Ben Winks, an independent constitutional consultant, said there had been widespread examples of government opposing valid lawsuits and that the state had a “hopeless record” in embarking on appeals.
“The problem is that the state attorney doesn’t consider its job to be legal advice; they take instructions from the executive. So the state attorney will spend the state’s time and money presenting that case, even if it lacks legal merit.
Read MoreThe recently gazetted draft International Arbitration Bill will finally see SA adopting the Model Law on International Commercial Arbitration, developed 30 years ago by the UN Commission on International Trade Law (Uncitral). This is a long overdue first step into the modern world of commercial dispute settlement.
Read MoreBen speaks to Stephen Grootes on the Midday Report about the legal implications of President Zuma's Nkandla home being declared a National Key Point before R246 million of public money was spent on upgrading it.
Read MoreWHEN President Jacob Zuma arrived in Abuja last month, for what Parliament termed a "rapprochement" between Africa’s two largest economies, many hoped he might tackle the growing apprehension that Nigeria is no longer hospitable towards South African investments.
But the visit raises a bigger question: can South African companies count on their government to protect their best interests abroad?
As the parliamentary committee on trade and industry resumes its analysis of the Promotion and Protection of Investment Bill on Tuesday, it is important to interrogate the rationale behind the legislation. A sober inquiry reveals a costly misstep by the Department of Trade and Industry in its treatment of SA’s bilateral investment treaties (BITs), which the bill is supposed to replace.
Read MoreAs we waited for Oscar Pistorius to be freed from prison on parole last week, many among us felt that he had not served enough time for the senseless killing of Reeva Steenkamp. It is difficult to articulate this subtle unease - an intuitive sense that there has been a mistake, a mismatch between crime and punishment. Yet this sense seems to be so widely shared (including, it seems, by the minister of justice, who suspended the parole approval at the eleventh hour) that it can hardly be dismissed as primitive vengeance.
And it isn’t.
Read MoreThe conflicting official reports on the R246-million security upgrade at President Jacob Zuma’s private home in Nkandla, in all their disorienting secrecy and semantic manoeuvring, have left South Africans more confused and frustrated than ever. The political debate now revolves around one obvious question: was any of this money spent on non-security comforts?
Read MorePOLICE Minister Nathi Nhleko did more than raise the collective eyebrows of the global investment community recently, when he warned that SA "intends to withdraw from its commitments" under its international trade and investment treaties in order to enact a bill that would effectively indigenise the ownership of SA’s private security industry.
Read MoreThis week the Constitutional Court overturned an electoral court finding that the Democratic Alliance had violated the Electoral Act and code of conduct by publishing “false information” intended to influence the outcome of the elections last year.
In our view, in so doing, the court has blurred the established boundary between “comments” and “statements of fact”, which was needed to ensure that the electorate, while exposed to robust democratic debates, remains reliably informed about the facts underlying them.
Read MoreFormer President Thabo Mbeki declared in last week’s Mail & Guardian that he and his successors “owe and will make no apology to anybody whatsoever” for vigorously resisting the disclosure of the report given to him by senior Judges Sisi Khampepe and Dikgang Moseneke, which concluded that Zimbabwe’s 2002 presidential elections “cannot be considered to be free and fair”. Yet Mbeki delivers a rebuke in the dead language of state authority, rather than a reasoned response in our own budding dialect of state accountability.
Read MoreBen Winks, on behalf of the political parties, welcomed the ruling: "Given that (Ms Tlakula) is the head of a vital constitutional institution, who refused to step down or step aside in the national interest, this court process was necessary to protect the credibility, integrity, impartiality and independence of the Electoral Commission," Mr Winks said.
Read MorePublic protector Thuli Madonsela barely concluded her four-hour press conference on the outcome of her investigation into Nkandla, when Lindiwe Mazibuko stapled the full 400-page report, "Secure in Comfort", to the back of a seemingly pre-drafted motion to impeach the president.
In her haste, she might not have noticed that, although the report does conclude that President Jacob Zuma benefited improperly from state spending on personal amenities, including an amphitheatre and swimming pool, and that Zuma misled Parliament when he denied this, it does not include the word "wilfully".
Read MoreConvictions for criminal defamation have been rare in South Africa over the past century, and rarer still since the advent of our democratic dispensation in which freedom of expression is entrenched as a constitutional right. Nevertheless, Motsepe’s conviction and sentence, currently being appealed in the Johannesburg High Court, raise the chilling spectre of freedom of speech – and press freedom in particular – being inhibited and intimidated by the might of the state.
Read MoreIn response to revelations over the past few months that more than R200-million of public funds would be spent on security upgrades to the private residence of President Jacob Zuma at Nkandla, many South Africans have indeed demanded justification. In a country blighted by the apartheid legacies of inequality, indignity and deprivation, the reasons for the state spending such a staggering sum on one home are clearly of profound public interest.
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