Editorial: SA’s democracy is under attack

Article published on Mail & Guardian – 26 June 2015.

A fortnight ago, in an extensive interview with the Mail & Guardian, Chief Justice Mogoeng Mogoeng dropped a bombshell. The head of the judiciary had last year signalled that there were “very desperate attempts to frame me for criminal acts you can’t even begin to imagine”. Mogoeng’s former spokesperson also referred to attempts to “falsely accuse the chief justice of a crime”.

In the interview, Mogoeng said he had chosen to go public about the alleged smears, including a tale that his official vehicle was involved in an attempted hijacking and that he allegedly raped a sex worker, to counter any attempts to blackmail him in future. He also spoke of how three Constitutional Court justices had been falsely accused of being CIA spies, noting that the inspector general of intelligence, Faith Radebe, had been asked to investigate and had exonerated them.

Puzzlingly, there was little reaction, let alone outrage, from civil society, the legal profession, Parliament or the executive to Mogoeng’s startling claims. Since the chief justice went public with his allegations of a possible dirty tricks campaign, South Africa has been treated to a mind-boggling display of executive contempt for the judiciary.

Last week, the government thumbed its nose at an interim court order ordering it not to allow Sudanese leader Omar al-Bashir to leave South Africa, where he was attending the annual African Union summit.

A clear picture is emerging: President Jacob Zuma, Cabinet ministers and South Africa’s law enforcement agencies actively colluded in this flagrant violation of the court order and our own legislation, ensuring that al-Bashir was not arrested to face the charges of crimes against humanity, war crimes and genocide that have been brought against him by the International Criminal Court. South Africa is a signatory of the Rome Statute, which mandated the existence of the ICC; in fact, South Africa’s Parliament gave the statute a place in our own law books.

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Article published on LEGAL RESOURCES CENTRE – 24 June 2015

South Africa’s first opt-in class action law suit, Link­side & oth­ers v Min­is­ter of Edu­ca­tion & oth­ers, was the first to appoint a claims admin­is­tra­tor to man­age the pay­ment of a claim. Fol­low­ing the court order of 17 Decem­ber 2014, Price­Wa­ter­house­C­oop­ers was appointed by the Depart­ment of Edu­ca­tion to receive and ver­ify schools’ claims for reim­burse­ment for amounts spent on edu­ca­tors dur­ing 2011–2014 and to pay the ver­i­fied claims.

The total amount claimed was R82 mil­lion. To date, schools have been reim­bursed an amount of R67 mil­lion, with a few out­stand­ing claims await­ing ver­i­fi­ca­tion.

The Legal Resources Cen­tre, act­ing on behalf of all the schools that make up the class, says the schools are immensely relieved to receive this fund­ing.

”Many schools have been placed in a per­ilous finan­cial con­di­tion due to the Department’s ongo­ing fail­ure to appoint edu­ca­tors to vacant sub­stan­tive posts and pay them. Indi­vid­ual schools have accu­mu­lated between R200 000 and R5 mil­lion in debt over this period. This has resulted in schools increas­ing their fees, but this has often resulted in a higher rate of par­ents default­ing on pay­ments.”


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Bakgatla ba Kgafela CPA’s Constitutional Court case goes to heart of land reform

Article from Posted on 17 Jun 2015
By Michael Clark

The Bakgatla ba Kgafela court case hits at the heart of South Africa’s land restitution programme, and at people’s land rights protected by the Constitution. On 28 May 2015 the Constitutional Court heard the case of Bakgatla ba Kgafela Tribal CPA v Bakgatla ba Kgafela Tribal Authority and Others. The case was about whether the Communal Property Association Act 28 of 1996 (the CPA Act) allows the Bakgatla ba Kgafela CPA – a provisional CPA – to continue to exist and hold land. The CPA has struggled for many years to get registered permanently as a result of serious administrative mismanagement by the Department of Rural Development and Land Reform (the Department) and the ongoing resistance to the establishment of a CPA by the traditional council in the area.

The Bakgatla ba Kgafela community brought a successful land claim over various pieces of land in the North West. This meant that they had to create a legal entity that was able to receive ownership of the land on behalf of the community. In 2005, the claimant community voted in favour of the creation of a Communal Property Association (or CPA) to hold the land, elected a committee to run the CPA and adopted a draft constitution. The community then made an application to have the CPA registered. However, the traditional council and traditional leader, Chief Nyalala Pilane, were unhappy about the decision to form a CPA. They wanted the community to create a trust instead.

As a result of his intervention, Lulu Xingwane, the then Minister of Agriculture and Land Affairs, intervened by suggesting that the community register a provisional CPA in terms of section 5(4) of the CPA Act for 12 months (rather than a permanent CPA in terms of section 8 of the CPA Act). The Department proceeded to register the provisional CPA in line with the Minister’s instruction, in spite of internal memos that show that the Department recommended that the CPA be permanently registered. In 2008 the land claimed by the community was transferred to the provisional CPA. Thereafter, the Department had almost no contact with the community – specifically, it did not help the community to convert the provisional CPA into a permanent CPA.

When the Bakgatla ba Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned in 2012, the traditional council argued it no longer existed. The traditional council argued that section 5(4) of the CPA Act meant that a provisional CPA is only valid for 12 months – after 12 months, if the CPA has not been turned into a permanent CPA, it no longer exists.

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