Warwick Bruce Chapman

The DA’s understanding of redress begins with recognising that poverty and inequality are the inescapable realities of life for the majority of SA citizens, and further that much of this reality is the consequence of our nation’s divided and discriminatory history. Statutory measures designed to discriminate against people of colour and to advantage a racial minority were part of not only the legacy of apartheid but of our colonial history too. The DA’s commitment to the open, opportunity society for all means that we cannot pretend that this history didn’t happen, nor can we just assume that our 1996 Constitution which enshrines equality will produce a more fair and just society without systematic policy interventions on our part.

Redress means a number of things for the DA. This paper sets out some of the key components of our position but is, of necessity, not all that could be said.

1. We recognise that achieving human dignity and human rights for all are issues for which all DA public representatives must be seen to be passionately committed. Actions or statements by organisations or individuals which abuse or devalue the worth of any of our fellow South Africans must be condemned without reservation. The DA must be seen to be at the forefront of any campaign which defends our Constitutional rights.

2. Practical measure to achieve redress include various forms of structural intervention to level the economic playing fields between rich and poor. This means supporting budget allocations in the areas which can eliminate the inter-generational transmission of poverty and inequality – especially in education, health, transport and housing. This means supporting dedicated funding and programmes which by transform the quality of people’s lives and which give them enhanced opportunities to achieve their own and their children’s potential. The delivery of quality and accessible public health care and schooling must be imperatives for the DA wherever we are in government.

3. The DA is opposed to the further racialising of society but we are supportive of creating economic opportunities for all those who are currently disadvantaged in terms of their employment skills or access to business contracts. Structural measures which rely simply on racial categories are crude and destroy national reconciliation and cohesion and the DA will look for other means of creating opportunities for all than the currently favoured BEE legislation. We need to support the efforts of local entrepreneurs, for small businesses and for companies which reflect SA’s diversity without resorting to racial bean counting or quotas. In terms of preferential procurement we need to create space for small emergent companies to compete and win market share against larger more established entities provided that the quality and efficiency of service delivery are not compromised.

4. Being committed to redress also means tackling the symbolic and very visible ways our society used to reflect the relative advantage of the few over the many. Whether in the naming of public places or institutions, or the celebration of national events and festivals, we need to seek the most inclusive solutions wherever possible. Names and places must reflect our truly rainbow heritage and become a celebration of our diversity not the cause of further division and racial enmity.

5. Ensuring food security for our people means protecting commercial agricultural production, but the DA supports creating opportunities for people from all communities to achieve access to farming skills and land. Opening up land ownership to all our citizens must go hand in hand with measures which will promote individual land ownership, enhanced agricultural productivity and ensuring that small-scale farmers have access to larger markets.

Mark Steele MPL is a DA member of the KwaZulu-Natal Provincial Legislature and was previously an MP in the National Assembly.

The Notice of Motion which follows was approved at the 27 September eThekwini Full Council Meeting.

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15 September 2011

The Speaker
eThekwini Municipality
Councillor Logie Naidoo

NOTICE OF MOTION IN TERMS OF RULE OF ORDER 13

This council noting that:

The WHO’s “World report on road traffic injury prevention” which says:

1. The principal road safety engineering techniques for improving the safety of pedestrians and cyclists are the provision of safer routes … and area-wide speed reduction or traffic-calming measures.

2. Area-wide speed and traffic management can be highly effective, particularly in residential areas, where benefits have been found to exceed costs by a factor of 9.7.

3. At speeds below 30 km/h pedestrians can coexist with motor vehicles in relative safety and recommends that limit for residential roads.

Resolves that Exco investigates and reports on the following:

1. ETA be required to consider and report within 3 months on the section of the report entitled “Interventions” and consider implementation of the recommendations.

2. The budget for traffic-calming measures such as rumble strips and speed humps be doubled for the next financial year.

PROPOSER
WB CHAPMAN

SECONDER
H GUMBI

“…there is no place at all for the sub-judice rule in modern South African Law. The rule emanated from the days of trial by jury where jurors could be influenced by press speculation about the guilt or innocence of defendants. The rule is far too widely applied with the most bizarre consequences.” — James Selfe MP

Cllr Warren Burne and I collaborated on the Notice of Motion below with the intention of ensuring councillors and officials in eThekwini do not use the sub-judice rule to hide information. For this the reason the NoM itself is fairly innocuous and entirely objective such that little no opportunity is created for debate.

Unfortunately, at the 5 September eThekwini council meeting the ANC rejected this motion citing spurious and factually incorrect reasons, while at the same time agreeing and suggesting it should be workshopped with councillors and officials.

Below the notice of motion is a synopsis of the legal position of the sub judice rule in South Africa.

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The Speaker – eThekwini Council
Councillor Logie Naidoo
City Hall
DURBAN

21 August 2011

Dear Mr Speaker

NOTICE OF MOTION IN TERMS OF SECTION 13 OF THE RULES OF ORDER

This council noting:

1. The Constitution and other legislation require that public administration must be exercised with a high standard of ethics, accountability and transparency.

2. The sub judice-rule applies only where court proceedings have already commenced and not to matters still under investigation.

3. The application of the sub judice-rule has been severely narrowed since the 2007 Supreme Court of Appeal decision in the Midi Television-case.

Hereby resolves that:

The Head: Legal Services be hereby mandated to comprehensively brief all senior officials, the chairs of all committees, formal structures and forums of the municipality on the scope and effect of the sub judice-rule in the interests of transparent and accountable governance.

CLLR WB CHAPMAN
Proposer

CLLR WJ BURNE
Seconder

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THE SUB-JUDICE RULE
A SYNOPSIS OF ITS LIMITED SCOPE AND APPLICABILITY
BY CLLR WJ BURNE

1. The issue goes to the heart of our oversight role as public representatives.

2. We cannot exercise that role if reports, data and information are withheld. One of the tricks used to hide such reports, data and information is the abuse of the sub-judice rule.

3. Before dealing with what the sub judice rule is, and where it applies, we must clarify what it is not.

a. It is NOT a shield behind which to hide reports, data and information.

b. It is NOT a carpet under which to sweep reports, data and information.

4. The sub judice rule is a longstanding tenet of our Common Law (and the Common Law of most other democracies) which is part of the law relating to contempt of court. The purpose of the sub judice rule is to prevent interference in the administration of justice in a matter pending before a count.

5. I stress those words – “pending… before…a court.”

6. It applies to matters in a criminal court or in a civil court.

7. The sub judice rule does not apply where a matter is under investigation. It only applies when the court processes have commenced.

8. Criminal proceedings are commenced by arrest, summons or a warning to appear. Civil proceedings commence when a summons is issued or an application is launched.

9. The sub judice rule is said to protect judicial officers and witnesses from being influenced (or being perceived to be influenced) by statements that appear in the media. In those countries which have a jury system, there is a greater danger of the members of the jury being influenced by statements in the media. In the case of our judicial system, the legal training and experience of our judges and magistrates makes it less likely that they will be influenced by the media reports relating to events taking place outside their courts.

10. The scope and effect of the sub judice rule was considered in detail by our Supreme Court of Appeal in the matter of :

MIDI TELEVISION (PTY) LTD v DPP 2007(1) SA 56 (SCA)

[See at the end of this synopsis for the extract of the judgement where the test is set out.]

11. The court established a test as to when and where the sub judice rule applies. In doing so, it adopted the test used in England, Australia and Canada.

12. Simply put, the test is this:

Publication of information or the distribution of a report, or discussion in a committee can be withheld only if the publication, distribution or discussion will give rise to a real risk that demonstrable and substantial prejudice to the administration of justice will occur.

13. And even if this high threshold test is met, that is still not enough to restrain publication of a report or discussion in a committee. The person seeking to invoke the rule must be able to satisfy a court that that the ban is necessary and proportionate to prevent the prejudice from occurring.

14. This test is much more stringent than it used to be in the pre-democracy era. In this regard, the judge in the Midi TV case said: “To the extent that the pre-constitutional decisions of this court … might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies”.

15. So, the Midi Television case was a fundamental change in the law relating to the sub judice rule. The new test requires that a real risk of substantial harm be demonstrated.

16. What does this mean in practice?

17. Firstly, no municipal official or a chair of a committee can say: “We can’t discuss such-and-such issue because it is under investigation” Or, “…because it might to go to court.”

18. Secondly, even if court proceedings are pending, further enquiry is necessary to determine whether the rule applies.

19. Thirdly, the person seeking to withhold information or to suppress free discussion, cannot simply rely on speculative harm to justify withholding information or preventing discussion.

20. So, if confronted with an official who is refusing to release a report, or a chair who refuses to permit discussion on a matter, proceed as follows:

21. Ask that person to specify what court proceedings will be affected by the release of the report or the discussion in committee. If the refusal is made in a meeting, ask that the refusal and the reason for the refusal are recorded in the minutes of the meeting. If the refusal is made outside a meeting, make a note of the request and the refusal. Include in your note the date and time of the incident and the name of the official.

22. If court proceedings have commenced and are still continuing, then ask the official or the chair to specify on what basis he or she believes that the publication or discussion will (not “might” – the “real risk” part of the test) influence the outcome of those court proceedings. Again, have the answer recorded in the minutes, or make a note of the answer given.

23. Even if the official or chair can advance a credible belief that the court case will be interfered with, weigh up whether the interference will be substantial. If you believe that it won’t be substantial, tell the official or chair accordingly. If in committee, ask for your response to be recorded in the minutes. If not in committee, add that detail to your notes.

24. Finally, if the official or the Chair can satisfy you that there will be interference in an pending court case, and that the interference in the court case will be substantial, ask the official or chair to specify why he or she believes that a court will be satisfied that the disadvantage of curtailing the free flow of information outweighs the advantages of the free flow of information in a democracy. Again, have the answer recorded in the minutes, or add it to your notes.

25. This process will not guarantee you access to the required information, nor the opportunity to discuss the issue in committee, but it should discourage officials and chairs from abusing the sub judice rule.

26. The following comments from a well known and respected commentator on matters of constitutional law, Pierre De Vos, are instructive. In a recent item on the blog site “CONSTITUTIONALLY SPEAKING” in July 2011, he wrote:

In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invokes this rule, they are doing so either because they are ill-informed about the law or because they are using the rule to avoid accountability. Whenever a politician invokes the sub judice rule, I for one will assume that the politician is admitting guilt or other wrongdoing, but is trying to hide from scrutiny and accountability for his or her actions.

So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable. It will not be applicable. Assume instead that the politician is ducking and diving because he or she is scared; or is trying to avoid being caught out in a lie.

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MIDI TELEVISION (PTY) LTD v DPP 2007(1) SA 56 (SCA)

Dealing with the sub judice rule in the context of pre-publication censorship, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:
Publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.

Dear Editor

Asset losses as a result of cable theft in eThekwini over the past five years amount to nearly R100m. This figure does not take into account losses to consumers caused by the resulting outage or power surge.

In the 2006/7 financial year, cable theft losses in Cape Town were recorded at R22-million. Just a year later losses had been reduced to R496 800, representing a 44-fold decrease from one financial year to the next.

What could possibly explain such a dramatic decline in just one year? The answer is simply that the Cape Town council took a policy decision not to tolerate cable theft any longer and to invest in combating the crime. The council established the Metals Theft Unit or “Copperheads” as a specialised unit of the Cape Town Metro Police to combat the theft of copper and other metals.

The 12-person unit, through tip-offs from the public, as well as proactive intelligence-gathering, was mandated to find, catch and arrest copper thieves. The unit arrests between 200 and 300 per year of which about 50 are council workers. Theft of brass water meters was reduced from 1700 per month in 2007, to 10 per month in 2009.

There is no reason why this success cannot be replicated in eThekwini and other metros. eThekwini’s own attempt to combat cable theft is a unit established in 2009 with a R29m budget and six posts. It has been unable to attract the investigators required to fill the vacant posts in the unit. There have been no convictions of scrap metal dealers in eThekwini since the unit was established.

At a National level, the Second Hand Goods Law which was passed in 2009 has not yet been implemented by SAPS. It creates a solid framework for law enforcement to pursue and prosecute copper thieves and must urgently be implemented.

Copper theft has a direct impact on the lives of our people, and always hits poorer communities hardest. eThekwini then has to spend additional resources replacing infrastructure instead of rolling out more services to the poor.

In my opinion, even if it costs us R30m per year to prevent R30m of cable theft, the measures are worthwhile as they reduce loss of productivity and costly damage to consumer equipment.

Cllr WB Chapman

MEDIA STATEMENT

14 September, 2011

Warwick Chapman, DA Spokesperson on Human Settlements in eThekwini

Yesterday I visited the Lamontville Transit Facility along with Cllr Hlanganani Gumbi and Cllr Sithembiso Ngema to investigate allegations of ANC branch-level corruption.

We met with about 50 community members who stated that the hundreds of people living at the camp were either documented, meaning they have papers entitling them to a council house at some stage in the future, or undocumented and paying rent. When we enquired who they were paying rent to, community members responded that the councillors committee members were taking the rent money. Since ward committees have not yet been established since the election, we enquired whether the committee they referred to was the local ANC Branch Executive Committee. The community members confirmed this to be the case.

They said they had been visited by the ANC Councillor Mr Sandile Ndlovu yesterday to inform them that those people without documentation would be evicted to make way for recently evicted shack dwellers.

I immediately called Head: Housing, Mr Cogi Pather, who confirmed that such evictions were not driven by housing department and since they manage the facility were illegal. He did, however, indicate that eThekwini Housing were seeking legal advice on how to remove the undocumented residents.

Thereafter Cllr Ngema called and informed W/O Khawula from Lamontville SAPS of the situation and requested that SAPS members be advised accordingly and be on stand-by should any action take place.

Today just after 11:00, nearby evicted shack dwellers and residents from the nearby Community Residential Unit (Hostel), descended on the transit facility threatening the residents and telling them they were to be kicked out.

Just before twelve today, eThekwini Municipality truck NDM7010 and Vehicle NDM6998 marked “Security Management”, supported by armed personnel and moved in on the Lamontville Transit Camp.

I again confirmed with Head: eThekwini Housing that they do not have authority yet to evict anyone from that facility. Allegations that the local ANC BEC has been renting out empty rooms would suggest that the same BEC and is now using the council to evict its ‘tenants’.

All indications are that local ANC structures in Lamontville have been illegally renting units in the transit camp and are now scrambling to evict these people to make way for the intended use of this facility.

As at 12:15, we are advised that evictions have started, the locks to units are being smashed and people’s belongings removed.

We URGENTLY call on SAPS to enforce the law and require that legal documentation be presented proving the basis for the evictions, failing which the action be stopped immediately. We have just requested Durban Flying Squad intervene.

We wish a formal investigation to be instituted into the allegations that undocumented residents were renting their units from a local political structure or persons in said structure.

MEDIA ENQUIRIES

Cllr Warwick Chapman
083 7797 094