Criminal court judgment highlights Cabinet’s faulty approach to treaties (co-authored with Peter Leon)

After S&P Global Ratings’ decision to downgrade SA’s sovereign credit rating to subinvestment grade ("junk" status), in swift response to "the executive changes initiated by President Zuma" on March 30, it is important to analyse the institutional weaknesses that allow the executive arm of government to go virtually unchecked in altering the country’s economic destiny, as well as how to correct them.

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State fights hopeless court battles, say experts

Ben Winks, an independent constitutional consultant, said there had been widespread examples of government opposing valid lawsuits and that the state had a “hopeless record” in embarking on appeals.

“The problem is that the state attorney doesn’t consider its job to be legal advice; they take instructions from the executive. So the state attorney will spend the state’s time and money presenting that case, even if it lacks legal merit.

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Police minister's Nkandla report misses the key point

The conflicting official reports on the R246-million security upgrade at President Jacob Zuma’s private home in Nkandla, in all their disorienting secrecy and semantic manoeuvring, have left South Africans more confused and frustrated than ever. The political debate now revolves around one obvious question: was any of this money spent on non-security comforts?

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SMS ruling muddies the waters (co-authored with Dario Milo)

This week the Constitutional Court overturned an electoral court finding that the Democratic Alliance had violated the Electoral Act and code of conduct by publishing “false information” intended to influence the outcome of the elections last year.

In our view, in so doing, the court has blurred the established boundary between “comments” and “statements of fact”, which was needed to ensure that the electorate, while exposed to robust democratic debates, remains reliably informed about the facts underlying them.

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Mbeki misunderstands our culture of accountability

Former President Thabo Mbeki declared in last week’s Mail & Guardian that he and his successors “owe and will make no apology to anybody whatsoever” for vigorously resisting the disclosure of the report given to him by senior Judges Sisi Khampepe and Dikgang Moseneke, which concluded that Zimbabwe’s 2002 presidential elections “cannot be considered to be free and fair”. Yet Mbeki delivers a rebuke in the dead language of state authority, rather than a reasoned response in our own budding dialect of state accountability.

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Tlakula ruling is first step in possible firing

Ben Winks, on behalf of the political parties, welcomed the ruling: "Given that (Ms Tlakula) is the head of a vital constitutional institution, who refused to step down or step aside in the national interest, this court process was necessary to protect the credibility, integrity, impartiality and independence of the Electoral Commission," Mr Winks said.

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Mazibuko and how (not) to impeach a president (co-authored with Garth Duncan)

Public protector Thuli Madonsela barely concluded her four-hour press conference on the outcome of her investigation into Nkandla, when Lindiwe Mazibuko stapled the full 400-page report, "Secure in Comfort", to the back of a seemingly pre-drafted motion to impeach the president.

In her haste, she might not have noticed that, although the report does conclude that President Jacob Zuma benefited improperly from state spending on personal amenities, including an amphitheatre and swimming pool, and that Zuma misled Parliament when he denied this, it does not include the word "wilfully".

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The dangers of criminalising defamation (co-authored with Vinayak Bhardwaj)

Convictions for criminal defamation have been rare in South Africa over the past century, and rarer still since the advent of our democratic dispensation in which freedom of expression is entrenched as a constitutional right. Nevertheless, Motsepe’s conviction and sentence, currently being appealed in the Johannesburg High Court, raise the chilling spectre of freedom of speech – and press freedom in particular – being inhibited and intimidated by the might of the state. 

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Key Points Act a flimsy cover for Nkandla (co-authored with Dario Milo)

In response to revelations over the past few months that more than R200-million of public funds would be spent on security upgrades to the private residence of President Jacob Zuma at Nkandla, many South Africans have indeed demanded justification. In a country blighted by the apartheid legacies of inequality, indignity and deprivation, the reasons for the state spending such a staggering sum on one home are clearly of profound public i­nterest.

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