Archive | The Archive Articles

The Money Drain
How Trade Misinvoicing and Unjust Debt
Undermine Economic and Social Rights in Southern Africa

Twenty-five years after the end of apartheid, the
whole Southern African region, i.e. the 16 states that
now make up the Southern African Development
Community (SADC),1 is largely free from political
subjugation by foreign powers. However, the region
continues to endure certain forms of economic
domination. This is because the international
economic order remains blatantly biased against the
interests of SADC countries (and other countries of
the Global South).

It is true that Southern African governments bear the
principal responsibility for failing to protect and
empower their citizens. Yet, as a result of a range of
unjust policies and practices, countries of the Global
North,2 along with certain multilateral institutions,
must also take considerable blame for these failings.

An ACTSA Briefing Paper

For the full brief click here

Media Statement 04 December 2018

CASAC welcomes the appointment of Adv Shamila Batohi as the new National Director of Public Prosecutions (NDPP). She has an arduous task ahead to restore public confidence in this critical institution that sits at the centre of the criminal justice system.

The effectiveness of the National Prosecuting Authority (NPA) has been gravely eroded during the Zuma years with no fewer than 6 people holding the post of NDPP during his tenure as President – Mokotedi Mpshe (Acting NDPP), Menzi Simelane, Nomgcobo Jiba (Acting NDPP), Mxolisi Nxasana, Silas Ramaite (two stints as Acting NDPP), and Shaun Abrahams.

For the full statement click here

Media Statement

Legal Challenge to Ingonyama Trust

07 November 2018

The Legal Resources Centre (LRC) yesterday (6 November 2018) filed an application Court in the Pietermaritzburg High Court on behalf of Council for the Advancement of the South African Constitution (CASAC), the Rural Women’s Movement (RWM) and Seven Informal Land Rights Holders challenging the conversion of Permission to Occupy (PTO) or informal land rights to long term lease agreements by the Ingonyama Trust.

A number of persons hold a PTO or informal land rights on land vested or registered in the name of the Ingonyama Trust. In this case CASAC, RWM and the Seven Informal Land Rights Holders (the Applicants) act in their own interest, as members of and in the interest of the group constituted by persons who hold PTO’s or informal rights to land vested or registered in the Ingonyama Trust; on behalf of members of that group who cannot act in their own names; and in the public interest.

For full statement click here

Notice of Motion

Founding Affidavit

Media Statement – CASAC urges utmost caution 18 October 2017

Army on the streets should be a measure of absolute last resort.

“We are not there yet”.

CASAC is concerned by the recent statement by the Minister of Police, Mr Fikile Mbalula, proposing that the SANDF be deployed to combat crime in areas in Gauteng and the Western Cape.

Speaking from Cape Town, CASAC Executive Secretary Lawson Naidoo said:

“We believe that such a knee-jerk response to the scourge of crime, particularly violent and organised crime, is misplaced and probably misguided”.

South Africa requires a more thoughtful, holistic approach that acknowledges the failure of the SAPS to fight crime and to protect people. Such an approach must take into account the socio-economic challenges that we continue to confront.

For full statement click here

Media Statement Supreme Court of Appeal Judgment – 13 October 2017

CASAC welcomes the judgment of the Supreme Court of Appeal today dismissing the appeals by President Zuma and the National Prosecuting Authority (NPA) against the decision of the NPA to withdraw the fraud, corruption and racketeering charges against the President.

 

In a comprehensive, reasoned and scathing judgment the SCA poured scorn on the manner in which the NPA sought to justify Adv Mokotedi Mpshe’s decision in April 2009. The court was moved to say “ … it beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational … The manner in which the affidavits were drawn and the case conducted on behalf of the NPA was inexcusable”.

For the full statement click here

NPA FEELS STING OF MURPHY’S LAW – by Lawson Naidoo

It will no doubt be argued by some that Judge John Murphy has transgressed the judicial boundaries in making far-reaching findings in the case brought by civil society group, Freedom under Law, in the Richard Mdluli saga.
Not only did the judge order that the decisions not to prosecute Mdluli for murder and associated charges, as well as fraud and corruption, and to terminate the disciplinary proceedings and revoke his suspension, be set aside, he ordered that these various charges be reinstated forthwith, and prosecuted diligently and without delay. Judge Murphy delivered a detailed, reasoned judgment within two weeks of hearing the matter, an example many of his colleagues on the bench would do well to follow.
Whilst the case raises critical issues about the separation of powers under our constitutional democracy, the factual findings lay bare a grim picture of the extent to which those tasked with the responsibility to uphold law and order have bent over backwards to protect a high profile and seemingly influential figure such as the former Head of Crime Intelligence in the SAPS. The case lists among its respondents the Acting NDPP, the head of the Special Commercial Crimes Unit, the National Police Commissioner and the Minister of Police.
The Constitution confers on the NPA the power to institute criminal prosecutions on behalf of the state and enjoins it to exercise this power without fear, favour or prejudice. This is a broad and weighty power but not an unrestrained one. The court rejected the argument that the power to review prosecution decisions vested solely in the NDPP. Judge Murphy ruled that the decisions of the National Prosecuting Authority (NPA) are not immune from judicial review even though the Promotion of Administrative justice Act (PAJA) specifically excludes from its purview decisions to institute or continue a prosecution. Murphy found that decisions not to prosecute or to continue a prosecution are reviewable under PAJA as well as on the basis of legality or rationality. Those wielding public power must do so in a manner that is transparent, reasonable, lawful and accountable.
Under the Prosecutions Policy which guides the functioning of the NPA, once there is sufficient evidence indicating reasonable prospects for a conviction, a prosecution should follow unless the public interest demands otherwise. In this case the public interest would appear to demand that a senior police officer charged with serious offences such as murder, kidnapping, fraud and corruption should be prosecuted.
Murphy ruled that Lawrence Mrwebi did not possess the power to withdraw the fraud and corruption charges without the concurrence of the Director of Public Prosecutions for North Gauteng, and that he did not secure such agreement. Mrwebi’s decision flagrantly violated the Prosecution Policy and was unlawful.
The DPP for South Gauteng sought to justify the withdrawal of the murder and related charges on the basis of there being no direct evidence linking Mdluli to the murder of Oupa Ramogibe, the husband of Mdluli’s former lover. The DPP relied on the finding of the inquest he had initiated to support this decision. Murphy found that, on the contrary, the ‘evidence presents a compelling
prima facie case against Mdluli’. He also stressed that an inquest is not an appropriate forum to determine the culpability of any person; it is an investigative process aimed at determining the cause of death – there was no dispute that Ramogibe had been shot! The inquest was also restricted to looking at the issue of murder and could therefore not be relied upon to justify the decision to quash the 17 associated charges of attempted murder, assault, kidnapping etc.
The Acting Police Commissioner Nhlanhla Mkhwanazi had informed Parliament that he took the decision to withdraw the disciplinary charges against Mdluli in February 2012 on instructions from authorities or persons ‘beyond him’. Despite the hackneyed protestations by National Commissioner, Riah Phiyega that Mkhwanazi was ‘quoted out of context’ no evidence to this effect was proffered. Whilst Mkhwanazi did not disclose who exactly instructed him, we should perhaps commend him for exposing the fact that hidden hands and hidden agendas exist in the upper reaches of the criminal justice system. Murphy however castigates Mkhwanazi for succumbing to this pressure and failing to protect the integrity of SAPS.
The case therefore constitutes an embarrassing defeat for the NPA and the SAPS. That the judgment of Murphy will be appealed will surprise no one because if it stands it may have grave consequences for President Zuma in his quest to now avoid ‘having his day in court’. Regardless of the outcome of any appeal there are some inescapable conclusions to be drawn from the case.
Firstly the improper interference of unknown persons in the functioning of SAPS does not bode well for the shiny new Hawks unit which has been seeking to persuade the Cape High Court that it is insulated from undue political influence under the amended SAPS Act. Mkhwanazi’s experience will expose the porous Chinese walls that SAPS has been seeking to build around the Hawks.
Secondly, Glynnis Breytenbach will now feel vindicated having consistently maintained that she was suspended and faced disciplinary charges in order to prevent her from pursuing the fraud and corruption charges against Mdluli.
Thirdly, Murphy was scathing in his criticism of the manner in which the Acting NDPP, Nomgcobo Jiba and Mrwebi managed the case – he was moved to state: “The attitude of the respondents signals a troubling lack of appreciation of the constitutional ethos and principles underpinning the offices they hold”. Their dilatory and less than co-operative attitude towards the court in this case comes close to contempt of court; directions from the Deputy Judge President were ignored and flouted, affidavits were filed months late, and full information was not disclosed to the court. It is now clear that neither Jiba nor Mrwebi are fit and proper persons to hold office in the NPA.
The newly appointed NDPP, Mxolisi Nxasana, assumes office on 1 October – it he is to succeed in restoring the credibility of the NPA, there needs to be a clear-out of those bringing the NPA into disrepute – as a start steps should be instituted to remove Jiba and Mrwebi from office.
Lawson Naidoo is the Executive Secretary of the Council for the Advancement of the South African Constitution (CASAC)