David was editor of without prejudice from its inception in October 2001 until March 2011 when he relinquished the role. He also established DealMakers, sister publication to without prejudice and was publisher of both publications.
David started his working life with Anglo American in what was then Northern Rhodesia, now Zambia. Between 1982 and 1992 he was, variously, a mining analyst and stock broker, banker and coal mine director. He entered the world of media as a columnist in 1992. His widely read Torque column appeared in Business Day four days a week until his sudden death.
Without prejudice remains true to his vision of editorial independence and integrity.
As this issue, the last of 2011, was going off to the printer, Stats SA came out with a statement that we all take for granted. It was to the effect that corruption is fast becoming endemic to the country. Reading this in an official communiqué from a state institution brings home the gravity of the situation. At the same time, Transparency International says more than half of South Africans expect to have to pay civil servants to do the job for which the state already pays them.
So Colonel Muamar Gadaffi, the eccentric and often way-ward leader of Libya, is dead, killed by members of a movement whose sole purpose was to overthrow him and his 42-year long regime. He was accused variously of being a dictator with a blood-thirsty appetite who killed his opponents without compassion, who sponsored worldwide terrorism and who carried a personal liability for the nearly 300 killed in the bombing of a Pan America jumbo jetliner over the Scottish town of Lockerbie in 1988. Ostensibly at least, those in rebellion against him stood for everything that was better – and then promptly fell into his category by executing him (and other members of his family) and dragging his body through the streets of the city of Misrata.
This country's labour laws are inflexible and run against the best interests of workers and employers. Providing someone with permanent employment in South Africa is a matter that requires profound thought and not a little courage. Why? Because if circumstances require that individual to be dis- missed the process is overweight with regulation and costs. In August the International Monetary Fund said the South African labour market had failed the unemployed and was effectively "broken." According to the IMF the labour policies and legislation we have adopted has inhibited all those devoutly expressed desires by government to reduce our colossal unemployment; without labour reform, the economy would have to grow at between 6% and 7% every year if we are to meet the goal of creating five million new jobs in the next decade.
I am not at all surprised that some South Africans have spoken out about the events in Libya and about the West's involvement there. The intervention by Nato has to be among the most cynical of geopolitical actions undertaken in the last 50 years. It may indeed be the case that Colonel Gadaffi's time as Libya's dictator was up. It is certainly noticeable that, North Korea aside, efforts by unelected despots in various North African and Middle Eastern countries to ensure their families enjoy rights to succession have conspicuously failed. The involvement of the United Nations and then Nato is another matter, however. A complaint advanced in this country has been that the roadmap constructed by the African Union (AU) was ignored. It probably was but the AU is hardly an institution that carries much weight in the rarefied circles of diplomatic power.
My heart sinks when I survey the way in which government goes out of its way to shoot the country in both feet. The latest of many episodes that cause me to despair is the Wal-Mart-Massmart farrago which dragged on for months, far longer than was ever necessary – and is now continuing. First, it was the unions who protested. They made a good fist of it, seizing on Wal-Mart's admittedly poor media perception and the fact that, as with many really big companies, it is easy to make it look like the neighbourhood bully. Then it was the turn of the Competition Commission. One minute it approved the deal without reservation, the next it reversed itself and imposed terms and conditions. Now we have three government departments which have together lodged an action against the Competition Tribunal on the grounds, apparently, that they are dissatisfied with the manner in which the Tribunal conducted the hearings.
I was talking the other day to a corporate lawyer whose speciality is in mergers and acquisitions. It's a good place to be if the deal flow is steady and if your firm is the recipient of much of this work. But it is absolutely not a good place if you happen to be wrestling with new and untried elements of the new Companies Act. In fact, or so he told me, there is no major sector of the new Act which will not require a slew of amendments in order to make it workable. Since he said this in the presence of a number of other corporate attorneys and none raised any exception, I have to conclude that we have been saddled – yet again, I might add – with a seriously flawed but critical piece of legislation. It is this Act which, after all, governs the manner in which the country's economy functions.
It's been an intriguing period with so much happening that choosing what to write about is an exercise in itself. First off, though, and certainly high on my list, is the matter of the successor to Dominique Strauss-Kahn to head the International Monetary Fund. I am uncertain about Christine Lagarde, France's current Economics and Finance Minister – and I cannot think why a Frenchman should necessarily be followed a French woman. In addition, it shouldn't pass notice that Strauss-Kahn fell from grace over a personal foible or that, whatever the rights and wrongs of the matter, the French public prosecutor has recommended that Lagarde should be the subject of a full judicial inquiry into her role in the Bernard Tapie affair.
This round of local government elections takes place on a Wednesday (May 18), a day that has now been declared a public holiday. In a country in which the very word productivity has long ceased to have much meaning, this can only be regarded as a cruel and unnecessary joke. Pope Zwelinzima Vavi and his federation of trades unions carry much of the responsibility for this. Centred as it is now in government, the last refuge worldwide of the union movement, the operating mantra of an institution established originally to protect the interests of genuine workers, has become, certainly in this country, 'more for less.' South Africa simply cannot afford it. Why voting day could not have been positioned on a Sunday or Saturday is unanswered. This is a country in which state and church are strictly separated so no offence would have been occasioned had either of these days – or both – been selected. Instead, we have another excuse to avoid doing some honest work. While I am on the subject I hope the call for a general stayaway will go unheeded.
Some things creep up on you unnoticed. It nearly happened to me with this issue – until my attention was drawn to the unusual number of stories dealing with outrageous incompetence or just plain judicial foolishness. Looking at just some of these was a sobering exercise. Not in any order of importance, here are some worthy of your attention. If a thief steals your money, the Supreme Court of Appeal says he can be taxed on it. If the police recover your stolen money what you get back is the net amount less whatever the fisc has removed. Hey? See "When Bumble gets it right," on page 6.
Do I personally believe there is such a phenomenon as climate change? Absolutely. Do I ascribe climate change to human intervention? No, I do not. Efforts to label climate change as anthropogenic have been dealt knockout blows by the very academics seeking to advance this thesis. Whatever else one may believe, we have certainly witnessed an extraordinary concatenation of climatic events across the southern hemisphere, all of which relate to excessive rainfall.
I am not surprised to see that a call has been made for elements of the new Companies Act (71 of 2008) to be scrapped. I am surprised, however, that it has taken this long for responses of this nature to have been tabled. Probably the most significant of the sections causing concern is that which deals with reckless trading (s22). It says that companies may not trade if they are insolvent which sounds, on the face of it, eminently sensible. The problem is – as Banking Association MD Cas Coovadia told parliament – that most of the companies in this country are technically insolvent even though commercially secure. Then there's the issue of the health of CIPRO, the Companies and Intellectual Property Registration Office. Matters such as company compliance with fundamental regulatory issues are central to the proper operation of any Companies Act and, since the 2008 Act puts CIPRO at the centre of companies and IP administration, it follows that it needs to be in good order.
Carmel Rickard is recognised as one of this country's most eminent journalists whose speciality is the legal field. In addition to her work as a journalist – and whenever her articles appear they are always well-worth the read – she is a published author and her books include Balancing Acts, a review of the country's AIDS epidemic, and now Thank You, Judge Mostert, a biography of Judge Anton Mostert, the man who spilt the beans on the Infogate scandal. Rickard was also the first editor of George Bizos's book, Odyssey to Freedom. without prejudice is very proud that Rickard is one of its regular monthly columnists. Her columns are always worth the read, with the subjects well- researched and subjected to the kind of critical analysis that is too frequently absent from journalism in this country.
The first draft of the Tax Administration Bill (the TAB), together with an explanatory memorandum, was released for public comment in October last year,. One of the stated objectives of the TAB is to integrate all the administrative provisions, which are currently contained in a number of tax Acts, into a single piece of legislation. It is also seen as being an initial step to the eventual redraft of the Income Tax Act.
August was a truly dreadful month. And what made it seem so particularly bad was its juxtaposition with four earlier weeks of genuine happiness; flushed with the unequivocal success of the 2010 Soccer World Cup, South Africa experienced a true coming together of itself as a rainbow nation, the first time this had happened since the end of Nelson Mandela's period in office as the country's president, 11 years ago. At the time of writing three weeks of a nationwide strike by civil servants was drawing to a close, with no immediate sign that it was about to end. There are a number of reasons as to why this industrial action has even been entered upon and they are a lot deeper than the matter merely of rand and cents. Not in any order of priority, the first is that the trades' union movement worldwide has just about reached its sell-by date; its role as the primary protector of labours' rights and privileges, seen against the backdrop of laws and regulations in many countries that entrench these in statutes, is probably no longer required.
The tragedy that resulted in the destruction of BP's oil rig, the Deepwater Horizon, in the Gulf of Mexico and which took eleven lives in the process, has taken on the dimensions of an international disaster. It has also given Americans the opportunity to drum up a chorus of anti-British sentiment, not exactly what an ally would expect after standing virtually alone with America through both the Iraqi and Afghanistan wars. It certainly exposes as a fiction the spurious "special relationship" so many British politicians have clung to down the years. As I write, The New York Times has already signalled news that the massive oil slick which resulted from the BP accident is showing signs of breaking up, much faster and earlier than had been hoped, an indication that nature is busy with extensive repair work. But this sad event is also an opportunity to begin an examination of the lessons it carries for all of us, and certainly for lawyers, many of whom will become involved in solving the vast mass of claims and litigation that is bound to result. Paul Gilbert of the UK-based legal management firm LBC Wise Counsel offers a perspective in this issue (page 45) and I hope you will take the time to read it.
No one, or at least no one I know of, likes giving hard-earned money to the taxman. And we like the process even less when we know that so much of it is either badly applied by the various government departments or, worse, stolen. Cavorting cabinet ministers on overseas junkets, others who throw our money at inflated hotel bills without a by-your-leave or an apology have become standard fare. If this isn't sufficient, the powers given to the collector of taxes are frankly draconian. They come in the form of additional taxes or monster penalties. The tax authorities may even resort to tossing errant taxpayers into jail – though what good that does is difficult to comprehend.
Governments are always thinking up new ways of increasing their revenue streams. In this country, five-and-a-half million taxpayers support something like 13 million who enjoy cash social benefits. In the long run, this is simply unsupportable. It is critical that efforts must be made to turn the 13 million recipients of other people's hard work into net contributors to the national weal. But before then (if that ever happens) here's another tax, fresh from the agile minds and pens of the mandarins in the Treasury. Seizing upon the alleged problem of climate change and relying on the manner in which some pretty spurious scientific claims have been translated into given fact by aggressive and unpleasant environmental activists, they have hit on a carbon tax to be applied to the motor industry.
Some things creep up on you unnoticed. It nearly happened to me with this issue – until my attention was drawn to the unusual number of stories dealing with outrageous incompetence or just plain judicial foolishness. Looking at just some of these was a sobering exercise. Not in any order of importance, here are some worthy of your attention. If a thief steals your money, the Supreme Court of Appeal says he can be taxed on it. If the police recover your stolen money what you get back is the net amount less whatever the fisc has removed. Hey?
There are occasions when there's actually too much to write about. This is one of them, so an editor needs to pick and choose with care. First off, this issue concentrates on the great event which South Africa hopes will expose it to the full glare of world publicity on a daily basis. The Soccer World Cup – oops, sorry, I mean the FIFA Soccer World Cup TM – is guaranteed to do just that. Whether we like it or not, over the next four months and especially between June 11 and July 11, this event, which it is claimed is the world's greatest in terms of the billions who view the games, most courtesy television, will certainly bring just about everyone into our front room. Do we want them here? Are we ready for this kind of exposure? The answer to both is probably no – but we'll get them anyway. And it just may do us some good.
Anthropogenic global warming became the trigger for the growth of a major industry last year. Attached to the issue of climate change – a fact with which just about everyone is in agreement – it has prompted soul-searching, breast-beating and promises of massive dollops of moolah for a steadily expanding group of scientists who have rushed to get their snouts into this new cornucopia.
An article in this issue (NHI: All the snakes and ladders, by Quinton Pieterse) had the effect of depressing me profoundly. He is excited about the intended advent of this country's National Health Insurance scheme and ends on a high note:
"We are in for an exciting period in the evolution of SA's health care system as we know it. Yes, we shall encounter several stumbling blocks along the way. We should strive to overcome them and help government achieve its goal by contributing to the formulation of a well-structured and properly thought out health care system, which will inevitably result in a better life for all South Africans."
An article in this issue by Paul Hoffman SC (page 15) highlights the extent of the carnage on South African roads, an annual butchery in which 15 000 people die, thousands more are tragically injured (some end up as basket cases or paraplegics) and the cost for this endless slaughter runs to R40 billion a year. Iraq, which has unfairly earned the soubriquet of being the most dangerous country in the world, has nothing on us. Documented civilian deaths in that country over the seven years 2003 to 2009 run at 102 100 – that's 14 600 a year, and this in a country that has experienced an invasion and is now in the throes of an unending civil war. And we do it without explosive devices. Our bombs are the vehicles that roar, unheeding, down our highways and byways, driven by men and women who have no care, who sometimes do not possess valid licences, who frequently are under the influence of alcohol, who think speed limits are there for everyone else to obey, and whose vehicles are death traps that should be sent to the scrap dealers.
As this issue was going to press the process of selecting the judges to replace the four retiring from the Constitutional Court bench was in full swing. This is a very serious business because the outcome will influence the tenor of the Court's approach to the critical issues likely to be laid before it over the coming years. Among those offering himself for consideration was Cape Judge President John Hlophe. He is, by all accounts, an intelligent man with the potential to develop a fine intellect. But he is also cloaked in the mists of controversy, of much of which he is the sole author, and none of it has done him any good. As it turned out, not even a frankly compromised Judicial Services Commission (JSC) was able to recommend Hlophe to the President as a candidate worthy of consideration. The problem is that the Hlophe saga has incontrovertibly damaged the credibility of a judiciary already regarded with deep suspicion by many.
According to the latest available statistics from the South African Police Service, there were 36 190 reported cases of rape in 2007. That's 99 a day, four an hour or one every fifteen minutes. According to a study conducted by Tshwaranang Legal resources and the Centre for the Study of Violence and Reconciliation and released in October last year, of every 25 men accused of raping a child or woman, 24 walk free. And the same study revealed that, of 34 convicted rapists who could have been handed a life sentence, 30 got away with lighter penalties. All this comes on top of an admission under oath by acting National Director of Public Prosecutions, Mokotedi Mpshe, that South Africa's justice system is failing its child rape victims.
June was World Environmental Month and, appropriately, this issue of without prejudice features environmental matters prominently. Two articles in particular underline the importance that is being attached to the watching role of nongovernmental organisations in an area that is attracting increasing international concern; both deal with aspects of the Constitutional Court's ruling in the matter of Biowatch's actions against the Department of Agriculture in which GM crops producer Monsanto was also involved.
Later this year five of the judges serving on the Constitutional Court will have completed their 15 years tenure and will be put out to pasture. The ball will then be squarely in President Jacob Zuma's court (an accidental but apposite pun) – it's up to him to select an incoming team (as it were) from among recommendations made by the Judicial Services Commission.
I am constantly taken aback by the laborious, frequently flawed and frankly dishonest rulings handed down by the courts. In one such case, reported in this issue (see Why bother to have rules? Petra Krusche, p21/22), the Competition Tribunal agreed that summonses issued by the Competition Commission against milk producers (collectively called Woodlands) were void by virtue of vagueness. As Krusche reports, Woodlands complied with the void summonses under protest: it had handed over documents demanded by the Commission and had permitted its employees to be subjected to interrogation.
Some among us have been wondering for years whether successive governments have been frankly afraid to take on the taxi drivers who drive like modern-day pirates across, on and over us and the road network. For much too long law-abiding South African motorists have been put to the 21st century equivalent of the sword by an unbridled gang of transport terrorists.
Will expatriate South Africans be allowed to vote in this year's general election? The issue is to be settled by the Constitutional Court sometime in March and, though the matter seems, on the face of it, straightforward, it is, in fact, rather more complex. I expect that a number of "freedoms" supposedly enjoyed by South Africans will be subjected to examination and the opinions that will be presented will provide intriguing perspectives on both the Constitution and on the Court itself. Seen in the context of one paradigm, the Court is, in any vent, "political," in the same sense as is the US Supreme Court. "The only thing we wait for," observed one lawyer in conversation with me, "is to receive the reasoning behind the decisions it makes." This alarmed me, but there is certainly evidence to support the view.
The legal fraternity hasn't had the happiest start to a new year. According to press reports, the Johannesburg High Court is in an almost unbelievable state of chaos – most of the lifts don't work (The Star reported that 13 people had been stuck in one of the lifts, the only one operational, for an hour, a prospect that would terrify even hardened criminals), neither does the air-conditioning (which means the courts themselves become unbearable). It is, frankly, a mess – invariably dirty and slovenly in addition to falling down. I'm surprised the judges have put up with it for so long.
The Asset Forfeiture Unit arrived a few weeks ago at the homes of unsuspecting individuals. By the time the Unit had finished it had made off with something approaching R50m in assets and moneys held in banking accounts. All this happened a month ago but the charges still have not been laid. The argument concerned fundamental disagreements between those whose properties were seized and the Registrar of Medical Aids. It will probably take months if not years before the issues are resolved.
Mandlenkosi Blaai of Mdantsane must have been pretty startled. I certainly was when I read the story in the East London Daily Dispatch. Blaai was appearing on a charge of assault and was being questioned by his defence counsel when the presiding magistrate, Larney [now there's a first name for you] Opperman announced she'd heard quite enough, recorded a guilty verdict and handed Blaai a prison sentence. Eastern Cape High Court Judge Jeremy Pickering, with Judge Clive Plasket concurring, thought, in what must be a masterful understatement, that Opperman's conduct "was somewhat eccentric." Pickering said a grave injustice might have been perpetrated. I'll say.
As former UK Prime Minister Harold Wilson once famously observed, "A week is a long time in politics." And the week preceding the lay-out and completion of this issue of without prejudice was just such a week. On the domestic scene, the dramatic ruling of Judge Chris Nicholson in the Pietermaritzburg High Court to the effect that the National Prosecuting Authority had behaved illegally in bringing a second round of charges against ANC president Jacob Zuma, was capped only by the ANC's decision to fire state president Thabo Mbeki. Internationally, the selection by the ruling Israeli Kadima Party of Tzipi Livni as its new leader could mean the country will get its first female PM since the iconic Golda Meier in the mid 1970s (if Livni can put together a coalition). Pakistan's new president, Asif Ali Zadari, was said to have narrowly escaped death when Islamabad's Marriott Hotel was fire-bombed by a suicide zealot. And, though not overtly political, the astonishing near-collapse of the global financial system will almost certainly find a political response.
Imagine you are driving along a highway, perhaps the N1 between Johannesburg and Pretoria. The road is unusually free of traffic and you are cruising along at 120 kph, the speed limit. The journey is uneventful and you forget about it. Two months later you receive a notification of a traffic transgression; to be precise that, while travelling down that highway on that self-same day, you exceeded the speed limit of 80 kph on the day in question. You protest. The speed limit is 120 kph. There's been a mistake. To your horror and incredulity you discover that, no, there hasn't been any administrative error. During the intervening period, the speed limit was changed to 80 kph with retrospective effect. So, since you were exceeding the new speed limit, you have transgressed. Even though you knew nothing of this, pay up (or go to jail).