Helen Suzman Foundation Newsletter - October 2022

Dear Friends,

It has been several months since our last newsletter. As you’ll note from the overview below, we’ve been busy. We’ve also been busy building a new team here at HSF and I’m delighted to welcome Juliet Briggs who joins us as HSF’s Financial and Operations Manager; Sannah Mokone who joins us as our new Outreach and Communications Officer; and Divashnee Naidoo who joins us as a new legal researcher.

For the past several months, there has been tremendous focus on the need for electoral reform and the HSF has endorsed Defend Our Democracy’s recent campaign. But the significance of accountability and responsiveness on the part of our elected representatives can’t only be confined to elections which is why a recent trend, observed by Rebecca Davis in this piece for Daily Maverick, that lawfully required processes of public participation are increasingly truncated or done away with altogether by Parliament and the Executive, should be especially concerning.

Helen was known for the emphasis she placed on reasoned discourse. It is as important now as it ever was in that the challenges South Africa faces are undeniably hard, often overwhelming. Our best hope: to secure the type of decisions and conduct that might meaningfully address these challenges, arrived at through deliberation, reason and justification. But we don’t even begin to get there if we, the public, are shut out of the processes of public participation.

In various ways — through our submissions to Parliament, in our litigation, and in our contributions to public discourse — we at HSF are doing what we can to safeguard those processes.

Nicole


Migrants in the Crosshairs

Some in our government seem intent on testing new moral lows in their effort to blame South Africa’s ills on vulnerable African migrants living within our borders. Nowhere was this clearer than when we witnessed Limpopo MEC for Health, Dr. Phophi Ramathuba look past her own government’s failures and chastise a Zimbabwean patient, bound to her bed at Bella Bella Hospital, for ‘killing my health system.’ The MEC’s recorded comments went viral and called out for repudiation in the strongest of terms. To this end, the HSF joined several civil society organisations in laying a complaint against her with the Health Professions Council of South Africa.

The full complaint can be read here.

Tragically, the MEC’s comments are not aberrations in their unconscionable scapegoating of foreign nationals living in South Africa. They stand in league with Minister of Home Affairs, Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) and Minister of Employment and Labour, Thulas Nxesi’s proposed quota system which would severely restrict lawful foreign nationals from participating in our labour market. Since our last newsletter, the HSF has taken a firm stand against both of these efforts to unfairly target foreign nationals living in South Africa.

On 10 June, the HSF launched a review of the Minister’s decision to terminate the ZEP. While the review was set to be heard from 5 to 7 October this year in the Pretoria High Court, the matter has now been postponed. We await directions from the Court as to the earliest next available date for hearing. The matter is likely to be heard along with the applications brought by the Zimbabwean Immigration Federation and the Zimbabwe Exemption Permit Holders’ Association who also seek the setting aside of the Minister’s decision. The Consortium for Refugees and Migrants in South Africa has been admitted as an intervening party in the HSF’s application. The HSF’s court papers can be accessed here.

On 28 May, the HSF delivered submissions on proposed amendments to the Employment Services Act which would, among other things, introduce a quota system that severely limits foreign nationals – lawfully residing in South Africa – from seeking employment. While the amendments laudably seek to make it an offense for employers to offer employment terms that discriminate between foreign nationals and South African citizens, the HSF submitted that the quota system is unworkable and that it violates the constitutional rights of foreign nationals lawfully residing in South Africa.

The HSF’s full submission can be read here.


The Judiciary - A Long Overdue Focus on the Magistrates’ Courts

Recent scenes of former Transnet bosses, Brian Molefe and Anoj Singh, and Regiments Capital Directors, Niven Pillay and Litha Nyhonhya, standing before Magistrate Emmanuel Magampa have highlighted the importance of Magistrates’ Courts in the delivery of justice.

Magistrates’ Courts are traditionally perceived as lacking independence from the Executive, because, historically, magistrates were seen as public servants who enforced systematic aspects of racial oppression under apartheid. In June this year, the HSF made submissions on the Lower Courts Bill, 2022, see here, and the Magistrates Bill, 2022, see here, in order to assist the Department of Justice and Correctional Services in bringing the administration and functioning of Magistrates’ Courts in line with the Superior Courts and to provide much-needed independence from the Executive.

The HSF raised concerns, amongst others, about how the magistracy’s budget will be administered and the role the Executive may play in determining the magistrates' service conditions. In addition, we made submissions on how to improve the processes by which magistrates are appointed, disciplined and removed, as these mechanisms must be beyond reproach.

An overhaul of the magistracy is long overdue but, the HSF submits, government should not stop with the adoption of these Bills. The distinction between magistrates and judges of the Superior Courts must be removed as it is superfluous, irrelevant, and demeaning to magistrates. One notable example is the vast salary differences between magistrates and judges. A magistrate earns forty-six per cent less than a judge.

There is no justifiable reason for this difference. The workload of magistrates is considerably high and, in many instances, even higher than that for judges. Both magistrates and judges need to be appropriately qualified, fit and proper people to be appointed. Both perform similar adjudicative functions; both deal with civil and criminal cases and receive judicial training. For all intents and purposes, a magistrate is a judge.


Basic Income Support in South Africa

On 16 August this year, Minister of Social Development, Lindiwe Zulu published new regulations that made the Social Relief of Distress Grant (“SRDG”) more widely available to those in desperate need. In a call for comment made prior to the regulations being published, the HSF welcomed the Minister’s efforts and submitted two sobering reminders. First, that the amended regulations would only be a small step toward progressively realising fiscally sustainable permanent basic income support. Second, that the system for administering the SRDG was in dire need of reform.

The HSF’s full submission can be read here.

Our submission was inspired, in part, by the return of the HSF Roundtable Series, which we revived with the support of the Friedrich Nauman Foundation after a long Covid-19 induced hiatus. As our topic for discussion, we chose the feasibility of basic income support in South Africa. We were privileged to have on our panel Kelle Howson, from the Institute for Economic Justice, Michael Sachs from the Southern Centre for Inequality Studies, Basetsana Meletse, representing the #PayTheGrants movement and Alex van den Heever from the Wits School of Governance. The evening delivered an invigorating discussion that we hope is the first of many future HSF Roundtables.

The full Roundtable can be viewed here.


On Banning Bain

The HSF welcomed the unprecedented decisions by National Treasury and by the UK government to ban Bain & Company. SA’s ban came via the placement of Bain on Treasury’s Database for Restricted Suppliers, intended to be operative for a decade, whereas the UK ban came in the form of a prohibition from receiving work from the Cabinet Office for a period of three years. Both bans target Bain’s grave misconduct in relation to state capture in South Africa and to the destruction of the South African Revenue Service (SARS) specifically. The commendable efforts of Lord Peter Hain and Bain whistle-blower, Athol Williams in securing these outcomes must be acknowledged. They, along with the HSF, will now focus their efforts towards the US in the hopes of getting a similar response from the Biden Administration. Read the HSF’s press statement here.

HSF has also sought to counter Bain’s disingenuous and patronizing engagement with the South African public. In a recent opinion piece published in Business Day, HSF’s Director, Nicole Fritz pointed to Bain’s hypocritical stance: firstly, in their statements that they are willing to have “tough conversations”, while not caring to fully participate in either the Nugent or Zondo Commissions; and, secondly, their lack of transparency on the extent of their wrongdoing in State Capture, despite evidence the contrary.

Read Nicole’s articles here and here.


The Public Protector, The Committee and The Courts – What To Do With The Judicial Findings?

The Public Protector’s impeachment is well underway before Parliament. It is an unprecedented process – the first time in democratic South Africa that the provisions of section 194 of the Constitution, which relate to the removal from office of Chapter Nine office-bearers, have been invoked.

Of concern is that those involved in the parliamentary processes seem unclear as to what the Parliamentary Committee might constitutionally and lawfully do in carrying out its mandate. And yet they should not be in at least one crucial respect: it is beyond dispute that the Committee’s processes may not be used to relitigate that part Adv Busisiwe Mkhwebane’s fate that has already been decided in our courts. Yet this has been what Mkhwebane’s legal representative, Adv Dali Mpofu SC, has asked the Committee to do throughout its proceedings thus far.

In July this year, the HSF published a Brief in which it argued that the Committee may not be illicitly repurposed as a court of appeal. That is not only because it is poorly positioned to relitigate the raft of court findings that have revealed so clearly Mkhwebane’s moral and professional delinquency, but because it is constitutionally prohibited from doing so.

Read the full Brief here.


SCA Medical Parole Hearing

Former President Jacob Zuma’s and the National Commissioner for Correctional Services’ appeal to the Supreme Court of Appeal to set aside a High Court judgment finding Arthur Fraser’s decision to place Mr Zuma on medical parole to be unlawful was heard in August.

The hearing can be viewed here.

Fraser’s decision came a mere eight weeks after the Constitutional Court sentenced MrZuma to 15 months in prisonfor contempt of court in July 2021. Fraser’s decision was predicated on findings that MrZuma suffered from multiple comorbidities and that the Department of Correctional Services could not provide the requisite specialist care to the former President at any of its facilities. This, despite the fact that the Medical Parole Advisory Board (“Board”) had not recommended MrZuma for medical parole.

In opposing the appeal, the HSF argued that Fraser did not have the power to overrule the Board’s finding and, even if he did, he was unable to provide a lawful explanation for departing from it.

The HSF’s submissions on appeal can be read here.


HSF Media Appearances

Since our last newsletter, the HSF has engaged with the media on a wide array of issues of public importance, samples of which appear below.

Panel Discussions

Watch Chelsea Ramsden join #TheMidPoint to discuss the populist challenge to South African courts here.

News Interviews

Watch Chelsea Ramsden comment on the Judicial Service Commission’s search for two new Constitutional Court justices on eNCA here.

Watch Nicole Fritz discuss the HSF’s call on the South African Government to deal with Bain and Company on Newzroom Afrika here.

Listen to Christopher Fisher commenting on the HSF’s review of the Minister of Home Affairs’ decision to terminate the Zimbabwean Exemption Permit on Talk Radio 702 here.

Watch Anton van Dalsen explain why the draft Employment Services Amendment Bill is unworkable on eNCA here.

Op-eds

Read Nicole Fritz’s opinion piece on the effect of the ZEP grace period extension to 30 June 2023 on our litigation in News24 here.

Read Chelsea Ramsden’s opinion piece on the Judicial Service Commissions’ bi-annual interviews for judicial appointments in Daily Maverick here.

Read Anton van Dalsen’s analysis on how the proposed amendments to the Electoral Bill fall short of meaningful electoral reform in News24 here.

Read Nicole Fritz’s column in Business Day, calling out the irony of Mr Zuma privately prosecuting Billy Downer and Karyn Maughan in courts he once derided as “political players” here.

Campaigns

Watch Sannah Mokone lend support to the launch of Defend Our Democracy’s Electoral Reform Campaign here.