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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 16/98
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First
Appellant
THE MINISTER OF SPORT AND RECREATION Second
Appellant
THE DIRECTOR-GENERAL: DEPARTMENT OF
SPORT AND
RECREATION Third Appellant
versus
SOUTH AFRICAN RUGBY FOOTBALL
UNION First Respondent
GAUTENG LIONS RUGBY UNION Second
Respondent
MPUMALANGA RUGBY UNION Third Respondent
LOUIS LUYT
Fourth Respondent
Heard on : 7,10-13 May 1999
Decided on : 10
September 1999
JUDGMENT
GENERAL INDEX
Paragraph
number
A. OVERVIEW AND SUMMARY 1
(a) Introduction 1
(b) The factual background 5
(c) The application 13
(d) The course of events in the High Court 19
(e) The judgment of the High Court 24
(f) The central fallacies in the judgment 26
(g) The structure of this judgment 30
(h) Appellants’ arguments concerning bias
on the part of the Judge in the
High Court 32
(i) Summary of findings in this judgment 33
B. ABDICATION OF RESPONSIBILITY 37
(a) The approach of the High Court 37
(b) The “abdication” on 5 August 1997 42
(c) The key error of law relating to irrevocability 44
(d) The respondents’ arguments 48
(e) The evidence relating to the events of
12 - 26 September 1997 50
(f) The failure to cross-examine the President on
key issues 58
(g) The weight to be attached to the Judge’s findings
based on demeanour 77
(h) The findings made concerning the President’s
demeanour 85
(i) Reasons given for the credibility finding
against the President 96
C. CONSTRAINTS UPON THE PRESIDENT’S POWERS
RELATING TO COMMISSIONS 126
(a) Approach of the Judge in the
High Court 129
(b) The regulation of public power by the Constitution 132
(c) Section 33 of the Constitution 135
(d) Functions and duties of the executive 138
(e) The meaning of “administrative action” 140
(f) Section 84(2) of the Constitution 144
(g) Consultation with the Deputy President 150
(h) Applicability of the requirement of public
concern to the appointment of commissions
in terms of section 84(2)(f) of
Constitution 154
(i) Contractual constraints upon the exercise of the
President’s power to appoint a commission
under section 84(2)(f) of the Constitution 157
(j) Proclamation under the Commissions Act 161
(k) Matter of public concern 169
(l) Procedural fairness– section 33(b) 184
(m) Constitutional rights to privacy and freedom 185
(n) The agreement of 21 February 1997 187
(o) Legitimate expectation 201
(p) Prejudice and the duty to act fairly 217
(q) Reasons for the President’s decision 222
D. REMAINING CHALLENGES TO THE VALIDITY
OF THE
PRESIDENTIAL ACTS 223
(a) Failure to apply his mind — irrelevant
considerations and gross unreasonableness 224
(b) Terms of reference 227
E. REMAINING PROCEDURAL AND
INTERLOCUTORY MATTERS AND COSTS 233
(a) Misjoinder 233
(b) Referral to oral evidence 234
(c) Order compelling the President to give evidence 240
(d) Miscellaneous interlocutory orders 246
(e) Costs of appeal 251
(f) Costs of the recusal application 259
F. ORDER 260
THE COURT:
A. OVERVIEW AND SUMMARY
(a)
Introduction
[1] This case raises important questions of legal principle
concerning the basis on which the courts may review the exercise of presidential
powers. It also touches on the circumstances in which the President can be
called upon to testify in a court of law. Since its
commencement in the
Transvaal High Court, the case has generated considerable controversy and, at
times, acrimony, not only amongst
the litigants but also
[1] amongst members of the public. In disposing of the constitutional questions raised, this Court must focus not on the controversies that have arisen, but on the relevant legal and constitutional principles.
[2] At issue is the
constitutional validity of two presidential notices that appeared in the
Government Gazette on 26 September 1997. One announced the appointment
of a commission of inquiry, under the chairmanship of Mr Acting Justice Browde,
into the administration of rugby in the
country.[1] The other declared the
provisions of the Commissions Act 8 of 1947 applicable to the commission and
promulgated regulations for
its
operation.[2] The South African Rugby
Football Union (SARFU), two of its constituent unions and Dr Luyt, at that time
the president of both SARFU
and one of the unions, applied on notice of motion
to the Transvaal High Court for an order against the
President[3] setting aside the two
notices. The Minister of Sport and Recreation (the Minister) and the
Director-General of the Department of
Sport and Recreation (the DG) were also
cited, although no relief was sought against them. The matter was heard by De
Villiers J
who set the two notices aside with costs and in his reasons,
subsequently furnished, made adverse credibility findings against the
President,
the Minister and the DG. They appealed against that order and a number of
ancillary orders. By the time the appeal came
to be argued, Dr Luyt and the
Gauteng Lions Rugby Union were the only remaining respondents and we shall refer
to them as “the
respondents” in the course of this
judgment.
[3] The appeal was preceded by two preliminary hearings in
this Court. The first raised the jurisdictional question whether the
case
should be heard by the Supreme Court of Appeal or by this Court. We concluded
that the central issue in the case was the constitutionality
of presidential
action and accordingly designated this Court as the appropriate forum to
determine the appeal.[4] The second
preliminary hearing was necessitated when, shortly before the appeal was due to
be argued, Dr Luyt lodged an application
in which he contended that he had
reason to believe that all the justices of this Court would be biased against
him. He sought the
recusal of five of the ten
justices,[5] stating that he left it
to the conscience of each of the five remaining judges to decide what to do.
The application was argued
over three days. This Court dismissed the
application for recusal on the day following the conclusion of argument
indicating that
it would give its reasons
later.[6] The hearing of the appeal
commenced immediately.
[4] Several days later, while leading counsel for
Dr Luyt and the Gauteng Lions Rugby Union was addressing the Court, he announced
that his mandate and that of his colleagues had been terminated and they
withdrew. No reasons were furnished for their withdrawal.
In the result we
were deprived of the benefit of their full oral argument and of constructive
debate with them. We have however
given careful consideration to their written
argument[7] and to their oral
submissions prior to their withdrawal. We have also scrutinised the
Judge’s reasons. Our unanimous conclusion
is that the judgment is wrong
and that the orders should be set aside.
(b) The factual
background
[5] The recent history of South African rugby appears from
the record and particularly from undisputed aspects of the President’s
affidavits. Like many other sports in South Africa, it has been a history of
racial exclusion. One of the results of this racism
was that support for South
African rugby teams was generally to be found only amongst white people and open
hostility to racially
exclusive South African teams was felt by many black
people. This pattern of exclusion and hostility seemed to have diminished
during
the Rugby World Cup which was held in South Africa during 1995.
President Mandela gave his wholehearted support to the South African
side and
illustrated this by attending the final game, which South Africa won, wearing
the captain’s jersey. This event was
welcomed by many both as a symbol of
the possibility for racial reconciliation in South Africa and as a harbinger of
a new racially
inclusive ethos in South African rugby.
[6] This
auspicious event, however, was followed by an eruption of controversy concerning
the management and administration of rugby
in South Africa. The national body
responsible for the management and administration of rugby is SARFU. It is a
private voluntary
association whose members are the rugby unions constituted in
provinces and regions throughout South Africa. The second respondent,
the
Gauteng Lions Rugby Union, of which Dr Luyt was the president when this
litigation commenced, is a member of SARFU. The controversy
related to many
issues. Amongst these were allegations that the rugby administrators were doing
too little to enhance the inadequate
sporting facilities in townships and rural
areas and too little to foster the development of rugby players from
disadvantaged communities.
In October 1996 Mr Brian van Rooyen, a
vice-president of the Gauteng Lions Rugby Union, unsuccessfully challenged Dr
Luyt for the
presidency of that union. Two months later he handed a dossier to
the Department of Sport and Recreation enumerating a list of complaints
concerning the administration of rugby in South Africa. The Minister handed the
contents of the dossier to Mr Mervyn King, a prominent
financier and former
judge, for evaluation. Mr King reported that while the dossier contained no
proof of misconduct, it contained
allegations which warranted further
investigation. The Minister, therefore, decided to appoint a task team to
undertake that investigation.
[7] A meeting was convened with SARFU on
14 February 1997, at which the Minister’s intention was conveyed to SARFU.
SARFU’s
representatives at the meeting indicated that they were unhappy
about the appointment of the task team. After an exchange of correspondence
between SARFU and the Department, a further meeting was convened for 21 February
1997. Present at that meeting were the Minister,
the DG and several
departmental officials, as well as Dr Luyt and several SARFU officials. A tape
recording of the meeting was made
and a transcript of that recording formed part
of the record on appeal. At the end of the meeting a press statement was
jointly
prepared by those present. It stated, amongst other things, that SARFU
would be given an opportunity to answer all allegations made
against it and that
a task team to be chaired by the DG would be appointed by the
Minister.[8]
[8] The first
meeting of the task team[9] with
representatives of SARFU was held on 3 April 1997. For several months
thereafter the task team enjoyed helpful and extensive
co-operation from SARFU
and its constituent unions and their office-bearers. However, on 29 July 1997,
shortly after auditors assisting
in the investigation had called for disclosure
of detailed financial and related records of SARFU, Ellis Park Stadium (Pty) Ltd
and
the Transvaal Rugby Sports Trust, SARFU’s attorneys delivered a letter
to the DG summarily suspending further co-operation.
[9] This led the
Minister to comment to journalists that if SARFU continued to refuse
co-operation, he would ask the President to
appoint a commission of inquiry.
SARFU’s executive held a meeting and issued a press statement putting
their side of the dispute.
The Minister met with the President on 5 August 1997
and related the latter’s attitude to the DG, who in turn issued a press
statement. In that statement the President was said to have “happily
responded” to the Minister that “[a] commission
is yours if, in
your best judgement, it is opportune”. That press statement, dated 7
August 1997, was later to assume decisive
importance in the judgment of De
Villiers J. The following week the task team met and concluded that the
continuation of their investigation
was impossible and recommended to the
Minister that he apply to the President for the appointment of a commission. On
17 August
1997, the Sunday Times reported that the Minister had indicated
that he had decided that a commission of inquiry would be appointed and that,
although he
had to obtain the President’s consent, that would merely be a
“formality”. On the same day, Rapport reported that the
Minister had stated that a commission had already been appointed. These reports
arose out of a brief encounter
between the Minister and two journalists at a
function on 15 August 1997.
[10] The tenor of the media reports gave
rise to concern in the mind of one of the members of the task team, Professor
Katz, the
senior partner in the firm of attorneys advising the Department. He
asked Mr Knowles, the member of his firm who was assisting the
Department in the
preparation of a memorandum to the President in support of the appointment of
the commission, to ensure that everything
be done
properly.
[11] Accordingly, on 12 September 1997 the Minister,
accompanied by Professor Katz, Mr Knowles and some departmental officials, met
with the President regarding the appointment of the commission. They handed him
a 26-page memorandum from the Minister and three
supporting files containing a
further 725 pages of documentation. This memorandum and its supporting
documents was filed as part
of the record and came to be called “the
Tshwete file”. Professor Katz outlined the application for the
appointment
of a commission and suggested that the President take his time and
consult his own legal advisor. The execution by the President
and the Deputy
President of the formal instruments appointing the commission followed on 22
September 1997.
[12] The immediate response of SARFU and the Gauteng
Lions Rugby Union to the appointment of the commission was a letter by their
attorneys, dated 29 September 1997, calling for the President’s reasons as
well as all information and documents which led
to the decision. The letter
also intimated acceptance in principle of the commission, subject to their being
satisfied with the
reasons requested. The President answered in a five-page
letter, dated 3 October 1997, which explained in great detail how the President
viewed his powers, how he had deliberated on the matter and why he had decided
to appoint the commission. The letter tendered sight
of the Tshwete file and
expressed the President’s conclusion as follows:
“10. My consideration of the Minister’s memorandum and of the supporting documentation, has led me to conclude that:
10.1 the sport of rugby football, its welfare and its administration, especially at national level, is overwhelmingly a matter of national and public interest.
10.2. the matters identified in the terms of reference of the commission of inquiry are matters in respect of which there is evident public concern and that concern has emanated from complaints and criticisms by, or controversies involving players, provincial rugby unions, administrators, sponsors, the public, sports writers and other media commentators.
10.3. those public concerns have found expression both:
10.3.1. in the print and electronic media, and
10.3.2 by way of representations to the Minister of Sport and Recreation, or to his Department.
10.4. there is a perception of a lack of transparency regarding decisions taken by SARFU in the conduct of its affairs and by some of its affiliate unions.
10.5. there is a need to address the matters of public concern and to allow for a public process in which issues relating to the public interest, the best interests of the game and its administration can be engaged with in a proper and dignified manner. In particular, a forum is necessary to allow those who are critical of the current administration of rugby to ventilate their criticisms and, equally importantly, for those who have been the subject of such criticism to justify their decisions and practices.
10.6. a commission of inquiry may usefully provide independent advice to SARFU and to government on how best to promote and manage the sport to the benefit of the public which supports the game, the players who actively participate in it, the members of the community who believe they are not provided with adequate access to it, and sponsors who help fund it.
10.7. a commission of inquiry may help lift the cloud of distrust under which the organisation and administration of rugby is alleged to be operating.
10.8. before any inquiry can perform a constructive function, the public must have confidence that it will be conducted thoroughly and impartially. My decision to appoint Acting Judge Browde as Chairperson of the commission will constitute a guarantee that the matter will be conducted independently and impartially.
11. I wish to emphasise that the complaints and criticism directed at the management of rugby in general and SARFU in particular, as contained in the documentation placed before me, were not accepted by me as proof of the existence of the alleged irregularities. They do, however, demonstrate the conflict-ridden environment within which rugby is being administered and emphasise the need for a proper, considered and dispassionate inquiry into whether the best interests of rugby and the public are being served. Although it is conceivable that the inquiry could uncover irregularities, it is not its purpose to pursue a vindictive inquiry into certain individuals. It is to promote a positive and constructive approach that the terms of reference have been framed so as to avoid any reference to specific individuals.”
(c) The application
[13] On 20 October 1997 the respondents launched their application. No
basis for the joinder of the Minister and the DG was laid
in the founding
affidavit. A consequent plea of misjoinder was raised in the court below but
was dismissed. The point was raised
afresh in this Court and is considered
below.1[0] The founding affidavit,
deposed to by Dr Luyt, is conveniently divided into a number of separately
captioned chapters and sets out
the factual averments considered relevant.
Then, under the heading “Legal Grounds”, the affidavit identifies
and seeks,
over some 40 pages, to substantiate the factual and legal bases for
the following seven named causes of action against the President:
(1) Absence of Jurisdictional Prerequisite
The subject matter of the commission does not constitute a “matter of public concern” as required by the Commissions Act.
(2) Infringement of Constitutional Rights
If the Commissions Act sanctions an inquiry into the private affairs of autonomous private bodies such as the respondents, the Act infringes the constitutional rights to freedom, security, equality and privacy entrenched in the Constitution, and is therefore invalid.
(3) Agreement
The appointment of the commission constituted a breach by the President, as head of the executive arm of government, of a legally binding agreement between the government and SARFU (and its constituent unions) concluded at the meeting on 21 February 1997.
(4) Audi Alteram Partem
In terms of section 33 of the Constitution, SARFU, and its constituent unions, were entitled to procedural fairness and accordingly to make representations to the President before he appointed the commission; alternatively the respondents had a legitimate expectation that they would be afforded such a hearing arising from the agreement of 21 February 1997.
(5) Failure to Properly Consider The Matter
The President’s decision to appoint the commission was so unreasonable as to be consistent only with a failure on his part properly to apply his mind to the matter. In support of this a number of circumstances were alleged, including bad faith on the part of the Minister, whose decision to appoint the commission the President “had simply rubber-stamped . . . without himself properly applying his mind . . .”. In this context the affidavit refers back to an earlier mention of press reports of the press statement of 7 August 1997 to the effect that the President had at that stage indicated to the Minister that a commission was his for the asking.
(6) Administrative Action Not Justified by Reasons
The written reasons provided by the President do not justify the appointment, and accordingly fail to comply with section 33(1)(d) of the Constitution.
(7) Terms of Reference
The terms of reference of the
commission are so vague as to be devoid of meaningful content, and thus give an
unrestricted licence
to the commission.
[14] Each of the appellants
deposed to an answering affidavit. Because of subsequent events, no useful
purpose would be served by
relating the details of the answering affidavits.
Each of the seven causes of action relied upon in the founding affidavit was
put
in issue. We summarise how the deponents between them, singly and jointly,
denied the foundational facts alleged in the founding
affidavit. The main
affidavit, that of the DG, sets out the government’s reasons for wanting
the inquiry, gives his version
of the running debate between SARFU, the
Department and the task team, deals with the various meetings held, denies the
conclusion
of a legally binding agreement on 21 February 1997 and comments on
the correspondence exchanged.1[1]
The oblique suggestion in the founding affidavit that the media reports on the
press statement implied that the appointment had
been approved “well
before the minister’s application for its appointment” is rejected
by the DG as “quite
unfounded.” He adds:
“Although the minister had from time to time discussed the possibility of such an appointment with the president, the latter did not make any final decision at the time.”
The DG also describes as
“untrue and not supported by the facts” the allegation in Dr
Luyt’s founding affidavit
that “the President has simply
rubber-stamped the Minister’s decision.” Although, on the face of
it, these statements
are hearsay in the mouth of the DG, his affidavit is
confirmed by both the President and the Minister, in so far as it relates to
them.
[15] The President’s affidavit expressly confines itself
to: (i) the question whether the subject matter of the envisaged
inquiry is one
of public concern; (ii) his decision to appoint the commission; and (iii) the
allegations in the founding affidavit
bearing on his conduct and state of mind
when deciding on the appointment. The affidavit outlines the President’s
views regarding
the national importance of rugby, making the point that rugby is
a national asset and emphasising the role he and it had played in
the
reconciliation process. The affidavit then deals in some detail with the manner
in which the President decided to appoint the
commission, and affirms the
contents of the letter giving the reasons for his
decision.1[2] The President’s
affidavit echoes the DG’s description of the rubber-stamping suggestion as
“unfounded and untrue”.
[16] The Minister’s
affidavit concentrates on policy issues, including his reasons for asking for
the appointment of the commission
and, in three concluding pages responding to
the alleged causes of action, expressly confines itself to traversing Dr
Luyt’s
contention that personal animosity had motivated the Minister in
applying to the President for the appointment of the commission.
[17] Dr
Luyt’s replying affidavit on behalf of the respondents is largely
argumentative, and therefore
impermissible.1[3] Dr Luyt accuses
the Minister and the DG of having deviously orchestrated and generated media
interest in order to create a basis
for saying the administration of rugby was a
matter of public concern. The Minister is also said to have pressed for the
appointment
of the commission in the furtherance of the ulterior motive of
“getting at” Dr Luyt because he is an Afrikaner. More
pertinently
relevant to the course the case was thereafter to take, is the change in the
thrust of the so-called rubber-stamping
attack. Whereas the term
“rubber-stamping” is used in the founding affidavit as evidence of
the President’s gross
unreasonableness when he considered the
Minister’s application for the appointment of the commission, the replying
affidavit
introduces a subtle yet profound change. Now, for the first time, the
verb “abdicate” is used; and it is used ambiguously.
On the one
hand it is used to characterise the President’s mental attitude and
conduct vis-Β-vis the appointment of the
commission, that is, as part of
the complaint that the President, by relying too heavily on the Minister, had
failed properly to
bring his mind to bear on the question:
“I persist therefore with the allegation that the President had quite clearly abdicated his responsibility to decide himself and left the decision to the Minister, and I further persist that the President had merely rubber-stamped the Minister’s decision without properly considering the matter and without properly applying his mind.”
[18] At the same
time, however, referring to the media reports of the press statement of 7 August
1997, the replying affidavit avers
that the President thereby “abdicated
his responsibility to decide himself and left the decision to the
Minister.” In
another paragraph Dr Luyt says:
“I also deny that the actual decision was taken by the President and I reiterate my denial that he had considered the matter either properly or at all.”
This version of the allegation which introduced
the concept of abdication of responsibility was to serve as the springboard for
a
new emphasis, the one that was to have a pervasive influence on the
Judge’s thinking. The President is no longer said to have
come to a
grossly unreasonable conclusion by applying too little – or misdirected
– thought to the consideration of the
Minister’s application; he is
said not to have taken the decision at all; the decision, it is said, was taken
by the Minister.
The substitution of the Minister for the President as the
person charged with having taken the offending decision was to have significant
consequences.
(d) The course of events in the High
Court
[19] The application was treated as one of urgency and was set
down for hearing before the Judge during the court recess. The appellants
applied to strike out the averments based on the press reports relied upon by
the respondents, contending that they were hearsay
and irrelevant. After the
application to strike out had been launched, the respondents produced a copy of
the press statement of
7 August 1997 which had not previously formed part of the
record. The application was settled on the basis that: (a) the press statement
of 7 August 1997 was admitted in evidence; (b) certain of the press reports were
received in evidence in terms of section 3 of the
Law of Evidence Amendment Act
45 of 1988; and (c) the appellants were to file supplementary affidavits to deal
with such statements.
Supplementary affidavits by the President, the Minister
and the DG, filed after the settlement of the striking-out application,
specifically denied that there had been any abandonment of power by the
President or that he had said, or that the Minister had reported
him as having
said, words that could be interpreted as an abdication. The President and the
Minister also related how the Tshwete
file had formed the basis of the
President’s consideration of the matter in September 1997, while the
Minister and the DG tried
to explain how the press statement had come to be
issued on 7 August 1997. In response to submissions made on behalf of the
respondents
at the hearing, another supplementary affidavit by the President was
filed aimed at defeating a point raised by counsel to the effect
that the
decision to appoint the commission was invalid because the Deputy President had
not been
consulted.1[4]
[20] After
several days of argument, the Judge referred the application for the hearing of
oral evidence in terms of Uniform Rule
of Court
6(5)(g).1[5] The two main
provisions of the order read as follows:
“1. The application is referred for the hearing of oral evidence . . . on the following issues:
1.1 Relating to the terms of the agreement of 21 February 1997 and in particular whether in terms thereof [SARFU] was first to be provided with the allegations against it before it was expected to cooperate.
1.2 Relating to the questions whether or not –
1.2.1 the [President] had made the remarks attributed to him in the press statement of 7 August 1997;
1.2.2 the [Minister] had made the remarks attributed to him in the article in the Sunday Times of 17 August 1997;
1.2.3 such remarks by the [Minister] correctly reflected discussions between him and the [President];
1.2.4 the [President] had rubber stamped the [Minister’s] decision and
had failed to properly consider the matter himself.
2. For the purpose of deciding the issues referred to above, [Dr Luyt], Mr Oberholzer,1[6] Mr Erasmus1[7] and Mr Gerber1[8] as well as the [President, the Minister and the DG] are ordered to appear personally to be examined and cross-examined as witnesses.”
[21] The correctness of that
decision has been challenged on a number of legal grounds. Because of the
conclusion we have come to
on the totality of the evidence, it is not strictly
necessary to consider its validity. However, as there are far-reaching
implications
in the order directing the President to subject himself to
cross-examination on his reasons for exercising a constitutional power
vested in
him, we will deal briefly below with why we consider that decision to be
wrong.1[9]
[22] The hearing
of oral evidence commenced on 16 February 1997 and lasted for eighteen court
days. The following persons gave evidence:
Dr Luyt, Mr Oberholzer, Mr Erasmus,
Mr Gerber, the DG, Professor Katz, Mr Marcus, Mr Malindi, the Minister and the
President. After
SARFU and the other applicants closed their case, counsel for
the appellants sought the withdrawal of the dispute relating to the
terms of the
agreement of 21 February 1997 from the referral to evidence, on the basis that
no case had been made out by the applicants.
This application was refused with
costs by the Judge. On 8 March 1998, after the appellants’ other
witnesses had completed
their evidence, the appellants applied for a revocation
of the order requiring the President to give evidence. This application
was
also refused with costs. The President gave evidence on19 and 20 March 1998.
His evidence-in-chief takes up half a page of
the record and his
cross-examination 150 pages. A considerable part of his cross-examination was
devoted to the history of rugby
in South Africa, the criteria for the
appointment of presidential commissions of inquiry, the relative importance of
rugby in comparison
with corruption, the crime rate, farm murders and other
matters. It was, however, never put to the President by the cross-examiner
that
his evidence concerning the process of deliberation, consideration and
consultation, undertaken by him before he appointed the
commission, and which he
had described in his affidavits (and which had in material respects been
confirmed by Professor Katz’s
evidence), was false. Indeed, during final
argument on the application, counsel for SARFU and the other respondents
expressly placed
on record that they were not challenging the President’s
honesty and integrity. The failure to put to the President in cross-examination
that his evidence relating to the events of 12 to 26 September 1997 was
mendacious, has significant consequences as will be demonstrated
later.
[23] On 3 April 1998, at the end of their closing submissions,
the appellants applied to re-open their case to lead the evidence
of a reporter,
Mr Hannes de Wet. This application was refused with costs. On 17 April 1998,
the court issued an order reviewing
and setting aside the decision of the
President to appoint the commission and his decision in terms of the Commissions
Act. The
President, the Minister and the DG were ordered to pay the
respondents’costs including the costs of three counsel. The Judge
did not
at the time provide reasons for his order. Those reasons were provided later on
7 August 1998 and have been reported, albeit
in truncated
form.2[0]
(e) The judgment
of the High Court
[24] The judgment of the High Court is prolix, running
to 1159 typewritten pages. The Judge concluded that the appointment of the
commission and the decision to afford it powers in terms of the Commissions Act
were invalid. He based this conclusion on three
grounds: first, that the
President had irrevocably abdicated his responsibility to exercise these powers
to the Minister; secondly,
that if he was wrong in his decision regarding
abdication, that the President’s exercise of the powers was invalid
because
the respondents were not afforded a hearing by the President prior to
his decision to appoint the commission; and thirdly, that in
exercising his
powers, the President had failed to apply his mind to the relevant issues. The
Judge did not find it necessary to
consider the other arguments raised by SARFU
and the other applicants.
[25] In this judgment, it is neither necessary
nor desirable to traverse in detail each of the many points the Judge made in
his
judgment; rather we identify and analyse particular instances of flawed
reasoning and wrong findings of law that are crucial to his
conclusion.
Nevertheless, the length of the High Court’s judgment, the multiplicity
and complexity of the factual and legal
conclusions it contains, the sweep and
gravity of counsel’s submissions in this Court and the inherent importance
of the case,
necessitate our giving more extensive reasons than might otherwise
have been the case.
(f) The central fallacies in the
judgment
[26] The Judge’s reasoning in support of all three
grounds referred to in paragraph 24 above is flawed both in law and fact,
evidencing a mistaken approach that dictated the manner in which he handled the
case and which predestined its outcome. These fallacies
will be discussed in
greater detail later in this judgment. It is appropriate now merely to identify
them and describe their effect
on the judgment in the High
Court.
[27] At an early stage of the proceedings, the Judge fixed on the
press statement of 7 August 1997 and formed the view that, on 5
August 1997, the
President may have abdicated his power to appoint a commission in favour of the
Minister. This had a material influence
on the Judge’s reasoning. He
took the view, quite wrongly, as will be shown later, that in law an abdication
of the kind he
thought had taken place was irrevocable. These errors of law and
fact were foundational to the order made by him for the President
to be
subjected to cross-examination, and to his credibility findings against the
President.2[1]
[28] This
“abdication fallacy” pervades the Judge’s reasoning. Without
it some of the interlocutory rulings are
inexplicable and, because of it, the
Judge’s approach to the evidence of crucial events leading up to the
publication of the
presidential notices is skewed. Instead of looking at cogent
and uncontested evidence as to the conduct of the President and his
advisors
during September 1997 and gauging its legality in the light of the Constitution,
the Judge concentrated on side issues relating
to press interviews by persons
other than the President at the beginning of the preceding month, deriving from
them the hypothesis
that the President had irrevocably abdicated his
responsibility.
[29] The second basis for the Judge’s conclusion
that the exercise of the President’s powers was invalid in this case
was
his finding that the President had failed to afford the respondents a hearing
prior to exercising his powers. It is correct
that no hearing was afforded to
the respondents, but the Judge erred in concluding that such a hearing was
necessary as a matter
of law. This error was based, first, on a misconception
of the nature of the relevant presidential powers and the constraints upon
their
exercise; and secondly, on his misconstruction of the events of 21 February
1997. The Judge wrongly concluded that at that
meeting a contract had been
concluded between the government and SARFU in terms of which the government
undertook to provide SARFU
with all the allegations against it, prior to
requiring any co-operation from SARFU and that such a contract was legally
binding
on the President in the exercise of his powers. That contract, the
Judge held, regardless of events which followed, required the
President in
September 1997 to afford SARFU an opportunity to be heard prior to his
appointing the commission of inquiry. He found,
in the alternative, that the
events of 21 February 1997 had given rise to a legitimate expectation which
would also found a right
to a hearing. His finding, in relation to legitimate
expectation, however, once again focussed on the events of 21 February 1997,
not
on the events in the period immediately preceding the appointment of the
commission in September 1997. By the time the commission
was appointed in
September, the events of February 1997 were quite peripheral to determining
whether a legitimate expectation had
arisen or not. The mistaken focus on the
events of 21 February 1997 was a fundamental flaw in the Judge’s reasoning
in relation
to his finding that the President erred in failing to afford SARFU
and the other respondents a hearing prior to the appointment of
the commission
of inquiry. This misdirection had a major bearing on the referral to evidence,
as will be described later.2[2] The
third basis upon which the Judge held the President’s actions to be
invalid, namely that he had not properly applied his
mind to the matter, was
also flawed by the Judge’s failure to appreciate the proper character of
the discretion conferred upon
the President as well as by the “abdication
fallacy”.
(g) The structure of this judgment
[30] The
appellants appealed against the whole of the judgment and order made in the
court below. They argued that each of the three
bases upon which the Judge had
concluded that the appointment of the commission was invalid was flawed, that
the President’s
exercise of his powers was quite proper in the
circumstances and that the order made by the Judge should therefore be set
aside.
The respondents, however, argued that all three bases (outlined in
paragraph 24 above) upon which the Judge held the exercise of
the Presidential
powers to be invalid were correct, save that they did not support the conclusion
in respect of the first basis,
that the abdication of responsibility was
irrevocable. They argued, in addition, that the exercise of the
President’s powers
was invalid on three further grounds: first, that the
President had failed to consult the Deputy President as he was required to
do
prior to exercising the constitutional power to appoint a commission of inquiry;
secondly, that the issues to be investigated
by the commission did not
constitute a matter of public concern and therefore both the appointment of the
commission and the decision
to make the provisions of the Commissions Act
applicable were invalid; and thirdly, that the terms of reference of the
commission
are so vague as to render the appointment of the commission
invalid.
[31] Each of the arguments raised by the respondents is
considered in this judgment. In the next part of the judgment, we consider
the
abdication fallacy, both as a matter of law and of fact. In order to do so, it
is necessary to evaluate the testimony of the
President and the adverse
credibility finding made by the Judge against the President. Thereafter, in the
third major section, we
analyse the powers conferred upon the President by
section 84(2)(f) of the Constitution, and section 1 of the Commissions Act and
the constraints upon those powers. In so doing, we deal with the
respondents’ arguments as to whether the President was obliged
to afford
SARFU and the other respondents a hearing prior to appointing the commission;
the question whether the area of investigation
entrusted to the commission was a
matter of public concern; and the question whether the President consulted with
the Deputy President
in relation to the appointment of the commission. In the
fourth major section, we deal with the argument concerning whether the
President
properly applied his mind to the appointment of the commission and the argument
concerning the vagueness of the terms of
reference. Finally, there is a section
dealing with costs and certain interlocutory and procedural matters: the
question of the
referral to evidence, including the important constitutional
question whether the President should have been required to give evidence;
the
question of misjoinder; the appeal against certain interlocutory costs orders;
the reserved costs of the recusal application;
and the costs upon appeal. All
the matters dealt with are constitutional matters or matters which are connected
with the principal
constitutional matter which has to be decided in this case,
namely the validity of the President’s actions, and for that reason
are
within the jurisdiction of the
Court.2[3]
(h)
Appellants’ arguments concerning bias on the part of the Judge in the High
Court
[32] It remains only to mention that in their argument counsel for
the appellants contended that the errors of fact and law in the
rulings and
judgment given by the Judge, and the manner in which he conducted the hearing,
created the impression of partisanship
which tainted his entire judgment. As we
have come to the conclusion that the appeal should be upheld on the record as it
stands,
we need give no consideration to this issue and have refrained from
doing so. No allegation of actual bias was made by the appellants.
They
asserted only that a reasonable apprehension of bias existed. In the
circumstances, we are not obliged to consider the question,
once we have decided
that we can decide the case on the
record.2[4]
(i) Summary of
findings in this judgment
[33] The appeal is upheld. In part B of the
judgment, in paras 37 – 125 below, we deal with the question of abdication
of
responsibility.
(a) We hold that the Judge erred in concluding that at the meeting between the President and the Minister of 5 August 1997, the President irrevocably abdicated his responsibility to appoint a commission to the Minister. In our view, the words of the press statement of 7 August 1997 are not sufficient, in themselves, to establish that an abdication took place.
(b) More importantly, even if the words of the press statement warrant such a conclusion, the purported abdication would, as a matter of law, have been invalid and therefore void. It could never, therefore, have been irrevocable.
(c) Accordingly, the Judge’s finding that the subsequent evidence relating to the President’s consideration of the matter between 12 and 26 September 1997 was irrelevant and could have no effect on the determination of the issue was a material misdirection.
(d) We consider all the oral and written evidence relating to the President’s consideration of the appointment of a commission of inquiry and conclude that there is no basis for finding that the President abdicated his responsibility. The President’s and the Minister’s evidence in this regard is corroborated in material respects by the evidence of Professor Katz which was accepted by the High Court.
(e) We consider the grounds upon which the Judge made adverse credibility findings against the President and find them to be wrong and that such findings constitute a material misdirection by him. The respondents argued that the President’s testimony concerning his consideration, in the period between 12 and 26 September 1997, of whether a commission should be appointed was false and should be rejected. They argued that the evidence was false on the ground that the consideration of the matter by the President was merely a charade, and alternatively that, despite his evidence to the contrary, he gave no consideration to the matter whatsoever. In our view, there was no basis in the evidence for the imputation of such dishonesty to the President.
(f) In addition, we find that the imputation of perjury in relation to the events of 12 to 26 September 1997 was never put to the President in cross-examination. This failure contravened the principles governing the practice of cross-examination. A witness is entitled to an opportunity to defend himself or herself against an allegation of mendacity. Such an opportunity was never afforded to the President.
[34] In
part C of this judgment, at paras 126 – 222 below, we consider whether
SARFU and the other respondents were entitled
to a hearing prior to the
President deciding to appoint a commission of inquiry.
(a) We conclude that there are two distinct legal decisions under challenge: the decision to appoint a commission of inquiry in terms of the Constitution; and the decision to make the powers of subpoena afforded by the Commissions Act applicable to that commission. We consider whether each of these decisions constitute “administrative action” as contemplated by section 33 of the Constitution.2[5]
(b) We hold that in order to determine whether an act or decision constitutes administrative action, it is necessary to consider the function being performed. After a consideration of the nature of the President’s power to appoint a commission of inquiry, we conclude that it does not constitute administrative action and that, therefore, the procedural fairness requirement for just administrative action demanded by section 33 of the Constitution is not necessary for the decision to appoint a commission of inquiry.
(c) There are, however, other constraints on the exercise of that power. The doctrine of legality applies, as it does to all power exercised in terms of the Constitution. The President must also act in good faith and must not misconstrue the nature of his or her powers. In this case, we conclude that the President acted in accordance with those constraints when he appointed the commission of inquiry in terms of his constitutional powers. We also point out that the commission, upon appointment, must discharge its duties in accordance with the duty to act fairly.
(d) We find that the subject matter to be investigated by the commission constitutes a matter of public concern as required by the Commissions Act. We find that the demands of procedural fairness did not require the respondents to be afforded a hearing prior to the President’s decision to confer the Commissions Act powers upon the commission. Accordingly, we do not find it necessary to decide whether the decision to make the provisions of the Commissions Act applicable to the commission constituted administrative action or not.
[35] In part D of the judgment, at paras 223
– 232 below, we reject the respondents’ argument that the President
failed
to apply his mind properly to the appointment of a commission and hold
that the terms of reference of the commission were sufficiently
certain to
determine the ambit of the commission’s investigation.
[36] In
part E, at paras 233 – 259 below, we hold that:
(a) there was no basis for the joinder of the Minister and the DG;
(b) the Judge misdirected himself when he decided to refer the matter to evidence;
(c) the decision to require the President himself to give evidence was fundamentally flawed; courts should be aware that the President is not in the same position as any other witness; the doctrine of separation of powers requires a court to seek to protect the status, dignity and efficiency of the office of the President and the President should be required to give evidence orally in open court in civil matters relating to the performance of his official duties only in exceptional circumstances.
B. ABDICATION OF RESPONSIBILITY
(a) The approach of
the High Court
[37] One of the central findings in the judgment is that
concerning what the Judge referred to as “the abdication of responsibility
issue”. The Judge’s line of reasoning is the following: (a) the
press statement of 7 August 1997 shows that, on 5 August
1997, at his meeting
with the Minister, the President abdicated his responsibility in regard to the
appointment of a commission of
inquiry to the Minister and the press reports of
17 August 1997 show that the Minister had purported to exercise the
President’s
power by appointing a commission of inquiry; (b) as a matter
of law, a decision to appoint a commission of inquiry is invalid if
the
President abdicates his responsibility relating to the making of the decision;
(c) as a matter of law, the President’s
abdication was irrevocable; and
(d) therefore the events subsequent to the abdication were irrelevant to
determine whether the decisions
taken by the President were
valid.
[38] It is clear that under our new constitutional order the
exercise of all public power, including the exercise of the President's
powers
under section 84(2), is subject to the provisions of the Constitution which is
the supreme law. If this is not done, the
exercise of the power can be reviewed
and set aside by the Court. That is what this Court held in President of the
Republic of South Africa and Another v
Hugo.2[6] It is clear also that
section 84(2)(f) of the Constitution confers the power to appoint commissions of
inquiry upon the President
alone. The Commissions Act also confers the power to
declare its provisions applicable to a commission of inquiry upon the President
alone. The Judge was, therefore, correct in law when he held that, if the
President had indeed abdicated either of these powers
to another person, that
abdication would have been invalid.
[39] What would constitute an
“abdication” of the presidential power to appoint a commission of
inquiry need not be precisely
determined in this judgment. The Judge relied on
the discussion of “unlawful abdication of power” in Baxter’s
Administrative Law. Baxter identifies the following three ways in which
power can unlawfully be abdicated: when an office-bearer unlawfully delegates
a
power conferred upon him or her; when an office-bearer acts under dictation; and
when an office-bearer “passes the
buck”.2[7] The Judge found it
unnecessary to decide in which of these three ways the President had abdicated
his responsibility. He held simply
that if the President had uttered the words
reported in the press statement of 7 August 1997, he had unlawfully abdicated
his
responsibility.2[8]
[40] The
first category of “abdication” referred to by Baxter occurs where a
functionary in whom a power has been vested
delegates that power to someone
else. Whether such delegation is valid depends upon whether the recipient of
the power is lawfully
entitled to delegate that power to someone else. There
can be no doubt that when the Constitution vests the power to appoint
commissions
of inquiry in the President, the President may not delegate that
authority to a third party. The President himself must exercise
the power. Any
delegation to a third party would be invalid. The second category referred to
by Baxter deals with cases where a
functionary vested with a power does not of
his or her own accord decide to exercise the power, but does so on the
instructions of
another. The third category, “passing the buck”,
contemplates a situation in which the functionary may refer the decision
to
someone else. However, as Baxter points out, if the final decision is taken by
the properly empowered authority, there is no
objection to taking the advice of
other
officials.2[9]
[41] When
contemplating the exercise of presidential powers, there can be no doubt that it
is appropriate and desirable for the President
to consult with and take the
advice of Ministers and advisors. Indeed, it is clear from the Constitution
itself that the exercise
of executive authority, in terms of section 85, is a
collaborative venture in terms of which the President acts together with the
other members of Cabinet. Similarly, where the President acts as head of state,
it is not inappropriate for him or her to act upon
the advice of the Cabinet and
advisors. What is important is that the President should take the final
decision.
(b) The “abdication” on 5 August
1997
[42] For the reasons that follow, it is not strictly necessary for
purposes of this judgment to consider whether, at the meeting
with the Minister
on 5 August 1997, the President abdicated his power to appoint a commission to
the Minister. The Judge based his
conclusion that an abdication had occurred on
the text of the press statement, a document which was double hearsay against the
President.
That document stated that the President had allegedly told the
Minister that “[a] commission is yours if, in your best judgement,
it is
opportune”. In our view, it is not possible to construe the words
attributed to the President as embodying an intention
on the President’s
part to abdicate the powers conferred upon him by the Constitution, or for that
matter, the Commissions
Act. Even if it is assumed that the President uttered
the words attributed to him in the press statement (and that is the high water
mark of the respondents’ case) this would not, on its own, evince an
intention by the President to abdicate his powers and
would not establish even a
purported delegation to the Minister by the President of his constitutional
power to appoint commissions
of inquiry. It is clear from the oral and written
evidence that the Minister and the President both knew that the President was
the only person with the power to appoint a commission, and that if a commission
were to be appointed, the appointment would have
to be made by the President
himself. The words “[a] commission is yours if, in your best judgement,
it is opportune”,
whether construed linguistically, contextually or
purposefully do not purport to transfer anything to the Minister. At best for
the respondents, they may mean that when the President decides whether to
appoint a commission he would be guided by the Minister’s
judgment. We
cannot, therefore, accept that the text of the press statement, on its own, can
establish that an abdication of responsibility
occurred. This finding, however,
is not central to our approach to the matter, as we have described before.
[43] In the light of the foregoing, it is clear that, were the
President to purport to delegate his or her powers in terms of section
84(2) of
the Constitution or section 1 of the Commissions Act to another, that delegation
would be invalid. However, it will not
constitute an abdication of power, where
it is clear that the President, although acting upon advice from advisors or
members of
the Cabinet, exercised the presidential powers himself or herself.
The President is entitled to seek and rely on advice, but must
make the final
decision.
(c) The key error of law relating to
irrevocability
[44] In law, the appointment of a commission only takes
place when the President’s decision is translated into an overt act,
through public notification. In addition, the Constitution requires decisions
by the President which will have legal effect to be
in
writing.3[0] Section 84(2)(f) does
not prescribe the mode of public notification in the case of the appointment of
a commission of inquiry, but
the method usually employed, as in the present
case, is by way of promulgation in the Government Gazette. The President
would have been entitled to change his mind at any time prior to the
promulgation of the notice and nothing which
he might have said to the Minister
could have deprived him of that power. Consequently, the question whether such
appointment is
valid, is to be adjudicated as at the time when the act takes
place, namely at the time of
promulgation.3[1] This the Judge
failed to do. He erred, not only in treating the press statement as proof of an
abdication of authority, but also
in holding that the abdication, which he found
as a matter of fact to have taken place, was irrevocable.
[45] [ In Administrator, Cape v Associated Buildings Ltd,3[2] the Appellate Division had to consider an argument that a power vested by a provincial ordinance in the administrator acting with the consent of the executive committee of the province, had been wrongly delegated to the provincial secretary, and could not thereafter be exercised by the administrator in accordance with the requirements of the Ordinance. It dealt with that argument as follows:
“In any event, whether there had been an effective delegation or not, there can be no question of the competency of the authority – the Administrator acting with the consent of the Executive Committee – that dealt with the matter on the 14th November, 1955. That was the occasion when the decision was taken which was communicated to the respondent’s attorneys by the letter of the 17th November. I do not agree with the statement in the judgment of the Court a quo that
‘having delegated his authority to the Provincial Secretary and the latter official or somebody to whom he had delegated his powers having completed the matter delegated to him, the Administrator could not thereafter handle the matter himself.’
The delegation was obviously not intended to be an irrevocable one or one that would divest the Administrator of the power of acting himself, nor can I conceive of any principle which could have given it that effect.”3[3]
In
that case there had been a purported delegation of power to the provincial
secretary prior to the exercise of the power by the
administrator. Because the
purported delegation was invalid, it could have no legal effect and could not
preclude the administrator
from subsequently exercising the power conferred upon
him. The same holds true in this case. Even if, as a matter of fact, there
had
been an improper abdication by the President to the Minister on 5 August 1997,
such abdication would have had no legal effect.
It would have been a nullity,
and as such, could never have been irrevocable. Like the administrator in the
Associated Buildings case, the President would have retained the capacity
to exercise the powers conferred upon him by the Constitution and the
Commissions
Act.
[46] Because the Judge mistakenly took the view that the
discussions of 5 and 15 August 1997 constituted the crucial issue in this
regard, he focussed his attention on those events and paid scant attention to
what happened after that. The Judge accordingly took
the view that the
President had abdicated his responsibility to the Minister on 5 August 1997. He
also found that the Minister had
purported to appoint a commission on 15 August
1997. This finding was based on the press reports in the Sunday newspapers of
17
August 1997 and the testimony of Mr Gerber, the journalist who had written
one of the reports. These reports were based on an encounter
between the
Minister and the two journalists on 15 August 1997. This finding is
questionable for several reasons: there was a material
conflict between the two
newspaper reports as to what the Minister had
said;3[4] the Minister also denied
in oral evidence that he had taken a decision to appoint the commission; and it
is improbable that the Minister
would have purported to appoint a commission,
when he knew that it was a power only the President could exercise. However, it
is
not necessary to deal with this question at all. Even if the Minister had
purported to appoint a commission on 15 August 1997, such
an act would have been
invalid and a nullity.
[47] The factual issue to which the Judge ought
to have directed his attention was whether the President gave consideration to
the
matter during the period 12 September to 26 September 1997, the latter date
being the one on which the notice appointing the commission
was published in the
Government Gazette. However, because of his legal conclusion that the
alleged abdication was irrevocable, the Judge considered all the evidence
subsequent
to the abdication to be irrelevant to his determination of the
abdication issue. That conclusion of law was incorrect. The true
evidential
question is whether, in the period immediately before he appointed the
commission, the President applied his mind to the
appointment of the
commission.
(d) The respondents’ arguments
[48] Indeed,
the respondents correctly did not attempt to argue that the alleged abdication
of 5 August 1997 was, in law, irrevocable
and, in effect, abandoned the
Judge’s conclusion in this regard. They accepted that even if this Court
could be persuaded
that an abdication had taken place on 5 August 1997, they
would need to show that the President had persisted in that abdication
in the
weeks that followed. In the light of the evidence relating to the
President’s consideration between 12 and 26 September
1997 of the
appointment of the commission which will be considered below, the respondents
had the task of persuading the Court not
only that an abdication had taken place
on 5 August 1997 but also that they had proved one of the following factual
alternatives.
First, the President gave no consideration to the question
whether to appoint a commission during September 1997. Secondly, such
consideration as he gave was merely a charade because the President and his
advisors thought that an irrevocable abdication had taken
place in August.
Thirdly, the President wished to persist in the earlier abdication and therefore
gave no genuine consideration
to the question whether a commission should be
appointed or not.
[49] In the light of the foregoing, the question of
what exactly happened on 5 August 1997 is, at best, peripheral to the issues
that need to be determined in this case. Whether or not there had been a
purported abdication of responsibility by the President
on that day, the
question remains whether in the subsequent weeks the President in fact exercised
his powers under the Constitution
and the Commissions Act correctly. It is,
therefore, unnecessary for this Court to consider the former question in any
detail.
It is the President’s evidence of what happened between 12 and 26
September 1997 that is crucially relevant. None of the other
witnesses was able
to shed light on those events, save for Professor Katz, the Minister and the DG
in relation to the delivery of
the Tshwete file on 12 September 1997. For this
reason it is necessary, later in this judgment, to consider carefully the
Judge’s
adverse findings relating to the demeanour and credibility of the
President. The evidence provided by the DG and the Minister related
primarily
to the events between February and August 1997. Although adverse credibility
findings were made against them by the Judge,
it is not necessary for the
purposes of this judgment to consider those findings. Nor is it necessary to
consider the challenge
made by appellants’ counsel to the veracity of the
testimony of the respondents’ witnesses whom the Judge had found to
be
truthful and reliable. For the purposes of this judgment, we shall assume in
favour of the respondents that these findings made
in respect of the Minister,
the DG and the respondents’ witnesses are correct.
(e) The
evidence relating to the events of 12 – 26 September 1997
[50] In
his initial answering affidavit, the President states that the decision to
appoint the inquiry was his alone. He states
that the Tshwete file had been
placed before him on 12 September 1997 and that he gave it careful consideration
before he decided
to appoint the commission. He also states that he took into
account his own knowledge of the history and nature of the controversy
concerning rugby in making the decision. He states that:
“It was not a decision lightly taken and I did so only after taking into account all the considerations for and against such an appointment.”
In their reply, the respondents deny these averments and
assert that the President merely rubber-stamped the decision of the Minister.
In a supplementary affidavit filed by the Minister, and confirmed in so far as
it related to him by the President, the Minister
states that in order to assist
the President in determining whether a commission should be appointed or not, he
arranged the preparation
of the Tshwete file and that he, together with
Professor Katz and Mr King, presented that file to the President on 12 September
1997.
In his evidence, which will be discussed below, Professor Katz stated
that he had advised the President to consider the matter and
seek advice from
his legal advisor.
[51] During cross-examination, the President stated
that he followed this advice and indeed discussed the Minister’s
motivation
with both Professors Haysom (his legal advisor) and Gerwel (the
Director-General in his Office) and that they had come to the conclusion
that
the Minister had made out a case for the appointment of a commission. That
evidence was not challenged during cross-examination
and the Judge also accepted
that there was consideration of the matter by the President from 12 September
1997 onwards after the
Minister’s memorandum and the Tshwete file had been
handed to him. As indicated above, however, the Judge regarded this as
being of
no relevance because once the President had “abdicated his
responsibility” such consideration “did not
and could not cure the
impropriety”. The Judge further held that:
“... in any event, even if he had from 12 September onwards read the memorandum and skimmed through the newspaper clippings, it would again be a neutral consideration equally consistent with the applicants’ version. Had he earlier abdicated his responsibility and had the Minister taken the effective decision, and had he been warned to go through the motions of looking at it and reading it, it could never have amounted in law to a proper consideration of the matter.
Respondents’ counsel point out . . . that the President discussed the matter with his director-general, Gerwel, and his legal advisor, Haysom, and concluded that the Minister had made a case for the appointment of a commission of inquiry ....
The same consideration . . . apply. Had the President earlier abdicated his responsibility, it could never have amounted in law to a proper consideration of the matter.”3[5]
[52] There is no basis in the evidence for the comment
that the President might have been “warned to go through the
motions”
of reading the Tshwete report. No such suggestion was put to the
President in cross-examination. Moreover, the evidence of the
President and the
Minister was corroborated in material respects by the testimony of Professor
Katz and his evidence is of definitive
significance in this regard. It was
never challenged or questioned and must be accepted as correct. He said that on
12 September
1997 he attended a meeting with the President, in the company of
his partner, Mr Knowles, the Minister and the DG. At this meeting
the written
motivation, embodied in the Tshwete file, was handed to the President.
Professor Katz, at the invitation of the Minister,
outlined very briefly its
general contents. Thereafter he:
“. . . suggested to the President that he should take time to consider the matter, that he should seek his own legal advice. I mentioned the name of the Presidential legal adviser, Professor Hasem [sic], and I suggested to the President that it was important that the appropriate procedures should be complied with.”
According to Professor Katz, “the
President said that he would do so, that he would be contacting Professor
[Haysom] and that
he would take his time to evaluate the
documentation.”
[53] In cross-examination, Professor Katz said
that although he had not personally seen any of the newspaper or other media
reports
concerning what had passed between the President and the Minister on 5
August 1997, he was informed of the contents of the press
statement by Mr King
and by Mr Knowles. From this he had understood that “the Minister [had]
agreed with the President to
appoint a commission.” Professor Katz
testified that he was “concerned” about this intimation on the
ground that
“if it was accurate, that without full submission, the
decision had been taken.” It is clear from his evidence that
Professor
Katz did not know what had happened between the President and the Minister. His
concern was that if the reports were correct
and carte blanche to appoint a
commission had been given to the Minister, a decision might be taken without a
proper submission being
made to the President. This was the very reason why he
attended on the President on 12 September 1997; he wanted to ensure that
the
matter be dealt with correctly. Professor Katz made it clear during
cross-examination that his concern that the matter be dealt
with on a
procedurally correct basis was a broad concern and not a narrow one limited to
the possibility of a review application.
Despite several interruptions from the
cross-examiner and attempts to limit artificially the import of his evidence to
some narrower
procedural concern, Professor Katz made it clear that his concerns
were of a broader nature:
“ With respect, Mr Maritz, I was not only concerned about a review. I wanted what was happening in SARFU to be fair and procedurally correct . . . It was my idea to have the task-force in the first place. I was concerned for South African rugby and I wanted the right thing to take place . . . But I am saying , with respect, my lord, [my concern] was not limited [to the possibility of a review]. I wanted it to be fair . . . What must be done, must be fair. It must be fair to SARFU, it must be fair to Dr Luyt, it must be fair to the administration. So it was not simply a question of review – it was a question of fairness.”
[54] Professor Katz made it
clear that, based on what had been conveyed to him about the media reports, it
never entered his mind
that this had amounted to an abdication of the
President’s responsibility in terms of the Constitution and that this had
not
been suggested to him by anyone. He said that he had spoken to Mr Knowles
and said to him that “if the President had, without
bringing his mind to
bear on the matter . . . agreed to the appointment of a commission, it would
have been procedurally a breach”
and that it was his function and that of
Mr Knowles to ensure that a proper submission would be prepared which would
comply with
the requirements of legal procedure.
[55] No proper reading
of Professor Katz’s evidence can warrant the inference that either he or
Mr Knowles was of the view
that the President had, prior to the meeting of 12
September 1997, “abdicated his responsibility under the
Constitution”;
least of all that what the President had been reported to
have said or done constituted some irrevocable legal act which thereafter
precluded the constitutionally proper appointment of the commission in question.
It is clear that the advice given by Professor Katz
to the President was quite
to the contrary, namely, that the President should consider the matter
carefully, that he should take
his time about doing this and that he should
consult his own legal advisor, Professor Haysom. Implicit in all of this is the
opinion
that, provided that the correct procedure is followed and that the
President considers the matter properly, a commission can properly
and lawfully
be appointed. Mr Knowles clearly held the same view. He forwarded the draft of
the Tshwete file which he had prepared
to the Department of Sport and Recreation
under cover of a letter dated 10 September 1997, saying it should be finalised
and submitted
to the President. The letter continues:
“The President will appreciate, as a consequence of his office and as a man of legal training, that he should consider the documentation and make a deliberated decision as to the appointment and its consequences. We must anticipate that SARFU and its associates will keep more than a watchful eye on the proceedings.”
What is more, the President on his
own evidence, completely unchallenged in this regard, heeded this advice and
consulted both Professor
Haysom and his Director-General, Professor
Gerwel.
[56] Despite this wholly unchallenged evidence of Professor
Katz, which could not properly have been rejected and indeed was not
rejected by
the High Court, the following conclusion is reached in the judgment:
“Katz did not, in my view, corroborate the President’s version at all. The meeting of 12 September 1997 is completely neutral and as consistent with the applicants’ version as with that of the respondents’.”3[6]
In
our view this is a material misdirection which flows directly from the mistaken
legal conclusion concerning the abdication issue,
to which reference has already
been made. Not only was the legal conclusion in this regard wrong, but there is
no evidence, whether
direct or inferential, that either Professor Katz or the
President, or for that matter anybody in the President’s office concerned
with the matter, thought that there had been an abdication, irrevocable or
otherwise. In these circumstances the evidence of Professor
Katz provides
material corroboration for the President’s evidence. Professor Katz
warned the President of the likelihood of
a review application and no reason
suggests itself why the President would not have followed the advice to take his
time, consider
the matter carefully and to consult his own legal
advisor.
[57] The evidence of Professor Katz and the President that the
advice was given and accepted and acted on by the President, who consulted
Professors Gerwel and Haysom before taking the final decision to appoint a
commission, was a complete answer to the rubber-stamping
argument.
Respondents’ leading counsel, Mr Maritz, appreciated this, and before his
brief was terminated he correctly acknowledged
this saying that if this evidence
were correct it would refute the rubber-stamping argument, though it would not
necessarily be destructive
of the broader contention that the President had
failed to give proper consideration to the matter. That, so he contended, was a
separate enquiry which depended on other considerations.
(f) The
failure to cross-examine the President on key issues
[58] Mr Maritz
persisted, however, in the rubber-stamping argument contending that the
President’s evidence that he had consulted
Professors Gerwel and Haysom,
and had considered the Minister’s memorandum and the Tshwete file should
be rejected. There
was no evidence to support Mr Maritz’s contention on
this issue, nor any apparent reason why the President should have ignored
the
advice given to him by Professor Katz. Mr Maritz suggested that the President
might have been too busy to give consideration
to the Tshwete file and to
consult with Professors Gerwel and Haysom on it, or he might have thought that
there was no purpose in
doing so because the abdication was irrevocable, or
because he did not wish to undo such abdication.
[59] None of these
possibilities was however raised with the President during cross-examination.
The suggestions that the President
might wrongly have thought that what had
occurred on 5 August 1997 was irrevocable, or that he might have been too busy
to meet his
advisors and consider the Tshwete file, or that he may have decided
to persist with an earlier abdication, were not put to the President
in
cross-examination. Nor was it put to the President that he had not consulted
Professors Gerwel and Haysom before taking the final
decision to appoint a
commission. Mr Maritz contended that there was no need to do so because it was
implicit in the rubber-stamping
contention that this did not
happen.
[60] The implication of this argument was that the President had
ignored the advice given by Professor Katz, had deliberately perjured
himself in
giving evidence that he accepted and acted on such advice, that the reasons
given by him in his letter of 3 October 1997
for his decision to appoint the
commission were false, and that he had in fact misled his legal representatives
and the court in
this regard. That is a grave allegation to make against any
witness. It is particularly serious if made against the President of
the
country.
[61] [ The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn3[7] and has been adopted and consistently followed by our courts.3[8]
[62] The rule in Browne v Dunn is not
merely one of professional practice but “is essential to fair play and
fair dealing with
witnesses”.3[9] It is still
current in England4[0] and has been
adopted and followed in substantially the same form in the Commonwealth
jurisdictions.4[1]
[63] The
precise nature of the imputation should be made clear to the witness so that it
can be met and destroyed,4[2]
particularly where the imputation relies upon inferences to be drawn from other
evidence in the proceedings.4[3] It
should be made clear not only that the evidence is to be challenged but
also how it is to be
challenged.4[4] This is so because
the witness must be given an opportunity to deny the challenge, to call
corroborative evidence, to qualify the
evidence given by the witness or others
and to explain contradictions on which reliance is to be
placed.4[5]
[64] The rule is
of course not an inflexible one. Where it is quite clear that prior notice has
been given to the witness that his
or her honesty is being impeached or such
intention is otherwise manifest, it is not necessary to cross-examine on the
point,4[6] or where “a story
told by a witness may have been of so incredible and romancing a nature that the
most effective cross-examination
would be to ask him to leave the
box.”4[7]
[65] These
rules relating to the duty to cross-examine must obviously not be applied in a
mechanical way, but always with due regard
to all the facts and circumstances of
each case. But their object must not be lost sight of. Its proper observance
is owed to pauper
and prince alike. In the case of the President of this
country there is an added dimension. Not only are his personal honour and
dignity at stake. He, as head of state, is representative of all the people.
That being so, the rule needs to be observed scrupulously.
[66] In the
instant case, however, none of the exceptions apply; that is to say they do not
apply to the most crucial factual issue
in the case, namely, whether the
evidence of the President (on affidavit and under oath in the witness box)
regarding the events
which occurred between 12 and 26 September 1997 was a
contrived and dishonest concoction. It is clear beyond doubt that the President
could not be honestly mistaken in this account. Either it is true or it is a
meretricious deceit. On the respondents’ argument
and implicit in the
reasoning of the High Court, it could be a dishonest sham in one of three ways.
First, the events described
never took place and have simply been invented by
the President. Secondly, the President and those advising him thought that the
President had, on 5 August 1997, irrevocably in law abdicated his power to
appoint a commission, thought that nothing could be done
to rectify this
lawfully and staged a charade. Thirdly, the President and those advising him
not only thought that an abdication
had taken place but intended to persist with
it and therefore staged the charade. The charade was one of going through the
motions
of drawing up a ministerial motivation, consulting on the issue and the
President reading the prepared motivation, believing that
this would have no
legal consequence, but nevertheless physically going through the set piece with
some hope of it saving the day.
The only other possibility is the one contended
for by the appellants, namely, that whatever was said by the President to the
Minister
on 5 August 1997 had no legal consequence in relation to the exercise
by the President of his section 84(2)(f) power, which power
he could still
validly exercise at any time thereafter, provided he did so constitutionally,
and which power he did properly exercise
thereafter. The onus was of course on
the respondents to prove that the President’s evidence on this decisive
issue was dishonest
in one of the above ways.
[67] In his judgment, the
Judge came to the conclusion that:
“the case of the applicants was fully and fairly put to the President in cross-examination. However, to the extent that any aspect of the applicants’ case had not been expressly put to the President, he, to my mind, probably had notice beforehand of any such point.”4[8]
This must be understood in the light of his finding that the
impropriety of the abdication of responsibility on 5 August 1997 could
not be
cured by a subsequent consideration of the matter, his finding that it could be
accepted that the President gave consideration
to the matter from 12 September
1997 onwards, and his apparent acceptance of the President’s evidence
concerning the discussions
with Professors Gerwel and Haysom.
[68] It is
convenient to deal first with the finding that the President
“probably” had prior notice of every point in
the respondents’
case which had not been expressly put to him. This was based on two grounds
only. The first was a single
passage in the replying affidavit attested to by
Dr Luyt and the second a submission in the present respondents’ written
argument,
in support of the application to the High Court for the issues to be
referred to oral evidence. These grounds will be dealt with
in turn, and must
be considered in the light of the way the case was pleaded.
[69] The
legal grounds set out in Dr Luyt’s founding affidavit on which the
respondents relied in challenging the appointment
of the commission, have been
identified above.4[9] Nowhere was
it suggested that the President had not appointed the commission himself.
The
complaint was that, in appointing the commission, he had not applied his mind
properly. In his answering affidavit the President
denied the averment that he
had not applied his mind properly to the matter, and said that he had given
proper consideration to the
matter, referring in that context to the information
which had been placed before him in the Tshwete file. In the replying affidavit
it was asserted in response to this averment that the President had
“abdicated his responsibility to decide himself and left
the decision to
the Minister”, and that:
“The President’s insistence that he carefully considered the material placed before him (from 12 September onwards) and that he alone took the decision and his denials that he had merely rubber-stamped the Minister’s decision, therefore simply cannot be true.”
That assertion was formulated as a conclusion
drawn from the allegation that there had earlier been an abdication of
responsibility.
The allegation that responsibility had been abdicated was in
turn based on double hearsay – the press statement that the
President had
said to the Minister “[a] commission is yours if, in your best judgement,
it is opportune,” followed by
the bald legal conclusion that “[t]he
aforegoing statement makes it perfectly clear that the President abdicated his
responsibility
to decide himself and left the decision to the
Minister.”
[70] The submission in the written argument referred to
above was to the effect that the President’s denial of the rubber-stamping
charge and his own version of having taken the decision properly “should
be rejected on the papers alone as demonstrably false”.
What has been
said in the preceding paragraphs in regard to the respondents’ cause of
action at that stage, applies with equal
force to this submission. This
submission must moreover be read in the context of what respondents’
counsel himself understood,
and must have intended, it to mean. In final
argument before the Judge on the rubber-stamping issue the following is stated
by respondents’
counsel:
“it is important at the outset to clearly state that we do not question the President’s integrity or honesty. The issue of reliability, is however, a different matter . . . [A]t the same time I want to make use of this opportunity to state quite clearly that we have been accused of having called the President a liar. We have not done that. We have said, certainly that his evidence is not to be accepted and that we still submit.” (emphasis supplied).
[71] Such a submission could never have been made
if the respondents’ case had been that the President had engaged in a
dishonest
charade. The Judge correctly held that the above statement did not
amount to a formal admission. But this in no way detracts from
the fact that
this passage is a description, by respondents’ leading counsel himself, of
what meaning should be attached to
any imputation which up to that stage might
have been made against the President. It is also the only reasonable
explanation for
the failure to dispute the President’s evidence relating
to his meeting with Professor Katz and the fact that he acted on the
advice
given to him. That could only have been disputed by a direct challenge to his
integrity and honesty. In the light hereof
there is simply no factual basis for
the conclusion reached by the Judge that the President had prior warning that
his honesty and
integrity were going to be impugned.
[72] It is finally
necessary, on this issue, to deal with the High Court’s finding that
“the case of the applicants was
fully and fairly put to the President in
cross-examination.” A close reading of the President’s
cross-examination does
not reveal that it was ever suggested or even implied,
either that the evidence of the President as to the way in which he considered
the appointment of the commission on and after 12 September 1997 was a perjured
concoction or, if he had done what he said he did,
this was no more than a
fraudulent charade. Such a conclusion simply cannot be reached when regard is
had to the description given
by leading counsel himself as to what the
respondents’ case was throughout.
[73] Never was it suggested or
implied, least of all put in cross-examination, that the President was being
untruthful or dishonest.
His evidence on affidavit, that the Minister, in the
company of two members of the task team, had presented a written memorandum
to
him, was accepted as was his oral amplification thereof that the two members
were Professor Katz and Mr Knowles. The President
was asked by
respondents’ counsel:
“Mr President, did Prof. Katz at that time caution you that or express a warning that there would possibly or likely be a court case ?”
The President’s affirmative answer was left
unchallenged. Under cross-examination the President testified as
follows:
“When I started [read “studied”] that motivation and when I discussed the matter with my own advisors, the director-general, Prof. Jakes Grabe [read “Gerwel”], Prof. Hayson [read “Haysom”], my legal advisor, we decided that the minister had made a case for the appointment of a commission and I, and I alone, supported that commission.”
This was also never challenged in any way. Least of all was
it suggested that this discussion with his advisors was a concoction.
Many
aspects of the case raised in the respondents’ affidavits were canvassed
with the President. What was not canvassed,
however, was the case argued before
this Court, namely, that the President’s evidence as to how he considered
the written motivation,
discussed it with his advisors and came to the decision
to appoint the commission, was a dishonest sham. There is a reason why this
case was not put to the President. It simply did not, even at that late stage
of the oral evidence, constitute or form any part
of the respondents’
case. This is clear from the following statement by Mr Maritz during the
cross-examination of the President:
“The question of rubber stamping is not in itself a separate legal cause of action, it is but a facet of the cause of action or the review ground of a failure to properly consider the matter.”
[74] A
further basis for the Judge’s conclusion that the President’s
honesty had been sufficiently placed in dispute
was his acceptance of Mr
Maritz’s submission that the President during cross-examination complained
on a number of occasions
that the cross-examiner was improperly or unfairly
impugning his honesty and integrity. Those comments were made in relation to
the cross-examination of the President on the DG’s press statement dealing
with the events of 5 August 1997. But one simply
cannot conclude, as the Judge
did, that because the President (rightly or wrongly) thought his credibility was
under attack on this
issue, this establishes that it was properly put to the
President that he had engaged in a dishonest charade in pretending to consider
the Tshwete file. Either the President’s honesty in respect of the
crucial issue referred to above was challenged by the cross-examiner
or it was
not. The record shows that it was not. The fact that the President thought,
wrongly as it transpired, that his honesty
was under attack on quite another
issue, cannot as a matter of logic remedy the failure properly to challenge on
the crucial issue.
[75] The Judge accordingly misdirected himself in a
material respect when he concluded that it was clear to the President when
giving
evidence that the respondents were impugning his evidence concerning what
had been said to him at the meeting of 12 September 1997,
and his evidence that
he had considered the Tshwete file and consulted with his advisors thereupon.
The Judge also misdirected himself
when he held that the President had been
given prior notice that his credibility in this regard was to be impugned. This
misdirection
seriously affects the weight to be attached to the Judge’s
findings on credibility and demeanour.
[76] It cannot be suggested, nor
was it suggested in argument, that the content of the President’s evidence
on the issue was
of “so incredible or romancing a nature” that it
rendered specific cross-examination as to dishonesty unnecessary. Under
these
circumstances it would be manifestly unfair to disbelieve the President when,
had it been suggested to him in cross-examination
that the events in September
1997 were a dishonest sham, he could have called Professors Haysom and Gerwel to
corroborate his version.
It was under the circumstances not open to the High
Court to disbelieve the President on this issue; particularly when the rejection
was based, not on any evidence to the contrary, but on unwarranted inferences
from hearsay evidence that the President abdicated
his responsibility to the
Minister and an unfounded legal conclusion as to the irrevocability of such
abdication.
(g) The weight to be attached to the Judge’s
findings based on demeanour
[77] The Judge made adverse findings
concerning the President’s credibility as a witness and his demeanour in
giving evidence.
By demeanour is understood the subjective manner in which a
witness testifies orally, as opposed to the objective content of the
evidence so
given. The trial court sees and hears the witness testifying and is thus able
to evaluate how a witness responds to
questions and produces answers. This
immediate relationship between witness and trier of fact enables the latter to
assess the evidence
in the light of the behaviour and conduct of the witness
while testifying, whereas the court of appeal is restricted to the written
record of the witness’s oral
testimony.5[0]
[78] [ The deference which a court of appeal ought properly to accord credibility findings made by a trial court based directly or indirectly on the demeanour of witnesses who have testified orally before it, is not a matter of easy or simple formulation. The correct approach to this matter, as well as to appeals on fact generally, was enunciated in R v Dhlumayo and Another.5[1] These prescripts are not rules of law but guidelines.5[2] While the guidelines laid down in Dhlumayo have been consistently followed by our courts, caution has been expressed by the Supreme Court of Appeal concerning the reliability of demeanour findings, as, for example, in the following passage in S v Kelly:5[3]
“In any event, as counsel conceded in a homely metaphor, demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour - 'that vague and indefinable factor in estimating a witness's credibility' (per Horwitz AJ in R v Lekaota 1947 (4) SA 258 (O) at 263) - can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by Wessels JA in Estate Kaluza v Braeuer 1926 AD 243 at 266 more than half a century ago in this Court:
‘A crafty witness may simulate an honest demeanour and the Judge had often but little before him to enable him to penetrate the armour of a witness who tells a plausible story.’
On the other hand an honest witness may be shy or nervous by nature, and in the witness-box show such hesitation and discomfort as to lead the court into concluding, wrongly, that he is not a truthful person.”
[79] The advantages which the trial court
enjoys should not, therefore, be over-emphasised “lest the
appellant’s right
of appeal becomes
illusory.”5[4] The
truthfulness or untruthfulness of a witness can rarely be determined by
demeanour alone without regard to other factors including,
especially, the
probabilities.5[5] As indicated
above, a finding based on demeanour involves interpreting the behaviour or
conduct of the witness while testifying.
The passage from S v Kelly
above correctly highlights the dangers attendant on such
interpretation.5[6] A further and
closely related danger is the implicit assumption, in deferring to the trier of
fact’s findings on demeanour,
that all triers of fact have the ability to
interpret correctly the behaviour of a witness, notwithstanding that the witness
may
be of a different culture, class, race or gender and someone whose life
experience differs fundamentally from that of the trier of
fact.5[7]
[80] As was said
in Dhlumayo’s case:
“10. There may be a misdirection on fact by the trial Judge where the reasons are either on their face unsatisfactory or where the record shows them to be such; there may be such a misdirection also where, though the reasons as far as they go are satisfactory, he is shown to have overlooked other facts or probabilities.
11. The appellate court is then at large to disregard his findings on fact, even though based on credibility, in whole or in part according to the nature of the misdirection and the circumstances of the particular case, and so come to its own conclusion on the matter.”5[8]
[81] If
these principles are applied to the present case, very little, if any, weight
can be accorded to the findings by the Judge,
whether express or implied, which
impugned the honesty of the President on the basis of his demeanour. This is so
for basically
three reasons. First, as pointed out above, the irrevocable
abdication finding by the Judge against the President was fundamentally
and
demonstrably wrong, even assuming that the President had used the words
attributed to him in the press statement. It was wrong
in law and on the facts;
it was a fundamental misdirection that established a false basis for the
Judge’s inferential reasoning;
and it clouded and skewed his assessment of
the probabilities and the credibility of the President in relation to virtually
all the
events subsequent to 5 August 1997. How seriously this flawed the
Judge’s approach to the President’s demeanour and
credibility
appears from the judgment itself. Immediately before considering the
President’s demeanour the following finding
is recorded:
“As indicated, the overwhelming probabilities are that the President said to the Minister of [read “on”] 5 August 1997: ‘A Commission is yours if, in your best judgement, it is opportune’, or words to that effect, and thereby abdicated his responsibility.”5[9] (emphasis supplied).
Seven lines lower down the following is
stated:
“In so far as the President’s evidence on other aspects of the matter is in conflict with the above finding on the probabilities, I find that such evidence is also not credible”.6[0](emphasis supplied).
[82] Secondly, the Judge failed to have any
regard to the failure by respondents’ counsel to cross-examine the
President on
vital aspects of his evidence relating to the events from 12
September 1997 onwards and accordingly erred in not having any regard
to the
consequences of such failure. As indicated
above,6[1] the Judge misdirected
himself in coming to the conclusion that the honesty of the President had been
properly challenged. Such misdirection
further substantially erodes the
reliance which can be placed on any demeanour finding adverse to the
President.
[83] Thirdly, the Judge avoided an express finding that the
President was untruthful and, immediately after the second passage quoted
in
paragraph 81 above, said:
“That may again be due to lack of veracity, or unreliability, or a combination of both these factors. However, it is again unnecessary, to my mind, to attempt to determine its cause.
It is indeed unfortunate to have to come to these conclusions in regard to the credibility of the President.”6[2]
[84] Whatever the ordinary meaning of
“unreliable” might be, there was no specific finding that the
President had been
deliberately dishonest and had engaged in the dishonest
charade, pretending to consider the Tshwete file and to have regard to the
advice given to him by Professors Gerwel and Haysom, then concocting reasons for
his decision, and perjuring himself as a witness
in order to mislead the court
as to what had actually happened. No such finding would have been justified on
the evidence and no
such finding was made. Nothing short of such a finding
would have justified the conclusion that the respondents had discharged the
onus
that was on them on this issue.
(h) The findings made concerning the
President’s demeanour
[85] The President’s evidence and the
findings made by the Judge concerning his demeanour must be seen in the context
of the
order that he give evidence and the manner of his cross-examination. We
were referred to no case, and we know of none, in which
a head of state has been
required to give oral evidence in review proceedings to justify a decision taken
as part of his or her official
duties.6[3] The President was
ordered – over objections by his counsel – to give evidence in
response to a double hearsay statement
which was inadmissible against him. He
honoured the order, came to court at considerable inconvenience to himself, and
was cross-examined
for more than a day.
[86] In evaluating the
President’s evidence the Judge failed to appreciate the implications of
the extraordinary order he made
requiring the President to give evidence, the
sensitivities it engendered and the political subtext it gave to the case which
involved
not only the litigants and their legal representatives, but also the
Judge as the judicial officer in control of the proceedings.
The political
atmosphere was introduced by the averment that the President had rubber-stamped
the Minister’s decision, the
demand that he subject himself to
cross-examination, a suggestion that the government was interfering in sport in
much the same manner
as had been the case under apartheid, and contentions in Dr
Luyt’s founding affidavit that the Minister’s representations
to the
President were motivated by an ulterior purpose, including “resentment of
the fact that rugby is controlled by whites
and mostly Afrikaners and not by the
government”; and resentment of the fact that he and SARFU had “not
been prepared
to meekly and tamely tolerate government interference with and
intervention in the affairs of SARFU” and resentment of
“SARFU’s
refusal to effectively hand over control of rugby, its
assets and management to the government.”
[87] The Judge
commented adversely on the President’s evidence, finding that he had
failed or refused to answer a number of
questions, had used the court as a
podium for political rhetoric, had suggested which of the witnesses should be
believed, had queried
rulings by the court, had insulted the cross-examiner, had
been argumentative and had attempted to intimidate the cross-examiner
into
refraining from questioning him on matters relating to credibility, and had made
defamatory remarks concerning Dr Luyt. The
passages in the record cited in
support of these findings are, however, not really findings as to demeanour, but
more in the nature
of general criticisms of the President’s
evidence.
[88] It is correct, however, that the President was at times
argumentative, and that he also made disparaging comments concerning
the
cross-examiner. The President’s attitude, however, needs to be understood
in the context of the case described above and
does not provide the basis for a
finding that the President was a dishonest or untruthful witness. The Judge
says that an impression
was created that the President was attempting to deter
the cross-examiner from cross-examining him on matters relating to credibility.
The President was obviously deeply offended that his evidence concerning what he
had said to the Minister was being disputed. It
is clear from various passages
in his evidence that he felt humiliated by the cross-examination and considered
the attack upon his
credibility in relation to the events of 5 August 1997 to be
a personal affront which affected not only himself personally, but also
the
people of the country whose representative he was. He also clearly thought that
his being summoned to court as a witness to
be cross-examined on his affidavit,
and his denial of the averment that he had rubber-stamped the Minister’s
decision, revealed
a lack of respect for him as President, by the Judge, the
respondents and their legal representatives. His feelings are revealed
in a
brief comment which he made to the cross-examiner:
“To question the statement made by the President of the country made under oath, is an experience that is new. I do not know and I say this again with respect, I do not know if under the previous order a thing of this nature would have happened.”
[89] Examples given by the Judge of
“unbridled defamation” of Dr Luyt were the following:
“Let me say, judge, I never imagined that Dr Luyt would be so insensitive, so disrespectful, so ungrateful as to say of the President of this country that when I gave my affidavit and signed it under oath, I was telling lies . . . I never imagined that he would do a thing like that. [As appears from para 74 above, the President was referring to the fact that the respondents were challenging his evidence in relation to the events of 5 August 1997.] There must be something why [Dr Luyt] is resisting an investigation to find out what is going on in Sarfu and people who know, they say he was alright, he was prepared to work with the task team, when they limited their investigation to Sarfu, but once they decided to probe into the financial affairs of the organisation, Dr Luyt saw red. It was like a red cloth in front of a bull and I think Dr Luyt in his founding affidavit is giving a message which he does not want us to know. He is saying I have something to hide and I might add just to round up this matter, that in December . . . he telephoned me to say he want[ed] to see me and because of my respect for him, notwithstanding the tight programme I have, I said he should come immediately. His request was that I should withdraw this commission. I spoke to him earnestly as my collaborator, I said Louis, do not ask for that because the message that you will be sending, you will be saying I have something to fear, I do not want . . . the transparency about the affairs of Sarfu, don’t do that. He has done that notwithstanding the advice I gave to him. Dr Luyt projected in that founding affidavit is somebody totally different from the one I knew and I just wondered to myself what has gone wrong with Dr Luyt? What has he done to the affairs of Sarfu? Only if he has got something which is irregular, which puts him on a lower moral ladder, could he challenge, could he refuse that there should be a probe because if he knows that he has done nothing wrong, he would welcome a commission . . . so that we can rescue rugby from this unhealthy environment.”
And
“I have told you that Dr Luyt had cooperated with the task team and until the team wanted to investigate his financial affairs, that was when he invented this theory [that there would be no investigation until the allegations had been put to him] which contradicts his own conduct . . .”
That there was a meeting between the President and
Dr Luyt at which Dr Luyt asked the President to withdraw the commission and that
the President responded in the manner described by him in his evidence was not
disputed.
[90] The President’s attitude to Dr Luyt must be
understood in the context of his evidence when he was asked at the beginning
of
his cross-examination about the role-players who participated in bringing about
unification in rugby. He said:
“Then there is Dr Luyt . . . we were collaborators, we were partners. It was in the course of our trying to normalise rugby as a national sport, that I came to earn high regard for him. I still have that high regard for him. There are of course very serious allegations which have been made, but my approach towards him is determined by my experience when I worked closely with him and I will not give credence to the allegations that are being made. I hope that subject to what the judge will decide in this case, I hope that [a] commission will have the opportunity to sit down, to probe these allegations and if that commission decides that there is no substance in these allegations, I will be one of the happiest men in this country because that will then free rugby from the said [read “sad”] paralysing atmosphere environment [sic] in which it has been plunged today. I will be very happy, but at the same time, judge, if that commission decides that there is substance to this allegation, then I cannot allow personal relationships, however strong they are, to override the national interest. Those who are found to be responsible for doing things which have put rugby in disrepute, if those allegations are substantiated, they must pay the price, but until then all the officials with whom I have worked, I have the highest regard for them.
. . . .
I am aware that he did play [a] role which at that time could be played only by people who are independent, fearless and committed [to] the principle of non-racialism.
. . . .
[T]he question of promoting non-racialism rugby and of turning it to a national asset which we all now support, is the result of a [collective] effort as I have pointed out and in that context Dr Luyt has played a critical role.”
[91] There is no doubt that the President was concerned
about Dr Luyt’s turnabout when the request was made for financial
information
and that, rightly or wrongly, he suspected that this might mean that
credence should be given to the allegations that were being
made. He was also
hurt and surprised that Dr Luyt had challenged the statement in his affidavit
that he had not abrogated his responsibility
to the Minister. The
President’s evidence reflects this suspicion and hurt, but does not
justify the adverse comment made
by the Judge nor is it justified on a reading
of his evidence as a whole.
[92] On the rare occasion that the President
was asked by the Judge to answer questions he did so. The only time he demurred
was
when he believed (wrongly as it turned out) that the ruling had been given
as a result of a misrepresentation by counsel of what
his evidence had been.
This occurred towards the end of his evidence and at a time when he was
obviously very angry at the way he
had been cross-examined. The
President’s intervention may have been inappropriate and was shown to be
incorrect. It does not,
however, have any bearing on his
integrity.
[93] In view of the material misdirections which taint the
entire judgment, no purpose would be served by adding to an already long
judgment by analysing the various passages from the record cited by the Judge.
In our view these passages, read in the context of
the President’s
evidence as a whole, do not reflect adversely on the President’s integrity
or credibility as a witness.
The cross-examination addressed to him was
repetitive, argumentative and at times speculative. The President was
justifiably irritated
and angered by the circumstances in which he had been
ordered to court and by the manner in which he was cross-examined. The passages
cited by the Judge reflect in the main such anger and irritation and have no
bearing on credibility.
[94] The Judge said:
“The court is very conscious of the fact that the President is no longer a young man, that he has suffered much and that it must have been a particularly traumatic and humiliating experience to have been compelled to testify under circumstances where he perceived his veracity to be doubted.”6[4]
He seems to have lost sight of these considerations, and to
have made his findings without due regard to the circumstances personal
to the
President. In testing the President’s powers of recollection, his
familiarity with detail and the consistency of his
testimony, insufficient
regard seems to have been given to the demands of his office, the number of
disparate matters he is called
upon to deal with daily, the sheer mass of
documentation that must pass through his hands every day, and the reliance he is
inevitably
forced to place, in the execution of all his duties, on his office
staff in general, and on his Director-General and his personal
legal advisor in
particular – matters to which the President referred on more than one
occasion during his evidence. The entire
context in which the President is
compelled to discharge his duties and in which he was compelled to testify was
all but ignored
by the court in its evaluation of the President’s
demeanour as a witness and his general credibility.
[95] The
President’s evidence under cross-examination certainly shows that he was,
at times, impatient, imperious, hurt, angry
and even insulting. None of these
reactions, however, taken individually or cumulatively, warrants the inference
that the President’s
testimony on the crucial issue, that is whether he
himself had considered the question whether a commission should be appointed or
not in the period between 12 and 26 September 1997, was untruthful or
unreliable, particularly not when evaluated, as it ought to
have been, in the
context to which we have referred.
(i) Reasons given for the
credibility finding against the President
[96] The Judge devoted 25
pages of his judgment to considerations which in his view had a direct bearing
on the credibility of the
President’s
evidence.6[5] He identified 13
grounds which, in his view, cumulatively suggested that the President’s
evidence was not to be believed.
These grounds relate, in the main, to the
following matters:
(a) the meeting between the Minister and the President on 5 August 1997;
(b) when he became aware of the press reports of 7 August 1997 and his failure to repudiate them immediately;
(c) the question of how long it took the President to peruse the Tshwete file and how thoroughly he perused it; and
(d) the question of when and by whom the terms of reference for the commission were prepared.
The contradictions identified are either
not contradictions at all or are so insubstantial or unsubstantiated, as fairly
to be categorised
as make-weights. A significant number of the alleged
contradictions relate to events in August 1997, rather than events during the
period 12 – 26 September 1997 which, as we have explained above, is the
crucial period. Neither alone nor cumulatively, do
the contradictions identified
by the Judge justify a conclusion that the President’s evidence as to his
role in the matter,
and more specifically as to what happened between 12 and 26
September 1997, should be rejected.
[97] Before considering the period
12 – 26 September 1997, we shall examine two of the main criticisms in the
judgment relating
to the events of August 1997. The first of these relates to
the way the President dealt with cross-examination on whether he instructed
the
Minister to provide a motivation if he sought the appointment of a commission,
or whether he gave him a choice to do so. The
conclusion reached by the Judge
was:
“The different versions put forward both in the further supplementary affidavit and in the course of the evidence referred to above, are so contradictory that the credibility of the President’s evidence in dealing with this meeting of 5 August 1997 must be subject to serious doubt”.6[6]
This conclusion is unjustified. It is clear from a reading
of the evidence that confusion arose as to whether there was a choice
or an
instruction in relation to two separate issues; the decision to apply for a
commission, and the need to accompany such an application
with a written
motivation. The President’s clear evidence is that the Minister retained
a choice as to whether to apply to
the President to seek the appointment of a
commission. However if he chose to make such an application, the President
instructed
him to accompany such application with a written motivation. That
this was the President’s attitude was made clear when this
issue was
raised with him for the first time:
“Mr President, did you at that time when you had this discussion with the minister, did you instruct him to prepare a motivation or did you give him the choice? —
I will not put labels [into] what I said and Mr Maritz can conclude for himself. [A]ll that I said, give me a memorandum and what I was saying, without remembering the words, was that if you want a commission you must give me that memorandum, but I cannot remember the exact words I uttered.
The point that is of importance, as we see it, is whether you gave the minister a choice? — Well that is obvious. The minister always had a choice whether to apply for a commission or not. That is his right, but as far as I am concerned I am the only person who must take a decision whether a commission should be established and I took that decision, and I cannot say whether my statement to him was an instruction or a request. That was my instruction, prepare a motivation, concrete and formal.”
During the
repetitive cross-examination the two distinct issues (the choice to apply for a
commission, and the instruction to accompany
any such application with a written
motivation) were intertwined and, as the next segment of the President’s
evidence demonstrates,
the cross-examination became confusing.
“Yes, but the way you put it now sounds like an instruction. — You can conclude what you like, Mr Maritz, but that is what I said. The task of putting labels is yours not mine.
But if the President of the country tells me prepare a motivation then I would certainly view that as an instruction and I would do it. — Well that is what you say. I do not know what difference it would have made whether it was an instruction or request because the minister has the choice. I can give him an instruction and he can refuse because the choice is his whether to apply for the setting up of a commission and I indicated to him my thought when he approached me.
And if [he] did not apply then obviously there would not [have been] a commission? — Well, I do not think so. I do not think I would have taken a decision, although it is in my power, but my practice has been that I must be guided by the minister in that department whether I should set up a commission or not.”
[98] This confusion persisted as the
cross-examination continued. Later the cross-examiner put to the President a
passage in the
Minister’s affidavit that the President “encouraged
me to apply for the appointment of a commission of inquiry if I deemed
it
appropriate.” The President was asked whether he had said this to the
Minister. The President expressed his irritation
at the continuation of this
questioning saying that if the Minister dealt with this issue in his affidavit,
that was his own affair,
but:
“All that I remember, to my recollection, is that I said I understand your position, give me a motivation. You say this phrase ‘if I deem it appropriate’. Now to me, it is unreasonable . . . It is unreasonable for me to have said it because when the man comes to me, a minister comes to me to say Mr President I want you to appoint a commission, it is because he deems it appropriate. Why would I say you apply for the appointment of a commission of enquiry if I deemed it appropriate. That is his own conception. I think that phrase is completely redundant. I do not know how I could have said a think [read “thing”] like that, but that is his affair.