National Association of Democratic Lawyers (Nadel) AGM and National Policy Conference

The National Association of Democratic Lawyers, (NADEL), held its 32nd Annual General Meeting and Policy Conference starting from the 14th and concluded on the 17th March 2019. The conference proceedings were held at the Emperor’s Palace in Johannesburg, under the theme “Poverty, Inequalities and Corruption Symptoms of a State in Gradual Collapse”. The conference was attended by more than 300 (three hundred) delegates drawn from the ranks of attorneys, advocates, magistrates, Deans of law, representatives of law students from all Universities. The conference was the coming together of all progressive lawyers in the legal fraternity.

The conference saw together some of the country’s greatest legal minds, national and international dignitaries under one roof discussing a series of pertinent topics. The Keynote address on the theme was delivered by The President of the Supreme Court of Appeal, Madam Mandisa Maya. The country’s newly appointed National Director of Public Prosecution, Advocate Shamila Batohi, addressed delegates to the conference under the theme, “Building a South Africa in which all shall enjoy human rights as equals”. The conference also discussed Land Reform, this discussion was led by a panel consisting of Adv. Gcina Malindi (NADEL Land Committee Chair), Mr Floyd Shivambu (Deputy President of the Economic freedom Fighters) and Solly Mapaila (the Second deputy general secretary, South African Communist Party)

Critical and difficult topics, which focused on the central challenges facing the society, were discussed and the conference delegates took critical resolutions in connection therewith. Below, are some of the sub-themes discussed by the delegates:

I. Constitutional Review and the need for limitations and expansion of certain powers and terms of office set out in the Constitution. Reference, appointment of Judges- Constitutional Court.

II. Appointment of Chapter 9 institutions, Public Protector and other senior political appointments.”

III. A better South Africa shall only be realised once inequalities cease to exist

IV. “Corruption is a cancer eating the society – urgent appropriate response by the State Agencies”

V. Bridging the gap between the two societies which exists in South Africa, the poor and the rich after 25 years of democracy
VI. The right to know – reasons for km judgment or orders :
“Whether the judgements or orders must now include leave to appeal in the Constitutional court and Supreme Court of Appeal, where leave of appeal is refused – a duty to give reasons”

The conference noted the following:

• Rampant corruption in both the public and private sector which is perpetuated with the aid of some unscrupulous, unethical and greedy public officials, international syndicates and some elements within the criminal and justice sector;

• The growing levels of poverty, inequality and unemployment which are all symptoms of a collapsing state. Corruption was identified as a serious threat against the rule of law, fulfillment of constitutional obligations for service delivery and better life of ordinary South Africans and South Africa;

• The conference noted with dismay the disfunctionality of the State Attorney’s office, slow pace of transformation in briefing of black practitioners, Africans and women in particular. The conference confirmed that the State is responsible for championing transformation agenda and therefore it is regrettable that State Attorney is not committed in the briefing the black practitioners, in particular Africans and women. The out sourcing and privatization of State legal to private big firms, in the Eastern Cape is a step in regress on transformation;

• The conference noted the challenges associated with the current fixed term of 12 (twelve) years for Constitutional Court Judges and in this regard resolve that there is a need to review the term prescribed for Constitutional Court Judges;

• The need for capacitating lawyers in order to deal with constitutional matters in particular socio – economic rights and the conference in this regard agreed that more training of practitioners should continue to be provided by NADEL;

• The delegates raised serious concerns on the failure rate of 95% and the composition of examiners for the conveyancing and notary courses. It was a view of the conference that conveyancing examinations, number of days for writing these exams, the format of the exam questions and the length should be reviewed. The composition of the examiners should be reviewed;

• The interference by the United States of America together with its allies on the independent state of Venezuela is against the rule of law and international law. States have an obligation to respect other states and the domestic affairs of each state

During the evening of 16th of March, NADEL held its second Annual Pius Langa Memorial Lecture which was delivered by the Honorable Minister of Energy, Mr Jeff Radebe. Mr Radebe gave a touching recollection of his involvement with the Late Chief Justice describing the high moral character and values of the late Pius Langa. He encouraged all present to assimilate the values of Pius Langa.

NADEL also launched, the Pius Langa Human Rights Scholarship, which is to fund deserving student to pursue studies in the field of human rights.

NADEL is committed in ensuring that it continues to play a vital role in fighting social ills and all forms of injustices afflicting our country, as identified by the conference. In doing so, the delegates in the conference of NADEL passed a number of resolutions to ensure that it achieves the noble objective of free society in which all enjoy equal rights. Full detailed resolutions shall be issued shortly

ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA

BY: Nolitha Jali
Secretary General
National Association of Democratic Lawyers (NADEL)
071 689 3705
 

 

NADEL AGM and National Policy Conference 2019

The National Association of Democratic Lawyers (NADEL) will be hosting its National Policy Conference and Annual General Meeting (AGM) from 14-17 March 2019 at the Emperors Palace in Johannesburg.

The theme of the conference is: “Poverty, Inequalities and Corruption Symptoms of a State in Gradual Collapse”. The Keynote address on the theme of the conference will be delivered on 15 March 2019 by the President Maya of the Supreme Court of Appeal.

There will be three hundred (300) delegates attending the conference. Attorneys, advocates, magistrates, judges, members of the prosecuting authority and Presidents of international bar associations and the SADC region will make up the three (300) hundred guests attending the conference.

The conference will begin on the 14th of March 2019 with an open session. The topic to be discussed is: “Time for Reflections, Constitutional Review and the Need for the Limitation of Certain Powers.”

Other topics that are to be debated at the conference includes a session on “Building a South Africa in which All Shall Enjoy Human Rights” on the 15th of March 2019. There will be a panel discussion on: “A Better South Africa Shall Only be Realised Once Inequalities Cease to Exist.” The panellists will include Advocate Nokukhanya Jele, Professor Barney Pityana, Professor Susan Booysen and Professor Thuli Madonsela.

NADEL has also invited the newly appointed National Director of Public Prosecutions, Advocate Shamila Batohi to address the conference.

The conference will also be discussing the topic of: “Land Redress Seeks to Restore Human Dignity, Equality and Economic Imbalances.”

On 16th March 2019 NADEL will be hosting the 2nd Annual Pius Langa Gala Dinner. The Honourable Minister of Energy Mr. J. Radebe MP will be the guest speaker at the gala dinner.

Universities will also have a stake in the NADEL National Policy Conference. NADEL is holding an essay writing challenge for university students that will be dealing with the topic of land redress and an analysis of Section 25 of the Conference. The winners will be presented with their awards at the Pius Langa Gala Dinner.

The conference theme and the topics to be discussed during the conference have a direct bearing on the current South African political climate, that shapes the legal landscape of the country. The conference goes a step further to deal with burning issues of social justice in this stage of the national democratic revolution, that must be answered.

The NADEL conference is now an annual event in the legal calendar and promises a great deal for the legal fraternity in terms of the high level of debates and resolutions that the organisation will take

ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA.

Prepared by Ugeshnee Naicker,
Office of the National Secretariat,
National Deputy Secretary.
0720222180

Restoring the Independence of the Prosecutorial Authority in South Africa

The National Association of Democratic Lawyers (NADEL) congratulates the National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi on her appointment to office.

The appointment came in the wake of a judgment by the Constitutional Court on 13 August 2018 directing that a new NDPP be appointed.

In this instance, for the first time in South African democracy the President convened a panel consisting of Mr. TK Makwetu of the Attorney General, Advocate B Roux of the General Council of the Bar, Mr. R Scott of the Law Society of South Africa, Advocate L Manye of Advocates for Transformation, Mr. LB Sigogo President of the Black Lawyers Association and Mr. Mvuzo Notyesi the President of NADEL, to conduct interviews for the position. This ensured that the process was transparent, accountable and responsive to the current political climate in South Africa.

The appointment of the NDPP has always been the sole prerogative of the President in terms of Section 179(1) of the Constitution. There is nothing in the Constitution or the National Prosecuting Act 32 of 1998 that actually precludes the President from appointing a National Director that would make decisions in his political favour when making prosecutorial decisions. Therefore, the President is commended for engaging in such a process that lends credence to the decision making process in the appointment of the NDPP.

Advocate Batohi’s appointment comes at a time where there is a desperate need to restore public faith in the National Prosecuting Authority (NPA). The NPA is a pillar of the democratic state and its proper functioning is critical for the South African justice system and the rule of law. Fundamentally the NPA must be independent from any external influence, manipulation and pressure in order for it to carry out its functions without fear, favour or prejudice.

Its proper functioning is also directly related to the proper functioning of the South African judiciary. The very first time that the issue of the President’s prerogative to appoint the NDPP was considered was in the Certification Judgment where the court found that the National Prosecuting Authority was not part of the judiciary when it was deciding if such an appointment vitiated the doctrine of separation of powers. However, it is argued by scholars that the judiciary was therein short sighted: “the Constitutional Court failed to see that the sui generis nature of the NPA as a tributary which if polluted by executive interference, pollutes the judiciary an ocean into which it flows.” (Monene, 2010 University of Limpopo).

Reflecting upon the judgment of S v Yengeni 2006 the court stated:
“[t]he independence of the judiciary is directly related to and depends upon the independence of the legal profession and of the NDPP. Undermining the freedom from outside influence would lead the entire legal process including the functioning of the judiciary, being held hostage to those interests that might be threatened by a fearless, committed and independent search for the truth.”

It is therefore important for us to pause to consider if we have created a legal-political climate that is conducive for the proper functioning of the prosecutorial office and if not, what steps should be taken to ensure that the integrity of that office is restored. It cannot be wholly dependent on the newly appointed NDPP to carry this burden, solely.

We have seen the office of the National Prosecuting authority being subverted through political interference.

There has been a litany of cases brought against the National Prosecuting Authority from the 2009 case of Zuma v National Director of Public Prosecutions (2009), National Director of Public Prosecutions v Zuma 2009 at the Supreme Court of Appeal and Freedom Under Law v National Director of Public Prosecutions (2014) are but few in a long list.

In the case of Zuma v National Director of Public Prosecutions (2009) we witnessed as a country as the process of judicial review of a prosecutorial decision, painted the NPA as a toothless institution subject to political manoeuvring by high powered government officials, an institution that could not fulfil its constitutional obligations. This judgement although overturned by the Supreme Court of Appeal as being unsound in law had by then already left a stain on the office of the NPA.

In addition to considering the way our courts have handled these issues it also becomes necessary to reflect upon the empowering legislation National Prosecuting Act 32 of 1998 to ensure that it is drafted in a manner that allows independence from executive authority.

In this regard some scholars are of the view that the Act itself does not entrench the prosecutorial independence as set out in the Constitution and of particular concern is section 32(1)(b) of the act that states: “Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person may improperly interfere with, hinder or obstruct the prosecuting authority…” We must then ask if there are instances when interference in a prosecutorial decision can be proper and why that is so?

Section 33 of the NPA act sets out that the Minister shall exercise final responsibility over the prosecuting authority for the purposes of Section 179 of the Constitution and in accordance with the Act. This exercise in accountability is set out in subsection 2 of this section.

This section (Section 33) is contained in the Act despite that the NPA is also directly accountable to parliament in terms of Section 35 of the NPA Act. Should the NPA be subjected to the executive authority of a Minister when it is already accountable to parliament? Are these provisions conducive to the NPA meeting its constitutional obligations without interference?

We live in an epoch where corruption is one of the three (3) greatest problems in developing and underdeveloped states, along with poverty and unemployment. Corruption undermines all institutions of democracy and erodes principles of democracy and the rule of law. It fuels maladministration of state resources and diminishes that capacity of the state. There is a dire need for us to return to a culture of accountability. In order for us to do that we must empower these important democratic state institutions with the tools required to carry out their functions.

NADEL therefore encourages further debate and engagement on these open-ended questions that require responsive answers from the legal profession and society in general. Such debates are required in order for us to restore faith in our democracy and a return to the rule of law and especially to assist in the restoration of the integrity and the independence of the National Prosecuting Authority.

ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA.

Statement by Ugeshnee Naicker,
Office of the National Secretariat,
National Deputy Secretary .
National Association of Democratic Lawyers (NADEL).
072 022 2180

Law Society welcomes Adv Shamila Batohi to the NPA

The Law Society of South Africa (LSSA) welcomes Adv Shamila Batohi back to South Africa and to the National Prosecuting Authority (NPA).

‘On behalf of the attorneys’ profession, we pledge our commitment to support her and the office of the National Director of Public Prosecutions,’ say LSSA Co-Chairpersons, Mvuzo Notyesi and Ettienne Barnard.

They add: ‘We urge her to deal urgently and fearlessly with staff issues at the NPA and to settle the management structure as soon as possible so that the NPA can regain the trust and support of the public and of other stakeholders.’

‘We are also pleased to hear that Adv Batohi is confident that there will be no political interference in the NPA and is planning to convene a team to audit a number of cases.’

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND ETTIENNE BARNARD
Contact:
Barbara Whittle barbara@LSSA.org.za Tel: (012) 366 8800 or 083 380 1307
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344

 

Law Society shocked at allegations of corruption against Pretoria Chief Magistrate

The Law Society of South Africa (LSSA) is shocked at the allegations of corruption levelled against Pretoria Chief Magistrate Desmond Nair at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, yesterday.

‘We understand he is the first judicial officer to be implicated. At this stage the allegations are untested, and Mr Nair must be given an opportunity to respond. However, we also understand that the Magistrates’ Commission is looking into and following this aspect,’ say LSSA Co-Chairpersons, Mvuzo Notyesi and Ettienne Barnard.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND ETTIENNE BARNARD
Contact:
Barbara Whittle barbara@LSSA.org.za Tel: (012) 366 8800 or 083 380 1307
Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344
 

NADEL media statement: NADEL supports the elected government of the Bolivarian Republic of Venezuela

The National Association of Democratic Lawyers (NADEL) denounces the actions of imperialist powers that continue to seek regime change in the Bolivarian Republic of Venezuela. NADEL supports the elected government of the Bolivarian Republic of Venezuela under the leadership of the democratically elected President Nicolas Maduro Moros.

On 23 January 2019 Mr. Juan Guaidó the leader of the opposition declared himself the acting President of Venezuela. Many imperial nations have supported his self-appointment to the Presidency that is inconsistent with Article133 of the Constitution of the Bolivarian Republic of Venezuela. Article 133 sets out the terms under which a President of the Bolivarian Republic of Venezuela may be removed/replaced.

The European Union has demanded fresh elections within eight (8) days. Imperialist nations led by the United States of America: Germany, France, Spain, Netherlands and Britain support the self-declared president.

Russia, Cuba, Bolivia, Iran, Mexico, Uruguay and South Africa support the democratically elected President Maduro. China remains neutral but condemns foreign interference in the domestic affairs of a sovereign state.

In a statement issued on 01 June 2018, NADEL reported on the visit of its President Mvuzo Notyesi to the Bolivarian Republic of Venezuela. Mr. Notyesi was one (1) of two hundred and fifty (250) independent electoral observers. NADEL’s position is that the elections were free and fair. President Nicolas Maduro was elected to the Presidency with 67.7% of the vote.

NADEL is a human rights association and therefore it is imperative for us to present our view on the humanitarian crisis in Venezuela. Imperialist powers and Latin American nations supporting this coup d’état have cited the unprecedented humanitarian crisis and the exodus of more than three million (3 000 000) Venezuelans as the reason for supporting this attempt at regime change.

The humanitarian crisis suffered by the people of the Bolivarian Republic of Venezuela is as a result of economic warfare waged against it by imperialist forces. Venezuela is a sovereign state that has the right to self-determination which includes the right to determine an economic and political system that is most viable and suitable for its citizens.

The interest of imperial nations in the politics and economics of Venezuela is because the proven oil reserves in Venezuela are the largest oil reserves in the world. Apart from her oil reserves Venezuela’s natural resources include natural gas, iron ore, gold, bauxite, diamonds and other minerals. Venezuela is the only non-Middle Eastern country to be a member nation of the OPEC (Organisation of the Petroleum Exporting Countries) and is a validation of her importance to the global oil trade.

A key reason for imperialist powers to support a far-right candidate is that President Maduro refuses to follow the neoliberal economic policies as set out by imperial powers for other nations i.e. austerity, privatisation and de-regulation. Venezuela is the last standing Latin American nation that does not follow the neoliberal free trade agenda which includes policies that will allow private companies operating in Venezuela to sue the government for lost future profits because of state regulations.

Economic Warfare and the Violation of United Nations Resolutions
As stated in our statement of 01 June 2018 the humanitarian crisis is a direct result of economic sanctions placed on Venezuela.
The use of unilateral coercive measures against the Venezuelan people is unlawful and a breach of United Nations Resolution 70/1 adopted 25 September 2015.
As of 2014 the country has been subjected to a series of sanctions unilaterally imposed by North America and Europe. Under the Obama administration the 113-278 Act was passed in America entitled: “Public Law for the Defence of Human Rights and Civil Society”. This Act dictates the actions of the United States of America (USA) against Venezuela. The Act 113-278 includes a set of sanctions aimed at the economic blockade and expressly provides that Member states of the of the Organisation of American States and the European Union shall work together to interfere in the internal affairs of Venezuela.
This law expressly contravenes the fundamental principles of Public International Law, the United Nations Charter and the Charter of the Organisation of American States. Further, the declaration by USA that Venezuela is “an unusual and extraordinary threat to national security and foreign policy of the United States of America” has set the background for eventual, possible military intervention in Venezuela.

The United Nations HRC Resolution 27/21 states: “Stressing that unilateral coercive measures and legislation are contrary to international law, international humanitarian law, the Charter and the norms and principles governing peaceful relations amongst states …
Reaffirming that no state may use or encourage the use of any type of measure, including but not limited to economic or political measures, to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind…
Recognising that unilateral coercive measures in the form of economic sanctions can have far-reaching implications for the human rights of the general population of targeted states, disproportionately affecting the poor and most vulnerable classes…”

Therefore, financial and economic blockade placed on the Bolivarian Republic of Venezuela by the USA, Canada, European Union, Switzerland and the United Kingdom is in direct breach of Resolution 27/21 and a violation of the human rights of the people of Venezuela. It is also clear that it is an attempt to subordinate the executive powers of the sovereign state of Venezuela.

The result of the economic sanctions and financial blockade is that Venezuela cannot import food and medicine and health supplies. Most of its food and medicine imports were from the USA. It has directly resulted in the current humanitarian crisis. It impacts on the social development of the country and has calamitous effects on realisation of human rights for the people of Venezuela.

The imperialist forces who have imposed the financial blockade- after being instrumental in creating a humanitarian crisis in Venezuela-now threaten to use the humanitarian crisis of their creation, as a pretext for military aggression and regime change.

The National Association of Democratic Lawyers therefore condemns the international interference of imperialist nations and their proxy states in the domestic affairs of the Bolivarian Republic of Venezuela.

All financial blockades and economic sanctions must be lifted immediately as they directly violate the human rights of the people of the Bolivarian Republic of Venezuela as set out in United Nations Human Rights Council Resolution 27/21.

The actions of these imperialist nations undermine the people’s right to self-determination a key principle of international law, non-interference in the domestic affairs of a sovereign state and equality between states. The USA and her allies should not be importing an ideology into the United Nations that favours the historical domination of colonialism and exploitation over the global south and developing countries and an ideology that does not favour a multilateral system of world order.
ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA

BY: Ugeshnee Naicker National Deputy Secretary
National Association of Democratic Lawyers (NADEL)
0720222180