A new dawn for South Africa

March 1st, 2018

Mapula Sedutla – Editor

Since the release of the ‘State of Capture’ report by former Public Protector Thuli Madonsela in 2015, the country and the legal profession has watched with interest to see if the report would resultin any changes in the country. This month’s edition of De Rebus is a reflection of what has been unfolding in the country over the past few years, which climaxed with the resignation of former President Jacob Zuma on 14 February.

In our letters section, Leslie Kobrin lends his opinion on the Constitutional Court case Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CC) (unreported case no CCT76/17, 29-12-2017). The letter highlights the need for an independent judiciary that is able to discharge its obligation without fear, favour or prejudice. This is important particularly during a time when the Executive is riddled with controversy (see p 4).

In the Law Society of South Africa (LSSA) news section, the LSSA welcomed the decision by the National Executive Committee (NEC) of the African National Congress to recall President Zuma amid all the allegations of corruption related to the imminent reinstatement of the ‘spy tapes’ criminal charges, and the allegations around complicity in state capture. In addition, LSSA Co-chairpersons Walid Brown and David Bekker have noted that public officials should be prepared to step down and offer to resign at the mere suggestion of impropriety on their parts (see p 17).

Highlighting how corruption impacts on the financial regulatory framework of South Africa (SA), in our cover feature article Nkateko Nkhwashu writes about the genesis of the ‘Gupta clause’. The basis of this feature article is two pieces of legislation. The first being the Financial Sector Regulation Act 9 of 2017, which seeks to establish a dual system of financial regulation in SA comprising of the Prudential Authority and the Financial Sector Conduct Authority. The second being the Financial Intelligence Centre Amendment Act 1 of 2017, which seeks to formally introduce a risk-based approach to customer identification and verification in SA. It is a trite principle of law in SA that banks are not legally compelled to give reasons for terminating relationships or closing customers’ accounts. However, due to political dynamics and other policy developments within the financial regulatory framework of SA it seems as though this is about to change (see p 26).

In our law reports section, the Supreme Court of Appeal case of Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA); [2017] 4 SA All SA 726 (SCA), demonstrates that in fact controversy surrounding former President Zuma dates back to 2007 when he was elected president of the African National Congress (see p 37).

In the opinion section, Ndivhuwo Ishmel Moleya’s article notes that although lawful, the appointment of sitting judges to preside over commissions of inquiry is an undesirable practice. The opinion article notes that the appointment of Deputy Chief Justice Raymond Zondo to preside over the commission of inquiry stipulated by the State of Capture report, should be welcomed as it will bring integrity into the works of the commission. However, this brings into sharp focus the question of the appropriateness of appointing serving judges to preside over commissions of inquiry (see p 47).

Legal practitioners are reminded, in various articles in our AGM news and news section, that during Apartheid it was lawyers who brought about change and held the state accountable for its wrongdoings. Therefore, practitioners should not be bystanders and watch while the state is overtaken by corruption (see p 5 and 9).


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This article was first published in De Rebus in 2018 (March) DR 3.

De Rebus