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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)

HUMAN RIGHTS DAY STATEMENT

20 March 2013

In the year since the last Human Rights Day, our world has changed dramatically. South Africa is no longer the country it was a year ago. We have entered a precarious new period of our history in which some of our worst nightmares return to haunt us.

On 17th August last year, we woke up to a South Africa over which a dark shadow had been cast by a police force that had mown down 34 protesters at Marikana.

As CASAC’s Chairman Sipho Pityana said on that day:

“The photos of the bodies of dead protesters filled me with horror and I was forced to ask myself: Is this 2012 or is it 1985 or even 1976?”

Of course, 21 March is the date chosen as Human Rights Day because of the Sharpeville Massacre of the same date in 1960. And so, now, in 2013 we are forced to face the fact that history has repeated itself – this time not under an illegitimate, Apartheid government but under a democratically elected government.

Sadly, the Marikana Massacre was not the only terrible event to scar the nation in the past 12 months.

Most recently, the grotesquely brutal treatment of Mido Macia by the police, in broad daylight and in full view of scores of witnesses, proved how deeply rooted the culture of violence and abuse of human rights is within our police force.

Sipho Pityana said today:
“The leadership of the SA Police Service has yet to show the appropriate level of remorse and a willingness to take responsibility for what has happened. The testimony of National Police Commissioner, Riah Phiyega before the Marikana Commission of Inquiry on 19 March did little to change this perception. They do not appear able or willing to acknowledge the seriousness of what has happened and the harm that such human rights abuses do to the reputation of South Africa and its prospects of securing dignity and prosperity for all. “

Earlier this year, the savage rape and murder of Anene Booysen shocked a nation – a horrific reminder of the extent to which gender-based violence is endemic in our society.

We fear that these events represent the tip of an iceberg that threatens to undermine our democratic constitutional project.

Urgent action is required.
So, just as happened in 1960 after Sharpeville, we must mobilize support for human rights and challenge those who perpetrate abuses of human rights.

Human Rights Day 2013 must mark the start of a new period in which we collectively re-commit to the vision of the constitution and the values of human dignity, equality and freedom that underpin it.

As retired Justice Zac Yacoob said earlier this week:
“The passing of the Constitution does not mean we have the true recognition of human rights in our society … the fact that the Constitution guarantees them does not mean that we have them. We need to change ourselves and ask whether we are truly non-racial, non-sexist … we do not wish to live in a society where vulnerable people are trampled upon…”

We must say, as we once said before: No More!

No more Anene Booysens! No more Andries Tatanes! No more Mido Macias! No more Marikanas!

The leadership of our country – in government and in the private sector – must stand up and be counted.

Where necessary, as in the case of the police services, they must be held to account.

Above all, the Bill of Rights must be respected.

Enquiries:
Lawson Naidoo
073 158 5736
Lawson@www.casac.org.za

Anene Booysen: A mirror of our society

Article published in the Sunday Indenpendent – Nomboniso Gasa (CASAC Programme Manager)

It is a struggle to make sense of the enormity of the death of Anene Booysen. Many have expressed outrage, anger and pain. Across the country, people ask, for how long can we let this continue?

Inspired by the public response to the rape and murder of Joytri in India, some are urging South Africans to rise in their millions and say “enough is enough”. For many, it seems, we South Africans have become desensitised and even indifferent to the crimes perpetuated against infants, girls, children, women and the vulnerable in our society.

Read more: http://www.iol.co.za/sundayindependent/anene-booysen-a-mirror-of-our-society-1.1467392