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Webber Wentzel contributes to the release of the long-awaited State of Capture Report

On 2 November 2016, judgement was handed down in the Pretoria High Court, in the matter between The President of the Republic of South Africa (the President) and the Public Protector and others, in which Webber Wentzel's Pro Bono department successfully acted for Ms Mabel Patronella (Vytjie) Mentor.

The matter involved an urgent application made by the President on 13 October 2016 to interdict and prohibit the Public Protector from publishing her report into complaints of improper and unethical conduct by the President and officials of state organs due to their alleged inappropriate relationship with members of the Gupta family (the State Capture Report). The President alleged that he was not afforded an opportunity to provide meaningful input into the investigation. The President sought an order from the Court directing the Public Protector to give him a reasonable opportunity (no less than two months) to provide what he deemed to be meaningful input. The President argued that the Public Protector was not functus officio because the report was "unlawful". It was contended to be "unlawful" because the President stated he was denied his right to be heard.

Ms Mentor sought leave to intervene as a Respondent, as did the Democratic Alliance, the Economic Freedom Fighters, United Democratic Movement and Congress of the People. Webber Wentzel was successful in Ms Mentor's applications for intervention as a respondent.

The President stated that he sought an opportunity to question persons who had provided information to the Public Protector and to do so directly, either in person or through his legal representatives. The President relied on section 7(9)(ii) of the Public Protector Act 23 of 1994, which states as follows:

"(a) If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that be expedient under the circumstances. 

(b) (i) If such implication forms part of the evidence submitted to the Public Protector during an appearance in terms of the provisions of subsection (4), such person shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.

(b) (ii) Such person or his or her legal representative shall be entitled, through the Public Protector, to question other witnesses, determined by the Public Protector, who have appeared before the Public Protector in terms of this section.”

Ms Mentor was interviewed by the Public Protector as part of her investigation into the issue of "state capture". This followed the disclosure made on Facebook by Ms Mentor that she was offered the position of Minister of Public Enterprise by the Gupta family in 2010, with the condition that upon appointment she would be required to cancel South African Airways routes to India. The routes would be taken by an airline in which the Gupta family had shares. Ms Mentor declined the offer and told the Gupta representative that they had no authority to make such an offer. At the time she was chairperson of the parliamentary portfolio committee on public enterprises.

Ms Mentor argued that the President's interpretation of section 7(9)(ii) was flawed. She argued that witnesses may only be questioned through the Public Protector (as an intermediary) and thus not directly by the President and or his legal representative. Submissions were also made that the Public Protector's administrative decision was final and binding until set aside in judicial review proceedings, either on the basis of PAJA or the principle of legality.

After our submissions were filed, the President moved from his previous reasoning in respect of a right of an implicated person in the Public Protector's investigations to interview witnesses.

The President withdrew his application on 2 November 2016 entirely (during the hearing before he was to reply). The president further withdrew his opposition to a counter- application by the political parties that the Public Protector immediately release the report. In terms of an agreement made by all the parties the Court ordered the Public Protector (who was by then Advocate Busiswe Mkhwebane) to publish the State Capture Report forthwith on the same day before 5pm. The President was ordered to pay the costs of the application on the attorney and client scale and the question whether the costs be paid by the President in his personal capacity was reserved.

The Court ordered the intervening parties to submit heads of argument to address the issue of whether the President should be made to pay the costs of the application in his personal capacity. The additional heads of argument were filed on 11 November 2016. We await judgement on this aspect.

On 2 December 2016, the President launched an application to review and set aside the Public Protector's State Capture Report. Ms Mentor has been cited as a respondent. We will be acting on behalf of Ms Mentor in opposing this application.

The Webber Wentzel team consisted of Moray Hathorn, Tshego Phala, Carina Botha and Nonkululeko Williams.

T P Nkadimeng (Slain apartheid activist, Nokuthula Simelane )

This matter is in pursuit of justice for late anti-apartheid activist, Nokuthula Simelane, who was allegedly abducted, tortured and murdered by the apartheid security police over three decades ago.

Webber Wentzel acted for Nokuthula’s family in an application to compel the State to institute prosecution against the apartheid police who were responsible for her abduction and murder.

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Extensive negotiation with the National Director of Public Prosecutions ensued. We worked with the renowned investigator, Frank Dutton, whose investigation pointed to the culpability of certain individuals.

The NDPP has decided to prosecute. The trial was to have commenced on 25 July 2016, in the High Court, Pretoria. It has now been postponed to 25 November 2016.

Head of the Hawks Grounded

On 17 March 2017 the High Court in Pretoria ruled that the appointment of Lieutenant General Berning Ntlemeza ("Ntlemeza") as the National Head of the Directorate for Priority Crime Investigation ("the Hawks") is unlawful and that the appointment should be set aside. Webber Wentzel's Dispute Resolution team represented the Helen Suzman Foundation ("the HSF") and Freedom Under Law in the challenge to the appointment of Ntlemeza as National Head of the Hawks.

The Court found that the two previous judgments penned by the Honourable Mr Justice Motojane (upon which the HSF based the challenge to the appointment of Ntlemeza) were:

"replete with the findings of dishonesty and mala fides against [Ntlemeza]. These were judicial pronouncements. They therefore constitute direct evidence that [Ntlemeza] lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to [Ntlemeza], which go directly to [Ntlemeza's] trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against [Ntlemeza]…

…The judicial pronouncements made in both the main judgment and the judgment in the application for leave to appeal are directly relevant to and in fact dispositive of the question whether [Ntlemeza] was fit and proper if one considers his conscientiousness and integrity.  Absent these requirements [Ntlemeza] is disqualified from being appointed the National Head of the DPCI".


As such, the Full Court ultimately found that the Minister of Police, who is empowered under the South African Police Service Act to appoint the National Head of the Hawks, completely ignored material facts and requirements in appointing Ntlemeza as National Head of the Hawks and that ignoring such remarks quashed the decision to appoint.
 
This judgment represents a resounding victory and vindication for the South African Rule of Law and constitutional democracy. 
 

 

Click here to view the full judgment

 

To hear more about recent successes concerning the South African Rule of Law, please click here to register for our panel discussion on 29 March 2017.

Pro Bono team contributes to the assessment of key legislation

Moray Hathorn and Ayanda Ngubo were recently invited to make presentations to the High Level Panel (HLP) on the assessment of key legislation.  They were asked to present specifically on how Land Holding Entities can be enhanced in an effort to strengthen Land Reform strategies in South Africa. 

By way of background, the HLP is an initiative of the Speakers’ Forum of Parliament whose mandate it is to investigate the impact of legislation in respect of the following areas: 

 

  • the triple challenges of poverty, unemployment and inequality;
  • the creation of, and equitable distribution of wealth;
  • land reform, restitution, redistribution and security of tenure; and
  • nation building and social cohesion.

 

The key legislation likely to be assessed in question includes that which has the greatest direct impact on the citizens of South Africa and legislation that seeks to protect and improve the lives of women and children.

The HLP aims to review legislation, assess implementation, identify gaps and propose action steps that impact on specific areas. This will be done with a view to identifying laws that require strengthening, review and/or amending.  In other words, this intervention will entail the identification of existing legislation that enables the transformational goals of the developmental state, as well as laws that impede this goal.  The outcome of the work of the HLP  will be a package of recommendations that will be considered by the South African Legislative Sector. It has also opened space for robust inputs and debate around a wide range of issues. The HLP has resulted in a raft of detailed, extensive research reports being commissioned from a wide range of experts from across the country. The HLP is chaired by the former President of South Africa, Mr Kgalema Motlanthe.

Upgrading in situ of the Harry Gwala Informal Settlement in Wattville, Benoni

Since July 2004, the Webber Wentzel Pro Bono Practice has worked hundreds of hours on securing the upgrading in situ (on site) of the Harry Gwala Informal Settlement (the Settlement) - as required in terms of chapter 13 of the National Housing Code and its successor, part 3: Upgrading of Informal Settlements of the Code. Numerous meetings were held with the community advising them on actions they should take to engage the Ekurhuleni Metropolitan Municipality (the Municipality).

The Municipality had technical objections to the upgrading, but in 2007 they agreed to make an application to the Provincial Housing Department for funding for an upgrade.

Representations to the Municipality for the provision of interim services to the settlement fell on deaf ears. We resorted to litigation in the South Gauteng High Court (the High Court) in 2007 against the Municipality for an order compelling them to install interim services pending the outcome of the application to the Gauteng Province (Province) to upgrade in situ. The High Court ordered the installation of 7 additional communal taps (as required by the Water Act regulations) and the re-commencement of a refuse removal service, on grounds that the latter had been unreasonably terminated. The decision of the High Court to refuse an order for interim sanitation and high mast lighting was taken on appeal to the Constitutional Court.

In the weeks before the Constitutional Court hearing, the Municipality adopted a programme of providing sanitation services to all the 130 informal settlements in its jurisdiction for the first time; one chemical toilet for every 10 households which remains the official standard.

We persisted with our argument in the Constitutional Court, arguing that the right to dignity demanded no less than 1 toilet for every 2 households. The Constitutional Court rejected this argument and it rejected our interpretation of chapter 13 as requiring interim sanitation services. That decision is reported as Nokotyana and Others v Ekurhuleni Metropolitan Municipality 2010 (4) BCLR 312 (CC). The Constitutional Court did, however, find that the Province had unduly delayed the decision whether to grant approval and funding for the application for upgrading in situ, and ordered that the Province take that decision within 14 months of the order. During the course of 2010 the Environmental Impact Assessment for an in situ upgrade was undertaken. Our activities in 2010 focused on assisting the community to comment on the draft Scoping Reports and included an expert assessment of the Scoping Reports on behalf of the community.

During 2011, after numerous follow ups with the Province on the status of their decision, we were informed that upgrading in situ would take place.

We continued to advise the community in their interactions with the Municipality, and sometimes difficult and controversial issues arose. The Municipality wanted to only build flats to accommodate the occupiers - this raised objections based on cultural practices within the community. We engaged with Kristin Kornienko, a post-graduate student at the Wits School of Town Planning. She produced a draft town plan allowing for what we contended was in line with the concept of in situ upgrading; that is allowing a plan which, as far as technically feasible, would allow occupiers to retain their current stands and build incrementally. This is the methodology used in the favellos in Brazil. She earned awards for her work at Harry Gwala (and Makause settlement in Germiston), and for her thesis titled "Engaging Informal Settlements as Landscapes of Place: Reconceptualising Urban Communities In the Struggle for In Situ Upgrading".

The Municipality and the community have now reached an agreement on the development. A mixed development of flats, self-standing and semi-detached houses will take place. Construction starts in September 2017.

Moray Hathorn says "Just as working at the Settlement has been an education for us, one hopes that equally it has been an education for the community in understanding their constitutional and legal rights; and for the Municipality in the understanding of its duties".