CASAC | Page 6

Justice Committee recommends seven SAHRC Commissioners

27 October 2016

The Portfolio Committee on Justice and Correctional Services has recommended seven candidates for appointment to the South African Human Rights Commission (SAHRC).

They are Professor Bongani Majola,  Advocate Bokankatla Malatji, Mr Jonas Sibanyoni, Mr Andre Nissen, Ms Devikarani Jana, Ms Matlodi Mkwetla, and Advocate Andre Gaum. The committee recommended Prof Majola as Chairperson, and Ms Jana as Deputy Chairperson.

The names were released in a CASAC media statement issued today. In the statement, CASAC said the Portfolio Committee would meet in due course to adopt a formal report that would be tabled in the National Assembly.

CASAC has played an active role in promoting public participation in the SAHRC selection process. Among other things, it made detailed submissions to the Portfolio Committee on all 81 nominees.

For the full statement, click here.

Names of shortlisted SAHRC candidates released

THE Portfolio Committee on Justice and Correctional Services has shortlisted 18 candidates for the seven vacancies on the South African Human Rights Commissions (SAHRC).

The names and CVs of the shortlisted candidates can be viewed on the parliamentary website. To access the relevant section, click here.

The Committee has invited the public at large to give further inputs on the 18 nominees. Comments and/or objections to candidates can be forwarded to Mr Vhonani Ramaano, Committee Secretary, on vramaano@parliament.gov.za or tel (021) 403-3820.

CASAC submission on SAHRC nominations

3 OCTOBER 2016

CASAC has provided the Parliamentary Portfolio Committee on Justice and Correctional Services with profiles of all 81 candidates for the seven vacancies on the South African Human Rights Commission (SAHRC).

This initiative forms part of CASAC’s campaign to promote public participation in the selection process for selecting additional members of the SAHRC, which plays a key role in ensuring compliance with the human rights set out in the South African Constitution.

CASAC’s submission was handed to the Portfolio Committee on Friday 30 September, the deadline for the public participation process.

The Committee will undertake a preliminary selection process, and recommend seven candidates to the General Assembly. It will start a short-listing process on 5 October, and interview short-listed candidates on 13 and 14 October. CASAC has expressed the hope that its submission would assist the Committee in the shortlising process.

To download the CASAC submission, click on the link below.

CASAC submission on SAHRC candidates (30 September 2016)

For CASAC’s full media statement on the submission, click on the link below.

CASAC media statement – Report on SAHRC nominees

CASAC campaign about SAHRC nominations

CASAC has embarked on a campaign to promote public participation in the selection of seven new members of the South African Human Rights Commission (SAHRC).

The SAHRC is one of eight institutions provided for in Chapter Nine of the South African Constitution, and its members are appointed by Parliament.  The selection process is being managed by the Portfolio Committee on Justice and Correctional Services, which will undertake a preliminary selection process and recommend seven candidates to the General Assembly.

Eighty people have applied, or have been nominated. Of those, 30 are women. CASAC is encouraging members of the public, civil society organisations and other interested parties to submit comments about and / or objections to these candidates. The deadline for submissions is Friday 30 September 2016. Submissions can be sent to Mr Vhonani Ramaano, Secretary of the Portfolio Committee, at vramaano@parliament.gov.za. The Portfolio Committee has asked those who submit comments to disclose their identity, as a means of authenticating their submissions. Submissions can also be shared with CASAC on info@www.casac.org.za.

The Committee will start the short-listing process on 5 October, and short-listed candidates will be interviewed on 13 and 14 October.

The names and CVs of all 80 candidates have been posted on the parliamentary website. To access this information, click here.

CASAC comments on SAHRC selection process

22 September 2016

CASAC is taking an active interest in the selection of seven members of the South African Human Rights Commission (SAHRC). In a media statement issued on 20 September, CASAC initially expressed concern about the way in which the Portfolio Committee on Justice and Correctional Services was processing the nominations for filling the vacancies, saying the undue haste with which the process was unfolding would detract from any meaningful public participation in the selection process, as envisaged in section 59(1) of the Constitution.

Nominations had closed on Friday 16 September, and the Committee intended to meet on Thursday 22 September to shortlist candidates. The Committee intended to publish the list of nominees by Thursday 22 September. This would leave members of the public and civil society organisations with less than 48 hours in which to consider and comment on the nominees.

However, in a further media statement released today (22 September), CASAC welcomed an adjusted time frame agreed by the Portfolio Committee for filling the seven vacancies, as this would now provide a suitable opportunity for public participation.

The Committee had received 80 nominations for the seven vacancies. Their names were due to be released on the same day (22 September), and the public was invited to comment on their suitability. The deadline for comments would now be Friday 30 September. CASAC intended to make a submission to the Committee. The Committee would then meet on 5 October to shortlist between 15 and 21 candidates, and would interview them on 13 and 14 October.

The statement added: ‘We are pleased that the Committee will engage with civil society and members of the public to ensure that the process is open and transparent, in much the same way that the process of appointing the Public Protector was conducted.’

For the complete statements, see the media statements section.

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)