Response to outcome of Malema trial

Posted on September 13, 2011. Filed under: Courts |

Jan Hofmeyr, head of the IJR’s Policy and Analysis programme, has written a response to the outcome of Julius Malema’s hate speech trial, as announced yesterday. His article appears on the SABC website today – have a look here.

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Information Bill and Mogoeng interview

Posted on September 2, 2011. Filed under: Courts, Justice, Parliament |

Kate Lefko-Everett

Amidst all the anticipation and interest in the disciplinary hearing of ANC Youth League president Julius Malema this week, which according to a press release this morning is set to continue on Monday, two very important things are happening in Cape Town: first, deliberations continue in Parliament over the Protection of Information Bill. For more information, have a look at this analysis in today’s Mail & Guardian, or visit the Right2Know Campaign’s website. You can also receive live updates on Twitter via @r2kcampaign, and search (or post) by #SecrecyBill.

Then, tomorrow morning the Judicial Service Commission (JSC) will conduct an interview with Mogoeng Mogoeng, who was nominated earlier this month by President Zuma for the position of Chief Justice, which is open to members of the public.

A number of civil society organisations and others have objected to Mogoeng’s nomination, particularly given his past judgements in cases of domestic and sexual abuse, marital rape, gender equality and LGBTI rights. Sisonke Msimang, chair of Sonke Gender Justice Network and Executive Director of the Open Society Initiative for Southern Africa, has very insightful analytical piece in the Business Day today, while Ilham Rawoot has reviewed Mogoeng’s rulings in cases of child abuse and rape.

Notably, Mogoeng also took a dissenting position in the case of The Citizen v McBride, the outcome of which was supported by the South African Coalition for Transitional Justice (SACTJ). On his blog Constitutionally Speaking, Professor Pierre de Vos explained Mogoeng’s position as follows:

‘In the case of The Citizen v McBride in a judgment handed down earlier this year by the Constitutional Court, justice Mogoeng dissented from the majority and provided reasons for this dissent which suggest that he has a curious understanding of the way in which freedom of expression operates in a constitutional democracy. In the context of a discussion of the effects of the granting of amnesty by the Truth and Reconciliation Commission (TRC) to those who had committed gross violations of human rights during the apartheid years, justice Mogoeng stated that it was impermissible to use truthful facts to insult, demonise and run down the dignity of self-confessed human rights violators.

Invoking “traditional values and moral standards” — something that the justices on the ultra-conservative wing of the US Supreme Court might do — the judgment seemed to suggest that it was inappropriate in a constitutional democracy to engage in debate that would affront the dignity of any individual. Even in cases where the impugned comments are based on incontrovertible facts (“X is a murderer hence X is a bad person”), would seemingly offend the honourable judge.

As per section 174 of the Constitution, the ‘President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal’.

As such, there is little opportunity for public participation in this process, except indirectly through expressions of support or opposition to representatives within Parliament. However, according to the the Lesbian and Gay Equality Project, which has made a submission to the JSC together with Sonke, TAC and Section 27, members of the public can observe the interview as follows:

DATE : Saturday, 3rd September 2011
TIME : 09h15 for 09h45
VENUE : Westin Hotel, Lower Long Street, Convention Square next to the Cape Town International Convention Centre, Cape Town

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Constitutional Court upholds right to express truth

Posted on April 12, 2011. Filed under: Courts, Transitional Justice |

The South African Coalition for Transitional Justice (SACTJ) has welcomed last week’s Constitutional Court ruling upholding the “rights of victims of apartheid-era abuses, as well as the media and public, to speak the truth about crimes amnestied by the Truth and Reconciliation Commission (TRC).”

The case of  The Citizen 1978 (Pty) Ltd and Others v Robert John McBride, according to the Constitutional Court, focused on how an “amnesty granted under the Promotion of National Unity and Reconciliation Act 34 of 1995 (Reconciliation Act) affects a claim for defamation.” In 2003, while under consideration for the post of Ekurhuleni metro police chief, The Citizen “published a number of articles and editorials questioning Mr McBride’s candidacy”, and in which he was described as a “criminal” and a “murderer”. This was in reference to a bombing McBride carried out in 1986 in Durban while a member of Umkhonto we Sizwe, in which three people were killed and sixty-nine injured. He applied for amnesty under the Reconciliation Act, and this was granted in April of 2001. (full statement from the Constitutional Court)

The Constitutional Court describes its ruling, in which The Citizen‘s appeal was upheld and McBride’s cross-appeal dismissed, though also finding that The Citizen defamed McBride by “claiming falsely that he was not contrite”:

In a majority judgment by Cameron J (Brand AJ, Froneman J, Nkabinde J and Yacoob J concurring), the Court found that the Reconciliation Act did not make the fact that Mr McBride committed murder untrue. And that Act did not prohibit frank public discussion of his act as “murderer”. Nor did it prevent his being described as a “criminal”. The Court emphasised that protected comment need not be “fair or just at all”, in any sense in which these terms are commonly understood. Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true. The Citizen was thus entitled to express views on Mr McBride’s suitability for the post. It did so with coverage that struck the Court as vengeful and distasteful. But the Court emphasised that its opinion is not the issue. Despite the harshness of the Citizen’s coverage, it is entitled to legal protection.

A separate judgement was also made by Ngcobo CJ, with Khampepe J concurring. (full statement from the Constitutional Court)

The SACTJ supported Joyce Mbizana and Mbasa Mxenge, who brought an amicus brief before the Consitutional Court. Both Mbizana and Mxenge suffered the loss of family members murdered by apartheid security police officers, who were later granted amnesty through the TRC. Their brief emphasised the “right to truth”, and maintained that,

“the ruling of the lower courts impaired their ability to speak freely about the crimes committed against their family members, and about the wrongdoers who received amnesty. They contended that freedom of expression is constitutive of dignity: to deny persons in their position the right to speak the truth without fear of being sued for defamation strips them of their dignity. They argued that the effect of amnesty could not alter the historical facts.” (full statement here)

The SACTJ consists of the Khulumani Support Group, Centre for the Study of Violence and Reconciliation, International Centre for Transitional Justice, South African History Archives, Human Rights Media Centre, Institute for Justice and Reconciliation and the Freedom of Expression Institute.

For the full judgement, click here (PDF) or here (Word).

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DOJCD: Parliament vindicated, not “irrational”

Posted on March 18, 2011. Filed under: Courts |

The Department of Justice and Constitutional Development (DOJCD) has issued a response to yesterday’s Constitutional Court ruling, which found that the law enacted to dissolve the Directorate of Special Operations (“the Scorpions”) was invalid and that the Directorate for Priority Crime Investigation (“the Hawks”) is “insufficiently insulated from political influence”.

In the statement, the DOJCD commits to studying the judgment, with a view to appropriately amending legislation within 18 months as mandated by the Court.

In defense of government, the DOJCD maintains that the legislation that created the Hawks, as enacted by Parliament, was intended to protect the unit’s independence and “shield it from possible interference”. The Department adds that Parliament “has been vindicated as the court did not find anything irrational in how it processed the legislation”.

Constitutional law expert Professor Pierre de Vos has called the ruling a “monumental judgment in defense of the poor” – have a look at his very insightful analysis on his blog, Constitutionally Speaking, by clicking here.

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Constitutional Court: Hawks “insufficiently insulated from political influence”

Posted on March 17, 2011. Filed under: Courts |

Kate Lefko-Everett

Thanks to the amazing expediency of new social media, and a mid-morning tweet by Mail & Guardian editor Nic Dawes (@NicDawes), we recently learned that the highest court of the land has ruled invalid the law enacted to disband the former elite crime-fighting unit, the Directorate of Special Operations (or “the Scorpions”).

A press release issued by the Court states that in the case of the case of Hugh Glenister v President of the Republic of South Africa & Others,

“The majority of the Court (in a joint judgment by Moseneke DCJ and Cameron J, in which Froneman J, Nkabinde J and Skweyiya J concur) finds that Chapter 6A of the South African Police Service Act 68 of 1995, as amended, is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the DPCI.”

According to the press statement, the case has primarily focused on

“…whether the national legislation that created the Directorate for Priority Crime Investigation, known as the Hawks (DPCI), and disbanded the Directorate of Special Operations, known as the Scorpions (DSO), is constitutionally valid.”

The Court’s two main findings are that: first, the state is constitutionally bound to “establish and maintain an independent body to combat corruption and organised crime”; and second, that the Directorate for Priority Crime Investigation (“the Hawks”) established after the disbanding of the Scorpions “does not meet the constitutional requirement of adequate independence” and is “insufficiently insulated from political influence in its structure and functioning”.

For more information, have a look at the Court’s press statement or the full judgment (PDF version or Word version).

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Back to the headlines

Posted on September 13, 2010. Filed under: Courts, News |

This editor is now officially back from a much-needed holiday! And with lots of new updates to share…

I thought I would start by highlighting the weekend headlines – that Clive Derby-Lewis, convicted for the 1993 killing of prominent anti-apartheid activist and Communist Party leader Chris Hani, may receive parole by year-end.

As recently posted, reports of a possible parole approval were previously dismissed by Correctional Services Minister Nosiviwe Mapisa-Nqakula.

Weekend papers, however, suggest that according to “sources close to Derby-Lewis”, “the Pretoria Prison parole board has recommended for a second time that he be freed”. (Full article here)

Individuals and organisations, including COSATU, the Young Communist League, and the Democratic Alliance have all issued public statements in opposition.

Reports of the release of Derby-Lewis have been denied by Correctional Services so far (read more here)… more news to follow!

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Reitz Hostel 4 Sentencing Today

Posted on July 28, 2010. Filed under: Courts |

Yesterday, it was reported that the four former Free State university students accused of humiliating staff at the Reitz hostel in a so-called ‘initiation ceremony’ in 2007 were found guilty of crimen injuria in the Bloemfontein magistrate’s court.

Sentencing of the four is due to begin this afternoon.

Click on the following links to report media reports from Eyewitness News, Times Live and The Guardian.

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Basson case set to proceed – again…

Posted on June 29, 2010. Filed under: Courts |

A few months ago, I posted an update on the ongoing legal wrangle between the Health Professionals Council of South Africa (HPCSA) and apartheid-era biological warfare specialist Dr Wouter Basson. (Read post here)

Basson is still a practicing cardiologist in South Africa, and for a number of years the Council has been attempting to carry out an inquiry into his conduct while working with the National Defence Force under the apartheid government. Basson has made repeated legal applications to block the inquiry from proceeding.

In May, a High Court ruling in favour of the HPCSA appeared to pave the way for the inquiry to go forward. Basson’s legal team then appealed this ruling, but a SAPA report today indicates that Judge Eberhard Bertelsmann has dismissed the application with costs.

According to SAPA, “Basson is now left with two options — he can accept the judgement and deal with the HPCSA internal disciplinary process, or approach the Supreme Court of Appeal.” (Read the full article here)

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Clive Derby-Lewis parole hearing today

Posted on June 23, 2010. Filed under: Courts, TRC |

Today, the parole board in Pretoria will hear an application by Clive Derby-Lewis, who together with Janusz Walus was convicted for the 1993 killing of prominent anti-apartheid activist and Communist Party leader Chris Hani. Derby-Lewis was not granted amnesty by the TRC. (Read the transcripts of the TRC amnesty hearings here)

As recently as August of last year, Correctional Services Minister Nosiviwe Mapisa-Nqakula was quoted as saying that Derby-Lewis had not completed his full prison sentence, nor had he shown any remorse for the Hani killing. “I will not let people abuse the process of parole,” the Minister stated, in maintaining that the “parole of apartheid-era hitman Butana Almond Nofemela does not set a precedent for the release of Clive Derby-Lewis.” A previous parole application made by Derby-Lewis  was dismissed by the High Court in March of 2009. (Full article here)

In a Business Day report this morning, Franny Rabkin writes that Hani’s killing “almost derailed SA’s negotiations for democracy” and “to this day, angers many South Africans.” The SACP has released a statement indicating that the party will oppose the parole application, together with Hani’s widow.

According to Rabkin’s article, last year High Court Judge Willem van der Merwe stated that “Derby-Lewis was, in law, eligible to be considered for parole — because he was over the age of 65 and had already served 15 years of his sentence.” However, he also stated that the “decision to grant parole was ultimately in the hands of the correctional services minister and not the court.” He also “ruled that Ms Hani had a right to make representations to the parole board before it could recommend parole.”

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Amici curiae application by relatives of apartheid victims

Posted on June 21, 2010. Filed under: Courts, Reconciliation, TRC |

On Saturday, The Times LIVE reported that “surviving relatives of apartheid victims have filed an application to intervene in the Constitutional Court case of The Citizen v. McBride as amici curiae (friend of the court) in a bid to challenge the ruling that calling people who received amnesty murderers would constitute defamation.”

According to the report, the Supreme Court of Appeals previously found that the “granting of amnesty by the Truth and Reconciliation Commission (TRC) removes the conviction ‘for all purposes'”, and therefore “anyone who describes such acts as ‘murder’ and any statements referring to an amnesty applicant as a ‘murderer’ would now be considered false and a ground for defamation.”

One of the applicants is Joyce Sibanyoni Mbizana, whose brother Justice Mbizana was abducted, tortured and killed by members of the Northern Transvaal Security Branch in 1987. (Read the record of proceedings by the TRC Amnesty Committee here)

Mbasa Mxenge has also applied – the son of human rights lawyers Griffiths and Victoria Mxenge, both of whom were killed during the 1980’s. (Read more about the case of Griffiths Mxenge here, and that of Victoria Mxenge and the Duncan Village massacre that followed her funeral, here).

The article further reports that if the Court’s ruling is upheld, Mbizana, Mxenge and other victims “may face an untenable prospect of being sued for defamation, should they speak or publish the full truth by referring to heir loved ones’ killers as murderers.” If their application is granted, they will maintain that “no law may render the truth as false for purposes of public debate and discourse”, and that “freedom to speak the truth about the events of the past, should not be suppressed.” (Full article here)

Read the press release by the Khulumani Support Group here, and additional reporting in The Post here.

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