high court appropriated to itself the right to consider and make a determination on the six Level 3 provisions. The judgment thus went beyond the respondent’s pleaded case. It goes without saying that any judgment should be the product of thorough consideration of, inter alia, forensically tested argument from both sides on issues that are necessary for the decision of the case.17 It ought to follow that on the strength of this fundamental error alone, the high court’s orders fall to be set aside.

 

The SCA was unsparing in its crticism of Davis’ elementary school-boy errors. It remarked that “even a superficial comparison reveals that the order which ultimately issued differed markedly from the compendious relief sought… The high court ranged beyond what had been sought by the respondents. Thus, not only was the Minister denied a proper hearing, but the respondents were granted relief that had never been sought. In that sense, not only did the judgment suffer a failure of proper judicial reasoning, but it also failed to recognise and respect – as it was constitutionally obliged to do – the limits of the judicial function, and hence the separation of powers.  The SCA cited the National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277; 2009 (1) SACR 361 as follows:

 

‘It is crucial to provide an exposition of the functions of a judicial officer because, for reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law. The underlying theme of the court’s judgment was that the judiciary is independent; that judges are no respecters of persons; and that they stand between the subject and any attempted encroachments on liberties by the executive (para 161-162). This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.

Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. . ..’

 

The Court recognized Davis’ failure to exercise judicial restraint and his astounding lack of familiarity with basic rules of evidence as follows:

 

[88] The foundation of the respondents’ case was based upon sweeping generalisations and broad conclusions. In the first place, the respondents did not file any confirmatory affidavits from those persons who had allegedly complained to Mr de Beer about the hardships that they were experiencing. In the second place, Mr de Beer simply annexed various reports to his affidavit (the provenance of which was not always clear), in support of what may somewhat loosely be described as COVID-19 denialism. As no affidavits accompanied these annexures, and Mr de Beer lacked the necessary expertise to testify to the truth of their content, the foundational hypothesis sought to be advanced by the respondents was unsupported. Regrettably, the high court simply failed to consider either the admissibility of the allegations advanced by Mr de Beer or their evidential weight, if any. Had it done so it would have arrived at the conclusion that, even on their own version, no cognisable case had been made out by the respondents.

[89] In the circumstances set out above, no answer, in truth, was called for by the Minister. That ought at the outset to have been appreciated by the high court. It found for the respondents on a case not made out in the founding affidavit and based largely on dispersed and inadmissible assertions and its own speculation as to how the regulations ought to have been framed.

 

As demonstrated clearly below, Davis did not heed the admonition of the SCA as he repeated the same judicial error in the Zuma tax matter where his determination of “public interest” was based on inadmissible hearsay evidence, a violation of the Plascon -Evans rule and blatant disregard of the doctrine of stare decisis.

 

The SCA further exposed Davis’ over-eagerness and proclivity to adjudicate cases and grant judgments on legal theories emanating from his own head but never pleaded by the parties.  The SCA stated:

[95] The respondents did not plead, or in any event properly plead, the constitutional attack that was upheld by the high court. Constitutional questions ought to be approached by litigants and courts alike with the appropriate degree of care. The Constitutional Court has repeatedly warned that constitutional attacks on the validity of legislation must be pleaded explicitly and with specificity to enable the State to know what case it has to meet and to adduce the evidence necessary to do so…

 

[100] This was not merely a matter of form or ‘elegance’ as the high court suggested. The high court was willing to see a case where there was none and unjustifiably excused the manner in which it was framed. To sum up on this aspect of the case: The case put forward by the respondents was wholly inadequate. There was no cognisable case to answer.

 

The SCA remarked that “a rationality attack also needs to be properly pleaded so that the functionary knows what he or she is being called upon to explain. Despite the fact that no such attack was pleaded, supposed irrationality was at the heart of the high court’s condemnation of those particular regulations which it specifically considered.” Id. at para.102. It also faulted Davis’ approach in the following terms:

First, in each case the high court deduced irrationality from the fact that some other conduct, thought by the court to be equally or more worthy of restriction, had not been restricted. Second, instead of limiting itself to an enquiry into the presence or absence of a rational connection between the measure and its purpose, the court strayed into considerations as to whether other (and in the court’s opinion, evidently better) means might have been adopted.

 

The conclusion is unmistakable that Davis gives vent to his own personal opinions and preferences, usurps policy-making function of the executive and does not respect proper separation of powers.  This is clear from the following observation by the SCA:

[106] These legal errors permeated the high court’s findings in respect of the validity of the regulations. In that, the approach was also fatally flawed. The high court did not properly apply the rationality test to each of the impugned regulations. Instead, it embarked upon a comparative exercise and for the rest, it relied upon conjecture and speculation. It lost from sight that the question is not whether some other measure might better achieve the purpose or might be more appropriate, only whether the measure actually employed is rationally related to the purpose.

 

The SCA gave short-shrift treatment to Davis’ judgment and summed up his litany of errors as follows: “The high court struck down regulations that had not been challenged, on a case not properly pleaded, and on the basis of reasoning that the invalidity of certain regulations must contaminate all the regulations. In sum, neither the challenge brought, nor the high court’s reasons for sustaining that challenge can be allowed to stand.”  Sadly, Davis rendered an even worse judgment in the Zuma tax disclosure case.

 

Judge Davis’ Continued Incompetence and Gross Errors in the Zuma Tax Case

 

The total sum of Judge Davis’ judgment revolves around the following totally unsubstantiated findings of facts:

Para. 5.1 The applicants relied on the averments extracted from a book published in October 2017, titled The President's keepers. by Taleberg publishers. The author is an investigative journalist, Jacques Pauw. the averments relied on by thc applicants in their papers regarding Mr Zuma's tax affairs during his presidency are the following:

·      that Mr Zuma did not submit tax returns at all for the first seven years of his presidency;

·      that he owed millions of  rand in tax for the fringe benefits he received because of the so-called security upgrades to his Nkandla residence;

·      that he received various donations from illicit sources — alleged to be tobacco smugglers, Russian oligarchs and the Gupta family;

·      that he had drawn a six-figure 'salary' as an 'employee' of a Durban security company for the first few months of his Presidency (it appears that he had subsequently paid the money back in response to queries);

·      that Mr Zuma had appointed Mr Tom Moyane as the Commissioner ol SARS to undermine the institution's enforcement capability and to prevent it from prosecuting Mr Zuma for non-payment of taxes and other financial malfeasance, and from investigating people linked to him; and

·      that it was not clear whether Mr Zuma was tax-compliant at the time of publication and that it was probable that SARS was not taking steps to extract the tax he owed.

 

To put it bluntly, the applicants approached the Court with completely hearsay accusations and reports woven entirely from untested hearsay, the gossamer strands of speculation and surmise emanating from a published book which is not admissible evidence.  True to Davis’ incompetence observed by the SCA, he failed to display the requisite “disciplined and cautious  curial  response, and instead allowed “diffuse,  rhetoric-laden, emotive and jurisprudentially unfocused litigation” to unfold under his watch.  A second year law student would intuitively recognize that the allegations in Pauw’s book are rank hearsay and are not admissible simply because a litigant parrots the same gossip story in an affidavit placed before the Court.  Just like in the Covid-19 judgment, Davis was prepared to engage in a breach of something so fundamental as the admission of inadmissible hearsay evidence in motion proceedings. Just like in the Covid-19 case where Davis was prepared  “to strike down regulations which it had not examined for want of legality” Davis relied on untested hearsay contained in a book he probably never read. 

 

Most fundamental, Davis’ incompetently ignored the basic “Plascon Evans” rule applicable in motion proceedings. Where the applicants seek final relief on motion, “bona fide factual disputes must thus be determined on the respondents’ version. A purported factual dispute will lack bona fides only if the respondent’s version is a bald or uncreditworthy denial or is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting it on the papers. See, Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 55; National Director Of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26.”  Even worse, Davis not only admitted and relied on inadmissible hearsay but went on to resolve bona fide factual disputes in favour of the applicants and contrary to the evidence on the record.  The sincerity of the applicants’ belief in the veracity of Pauw’s allegations cannot serve as substitute for cogent admissible evidence that must be a basis for a court judgment. 

 

Davis failed to comprehend the general rule that where, in proceedings on notice of motion, disputes of facts have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent or not placed in dispute, together with the facts alleged by the respondent, justify such an order.  But here the respondent SARS denied the averments but Davis simply disagreed with the SARS’ denial.  That is a basic error.

 

If the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may then proceed on the basis of the correctness thereof, and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks. But here there was both a denial by SARS and lack of admissible evidence from the applicants. Inadmissible evidence does not become admissible simply because an applicant has relied on it in a sworn affidavit placed before the Court.  Davis compounded the problem by not only taking allegations in a book as gospel truth but by proceeding to make findings that those allegations sufficiently undergird a “public interest” justification for making confidential taxpayer information available to any busy-body journalist.

 

Another instance of judicial ill-discipline is manifested in Davis’ treatment of the allegations that Zuma “owed millions of rand in tax for the fringe benefits he received because of the so-called security upgrades to his Nkandla residence.” The Concourt resolved exactly that issue in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 through the following order that:

5. The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only.

 

6. The National Treasury must determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President.

 

7. The National Treasury must report back to this Court on the outcome of its determination within 60 days of the date of this order.

 

8. The President must personally pay the amount determined by the National Treasury in terms of paragraphs 5 and 6 above within 45 days of this Court’s signification of its approval of the report.

 

Judge Davis committed a fundamental error on this score. Unquestionably, decisions of the Constitutional Court are binding on all lesser courts based on the principle of stare decisis, which is a juridical command to the courts to respect decision already made in a given area of the law. This means that the High Court must follow the decisions of the courts superior to it even if such decisions are clearly wrong. The statement of principle by Didcott J in Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N) that is thus concisely summarised in the headnote to that judgment is in point:

"The doctrine of judicial precedent would be subverted if judicial officers, of their own accord or at the instance of litigants, were to refuse to follow decisions binding on them in the hope that appellate tribunals with the power to do so might be persuaded to reverse the decisions and thus to vindicate them ex post facto. Such a course cannot be tolerated."

 

In practical terms this means that once the Constitutional Court ruled that Zuma was obligated to pay “the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security” as determined by National Treasury, it was no longer permissible for a litigant in a lower court to argue that Zuma had a duty to pay “millions of rand in tax for the fringe benefits he received because of the so-called security upgrades to his Nkandla residence.”  Because the Concourt was clear that only costs that “do not relate to security” were payable, it was no longer open for the High Court to rule that Zuma  was liable in tax for the fringe benefits he received because of the so-called security upgrades to his Nkandla residence.  Davis incompetently did so and this resulted in a High Court judgment which contradicted and undermined a judgment of the apex court on exactly the same issue.

 

The Concourt was unambiguous and clear that the National Treasury first had to determine “a reasonable percentage of the costs of those measures which ought to be paid personally by the President”, that the National Treasury “must report back to this Court on the outcome of its determination” within a specified period and that the “President must personally pay the amount determined by the National Treasury” in terms of the Concourt order.  The entire universe of what costs and related taxes Zuma owed on the Nkandla non-security upgrades was dictated by the Concourt’s order and not what some journalist believes should be the payable tax. Faced with an explicit  Concourt judgment that specifically said Zuma was liable for costs not related to security on the one hand and the argument of the applicants journalists that Zuma was liable in tax “for the fringe benefits he received because of the so-called security upgrades to his Nkandla residence” on the other, Judge Davis preferred and endorse the opinions of the journalists. So much for judicial independence and impartiality! The entire premise of Davis’ ruling on the Nkandla tax issue was grossly erroneous and insufficient to sustain a judgment invoking the so-called “public interest” exception.  But it gets worse.

 

Judge Davis opined that “Mr Zuma has not opposed the application, neither in general nor in respect of the relief aimed at disclosure of his personal tax affairs and has not delivered any affidavit addressing the aforesaid allegations made regarding himself and his tax compliance.” But that was all a pretext to justify an unsustainable judgment. Davis was fully conversant with the Concourt ruling in Nkandla and could have easily taken judicial notice thereof and informed the applicants that their case trenched on a ruling of the apex court on exactly the same issues and that he was bound by stare decisis to follow the Concourt ruling.  That he failed to do so speaks to his ill-discipline and incompetence – it has nothing to do with whether Zuma filed any affidavit in opposition.  Davis was willing to take judicial notice of the Zondo Commission proceedings and hearsay testimony before it but he could not take judicial notice of a binding ruling by the highest court in the land.

 

Davis stumbles on another minefield as evidenced by paragraph 5.2 of his judgment. He states: Some of the allegations are confirmed or corroborated by public documents, such as the findings of personal benefit derived from the upgrades to the Nkandla residence contained in the then Public Protector's report entitled “Secure in Comfort”, evidence led at the Nugent commission and the findings made regarding the undermining of SARS by a previous commissioner, Mr Moyane and the evidence led at commission of enquiry into 'State Capture' chaired by DCJ Zondo.”  Further, Davis boldly asserts in paragraph 5.3 that based on these allegations, “the applicants aver that "credible evidence" exists that Mr Zuma was not tax-compliant while he was president.”  Again there is a huge jurisprudential problem that collapses the entire judgment and renders it not worth the paper it is written on.

 

For starters, as shown above, Davis misrepresents the content of the Public Protector report as clarified and enforced by the Concourt’s very explicit order. What he claims is “confirmed” is purely a figment of his judicial imagination.  The applicants’ allegations actually contradicted both the Public Protector’s findings and the subsequent Concourt judgment.  Not that Davis cares about such flagrant inconsistencies. 

 

Judge Davis has a long documented history of struggle with the law of evidence. The wheels come completely off the wagon when Davis discusses the so-called evidence led at the “Nugent Commission and the findings made regarding the undermining of SARS by a previous commissioner, Mr Moyane.”  I am horrified that the judge is ignorant of the fact that the findings of the Nugent Commission of Enquiry are not automatically admissible in court proceedings.

 

It is accepted almost universally that that Commissions of Enquiry are not courts of law and evidence adduced during a commission’s inquiry is not automatically admissible in civil or criminal proceedings. In New Zealand the judiciary has long made it pellucid that commissions of inquiries are not courts of law, nor administrative tribunals. See, for example, Peters v Davison [1999] 2 NZLR 164, 181 (CA). Such Commissions do not have the power of determination, and their recommendations and findings bind no one.  They can even be ignored or rejected by the executive willy-nilly.

 

The Davison Court cited In Re the Royal Commission to Inquire into and Report upon State Services in New Zealand [1962] NZLR 96 at p 109 where North J said:

 

''A Commission of Inquiry is certainly not a Court of law. . . . Nor is a Commission of Inquiry to be likened to an administrative tribunal entrusted with the duty of deciding questions between parties. There is nothing approaching a lis , a Commission has no general power of adjudication, it determines nobody's rights, its report is binding on no one.''

 

The Davison court also made the following observation:

“In opposition are basic characteristics of a commission of inquiry. Its report is merely an expression of its opinion. A commission of inquiry is not to be likened to a Court of law nor to an administrative tribunal entrusted with the duty of deciding questions between parties; there is nothing approaching a lis and the commission has no general power of adjudication (North J in Re the Royal Commission to Inquire into and Report upon State Services in New Zealand at p 109). It follows that the reports of commissions of inquiry have no immediate legal effect. Because the reports of commissions of inquiry are, in the end, only expressions of opinion, "[i]n themselves they do not alter the legal rights of the persons to whom they refer"

 

 

The Court, in another New Zealand case, Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618, made important observations as follows:

''This is not an appeal. Parties to hearings by Commissions of Inquiry have no rights of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Findings made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of a disaster. In themselves they do not alter the legal rights of the persons to whom they refer. Nevertheless they may greatly influence public and Government opinion and have a devastating effect on personal reputations; and in our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any applicable rules of natural justice.''[1]

 

Canadian courts have also accepted the well-established principle that a Commission of Inquiry may not draw conclusions, or make recommendations regarding the civil or criminal responsibility of any person or organization. They are generally prohibited from making any findings of criminal or civil responsibility, and no such finding may be inferred from any of a Commissioner’s remarks. Such a prohibition is necessary because a commission may admit evidence not given under oath, and the ordinary rules of evidence which provide protection against such matters as hearsay do not apply to public inquiries.   Justice Cory of the  Canadian Supreme Court  in Canada (Attorney General) v. Canada (Commission of lnquiry on the Blood System) (1997), 151 D.L.R. (4th) 1, said the following about the history, nature and role of inquiry commissions in that country:

 

29         Commissions of inquiry have a long history in Canada, and have become a significant and useful part of our tradition. They have frequently played a key role in the investigation of tragedies and made a great many helpful recommendations aimed at rectifying dangerous situations.

...

34         A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter. ... Thus, although the findings of a commissioner may affect public opinion, they cannot have either penal or civil consequences. To put it another way, even if a commissioner’s findings could possibly be seen as determinations of responsibility by members of the public, they are not and cannot be findings of civil or criminal responsibility.

 

 

Very interesting insights are contained in the judgments in the High Court and in the Supreme Court of Ireland  in the leading case of Goodman International and Lawrence Goodman v. The Honourable Mr. Justice Liam Hamilton, Ireland and the Attorney General [1992] 2 IR 542.  This decision is now the foundation, in Irish law, of the constitutionality of the Tribunal of Inquiry, as known in Irish law.   In Goodman, the former Chief Justice said at p.590:

 

“With regard to the suggestion that the findings of the Tribunal if not an impermissible administration of justice by a body other than a court, is a usurpation of the activities of courts in cases where either civil cases are pending or may be instituted, it seems to me that again this submission arises from a total misunderstanding of the function of the Tribunal. A finding by this Tribunal, either of the truth or of the falsity of any particular allegation which may be the subject matter of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal conduct or malpractice. I am, therefore, satisfied that the submission under Article 34 must fail”. (Emphasis added)

 

 Commissions of inquiry all seem to have several things in common - such tribunals operate “in vacuo” and are of “sterile of legal effect” in that their reports are simply opinions and “devoid of legal consequences”.  Davis who has struggled with basic rules of evidence throughout his judicial career erred in using the Nugent report as a weapon or a shield in the hands of the applicants and in finding that the applicants’ allegations were credible because they parroted the findings of Nugent.  Davis  did not regard the Nugent report as “devoid of legal consequences” or “sterile of legal effect”.  Instead it elevated it improperly to assume the status of a court judgment. That was purely wrong.  A matter of fact requiring to be established before a court must be established by admissible evidence which is open to cross-examination and contradiction, and is given publicly before the Court. It is not normally an admissible form of proof to produce a statement by a third party whether a policeman, a government minister or a Commission of Inquiry and to claim that that has evidential effect, prima facie or otherwise. An exception to this arises, of course, where there is an issue which, by virtue of a decision of a court of competent jurisdiction, is res judicata between the parties; but such a decision of a court will itself have been reached on admissible evidence duly adduced in a hearing which observes all the parties’ procedural rights.  The decision of the Judge Davis would be reversed on appeal only if the judiciary did not harbour such inveterate hatred of President Zuma.

 

Even assuming Davis’ reliance on the “findings” of the Nugent Commission could somehow be explained or justified, the judge’s reliance on the “evidence led at commission of enquiry into 'State Capture' chaired by DCJ Zondo” is grossly incompetent.  DCJ Zondo is still writing a report in which he will deal with all evidentiary issues including the credibility of witnesses, the admissibility of evidentiary material, cogency of the evidence and what weight to accord to said evidence. But Davis has already jumped the gun to rule that any evidence led before Zondo is admissible to shore up the applicants’ case.  What if Zondo rejects the same evidence in his final report?   Judge Davis simply cannot handle complex matters but he is white and therefore immune from criticism. He has been spared the venomous, racist and vicious attacks directed at the Public Protector Advocate Mkhwbane who is a black woman. 

 

One final point in regard to the merits - the horrid judgment is not worth a longiloquent dissertation as it is devoid of any cogent constitutional merits. The unsound judgment does incalculable damage to our jurisprudence and solidifies in the minds of some of our citizens that the judiciary has become partisan in the factional political battles of parties and that court judgments are tailored to target certain disfavored persons such as President Zuma.  Without question, the applicants weaved an entirely false narrative against Zuma and argued on the grounds of public interest, that this overrides Zuma’s right to tax secrecy, because of the particular circumstances of this case.  Judge Davis was overly eager to indulge the applicants and lend a helping hand – he threw overboard all legal rules of civil procedure and evidence and bent over backward to accommodate them.  As shown here, he went so far as to ignore Constitutional Court’s findings or rulings on the very same issue being litigated. He went further and sought to legislate from the bench and declared legislation passed by Parliament as unconstitutional.  The judge invoked his own junk science and rejected SARS’s articulated rationale that lifting the confidentiality of taxpayer information would weaken tax compliance.  Just like in the Covid-19 case Davis refashioned the law to suit his own philosophy and political predilections.  

 

 

What is to Be Done Now and Where To?

 

SARS has been weaponized as an anti-Zuma tool by the Ramaphosa faction of the ANC and I do not expect anything that makes legal sense to come from SARS. Even if it appeals, its appeal would be nothing more than a charade with no serious legal arguments raised.

 

I must unapologetically state that SARS has gone through the motions and put up a phony legal fight in the Zuma tax release matter. For public propaganda purposes SARS has claimed that it battled to keep Zuma's tax records under wraps. Not, it says, because of who he is - but because of the far-reaching implications the disclosure of taxpayer information could have on its ability to collect revenue. But there is a coda –SARS was represented by Advocate Wim Trengove SC in the matter. Yes the same Trengove who is appointed by the NPA, without any compliance with procurement processes, to prosecute Zuma for alleged corruption related to the arms deal case and tax evasion. On the one hand he is supposed to prosecute Zuma for alleged corruption and tax evasion while on the other hand he is supposed to protect Zuma and keep his tax records confidential! Sadly, that is how the jurisprudence of this country has been destroyed with judges like Davis sheepishly going along.

 

Trengove’s startling and revealing attitude is summed up in paragraph 5.5 of Judge Davis judgment as follows: “In SARS’ opposing affidavits and in arguments presented on its behalf by Adv Trengove SC, it pleaded "agnostic" to the tax affairs of former president Zuma. This must not be construed as either an admission or denial of the allegations, but merely an extension of its obligations not to disclose the tax affairs of any taxpayer in terms of section 69 of TAA and in circumstances as the present.”

 

 Trengove is an experienced advocate but one is left with lingering doubts about whether he did not knowingly throw away the case because it touched on aspects relating to Jacob Zuma’s tax and other matters for which he is currently prosecuting Zuma.  Strategically, allowing the release of Zuma’s tax information to journalists may benefit the NPA in several ways - it continues the vilification campaign against Zuma started by the NPA from the very inception of the arms deal corruption case; it increases the public condemnation of Zuma and subjects him to torture in the court of public opinion and it gives the NPA cover as it has already released confidential information about Zuma to specific journalists like Sam Sole who was an applicant in the very same tax case.

 

In the recent application to remove Bill Downer from the Zuma prosecution, President Zuma’s argued that Downer groomed journalists such as Sam Sole who he unleashed to write adverse articles against Zuma. Prosecutorial independence demands that no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions. When viewed in this context, the Davis judgment is simply another stratagem used to legitimize the disclosure and leaking of information about Zuma that has been going on for over twenty years. As demonstrated conclusively here, Judge Norman Davis clutched at straws to legitimize a far more sinister and wider agenda to unleash journalists against Zuma and to further the narrative that he is corrupt and has dodged taxes.

 

I conclude by reminding the reader that Trengove was counsel for one of the parties in the “Nkandla” judgment matter and was completely familiar with the Concourt ruling and order insofar as it related to the scope of Zuma’s obligations to pay a percentage of non-security costs.  It is anyone’s guess why Trengove advised SARS to adopt a supine “agnostic” strategy instead of pointing out how the pseudo-journalists were distorting facts to the detriment of the court and the public.  Steve Biko was right – Black Man You are on Your Own!

 

I am tempted to write more about the credibility of the main investigative journalist Pauw whose tales were the foundation of  Davis’ judgment.  For disclosure, four ago I exposed Pauw’s shady character as a dishonest racist. See, Journalist's anti-Zuma frame determines the outcome of the case he purports to state against the NPA; Paul Ngobeni ...https://www.pressreader.com/south-africa/the-sunday-independent/20171203/281779924451568   Just this year around February, Pauw was caught in a bizarre twisted case of lies, drunkeness and apparent sexual immorality that eventually led to his axing by the Daily Maverick.  See, https://www.702.co.za/articles/409020/pauw-didn-t-just-do-damage-his-credibility-but-he-damaged-daily-maverick-s

 

I hope President Zuma has a good laugh at Pauw’s expense! In February, after midday on Saturday, Pauw arrived at a Waterfroont Cape Town restaurant with a young female companion (most likely a hired call girl). “Pauw described her to one source as a journalism student writing a piece on his work, and to Daily Maverick as an aspiring Angolan writer asking for help on a book project. .. His descriptions of his companion are obviously inconsistent and appear to change every time he tells the story. Regardless, for the following six hours, they consumed what can only be described as a staggering amount of alcohol — one draught of beer, three bottles of sauvignon blanc, two gin and tonics, and 20 shots of tequila…” See, https://www.dailymaverick.co.za/article/2021-02-19-jacques-pauw-affair-the-story-the-facts-the-fallout-and-the-future/   The story continued: “Shortly before 6.30pm, Pauw was seen in CCTV footage without his companion. He counted out six or seven bills, and attempted to pay the R1,630 cheque with a combo of cash and bank card. The card was declined, and the waiter returned it. In his original column, Pauw claimed that he left his keys and cellphone with the woman at the table and went to draw money from an ATM, using this as “proof” that he would never have considered absconding. This account is untrue. Instead, the footage now depicts his female companion returning to the table. She apparently urged the waiter to try the card again. Sitting, she gesticulated at Pauw, who appeared passive and unresponsive. She stood up, took the cash off the table and pocketed it. This would appear to explain the missing R1,000 Pauw accused the police of stealing from him. (To be clear: we do not know why she took the cash.) The woman is also believed to have taken his keys and cellphone, which Pauw now confirms, and he told us that he picked it up from her in Cape Town when he got out of jail. Id.  Pauw even attempted to flee the restaurant without paying his bill.

 

After all his disgraceful conduct, Pauw had the nerve to publish a false cover-up article in which he accused the police of unlawfully arresting him and subjecting him to all kinds of indignities.  When that lie was exposed Pauw later wrote: “I am privileged and have a public persona …which others do not have. They are vulnerable and have little recourse.” He then quoted constitutional law professor Pierre de Vos: “The richer and the whiter you are, the less likely that you will be wrongfully arrested.”  Id. He could have added that judges like Davis would swallow hook line and sinker anything uttered by a white racist, drunkard, immoral conman and a liar so long as it is contained in a book and it is about Jacob Zuma!

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[1] In Erebus (No 2) at p 653, Cooke, Richardson and Somers JJ.