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How the ConCourt dropped the ball on systemic corruption

Koos Malan – Paul Hoffman | 19 March 2019 Koos Malan and Paul Hoffman revisit the majority and minority opinions in “Glenister III”

The Concourt contribution to sacrificing the rule of law on the altar of transformationism

Helen Suzman Foundation v President of the RSA; Glenister v President of the RSA 2015 (1) BCLR 1 (CC)

1           Introduction

The South African public is constantly bombarded with revelation after revelation concerning the deep-seated and wide-ranging grand corruption in our affairs of state and the public administration, ably abetted by the private sector. These revelations are now accumulating, to what effect remains to be seen, in the records of the various commissions of inquiry and investigation panels – Zondo, Nugent, Mokgoro, Mpati, and Mufamadi.They explore the ingredients of the toxic mix of corruption that have become the most distinctive characteristic of the South African state under the government of the tripartite alliance led by the African National Congress.

However, the deeply corrupt condition of the South African state is nothing new. It has come a long way. Evidence demonstrating the descent of the country to “the heart of darkness” has also long been available – evidence that, correctly considered and applied, could have helped this corruption-battered country to have tackled the corrupt in all sectors a long time ago. This evidence was available at least as far back as 2014 when the Constitutional Court gave judgment in in Helen Suzman Foundation v President of the RSA; Glenister v President of the RSA 2015 (1) BCLR 1 (CC), generally known as Glenister III.

Unfortunately, the Constitutional Court, the final protector of our rights and the august guard against corruption was affronted by (the majority) and/or unmoved by (the minority) this evidence. It the eyes of the majorly of the justices of the Court the evidence was irrelevant, vexatious and scandalous. Therefore it was ruled inadmissible. Moreover, the majority was so indignant about the attempt to present this evidence on the deep-seated corruption that it punished the party who sought to tender this evidence with an unpleasant and extraordinary adverse costs order. There was no basis in law for the majority of the Court to have done so.

On the contrary, having ruled in the way it did, the Court was in dereliction of its judicial responsibilities and has let down those it is meant to serve – the South African public. Now that we are inundated by all the confirmatory evidence of large scale corruption, the dismissive approach of the majority of the justices of the Constitutional Court in Glenister III in which it indignantly refused to receive evidence of the same kind needs to be revisited urgently with a view to correcting the stance taken. When a former deputy minister of finance credibly reveals under oath that he could not trust the police, the prosecutors and the intelligence services to protect him when his life was under threat, it is time to take stock. The most pertinent questions to answer are:

Why did the Constitutional Court so furiously elect to turn a blind eye to the so-called scandalous evidence back in 2014 – evidence of the same kind that is now the daily staple of the commissions and the panels?; What were the real reasons for the Court’s reasoning – the real reasons which were never revealed in its heated judgment. Most importantly, does the Court now have the impartiality, integrity and independence to recognise its error and correct it?

In Glenister III the main question was whether the amendments to the legislation that provides for the Directorate for Priority Crime Investigation (DPCI), popularly known as the Hawks, complied with the constitutional requirement of independence (from the executive). A large part of the dispute dealt with in paragraphs 15-38 (9C-18E); 116-149(43G-52G) and 199-219 (63C-68B) concerned the law of evidence. It dealt with the admissibility or otherwise of evidence that Mr Hugh Glenister, the second appellant, sought to present in support of the assertion that the location on the DPCI within the South African Police Service (SAPS) would, in the circumstances then prevailing (and still present) in South Africa, not satisfy the requirement of independence of the DPCI since the SAPS (including DPCI) was corrupt, and managed and controlled by a corrupt Executive, deployed from the ranks of a corrupt governing alliance in terms of its illegal, insofar as the public administration is concerned, cadre deployment policies that have no regard for merit and were directed at securing hegemonic control for the governing party of all the levers of power in society.

This evidentiary question was expressly dealt with by the justices of the Constitutional Court in the judgments that they delivered in this case. However, there was another matter that loomed large, arguably one of the most fundamental matters in the present-day South African public discourse, that the Court also dealt with but which was never overtly articulated. This matter concerns the clash of values between those espoused in the Constitution and those subscribed to by the tri-partite alliance that governs at national level and seeks the hegemonic control of all levers of power in society in pursuit of its National Democratic Revolution (NDR).

While using what it calls “dexterity of tact” with due regard to the “balance of forces” in society, the alliance pursues its revolutionary agenda while paying lip service to the contrary values of the rule of law and of the Constitution. The wide-ranging evidence that Glenister sought to adduce in support of his case cast a long shadow of doubt on the constitutionality of the NDR, the probity of government and the credibility, effectiveness and efficiency of its newly tweaked anti-corruption machinery of state.

In its earlier judgment in Glenister II, in which the Court ordered parliament to make the decision of a reasonable decision-maker “in the circumstances” to regularise the adequacy of the independence of the state’s anti-corruption machinery, the criteria for doing so were spelt out for the guidance of the executive and legislature. These criteria clash with the revolutionary longing for hegemonic control of the levers of power at the core of the NDR. The amending legislation revealed the innate inability of the alliance to surrender control of the anti-corruption machinery of state, choosing instead to keep the DPCI on and located within SAPS.

The various judgments in this case on the admissibility of Glenister’s evidence also represented responses to the doubt cast by the evidence on the overall corrupt trajectory of the NDR. The majority rejected, with considerable indignation, the evidence as scandalous, vexatious and irrelevant for the annoyance and embarrassment that it caused. The majority went further and also meted out punishment to Glenister, in the form of a somewhat diluted adverse costs award, for questioning the political narrative in this way. Public interest litigants are not usually mulcted in costs.

Our discussion commences with a concise factual background to the case in part 2. Part 3 deals with the judgments, specifically on the question of the admissibility of Glenister’s evidence. In part 3.1 the judgment of the majority is scrutinised and part 3.2 deals with the judgments of the minority which starkly contrast with that of the majority and also represents a sharp criticism, if not an outright rebuke, of the majority’s reasoning. In part 4 we set out our own take on the majority’s condemning ruling of Glenister’s evidence and bring to light what we view to be the actual reason lurking behind the majority’s ruling namely its unwillingness to grapple with the criticism of the NDR and the corruption of the executive, the SAPS and the DPCI. The revelations of state capture, grand corruption and kleptocracy, which have emerged subsequent to the hearing of the case, render the Glenister evidence, which was rejected as inadmissible by the majority of the court, no more than that of a canary in a coal mine warning of the toxicity to come.

As will concisely be shown in part, 4 the NDR is inconsistent with the values, tenets and principles of the Constitution and the supremacy of the rule of law. Its pursuit has gutted fealty to oaths of office and the state’s obligation to respect human rights as is illustrated by the levels of corruption in high places and the willingness of deployed cadres of the NDR to loot and mal-administer the public purse in a manner that amounts to theft from the poor.

2      Concise factual background to the case

The demise of the Directorate of Special Operations (DSO), also known as the Scorpions, and its replacement with the Directorate for Priority Crime Investigation (DPCI), or Hawks, is a protracted saga. The DSO was a special unit for the combat of corruption and various forms of organised (white collar) crime, located within the National Prosecuting Authority (NPA). It was established in terms of section 7(1)(a) of the National Prosecuting Authority Act 32 of 1998 as amended. The origin of the demise of the DSO was a resolution of the African National Congress (ANC) in December 2007 at its Polokwane conference. The resolution was to disband the DSO urgently and to replace it with a new body. Following the Polokwane resolution the DSO was abolished by the National Prosecuting Authority Amendment Act 56 of 2008 and replaced with the DPCI in terms of Chapter 6A of the South African Police Service Amendment Act 57 of 2008. The DPCI is located within the South African Police Service (SAPS).

The abolition of the DSO and its replacement with the DPCI unleashed a spate of litigation in which the Gauteng business man, Mr Hugh Glenister, played an important part. This litigious activism led to the Constitutional Court judgment of Glenister v President of the Republic of South Africa and Others [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) (Glenister II). In this case the majority of the Court ruled that the legislation failed to secure for the DPCI the required minimum degree of independence from the executive, thus rendering it unconstitutional. In its main judgment the Constitutional Court also expressed an opinion on the state of corruption in South African society when it stated as follows (per Ngcobo CJ):

“Corruption has become a scourge in our country and it poses a real danger to our developing democracy. It undermines the ability of the government to meet its commitment to fight poverty and to deliver on other social and economic rights guaranteed in our Bill of Rights. Organised crime and drug syndicates also pose a real threat to our democracy.”(para 57 666E).

Following the majority judgment in Glenister II, the South African Police Act was further amended by the South African Police Service Amendment Act 10 of 2012 in order to address the scruples of the Constitutional Court in Glenister II. The appellants in the present case were not satisfied that these amendments complied with the criteria set in the judgment in Glenister II. The Helen Suzman Foundation (HSF) argued that various provisions of the amended act still fell short of ensuring the required independence of the DPCI and successfully challenged the constitutionality of some of these provisions in the High Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; In Re: Glenister v President of the Republic of South Africa and Others [2013] ZAWCHC 189; 2014 (4) BCLR 481 (WCC).

Glenister did not restrict his attack on the legislation to selected provisions of the amendments in the way the HSF did. He challenged the legislation in much bolder terms, arguing, as will be indicated later, that the entire legislative scheme of the Act was unconstitutional, since it still locates the Hawks within the SAPS and therefor under the control of the executive. In support of this argument Glenister sought to adduce documentary and expert evidence to show that, in the circumstances prevailing, the location of the anti-corruption entity within SAPS was not the “decision of a reasonable decision-maker” expressly required by the majority judgment in Glenister II.

In the High Court the respondents, having boldly and irregularly elected not to traverse its merits, moved for this evidence to be struck out. The High Court granted this application and dismissed Glenister’s application relating to the location of the DPCI within the SAPS. It also granted a highly punitive cost order against Glenister in respect of the successful striking out of the evidence that he wished the Court to consider (para 6 7A-B). So scandalised did the High Court feel that it even toyed with the idea of awarding costs against the legal team employed by Glenister.

In the Constitutional Court three issues had to be dealt with:

1. The HSF’s application for the confirmation of the declaration of the constitutional invalidity of several sections of the amendment Act ruled unconstitutional by the High Court;

2. The HSF’s application for leave to appeal against the decision of the High Court not to declare invalid other sections, the constitutionality of which had been challenged in the High Court;

3. The third issue related to the application by Glenister for leave to appeal against: (a) the High Court’s order dismissing his challenge to the constitutionality of the very location of the DPCI within the SAPS and the entire scheme of Chapter 6A in terms of which the DPCI was established; (b) the order striking out the additional evidence he sought to rely on; (c) the consequential punitive cost order made against him; and (d) the failure to award him costs for the successful HSF application (para 7 7C-E).

The present discussion focusses on the third issue, more specifically on whether or not the application to strike out the evidence sought to be presented by Glenister was justifiable as well as on the plausibility or otherwise of the punitive cost order against Glenister. Mogoeng CJ with whom five justices (Moseneke DCJ, Jafta J, Khampepe J, Leeuw AJ and Zondo J) concurred upheld the order that the evidence be struck out as well as the punitive cost order, which it reduced from the attorney and client scale to the party and party scale. Froneman J supported by Cameron J and Madlanga J held that the evidence should not be struck out and that Glenister should not be visited with a punitive cost order. This minority judgment was in part supported by Van der Westhuizen J.

3 The response to Glenister’s evidence

3.1 The majority judgment

Glenister argued that as long as the DPCI is located within the SAPS, given the circumstances upon which he relied, it cannot possibly be a sufficiently independent anti-corruption unit as required by the Constitution in terms of the interpretation in Glenister II. According to section 206(1) of the Constitution a member of the Cabinet must be responsible for policing and must determine national policing policy. Section 207(2) provides that the National Commissioner of the SAPS must exercise control over and manage the police service in accordance with such policy. Glenister sought to present evidence that would show that the prevailing public perception is that the SAPS is the most corrupt institution in South Africa and that the governing party, Cabinet and Parliament are also corrupt.

This evidence is confirmed recently by the latest research of the ISS which, inter alia, describes the police as the least trusted institution in South Africa. The placement of the DPCI within the corrupt SAPS that is controlled by a government which, as the evidence adduced from experts was intended to show, is justifiably perceived as corrupt, can by necessary implication only give birth to a corrupt or compromised anti-corruption unit. The public will thus not have confidence in the capability of the DPCI to fight corruption, free of manipulation by their corrupt masters.

Hence, locating the DPCI within the SAPS, in particular, does not fall within the range of constitutionally acceptable measures that any reasonable decision-maker would take in the circumstances. In the face of the evidence of corruption in the SAPS and government, in general, it is not a viable option at all to place the DPCI within the SAPS because there can simply be no independence within the SAPS unless sections 206(1) and 207(2) of the Constitution are amended. (Paras 15, 16)

The essence of the majority’s response to this contention was that the question surrounding the constitutionality of the location of the DPCI within the SAPS was res iudicata since that issue had already finally been decided in Glenister II in which the majority judgment was penned by Moseneke DCJ and Cameron J. In support of this argument, the majority (which included Moseneke DCJ but not Cameron J) referred to the Constitutional Court’s dictum in Glenister II (para 162) on the location of the DPCI where the Court stated that section 179 of the Constitution does not oblige Parliament to locate a specialised corruption-fighting unit within the National Prosecuting Authority (NPA) and nowhere else. The Court said there:

“The creation of a separate corruption-fighting unit within the South African Police Service (SAPS) was not in itself unconstitutional and thus the DPCI legislation cannot be invalidated on that ground alone” (quoted in para 19 (10G).

When Parliament resolved to keep the DPCI within the SAPS, it was therefore acting in line with the decision of Glenister II (para 214) that the Minister’s powers in terms of section 206 of the Constitution may productively co-exist with the location of an adequately independent DPCI within the SAPS. The Court stated in para 191 of Glenister II:

“The question whether the location of the DPCI within the SAPS falls within a range of possible measures ‘a reasonable decision-maker in the circumstances may adopt’, having regard to public perception, does not arise. That issue was settled in Glenister II.” (Para 19 (11A).

The same applies to the control of the National Commissioner of the SAPS over the DPCI in terms of section 207(2), which according to the majority was also a matter already settled in Glenister II. The majority stated:

“To the extent that the exercise of control over and management of the police by the National Commissioner in terms of section 207(2) may impact negatively on the adequacy of the independence of the anti-corruption entity, it is how that control and management are exercised that might be unconstitutional. On a reading of the Glenister II dicta that I have quoted, the constitutional imperative of adequate independence and the exercise of the section 207(2) power can co-exist comfortably. (Para 20 (11B-C).

Glenister, however, sought to present wide-ranging expert evidence in support of his contention that there is a justified public perception that it would be impossible to secure sufficient independence for an anti-corruption entity if it is located within the SAPS, because the SAPS is corrupt – one of the most corrupt institutions in South Africa –“(m)anaged and controlled, in terms of sections 206(1) and 207(2) of the Constitution, by a “corrupt Executive”… deployed from the ranks of a “corrupt ruling party” in terms of its cadre deployment policies that have no regard for integrity and meritocracy.” (para 23 11I-12A). This evidence, as the Court correctly pointed out, was the basis of Glenister’s entire case. Glenister’s case would therefore collapse upon the striking out of the evidence. (para 23 12 A-B) The High Court summarised the evidence sought to be presented by Glenister in the following ten points:

1 That …prior to 2009 the then Deputy Minister of Justice, Adv J de Lange, conceded that South Africa’s criminal justice system was ‘dysfunctional’.

2 That Mr Clem Sunter, a ‘well known and well respected scenario planner’, has recently revised his predictions for the future of South Africa and has concluded that there is a one in four chance that it will become a failed state.

3 That from ‘public utterances’ made by the President he is ‘less than pleased’ with the findings in Glenister II. This inference is drawn, inter alia, from the President’s ‘failure to repudiate the scurrilous opinion’ of his Deputy Minister of Correctional Services, published in a newspaper article on 1 September 2011.

4 That corruption is rife can safely be accepted in light of comments made by winning entrants in a competition about anti-corruption strategies sponsored by Glenister himself, as well as comments made by the Institute for Accountability in Southern Africa (whose members include Glenister’s legal team) and who have been ‘particularly vocal’ about the available strategies for the implementation of the findings in Glenister II.

5 That Mr David Lewis of Corruption Watch has ‘found’ that the Police Service is at present the most corrupt institution in South Africa.

6 That the last three National Police Commissioners are all ‘loyal deployees’ of the ruling party, which is ‘illegal and unconstitutional’.

7 That the ruling party’s website reflects that its goal is the ‘hegemonic control of all of the levers of power in society’.

8 That the DPCI is corrupt and inefficient and finds itself, constitutionally, ‘under the control of a Minister (who is himself compromised) who serves in a Cabinet that is not without its own challenges when it comes to issues of corruption and corruptibility’.

9 That the National Head of the DPCI is ‘another deployed cadre’ of the ruling party and that his track record ‘is not unblemished’ if regard is had to various newspaper articles attached to support this allegation. Various other political figures are also vilified; and parliamentary exchanges and the like are included to indicate levels of corruption and inefficiency.

10    The respondents and the court are referred to seven separate websites which apparently support the aforementioned allegations.” (12E-J, fn 24)

In a nutshell it boils down to Glenister seeking to show, back in 2014, that the South African government, the leadership of the African National Congress and the law enforcement agencies of this country engage in serious corruption; SAPS is one of the most corrupt institution in South Africa and the criminal justice system is dysfunctional.

Glenister’s argument on the alleged perception of the public on the independence of the DPCI was premised on the argument in Glenister II that public confidence that an institution is independent is a constitutive component of its independence (Glenister II para 207), referred to in para 31 (14E).

Glenister’s evidence referred to a collection of incidents relating to President Zuma, some cabinet members, members of Parliament, high-ranking leaders of the ANC, the leadership of the NPA, the SAPS and the DPCI. The majority judgment was very critical of the quality of the documentary evidence that Glenister relied on and also found the purpose for which this evidence was collected and sought to be used suspect. The majority stated:

“Reliance is placed on, …documents… generated by individuals whose objectivity on the dissolution of the DSO is arguably suspect, speculative newspaper articles and people assembled by Mr Glenister to present arguments supportive of his stance on the constitutional validity of the DPCI – the only question to be decided being which presentation undermines the DPCI best. Senior Government functionaries are loosely labelled as loyal deployees appointed in terms of the cadre deployment policies of the ANC which are effectively equated to dishonest or corrupt individuals” (para 25 (12E-13B).

The majority was also critical about Glenister’s contention that the governing party was pursuing a totalitarian programme (this being in pursuance of the NDR) to seize control over all aspects of societal power including the DPCI. The Court was faced with a contention of an “(u)ncited ANC’s strategy and tactics in terms of which it seeks to take firm control of all levers of power in society and that the DPCI is one such lever of power that is sought to be taken over by the ANC through the DPCI legislation” (para 26 (13B-C).

Having concisely summarised the concepts of scandalous, vexatious and irrelevant evidence (para 28 (13E-G) the majority held all this evidence fell within these categories of inadmissible evidence and then stated:

“The allegations in the struck-out material amount to reckless and odious political posturing or generalisations which should find no accommodation or space in a proper court process. The object appears to be to scandalise and use the court to spread political propaganda that projects others as irredeemable crooks who will inevitably actualise Mr Clem Sunter’s alleged projection that South Africa may well become a failed state. This stereotyping and political narrative is an abuse of court process. A determination of the constitutional validity of the DPCI legislation does not require a resort to this loose talk. These assertions or conclusions are scandalous, vexatious or irrelevant. Courts should not lightly allow vitriolic statements of this kind to form part of the record or as evidence. And courts should never be seen to be condoning this kind of inappropriate behaviour, embarked upon under the guise of robustness..” (paras 29-30 (13G-14B( Footnotes omitted).

The majority’s interpretation of Glenister’s contention (and supporting evidence) that the location of the DPCI within the SAPS is not convincing enough to show that it would not command the required public confidence in its autonomy to satisfy the requirement of independence (para 31 (15A-C).

The majority was also of the view that evidence on this public perception was already available when Glenister II was heard and that there was therefore no new evidence that could show that the location of the DPCI as such within the SAPS would have the effect of it falling short of the required independence of the institution. (paras 32-34 (15C-16F).

In spite of the fact that there is a well-established principle to refrain from granting costs in constitutional matters, the majority was so displeased with the huge stack of “(h)earsay, opinion, speculative, scandalous and vexatious evidence…” that served no purpose apart from being manifestly inappropriate and frivolous to “(p)roject the public perception about corruption that was stale news already when Glenister II was decided.” (para 37 18A-C) that it refused Glenister leave to appeal against the order of the High Court to strike out the additional evidence sought to be led by Glenister with costs in the Constitutional Court and the High Court, including costs of three counsel save to the extent that it diluted the extremely punitive nature of the High Court order.

3.2 The minority decision – and rebuke of the majority view

The minority judgment by Froneman J, supported by Cameron J (and in part by Van der Westhuizen J) rejected the majority’s argumentation. Although the minority did not hold the evidence Glenister sought to present as sufficient for ruling in his favour, it held the evidence to be relevant and admissible. Froneman J also showed that the majority’s interpretation of the judgment of Glenister II which formed part of the majority’s reasoning to hold the Glenister’s evidence inadmissible, was clearly wrong. Froneman J rejected the majority’s view that the question of the public perception of corruption in the SAPS and government was a so-called “closed chapter” that was settled already in Glenister II and therefore could not qualify as a relevant issue in the present case.

That view of the majority was in fact based on wrong interpretation, which is nothing but “(a) re-interpretation that is at odds with what the judgment (in Glenister II) actually says” (para 125 (46C). Froneman J referred to para 162 of the majority judgment in Glenister II where it was stated: “The creation of a separate corruption-fighting unit within the South African Police Service (SAPS) was not in itself unconstitutional and thus the DPCI legislation cannot be invalidated on that ground alone. Similarly, the legislative choice to abolish the DSO and to create the DPCI did not in itself offend the Constitution.” (Para 118B-C emphasis added.) Froneman J also cited a dictum from paragraph 214 in Glenister II which reads:

“The Constitution requires the creation of an adequately independent anti-corruption unit. It also requires that a member of the Cabinet must be ‘responsible for policing’. These constitutional duties can productively coexist, and will do so, provided only that the anti-corruption unit, whether placed within the police force (as is the DPCI) or in the NPA (as was the DSO), has sufficient attributes of independence to fulfil the functions required of it under the Bill of Rights. The member of Cabinet responsible for policing must fulfil that responsibility under section 206(1) with due regard to the State’s constitutional obligations under section 7(2) of the Constitution” (para 118 (44D-E para 118; footnote omitted.)

Froneman J emphasised that it is clear from these dicta that the placing of the corruption-fighting unit within the SAPS will not stand the test of independence under all circumstances. Even though the location of a corruption-fighting unit within the SAPS is not in principle offensive to the requirement of independence of such unit, specific evidence might in fact show that in given circumstances such independence will be impossible if the unit is placed within the SAPS. He stated as follows with regard to the mentioned dicta in the Glenister II judgment:

“The judgment does not state that the creation of a separate corruption-fighting unit within the SAPS will withstand any constitutional attack. It says that something else will be needed in order to sustain that kind of constitutional challenge. Mr Glenister sought to show that the additional factor was that the current extent of corruption in our body politic was of the kind that showed that the location of the DPCI within the SAPS was not a possible option for a reasonable decision-maker. In other words he contended that this evidence showed that locating the DPCI within the SAPS meant that it could not have “sufficient attributes of independence to fulfil the functions required of it under the Bill of Rights”. (Para 119 44F-G)

Glenister II therefore did not hold that there could be no challenge to the location of the DPCI within the SAPS. It held only that the mere fact of its location within the SAPS was not sufficient to sustain a constitutional challenge. Neither does Glenister II preclude the presentation of evidence in support of a constitutional challenge based on something more than the fact of the DPCI is located within the SAPS. It does not preclude the presentation of evidence that proves that there is a justifiable public perception of corruption that shows that the location of a corruption-fighting unit within the SAPS could within specific circumstances not command public trust in the independence of such institution. This, according to Froneman J is precisely what Glenister sought to do namely to introduce additional evidence of corruption and the public perception of the extent of that corruption in order to substantiate his constitutional challenge that, currently, it is not a reasonable option to locate the DPCI within the SAPS. (Para 123 45F-H).The judgment of Glenister II, Froneman J emphasised, allowed that someone (Glenister in the present case) to do that.

In rejecting the majority’s view that the evidence of public perception that Glenister sought to present pertained to a perception that had already existed at the time of Glenister II and that this evidence could therefore not take the matter any further (and for that reason did not qualify as relevant), Froneman J pointed out that all the evidence was in the first place not the same as that which had been before the Court in Glenister II. The legal grounds for the challenge here had been created by Glenister II and thus the issues heralded by the evidence had not all been decided in Glenister II. Froneman J pointed out that the majority based its decision to strike out Glenister’s proposed evidence on the wrong grounds. When dealing with an application for striking out evidence the truth of the evidence plays no role.

The only question then is whether the evidence is admissible. The question of veracity or otherwise is dealt with only at the end of the case (para 127 (46D-E). The majority judgement was premised on a basic error in this respect because even though corruption had been held to be rife in South Africa and stringent measures had been held to be required to contain this malady before it descends into something terminal, that does not follow – as the majority held – that further probing into the possible extent of corruption is now a “closed chapter” and an issue that “was settled” in Glenister II (para 128 (46F): “What if the corruption is so “rife” that the very idea of locating the DPCI within the SAPS – an otherwise perfectly acceptable option for ‘reasonable decision-makers’ – becomes unthinkable because those controlling the SAPS may themselves be part of the corruption?” (para 127 46F-G).

Froneman J correctly pointed out that the very idea that this situation might exist, will be scandalous for South Africa. That scandalous notion, however, does not entitle the courts to bar concerned persons from seeking to present evidence to sustain an assertion of that kind (para 129 (47A), which is exactly what Glenister sought to do in his application to have the whole scheme of the SAPS Amendment Act declared unconstitutional (para 130 (47B):

“He tried to show that the corruption at the very centre of our political life is so pervasive that the unthinkable may be true: our elected Government is trying to undermine the independence of our constitutional institutions in order to attain its own unconstitutional aims. The location of the DPCI within the SAPS is allegedly part of this unconstitutional endeavour” (para 130 47B-C).”

Although this is a grave assertion against values that are held dearly under the Constitution that does not mean that the Court is entitled simply to turn a blind eye to it. (Para 131 47D) On the contrary, it is the duty of the court – “(t)o treat the challenge on its merits, not to denigrate it out of hand as scandalous and vexatious because it seeks to portray the Government, the leadership of the governing party, the ANC, and the law enforcement agencies of this country as corrupt” (para (131 47D).

The court is duty-bound to do the same in relation to the submissions that a previous Deputy Minister of Justice described the criminal justice system, which includes the SAPS. as “dysfunctional” and that “’(a) ‘corrupt SAPS’ (is) managed and controlled . . . by a ‘corrupt Executive’ . . . deployed from the ranks of a ‘corrupt ruling party’ in terms of its cadre deployment policies that have no regard for integrity and meritocracy” (para 131 47D-E).

Froneman J in fact rebuked the majority view. By implication he accused the majority of reneging their core responsibility as a court to treat the challenge on its merits, and to have vilified the proposed evidence out of hand as scandalous and vexatious because it seeks to portray the Government, the leadership of the governing party, the ANC, and the law enforcement agencies as corrupt. Instead of going about in that way, Froneman J underscored the basic duty of a court of law, stating:

“What we need to do is to make a dispassionate analysis of these assertions, assess whether they are relevant and then test whether the evidence presented in support of them is in accordance with our principles and rules of evidence and procedure. In doing that we need to look carefully at what ‘vexatious’ and ‘scandalous’ mean in the context of an assertion that corruption lies at the core of the issue at stake. Presenting evidence of corruption in that kind of situation will of necessity involve making assertions that may be regarded as abusive or defamatory or may convey an intention to harass or annoy, but surely that cannot be a legitimate reason to prevent a litigant from attempting to present that kind of evidence.” (para 132 (47F-G).

Froneman J then considered and found that various aspects of the evidence that Glenister sought to present, but had been held to be scandalous, vexatious and irrelevant by the majority, were in fact relevant and admissible.

In the first instance Glenister asserted that it is the goal of the ANC to establish “hegemonic control of all the levers of power in society” (para 134 (48G) and relied on the ANC website and an extract from an address of the National Executive Committee of the ANC on 8 January 2011 confirming it. The address sets out the goals of the ANC and states:

“We reiterate . . . that we place a high premium on the involvement of our cadres in all centres of power. . . . We also need their presence and involvement in key strategic positions in the State as well as the private sector, and will continue strategic deployments in this regard.” (Para 134 39A-B)

Froneman J held that this evidence was relevant and stated:

“If the ruling party has stated that it wishes to control all levers of power in society, it may be inferred that the location of the DPCI within the SAPS is not a reasonable option because the potential for control over the DPCI through cadre deployment in the SAPS would undermine the adequate structural and operational independence required of a dedicated anti‑corruption unit. The ANC’s own statements, relied upon by Mr Glenister, can hardly be described as vexatious or scandalous within the meaning of the rule” (para 135 (49C-D footnotes omitted)

He also held that admission of the evidence would also not cause the respondents prejudice.

“There was no prejudice to the Minister that could not have been met by admitting, denying or explaining the strategy of cadre deployment on affidavit. It is an accepted rule of our law that a party who seeks to strike out evidence must nevertheless on affidavit deal with the allegations made that he seeks to strike out. The Minister did not comply with this requirement at all in the striking out application. This is an instance where there was nothing that prevented him from putting up evidence on affidavit to counteract the evidence adduced by Mr Glenister.” (Para 136 49D-E; footnotes removed.)

Secondly there was the evidence of the statement of the former Deputy Minister of Justice that the criminal justice administration is “dysfunctional”, which Froneman J also held not to be irrelevant and not to have been struck out. “The SAPS forms part of the criminal justice system. If it is also “dysfunctional” this fact must be of some relevance to the question of the location of the DPCI” (para 137 (49F-G).

The third item of evidence relates to media reports on statements made by the President and the former Deputy Minister of Correctional Services in relation to the Constitutional Court’s findings against government in Glenister II. The President was reported to have stated that the judiciary should not, when striking down legislation, use this as an opportunity to change policies determined by the Executive. In another instance the President was reported to have stated his preference for the minority judgment in Glenister II in favour of government suggesting that there is uncertainty about what to do when there is more logic in the dissenting judgment than in the majority judgment.

In yet another media report the former Deputy Minister of Correctional Services also criticised the Glenister II majority judgment. Lastly, evidence is offered of the former President’s response to a question posed in Parliament which included the following statement by the then President: “[The ANC representatives] have more rights here because we are a majority. You

[i.e. the opposition]

have fewer rights because you are a minority. Absolutely, that’s how democracy works” (para 138 49-(50C).

All this evidence was relevant to substantiate Glenister’s constitutional challenge that it is not a reasonable option to locate the DPCI within the SAPS, because these statements –

“(i)ndicate resistance or non-acceptance of the legal position and point to a continued intention to exercise political control over anti-corruption activities. What Mr Glenister seeks to show is that there is a disregard for constitutional democracy and the Judiciary at the highest level of Government. For that reason he asserts that there is great danger if the DPCI is subject to political control by those who hold these views. In those circumstances the location of the DPCI within the SAPS cannot be a reasonable option for reasonable decision-makers” (para 139 (50D-F).

Once again there was no prejudice to admit the evidence as these allegations could have been denied, admitted or explained on affidavit. Neither would it in any way be vexatious or scandalous to require members of the Executive to explain statements that may be interpreted as expressing disregard for the basic tenets of our constitutional democracy (para 140 (50F-G).

Fourthly, there is the affidavit and report of Professor Gavin Woods (Woods Report), director of the Anti-Corruption Education and Research Centre at Stellenbosch University, which was struck out incorrectly. Referring to a raft of items of alleged corruption in government the Woods report dealt in detail with the public perception of corruption at the highest political level in South African society on the basis of which the view is expressed that “[i]n South Africa the Executive leadership . . . are perceived as tolerating corruption and fraud and on many occasions they have been seen as rewarding parties involved in corruption” (para 143 (51E) Froneman J concluded:

“This is a report by an expert based on research he conducted. It is relevant to determine the level of corruption at the highest political level in our society and the general public’s perception of corruption at that level. The proper way to counteract the views in the Woods Report was to challenge, on affidavit, Professor Woods’ qualifications, methodology and conclusions.”

Fifthly, Froneman J made the same finding in relation to the so-called Newham affidavit which included a number of annexures illustrating the work of the Institute of Security Studies (ISS) in the field of corruption in South Africa, including a monograph on the problem of systemic corruption in South Africa (particularly in the police service); a report on the public’s perceptions of the levels of corruption and other crimes in the SAPS based on the findings of a study undertaken by the ISS; a report evincing the view of police officers at three Gauteng police stations on police corruption, which in particular shows that 66 of the 77 respondents believed corruption exists on a large scale in the SAPS; an ISS article on the poor leadership within the SAPS and its impact on the effective performance by the SAPS of its mandate; an ISS article addressing the lack of political will to address corruption in South Africa; the ISS submissions to the Portfolio Committee on Police on the SAPS Amendment Act when it was still a Bill, including reasons for the opinion that an adequately independent anti-corruption entity could not be located in the SAPS (para 145 51G-52B).

Van der Westuhizen J aligned himself broadly with the judgment of Froneman J, but for the reasons set in in paragraphs 214 to 216 (66H-67E) disagreed with Froneman J’s ruling admissible the evidence of the former Deputy Minister of Justice and the Woods report (the second and the fourth items above dealt with in the judgment of Froneman J).

4      The majority turning a blind eye to the unfolding of the NDR

The reasoning dealt with in part 3 revolved around and was articulated in terms of the law of evidence. However, on closer analysis something distinctively more profound was at stake here – something profoundly ideological and political. That is the very credibility of the redeeming grand narrative/history about South Africa that has been told since the advent of its renowned constitutional transition of the 1990’s. The evidence that Glenister wished to tender challenged that grand narrative and challenged the foundations of the NDR. The majority, faithfully guarding the narrative and the tenets of the NDR was unable to tolerate this attack. The majority refused to consider the evidence and therefore avoided grappling with the manner in which the Zuma administration was going about implementing the NDR.

Grand narratives/histories are totalising and intolerant. They proclaim but one truth, namely that told that by the narrative in question; they leave no room for an alternative interpretation of the past, or for the proclaimed redeeming event – the revolution – the splendid new society envisaged or proclaimed by the narrative concerned. They are legitimising in that they clothe the new dispensation heralded by the redeeming event with legitimacy, thus giving it a protective shield against any possible alternative views of the perceived redeeming event and for the splendid dispensation. Since the grand narrative/history encapsulates the true and only story, different views do not represent alternative interpretations of history. They are untrue stories, false doctrines, heresies or apostasy that cannot be considered and must be silenced.

States also have their own statist histories and these histories may assume the same kind of character as these generalised grand narratives. Hence, they may also claim but one historical truth for that state and all its inhabitants, the story of a dismal past overcome by heroic events that have brought that bad past to an end; of a splendid present and future premised on the articles of faith encapsulated in a sacred and anchor document, interpreted by the narrative’s own priesthood and heralding one encompassing society living by those articles.

This is particularly true in respect of the present South Africa which has its own encompassing grand narrative/history – the official South African grand narrative as contained in the NDR, which has long been the programme and policy of the tripartite alliance. It was told in the sweeping and touching phrases of the postscript to the interim constitution. The postscript encapsulated the authoritative true (his)story of South Africa and it was thereafter told on numerous occasions by the Constitutional Court.

It also echoes loudly elsewhere in the legal, in particular the constitutional discourse as well as in legislation, text books and articles and has been regurgitated ad nauseam time without number by a flock of true believers. The official grand narrative, apart from being the official history of South Africa told in terms of the assumptions of the present constitutional order – that is, in terms of the contemporary official statist historiography – is a redemptive gospel upon which the present South African state is premised. The relevant passages from the preamble of the interim constitution which is the corner stone of the official grand narrative read as follows:

“This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex…

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge…

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation…

With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.”

The narrative is very simple – a broad generalisation. It is characterised by a simple periodization: a protracted evil past, a miraculous intervention that brought that past to an abrupt end, and a splendid new order that has dawned with that intervention in which order we are now happily living as a unified society, the South African nation. The redeeming event was encapsulated in the interim constitution and has finally been rounded off in the present Constitution – the final conclusion of the dreadful old past and the infallible decisive word about the foundation for the newly redemptive order, and hence referred to with veneration as the Final Constitution.

Disciples of the NDR have no difficulty, somewhat gymnastically, reconciling their striving for hegemonic control of all the levers of power in society with the principles and precepts of the Final Constitution. The notions of the rule of law, the separation of powers, checks and balances on the exercise of power; a free media, an independent judiciary and the respect for human dignity, the promotion of the achievement of equality and the enjoyment of the rights guaranteed to all in the Bill of Rights are in fact deeply incompatible with the collapse of party and state into a hegemonic order as envisaged by the NDR. Others regard the Final Constitution as no more than a beach head in the striving toward the realisation of the goals of the NDR. A temporary position taken up with “dexterity of tact” pending the arrival of a time when the “balance of forces” is more conducive to the victory of those pursuing the NDR.

South Africa’s past is summarised as that of a deeply divided society characterised by strife, conflict, untold suffering and injustice and of a land in which there were divisions and strife that generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts… The constitutional transition heralded the interim constitution (finally secured in the Final Constitution) proclaiming to put a final end to this bad past. Thus, the postscript declares that the Constitution provides a historic bridge between that bad past and the bright future; that the adoption of this Constitution lays the secure foundation for transcending the dismal past; and that with the Constitution the people of South Africa open a new chapter in the history of their country.

The postscript also describes how this future that has now begun would unfold. It is a future founded on human rights, democracy peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex and by the need for understanding, reparation and ubuntu and not marked by vengeance, retaliation, and victimisation. Thus, the recitation of the grand narrative began. The past was irredeemably and unqualifiedly evil; the constitution was the unquestionable redeemer from that bad past; the future, based on the secure foundation of the interim constitution and is now perfected by the present (Final) Constitution would be bright and happy. The Constitution also forged a new encompassing South African society.

The Constitutional Court, as the supreme guardian of the Constitution obviously, also assumes of the role of the primary guardian of the constitution’s redeeming message and tells the truth of the new South African society – the South African nation. The Constitutional Court had proven to fulfil this role with vigour and conviction.

Thus Mohamed J states: in Makwanyane 1995 6 BCLR 665 (CC) that the Constitution:

“(r)epresents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism…The past was redolent with statutes which assaulted the human dignity of persons on the grounds of race and colour alone; …The past accepted, permitted, perpetuated and institutionalized pervasive and manifestly unfair discrimination against women and persons of colour…The past permitted detention without trial…The past permitted degrading treatment of persons…The past arbitrarily repressed the freedoms of expression, assembly, association and movement…The past limited the right to vote to a minority… The past…. ” (para 262 758C-G).

All that is past has been abolished by the Constitution. All that is now forbidden and unconstitutional since the Constitution now provides a transition – a redeeming bridge leading away from these grossly unacceptable features of the past to a conspicuously contrasting vision outlined in the postscript. (See further the observations made by De Vos P “A bridge too far? History as context in the interpretation of the South African constitution” South African Jnl on Human Rights 17 (2001) 1-33 specifically at 9-13) to this grand narrative as told by the Constitutional Court.

The story of the redemptive force of the Constitution was picked up and the redeeming gospel eagerly recited and praised by some academic commentators. Karl Klare in one of the most celebrated contributions to the South African constitutional discourse was struck by the post-liberal character of the Constitution which he discovered in the social rights (over and above the traditional civil and political rights) in the Bill of Rights; the substantive conception of equality; the numerous affirmative duties that the state owes to rights bearers to enhance an array of social conditions; the horizontality of the Bill of Rights which would be able to permeate the democratic values and norms of the Constitution into the private sphere; and participatory decentralised governance, multiculturalism, including the protection of language diversity and respect for cultural tradition. (Klare “Legal culture and transformative constitutionalism” South African Journal of Human Rights (1998) 151-156).

Apart from bringing the dreadful past to an end, the Constitution also forged a single unified truly South African nation that has never before been achieved. Justices of the Constitutional Court have elaborated on the characteristics of this nation. The nation has common aspirations and ideals (Didcott J in S v Makwanyane 1995 6 BCLR 665 (CC) para 190 (740J); Mahomed J in Makwanyane para 262 (758B-D; Ngcobo J (as he then was) in Kaunda and Others v President of the Republic of South Africa and Others 2004 10 BCLR 1009 (CC) para 155 (1048F); Mokgoro J in Jaftha v Schoeman and Others and Van Rooyen v Stoltz and Others 2005 1 BCLR 78 (CC) para 28 (90 B-C); Sachs J in Matatiele Municipality and Others v President of the RSA and Others 2006 5 BCLR 622 (CC) para 97 (622I); Mokgoro J in Jaftha para 28 (90D); The nation shares the same communal values. (Ngcobo J in Kaunda supra 1551048F, Mokgoro J in Jaftha supra para 28 (90E); The nation also has its own ethos – a national ethos Mahomed J in S v Makwanyane supra para 262 (758A-B); para 263 (758I-J); Ncgobo J in Kaunda supra para 155 (1048F-G); Sachs J in Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others 2006 1 BCLR 1 (CC) para 625 (183D); Sachs J in Doctors for Life v Speaker of the National Assembly 2006 (12) BCLR 1399 (CC) 1470A-B; Mokgoro J in Jaftha supra para 28 (90D); The nation is moving in a moral and ethical direction. Mahomed J in S v Makwanyane supra para 262 (758A-B); Ngcobo J in Kaunda supra para 155 (1048F-G.); The nation even has a soul. (Sachs J in Matatiele Municipality supra para 97 (853A)

In spite of the bold certainty which the narrative has been ringing, there is mounting evidence that ominously decries – debunks – the truth of claims of this magnificent official grand narrative, even evidence showing that the narrative was untrue in material respects right from the moment when it was told for the first time; that the unified nation with its own moral and ethical direction and own soul might, of which the justices of the Constitutional Court once so eloquently spoke about, have after all, never come into being; that the bridge that the interim constitution was supposed to be in terms of the celebrated metaphor of Etienne Murenik (Mureinik “A bridge to where – introducing the interim Bill of Rights” 1994 (10) SA Jnl on Human Rights 31-48) was not a bridge to the splendid new dispensation which the official grand narrative proclaimed but, to a broken new world – one with its own increasingly serious maladies and one in which the very existence of the perceived splendid order might be in jeopardy.

Political and legal analyses abound with such evidence. Democracy in South Africa is flawed. There is one party domination, not meeting the standards of sound multiparty democracy proclaimed by the Constitution itself (Choudhry “’He had a mandate’, the South African Constitutional Court and the African National Congress in a dominant party democracy” 2009 (2) Constitutional Court Review 1-86 at 19-23). Even more upsetting is that South African democracy is increasingly turning into a violent democracy (Von Holdt “South Africa: the transition to violent democracy” Review of African political economy (December 2013) 589-604). It is marred by crime, which is increasingly turning violent and is now also struck by large-scale so-called xenophobic violence which has thus far claimed the lives of many foreigners.

The present crime wave is now turning South Africa into a land marked by the abuse of human rights instead of the champion of human rights, which the official grand narrative proclaimed it to be. Hence our democracy, often fondly described as our young democracy, might not be so young in the first place, but rather so sick. Then there is the evidence that Glenister wished to present in the present case. Much of the information contained in that evidence had been in the public domain for years, although not presented before in a court of law. The ANC’s programme of cadre deployment is a case in point. This programme is repeatedly expressly proclaimed by the authors of that programme, the ANC, in official documents of the party and readily available on the website of the ANC and featured in the evidence that Glenister wished to present to the court and referred to at least by the minority judgment (Para 134) The majority held this evidence to be scandalous and vexatious,

“(r)eckless and odious political posturing or generalisations which should find no accommodation or space in a proper court process. The object appears to be to scandalise and use the court to spread political propaganda…Mr Clem Sunter’s alleged projection that South Africa may well become a failed state. This stereotyping and political narrative is an abuse of court process” (para 29 (13G-H).

That, however, as the minority aptly pointed out, does not imply that the evidence should have been ruled inadmissible. Thus it stated: “Presenting evidence of corruption in that kind of situation will of necessity involve making assertions that may be regarded as abusive or defamatory or may convey an intention to harass or annoy, but surely that cannot be a legitimate reason to prevent a litigant from attempting to present that kind of evidence” (Para 132 (47F-G).

It was not Glenister’s evidence that was scandalous or vexatious, nor the conduct of Glenister’s legal team that was unacceptable. What was scandalous and what would have caused embarrassment and annoyance in the evidence is the subject matter – the events – that the evidence was about. And the annoyance and embarrassment that it could cause was the standard annoyance and embarrassment that the evidence of opposing parties cause to each other when they join issue in litigation on a daily basis in South Africa and elsewhere in the world. We therefore subscribe to the conclusion reached by the minority that there was no basis in the law of evidence to rule Glenister’s evidence inadmissible and that the majority therefore erred in ruling it inadmissible.

5 Conclusion

The basis for the majority’s view appears to have been founded not in the law of evidence but in something else. The content of the evidence that Glenister sought to adduce was certainly annoying, embarrassing and scandalising. It also had political implications which might have amounted to political posturing and relaying a story of a badly performing South African state. It may have been an embarrassment to the veracity and the credibility of the specious grand narrative upon which the constitutional order is based which has so faithfully and passionately been told by the Constitutional Court itself. It could certainly be annoying in that it showed that the grand narrative is in part false, thus casting doubt not only on the veracity of the narrative itself, but also on the narrators, which include the Constitutional Court.

Glenister’s evidence of the manner in which the NDR was unfolding in the Zuma era, if accepted and regarded as admissible, would certainly have pointed to the fact that there was “something rotten in the state of Denmark” and that the location of an anti-corruption entity within the rotten SAPS was not indicated. The fact that no prosecution of a “big fish” has followed an investigation by the DPCI is proof enough that the majority erred in rejecting the admissibility of the evidence tendered by Glenister.

We would submit that the majority was keenly aware of the failure of the respondents to counter the evidence put up by Glenister – and it could not countenance the admissibility of such audacious unanswered information. The majority seemed to be keenly conscious of the role of the Constitutional Court as the supreme custodian of the official grand narrative, more so than their guardianship of individual norms of the Constitution and the law. Hence, they silenced this heretic dissenting narrative suggested in the evidence of Glenister and pilloried that narrative by imposing a punitive costs order against Glenister, thus also showing to Glenister and prospective doubters what might befall them when the official grand narrative is challenged, regardless of the evidence that they might be offered to reveal the baselessness of the official grand narrative.

The majority used the vocabulary provided by the law of evidence to protect the official narrative and to silence and punish the factually unanswered challenge to the official grand narrative that accompanied Glenister’s evidence. The minority on the other hand decided the matter on the basis of a proper application of the relevant law of evidence and was therefore less sensitive to the derogatory impact of this on the official grand narrative.

The lack of efficacy of the DPCI both before and after the handing down of the judgment in November 2014, the revelations of the Guptaleaks, the evidence before the Zondo, Nugent and Mpati commissions, the work of investigative journalists on grand corruption in South Africa and the premature end to the presidency of Jacob Zuma all tend to show that the majority decision on the admissibility of the evidence tendered by Glenister was both novel in legal principle and wrong on the facts and the law as it was before the majority so ruled. The majority’s decision needs to be revisited and corrected.

KOOS MALAN

PAUL HOFFMAN

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