Zuma Medical Parole Judgment - A Recipe for More Deadly Riots?

 

Zuma Medical Parole Judgment – A Recipe for More Deadly Riots?

               By: Paul Ngobeni

Once again, a grossly erroneous ruling from a court of this country has placed this country on the precipice of a disaster and calamitous riots. Our judiciary seems incapable of separating political preferences from legal principles when it comes to adjudicating cases involving former president Zuma.  In addition, I have uncovered evidence that casts the role of Judge President Mlambo and Judge Elias Matojane in a very bad light when it comes to adjudicating politically sensistive cases with implications for the political fortunes of President Ramaphosa.  This was apparent from the CR17 funding cases.

At first Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley found Advocate Mkhwebane did not have the requisite jurisdiction to investigate donations to a private person's political campaign. They also found that Ramaphosa had no obligation to declare the donations, even if he was deputy president at the time, as he had derived no personal benefit from the donations.

Miraculously, around the time the Zuma parole judgment was issued, the same panel of judges issued another CR17 judgment, AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa (55578/19) [2021] ZAGPPHC 813 (2 December 2021) in which they held that:

1.    It is declared that the Executive Ethics Code, published under Proclamation No. R. 41 of 2000, is unconstitutional, unlawful and invalid insofar as it does not require the disclosure by Members who are subject to the Code of donations made to campaigns for their election to positions within political parties.

 

2.    The declaration of invalidity shall have no retrospective effect and shall be suspended for a period of 12 months to allow for the defect to be remedied.

 

They added a coda. “In this case, it would not be in accordance with the doctrine of the separation of powers for us to prescribe to the President what amendments must be made to the Code to render it constitutionally compliant.  It lies within his constitutional purview to determine how best to ensure that the obligation on Members to disclose funding related to their candidacy for election to party positions respects, protects, promotes and fulfils the constitutional rights and obligations implicated in this judgment.”

 

Ironically, that same healthy respect for the separation of powers was not considered when the same Matojane adjudicated the matter involving President Zuma’s medical parole. Based on the taxonomy of the Correctional Services Act, I shall highlight only a few of the gross errors made by Judge Matojane in his judgment and then pose questions about whether the said errors were due to political considerations or sheer incompetence.

 

Matojane’s Failure to Understand Basis Issues About the Jurisdiction of the Parole Board

 

The Correctional Services Act has created a procedure whereby offenders serving a sentence longer than 24 months are regularly seen by the Case Management Committee (CMC) and that such offenders are assessed in due course by the Correctional Supervision and Parole Board (CSPB) to be considered for release on parole. See, Section 42 of the CSA. President Zuma does not fall under that category as he was sentenced to only 15 months.  Most importantly, Section 75 which defines the “Powers, functions and duties of Correctional Supervision and Parole Boards” unambiguously states the following:

(1) A Correctional Supervision and Parole Board, having considered the report on any sentenced offender serving a determinate sentence of more than 24 months submitted to it by the Case Management Committee in terms of section 42 and in the light of any other information or argument, may—

(a) subject to the provisions of paragraphs (b) and (c) and subsection (1A) place a sentenced offender under correctional supervision or day parole or grant parole or medical parole and, subject to the provisions of section 52, set the conditions of community corrections imposed on the sentenced offender;

 

Given the taxonomy of the statute, did the Correctional Supervision and Parole Boards have any jurisdiction to consider reports and make decisions on a prisoner serving a determinate sentence of NOT more than 24 months?  The answer is an unequivocal NO.  The legislature made a deliberate choice to make a distinction between prisoners serving a determinate sentence of more than 24 months and those serving a lesser sentence.

 

Offenders serving sentences of less than 24 months are handled administratively and it is the Head of Centre (HOC) than makes the decision to release on parole or not. These are generally referred to as ‘non-board cases’. A relatively large proportion of releases, probably the majority, are non-board cases. They are not subject to the exacting or more stringent requirements applicable to CSPB cases. Viewed with this prism, Arthur Fraser was correct in his approach to the Zuma medical parole issue –the statute gives the Parole Board jurisdiction and leeway to deal with reports of prisoners serving a determinate sentence of more than 24 months and not those like President Zuma who was serving a 15 months sentence.  Accordingly, where the Parole Board purports to be acting on reports concerning a prisoner whose case does not meet the minimum statutory threshold, it was acting in excess of its mandate and had usurped the power of the Head of Center to handle the matter administratively. Fraser was not obligated to be deferential to the Parole Board and was justified in rejecting its ruling in excess of its clear statutory mandate. The mere existence of the parole Board does not prevent the national Commissioner and the courts from investigating whether the necessary jurisdictional facts objectively existed for the Parole Board’s exercise of its power.  This simple concept should not be difficult to understand in any country where a sane and sober judiciary faithful to the rule of law exists.  But there is more.

 

Matojane focused exclusively on the Parole Board and ignored one very important higher structure with relevant authority in matters involving parole.  Ordinarily, a decision of a parole board can be taken on review within the Correctional Services Department. Section 76 of the Correctional Services Act makes provision for a Correctional Supervision and Parole Review Board (CSPRB). This board has the power to either confirm the decision of the parole board or to substitute it with any decision which the parole board should have made. The CSPRB must give reasons for its decision. Even more important, the members of the CSPRB must comprise – A judge (as chairperson); A director or deputy director of Public Prosecutions; A member of the Department of Correctional Services; A person with special knowledge of the correctional system; and two representatives of the public. But here the applicants bypassed that route because they knew that the neither the Parole Board nor the CSPRB had jurisdiction over prisoners serving a sentence of less than 24 months.

 

The racist applicants from Afriforum and Democratic Alliance knew that the Parole Board did not have jurisdiction over Zuma’s case given the length of his determinate sentence. That is why they opted to go to Matojane who was just overly eager to deal with a matter involving Zuma. Having improvidently accepted a case under these circumstances Matojane failed to examine whether the Parole Board had jurisdiction over a case involving a determinate sentence of less than two years.  He ignored the statute and then went on to rule that the decision of the National Commissioner (Mr Arthur Fraser at the time) to place Presideny Zuma on medical parole, taken on 5 September 2021, is reviewed, declared unlawful, and set aside.  He further ruled that:

 

3. The medical parole decision is substituted with a decision rejecting [Zuma’s] application for medical parole;

 

4. It is hereby directed that [Zuma] be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment;

 

5.  It is declared that the time [Zuma] was out of jail on medical Parole should not be counted for the fulfilment of the Third Respondent's sentence of 15 months imposed by the Constitutional Court.

 

Why would Matojane ignore the clear language of the statute about the Board’s lack of jurisdiction if Matojane was not acting out of political motives? Why would he take it upon himself to reject Zuma’s medical parole on the basis of an opinion from the Parole Board which lacked jurisdiction over the matter in the first place? Given the existence of the CSPRB which is headed by a Judge as a chairperson why did Matojane act with such unseemly haste to decide the matter himself when he could have allowed the statutory review body to either affirm or review and set aside the decision of the Parole Board?  These questions will be answered when this country descends into chaos and deadly riots provoked by an incompetent and politically partisan judiciary.

 

Matojane further declared “…that in terms of section 71(1) (a) of the Correctional Services Act 111 of 1998 (CSA) read with regulations 29A, and 29B promulgated in terms of CSA, the Medical Parole Advisory Board (MPAB) is the statutory body to recommend in respect of the appropriateness of medical parole to be granted or not in accordance with section 79(1)(a) (the terminal condition and incapacity requirements).”  That too is grossly incompetent for two reasons – Matojane refers to Section 75 which deals with the powers, functions, and duties of Correctional Supervision and Parole Boards, whose responsibility is to consider offenders for Parole or medical Parole. Instead of seeing the statute as establishing a jurisdictional threshold, Matojane concludes: “Section 75(7)(a) merely excuses them from their responsibilities if the offender is serving a sentence of incarceration of less than 24 months.” Further, Matojane states without any support in the legislation that “the Medical Parole Advisory Board (MPAB) is the statutory body to recommend in respect of the appropriateness of medical parole to be granted or not.”

 

 

Matojane’s Failure to Understand the Medical Parole Criteria In Section 79

 

Matojane blithely ignores the clear and unambiguous statutory language that states:

79. Medical parole.—(1) Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if—

(a) such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care;

(b) the risk of re-offending is low; and

(c) there are appropriate arrangements for the inmate’s supervision, care and treatment within the community to which the inmate is to be released.

 

The question of simple interpretation comes in here. The medical parole can be granted if “such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care.” Matojane concluded that “the Board has to impartially and independently make a medical determination whether the Third Respondent does suffer from a terminal illness and that he is physically incapacitated.” But the statute does not require that the prisoner must be in a coma or a vegetative stage to qualify as physically incapacitated. In this context, physically incapacitated means that a person has a bodily impairment or handicap that substantially or severely limits the person’s daily activity.  The medical reports clearly confirm that the 79 year old Zuma suffers from a variety of illnesses and a physical impairment which substantially limits his ability to engage in major life activities such as caring for himself, performing manual tasks, and working. In context, Physically incapacitated is not much different from "physically disabled" which refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness. In this regard, Fraser was correct in adopting a clearer view of the medical reports – a 79 year old man with the illness described in the reports qualified for parole.

 

Matojane was determined to find against Zuma at all costs and appears to have ignored the admonition of the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others where O’Regan J stated:

“In treating the decisions of administrative agencies with the appropriate respect, a Court is recognising the proper role of the Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker. This does not mean, however, that where the decision is one which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a Court may not review that decision. A Court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker.” 

 

Matojane’s Flagrant Disregard of the Separation of Powers Principle

 

Assuming the National Commissioner for Correctional Services, Fraser, erroneously granted President Zuma a medical parole, does it automatically follow that the legal solution is to order the re-incarceration of Zuma? Is the court acting within the encincture of its discretion when it issues orders that “the medical parole decision is substituted with a decision rejecting [Zuma’s] application for medical parole; directing that [Zuma] be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment; and that the time [Zuma] was out of jail on medical Parole should not be counted for the fulfilment of his sentence of 15 months imposed by the Constitutional Court.?

 

As a corollary question, is Zuma entitled to any due process hearing in the court-ordered parole revocation and, is the judicial order arbitrary, or conscience shocking, in a constitutional sense?  After all, Zuma did not grant himself the medical parole – it was the executive branch of our government which took the impugned action and Zuma remained subject to very stringent conditions while on parole.  He was never free from the control and dominion of the Department of Correctional Services. It is obvious that Zuma who is on parole is still serving his sentence - parole is an integral part of a sentence as it is a continuation of a sentence outside of the correctional facility.  Are ordinary legal principles of due process and estoppel applicable in a court-ordered parole revocation? Is Matojane fermenting a riot or violent uprising by deliberately ignoring these principles?

 

An answer to these questions require an understanding that Matojane’s interpretation of the statute, the Correctional Services Act and Regulations is so grossly wrong based on the following facts.  He asserts that the “kind of challenge presented in this matter is that the Constitutional Court has already determined that 15-month direct imprisonment was the only 'just and equitable' order to make under the circumstances and has rejected other lesser forms of punishment.”  Id. at para.91. Clearly he labors under the imprecision that a parole means a person is no longer serving his sentence.

 

Assuming Zuma was erroneously placed on parole, does the Court violate the substantive due process right of an erroneously released parolee to remain on release when it reviews and sets aside the parole decision and substitutes it with its order “rejecting the [Mr. Zuma’s] application for medical parole;” and directing that Mr. Zuma  “ be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment;” and that “ the time [Mr. Zuma was out of jail on medical Parole should not be counted for the fulfilment of the [his] sentence of 15 months imposed by the Constitutional Court.” Matojane, through judicial cherry-picking has attempted to do exactly what the higher appellate courts have admonished lower courts not to do. 

 

Contrary to Matojane’s erroneous thinking, the granting of parole does not constitute an unfair intrusion into the sentencing powers of the judiciary even though the National Commissioner and the parole boards can alter at will the actual period of imprisonment that a prisoner serves. From time immemorial there has always been recognition of the power of executive authorities to alter judicially imposed sentences.  That power is now firmly anchored in our constitution and attempts by lower courts to influence prisoner’s eligibility for parole through various stratagems at sentencing have been firmly rejected by the SCA.  Typically, a high court judge would, at the time of imposing sentence, attempt to gerrymander the parole and prevent the early release of an offender on parole. When the same issue served before the Supreme Court of Appeal in S v Botha (318 of 2003) [2004] ZASCA 51 (28 May 2004), the  higher appellate court made it pellucid that courts are duty-bound to exercise judicial restraint on matters of sentencing and parole. The SCA stated:

The function of a sentencing court is to determine the term of imprisonment that a person, who has been convicted of an offence, should serve. A court has no control over the minimum period of the sentence that ought to be served by such a person. A recommendation of the kind encountered here is an undesirable incursion into the domain of another arm of the State, which is bound to cause tension between the judiciary and the executive. Courts are not entitled to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive.

 

In Sv  Smith 1996(1) SACR 250(E),where  the accused was convicted of multiple murders, it was held that it would be inappropriate for a court to impose lengthy prison terms “in an attempt to eliminate any possibility of  parole”, and  that “[t]he  granting  of  parole  ...[falls]within  the  powers  of  the executive authority and the Court ought not to attempt to circumvent the exercise of this  power”. Id. at 251.  In In S v Matlala 2003(1) SACR 80(SCA), the appellant was sentenced to 40 years’ imprisonment for  several  serious  offences  including  armed  robbery.  The  High  Court Judge  ordered  that  he should be  considered  for  parole only after  serving  30  years.  The  Supreme  Court  of  Appeal, in reducing the sentence to 30 years’ imprisonment, held inter alia that the court should not “grade the duration of its sentences by reference to ...[the] conceivable pre-parole  components  but  by reference  to  the  fixed  and  finite  maximum  terms  it  considers  appropriate,  without any  regard  to possible parole”. Para  7. In S  v Leballo 1991(1)SACR  398(B),where  the  trial Judge  found  the  accused  guilty  of  assault  and sentenced  him  to  eight  years’  imprisonment  because, inter alia, he wanted   him   to be incarcerated for a long time before being considered for parole, on appeal it was held that “[t]he fact of possible pardon  or  parole should  not  have been taken into account”as justification for  a lengthy prison term”. Id at 401.The  appellant Court  reduced  the  sentence  to  a  fine  of  R2000  or, in default of payment, imprisonment for three years. [1]

 

 The pivotal question is whether Judge Matojane ignored binding precedent from the SCA by arrogating to himself the power to “control over the minimum period of the sentence that ought to be served” by Zuma before he was eligible for parole? Is Matojane’s order an attempt to “to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive”?  Matojane did not treat the decisions of administrative agencies with the appropriate respect, and did not recognize the proper role of the Executive within the Constitution. Instead, the judge attributed to himself superior wisdom in relation to matters entrusted to other branches of government.

 

A related question is whether Matojane’s approach on the “no fault parole revocation” can be sustained under our constitution.  It goes without saying that although the release on parole is not a right, the offender has a legitimate expectation that he will be considered for parole and will be placed on parole should he fulfill all of the requirements, for example, that he has served the non-parole period and has been rehabilitated.  The right crystallizes further when the Correctional Services Department, rightly or erroneously, grants the prisoner parole. 

 

Other Courts have confronted exactly such scenarios where a prisoner was allegedly released on parole on erroneous grounds. See also, Kerr v. State, 345 S.C. 183 (S.C. 2001); 547 S.E.2d 494 https://casetext.com/case/kerr-v-state-48. Kerr was released on parole in September 1993. It was undisputed that Kerr successfully resumed his place in the community, returned to work, and fully complied with the conditions of his parole. Nonetheless, on July 13, 1995, Kerr was arrested and re-incarcerated after reporting to his parole officer. He was given no reason for his arrest and was not appointed legal counsel. On July 19, 1995, Kerr was brought before a single member of the Parole Board who informed him the Board had made a mistake paroling him in 1993 because the Board decided Kerr was parole ineligible under the trafficking statute. Kerr's parole was thereby terminated, without any written explanation. The Court agreed that Kerr was correct in his allegations that his parole was unlawfully rescinded and he should not have been returned to prison.

 

Ironically, in the Zuma case it is a judge who intentionally acts to violate the rights of Zuma. Matojane makes the nonsensical and incoherent statement that the consequential relief sought, “sending the Third Respondent back to prison to do his time and order that the time spent on medical parole should not count towards fulfilling his sentence, will not impact him unfairly as there is no suggestion that he is an innocent party. The Third respondent defied the Zondo Commission, the judiciary and the rule of law and is resolute in his refusal to participate in the Commission’s proceedings. He continues to attack the Constitutional Court while unlawfully benefitting from a lesser punishment than what the Constitutional Court has imposed. He states in his answering affidavit that he considers himself "a prisoner of the Constitutional Court" and claim that he was "incarcerated without trial".” Matojane’s warped view that where there is no suggestion that a prisoner is “an innocent party” his due process rights may be trampled upon will-nilly finds no support in our jurisprudence. Furthermore, he appears to hold the view that Zuma's belief in his innocence and expression of views which are shared by other judges of the Constitutional Court must be used against him to deny him parole.  In fact, Zuma did not place himself on parole and if there was any error made it was on the part of the Commissioner of Correctional Services. By ordering that the time served on parole must not be counted, Matojane appears ignorant of the fact that parole is an integral part of a sentence because it is a continuation of a sentence outside of the correctional  facility.  In  other  words,  an  individual  who  is  on  parole  is  still  serving his/her  sentence.  The judicial attempt to impose a bank page in Zuma’s sentence while on parole is untenable. And when that parole is revoked the state's untoward conduct in granting parole, the parolee's lack of complicity in the underlying administrative error, and the reasonable expectations of continued freedom that had resulted must all be carefully considered.

 

Matojane is simply incompetent as a judge. In National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA) the court dealt with a High Court’s mandatory interdict where “the court a quo did not limit itself to the setting aside of the impugned decisions. In addition, it (a) ordered the NDPP to reinstate all the charges against Mdluli and to ensure that the prosecution of these charges are enrolled and pursued without delay; and (b) directed the Commissioner of Police to reinstate the disciplinary proceedings and to take all steps necessary for the prosecution and finalisation of these proceedings (para 241(e) and (f)).”  Both the NDPP and the Commissioner contended that these mandatory interdicts were inappropriate transgressions of the separation of powers doctrine. Judge Brand rules as follows:

“I agree with these contentions. That doctrine precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. In terms of the Constitution the NDPP is the authority mandated to prosecute crime, while the Commissioner of Police is the authority mandated to manage and control the SAPS. As I see it, the court will only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons. Suffice it to say that in my view this is not one of those rare occasions and I can find no compelling reason why the executive authorities should not be given the opportunity to perform their constitutional mandates in a proper way. The setting aside of the withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges and the proceedings are automatically reinstated and it is for the executive authorities to deal with them. The court below went too far.”

 

Clearly the Matojane Court order directing that Zuma return to prison and that time spent on parole be disregarded not only constitute inappropriate transgressions of the separation of powers doctrine but is also a direct assault on Zuma’s human rights. 

 

Matojane’s Obsession with the Constitutional Court’s Contempt Judgment and His Failure to Understand Pardon and Parole

Contrary to Matojane, it is well-established principle of law that the executive may issue a pardon or parole to a person convicted of contempt of court. Did Matojane commit a serious misdirection and allow himself to be unduly influenced by his obsessive preoccupation with the crime for which Zuma was convicted, contempt of court instead of dispassionately analyzing the parole decision under PAJA?

 

The pertinent legal issue to be confronted head-on is whether a pardon by the President or a parole granted by the National Commissioner for a crime involving contempt of court is constitutional given the separation of powers principle. For instance, the President’s constitutional power to pardon  allows  him  to  free  people  convicted  of crimes from any and all legal penalties imposed as a result of  their convictions, guided only by his social conscience and  political  instincts.  The  “benign prerogative  of pardoning”  is  an  awesome  responsibility,  and  the  Constitution deems it as  having  very specific   public   purposes. Pardon  is  not  constrained  by  principles  of  fairness  in  the  same  way  that  justice  is,  because it is entirely voluntary and because, as an expression of the will of the  community,  it has  a political dimension.    The President  can  be  held  accountable for his use of the power only in the court of public opinion.  Parole is available as discussed above and there is ample precedent for granting parole even in criminal contempt of court cases.

 

In Ex parte Grossman, 267 U.S. 87 (1925), the United States Supreme Court held that the President of the United States can pardon criminal contempt of court.[2] Grossman had been convicted of criminal contempt, but was pardoned by the President; the district court had subsequently sent him back to prison. During the time of Prohibition, Philip Grossman owned a business in Chicago that sold alcoholic drinks. Charged under the Volstead Act, the enforcement mechanism for Prohibition, a judge placed an injunction on him, forbidding him from selling alcohol. Grossman violated that order, and was found guilty of criminal contempt of court in district court. Sentenced to one year in prison and a fine of $1,000, he was pardoned by the President, Calvin Coolidge, in December 1923, on the condition that the fine be paid. Grossman's prison sentence was removed after he paid the fine, and he was released. The district court, claiming the pardon would subvert the independence of the judiciary, ordered Grossman back to prison on May 15, 1924, to serve out the rest of his sentence. 

 

Grossman’s appeal ultimately reached the US Supreme Court where Chief Justice William Howard Taft wrote for a unanimous Court, rejecting the arguments of the district court, and ordering Grossman to be freed. First, examining the history of the pardon power, he looked to the common law and the monarchy of England, where, as he noted, monarchs "had always exercised the power to pardon contempts of court", just like ordinary crimes; and, just as in the United States, civil and criminal contempt existed. Here, a distinction between civil and criminal contempt was made: civil contempt was remedial for the contemnor, and pardons cannot stop it; while criminal contempt is punitive, serving a deterring effect against transgression of court orders. The Supreme Court has observed that it is “not the fact of punishment, but rather its character and purpose, that makes the difference between the two kinds of contempts.” For civil contempt, “the punishment is remedial and for the benefit of the complainant. . . .” For criminal contempt, on the other hand, “the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions.”

 

Referring to United States v. Hudson, the Chief Justice then rejected the idea that the offenses covered by the pardon clause extended only to those for which the Congress had defined as crimes, and instead looked at the plain meaning of the words "offenses against the United States": “Nothing in the ordinary meaning of the words 'offenses against the United States' excludes criminal contempts.” Taft further determined that the pardon power had been exercised many times with regard to criminal contempt (over 85 years, the pardoning power had been used 27 times), citing opinions by Attorneys General Henry D. Gilpin, John Nelson, John Y. Mason, and William H. H. Miller; along with statements by Attorneys General Philander C. Knox and Harry M. Daugherty. The weight of long-standing practice could not be ignored, stated the Chief Justice, and served to bolster the argument that the usage of the pardon power was not incorrect.

 

Finally, Taft turned to the argument about judicial independence, and that the usage of the power of pardon here would undermine a functioning judiciary. Cognizant that the Constitution allowed for separation of powers, he determined that the system of checks and balances allowed for the discretion of the President in determining the use of the pardon power, insofar as it pertained to criminal contempt. After all, criminal contempt does not require the restraint of a jury, and, as such, it is possible that a mistake could creep in; and while a president could pardon all criminal contempt, such a thing would be an improbable absurdity. Nevertheless, limits still existed: the pardon could only be issued for contempt that had already occurred, and a capricious President could face impeachment. Nevertheless, in light of the weight of history, precedent, Constitutional function, and justice, the Chief Justice concluded:

 

The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to prevent it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.

                [...]

It goes without saying that nowhere is there a more earnest will to maintain the independence of federal courts and the preservation of every legitimate safeguard of their effectiveness afforded by the Constitution than in this court. But the qualified independence which they fortunately enjoy is not likely to be permanently strengthened by ignoring precedent and practice and minimizing the importance of the co-ordinating checks and balances of the Constitution. The rule is made absolute and the petitioner is discharged.

 

The power to impose sanctions for contempt of court is an inherent power that is essential to the independence of the judiciary. Courts of justice “are universally  acknowledged  to  be  vested,  by  their  very  creation,  with  power  to  impose silence,   respect,   and   decorum   in   their   presence,   and   submission   to   their   lawful mandates....” Anderson v. Dunn, 19 U.S. 204 (1821) at  227.  However, a President’s pardon of such contempt of court is not an  intentional  usurpation  of  the  Court’s authority  by  the  President.    Rather, his pardon of  the Defendant is based  upon  the  considerations  of  grace  that  usually  justify  the  exercise  of the pardon power. In short, just like the pardon in Grossman, the pardon here is based upon  “circumstances  which  may  properly  mitigate  guilt,”  and is not intended  to  defeat  the  Court’s  authority  to  punish  disobedience  to  the  Court’s  orders. The Court was seriously divided on the use of direct imprisonment without trial for the alleged contempt.

 

There is the specter that  courts  may  wield  the  despotic  powers  in  criminal  contempt proceedings  that  would  justify  the  pardon  as  a  necessary  check  against  abuses  by  the judiciary.  The Court in Grossman agreed that “[t]he power of a court to protect itself and its  usefulness  in  punishing  contemnors  is  of  course  necessary.”    267  U.S.  at  122.  Contempt  of  court  powers,  however,  were  then  “without  many  of  the  guaranties  which the bill of rights offers to protect the individual against unjust conviction,” most notably a disinterested  judge.   Id.    The  Court  asked:  “Is  it  unreasonable  to  provide  for  the possibility  that  the  personal  element  may  sometimes enter  into  a  summary  judgment pronounced by a judge who thinks his authority is flouted or denied?”  Id. The  procedure  described  by  the  Court  in Grossman—a  bench  trial  for  criminal contempt  before  the  judge  whose  order  the  defendant  defied—needed reform, and  the judiciary made that reform.  See In re Murchison, 349 U.S. 133, 137 (1955) (“It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.”).

 

Matojane clearly misdirected himself by stating in the following paragraphs of the judgment as follows:

[91] The kind of challenge presented in this matter is that the Constitutional Court has already determined that 15-month direct imprisonment was the only 'just and equitable' order to make under the circumstances and has rejected other lesser forms of punishment.”

 

[92]     In determining the length of sentence to be imposed on the Third Respondent, the Constitutional Court held that it was enjoined to consider the circumstances, the nature of the breach; and the extent to which the breach was ongoing. In doing so, it held that quantifying the egregiousness of Mr Zuma's conduct was an impossible task, but “that the focus had to be on what kind of sentence would demonstrate, generally, that orders made by a court must be obeyed”, and, to the Third Respondent specifically, “that his contumacy stood to be rebuked in the strongest of terms”. The Constitutional Court concluded that “if with impunity, litigants, especially those in positions like that of Mr Zuma, are allowed to decide which orders they wish to obey and those they wish to ignore, a constitutional crisis will be precipitated”. The Court ordered an unsuspended sentence of imprisonment for a period of 15 months.

 

Matojane continued his nonsensical analysis by stating that the “Commissioner's unlawful intervention has resulted in the Third Respondent enjoying nearly three months of his sentence sitting at home in Nkandla, not serving his sentence in any meaningful sense.”  But a person on parole is serving a sentence! Matojane then refers to newspaper articles and rules that Zuma “is not terminally ill or severely incapacitated and seems to be living a normal life.”  He then goes on to state that the “Commissioner has unlawfully mitigated the punishment imposed by the Constitutional Court, thereby rendering the Constitutional order ineffective, which undermines the respect for the courts, for the rule of law and for the Constitution itself.” What utter rubbish? All parole or pardon decisions do mitigate the punishment imposed by courts but that is exactly their functions under the Constitution and Correctional Services Act.

 

Right-thinking members of society have the right to revolt against palpably unjust orders of courts which are calculated to suit partisan political agendas and to subvert the rule of law.  It remains to be seen whether judicially-inspired riots will become the order of the day in this beloved country of ours.  One hopes that the appeal court will arrest the trend of judges acting as complete stooges acting at the whims of white-dominated parties and NGOs.

---

[1] I am indebted to JD Mujuzi’s Informative Article “Unpacking the law and practice relating to parole in South Africa” for a summary of these cases.

[2] Butler, Paul M. (1929). "Contempt and Executive Power to Pardon, Part II". Notre Dame Law Review. 4 (8). ISSN 0745-3515.

Acquit Bathabile Dlamini to End Political Corruption of Our Judiciary

 Acquit Bathabile Dlamini to End Political Corruption of Our Judiciary

By: Paul Ngobeni 

I have previously written about the ANC Women’s League President, Bathabile

Dlamini’s prosecution as follows:

 

… 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.

See, https://constitutionalcrossroads.blogspot.com/2021/11/what-bathabile-dlamini-perjury.html

 

Perjury Prosecution As A Political Weapon.

Perjury prosecution can be the most potent political weapon deployed against the political enemies of those in power. It is not surprising that in the course of  President Ramaphosa’s legal battle with the Public Protector, Advocate Mkhwebane, perjury was amongst the charges thrown at the Public Protector. In a similar vein, the ANCWL’s principled stance against male chauvinism and its persistent insistence that women must assume leadership of the ANC and country has seen its president Bathabile Dlamini facing perjury prosecution that the NPA is failing to handle competently. As one American lawyer, Robert E. Scully, Jr astutely observed:

 

Although lying under oath is endemic, perjury is rarely prosecuted. When it is, the defendant is usually a politician. The prosecution of Alger Hiss was probably the most famous political perjury prosecution ever in the United States. It made a young anti- communist California Congressman named Richard Nixon a household name. ALLEN WEINSTEIN, PERJURY: THE HISS-CHAMBERS CASE (Random House 1998). The recent perjury conviction of Kathleen Kane, the Attorney General of Pennsylvania, for lying about her role in leaking grand jury testimony to embarrass a political opponent is a modern case in point. Jess Bidgood, Pennsylvania’s Attorney General is Convicted on All Counts, NEW YORK TIMES (August 15, 2016) http://www.nytimes.com/2016/08/16/us/trial-kath- leen-kane-pennsylvania-attorney-general.html  More memorable for those of us of a certain age, President Bill Clinton testified falsely under oath in a judicially supervised deposition in a federal civil case that he did not have sexual relations with Monica Lewinsky. He was not prosecuted for perjury despite being impeached by the House of Representatives, fined $900,000.00 for civil contempt by the presiding federal judge, and having had his Arkansas law license suspended for five years for the falsehood. Final Report of the Independent Counsel In re: Madison Guaranty Savings and Loan Association Regarding Monica Lewinsky and Others at 41-49 (March 6, 2002) (explaining the decision not to prosecute). Absent some such public notoriety, however, the ordinary lying witness is usually ignored by busy, underfunded, and politically astute prosecutors. The Department of Justice U.S. Attorney’s Manual standards for federal perjury prosecutions are high.” Impeachment with Unadjudicated Perjury: Deadly Weapon or Imaginary Beast?

Robert E. Scully, Jr.; Litigation News, Virginia State Bar, Volume XVII, Number IX; December 2016.

 

These observations are not unique to the USA and are not of recent vintage. In South Africa under apartheid, the Report of the Commission of Inquiry into Criminal Procedure and Evidence (RP78/1971) 1971 (the Botha Commission) observed.: “It is well known that criminal proceedings are seldom instituted against persons who are alleged to have committed perjury.” The US President's Commission on Law Enforcement and Administration of Justice concluded in 1967-68 that the federal perjury sanction was not a sufficiently effective deterrent to false testimony because so few perjury prosecutions were brought.  A perjury prosecution is by definition a major legal gamble which must not be undertaken by amateurish prosecutors pursuing partisan political battles. As shown here, the obstacles in proving the crime of perjury can be insurmountable.

 

 The NPA's Weak Presentation of Evidence 

 

A person commits perjury when he intentionally lies under oath, usually while testifying in court, administrative hearings, depositions, or in answers to interrogatories. Perjury can also be committed by knowingly signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) that contains false information.

But the basis of the perjury charge against Bathabile Dlamini is not what she said under oath in motion proceedings before the Constitutional Court. Rather, it is what the NPA claims she omitted to include in her submissions to that Court. That omission can be a crime such as defeating the ends of justice and/or contempt of court but it is simply not perjury. Moreover, in this case the impugned statements are her affidavits which are couched in the usual cliches’ like “The facts and circumstances as set out in this affidavit fall within my personal knowledge and are to the best of my knowledge both true and correct, except where the context indicates otherwise.” In the context of motion proceedings in civil court, the crime of making false statement would involve knowingly and willfully making a false statement about a material fact, or falsifying or covering up a material fact. This latter point includes knowingly omitting information that is material. The key point is the speaker's intent: that the speaker has knowingly made the false statement, or omitted relevant information. A material fact is information of fundamental importance to a case, not information either peripheral or irrelevant to the issue being litigated.  Any experienced litigation lawyer would tell you that litigants do not always agree on what information is of fundamental importance to a case.  All said and done, omissions in presentation to the court are not perjury per se.

 

Needless to state that the NPA knowing that it had no winnable case succumbed to the pressure of white-controlled NGOs and liberal groupings like Black Sash and FUL, to present a case that was doomed to failure from the very onset.  Initially the NPA planned to present two witnesses but that plan was eventually abandoned and it settled on one witness, former Sassa CEO Thokozani Magwaza who was expected to testify against Bathabile Dlamini as a star witness.  But in doing so, the NPA ignored an admonition from Judge Ngoepe who was not impressed with Magwaza as a witness.  Judge Ngoepe stated:

 

            6.2 Thokozani William Magwaza

The criticism I have against Mr. Magwaza is not that he was not a credible witness, or that he was evasive or not telling the truth. He was just overcharged, almost unstoppable. He would be too elaborate where he could have been concise, and tended to go too much into context. On occasions he had to be brought back to the question, and asked to limit himself thereto…Rather, he appeared to be someone who had long been yearning for, and finally got the opportunity to ventilate as much possible bottled up complaints about the Minister and the work of the work streams.”

 

It is just mind-boggling how the NPA could ever hope to win a perjury prosecution on the basis of Mr.Magwaza’s testimony alone. An “overcharged, almost unstoppable” witness who had been yearning “to ventilate as much possible bottled up complaints about the Minister” is hardly the stuff that a star witness is made of.

The NPA knew or should have known that for a perjury charge to stick, the evidence must be deliberately false - witnesses are not at risk of being charged with perjury simply because they may get some part of their evidence wrong, that through memory lapse forgot important aspects of evidence in a case or that they omitted immaterial and inconsequential details from their evidence. Perjury charges are usually reserved for instances where it is very clear that a person has deliberately lied about an important aspect of the evidence.

 

The NPA is faced with another major dilemma in the extant prosecution – as a general rule, there must be some ‘corroboration’ for a perjury charge. In other words, there must be some independent evidence capable of supporting the allegation of a deliberate lie. It is never enough for a person to be convicted of perjury simply because they assert a fact and they are not believed about that fact. See, the case of S v Gentle 2005 (1) SACR 420 (SCA) which states the following with regards to corroboration: ‘It must be emphasised immediately that by corroboration is meant other evidence which supports the evidence of the complainant, and which render the evidence of the accused less probable, on the issues in dispute’. Id. at 430.  It is true that when assessing the evidence at the stage when the State closes its case, the Court does not conduct a searching inquiry into the credibility of the State’s evidence. The judge’s role in assessing a section 174 application is not to assess credibility. But the court is entitled to disregard the State’s evidence and discharge the accused where the evidence is of ‘such poor quality’ that no reasonable man could convict the accused on it. S v Mpetha & Others 1983(4) SA 262 at 265D – G.  That is exactly what we have in the Bathabile Dlamini prosecution.

 

As the Supreme Court of the Philipines ruled in Villanueva v. Secretary of Justice,

G.R.No. 162187, 18 November 2005, the mere assertion of a false objective fact is insufficient to prove the crime of perjury. There is a need to prove malicious intent, and as such a statement of false belief is not perjury:

A mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be deliberate and willful. Perjury being a felony by dolo, there must be malice on the part of the accused. Willfully means intentionally; with evil intent and legal malice, with the consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to "knowingly." "Deliberately" implies meditated as distinguished from inadvertent acts. It must appear that the accused knows his statement to be false or as consciously ignorant of its truth.

Perjury cannot be willful where the oath is according to belie for conviction as to its truth. A false statement of a belief is not perjury. Bona fide  belief in the truth of a statement is an adequate defense. A false statement which is obviously the result of an honest mistake is not perjury.

           

There are two essential elements of proof for perjury: (1) the statement made by the defendants must be proven false; and (2) it must be proven that the defendant did not believe those statements to be true.

 

Knowledge by the accused of the falsity of his statement is an internal act. It may be proved by his admissions or by circumstantial evidence. The state of mind of the accused may be determined by the things he says and does, from proof of a motive to lie and of the objective falsity itself, and from other facts tending to show that the accused really knew the things he claimed not to know.

A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused. The prosecution must prove which of the two statements is false and must show the statement to be false by other evidence than the contradicting statement. The rationale of this principle is thus:

... Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there

must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show perjury independently of the declarations of testimony of the accused, (citations omitted)

 

It appears that the prosecution failed to supply the quantum of proof required to prove all the elements of perjury. Such failure becomes even more significant when viewed in light of accused's presumption of innocence. The ANCWL president is entitled to an immediate acquitall so that she can focus all her energies on electing a new and competent women-led ANC leadership in 2022.  President Ramaphosa must learn very soon that his billions cannot buy the loyalty of every patriotic black South African citizen.

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?