Tag: court

First e-toll case heads to court

Source: MyBroadband, Netwerk24 

According to a report by Netwerk24, the first e-toll test case will be heard in the North Gauteng High Court in Pretoria.

The report states that the test case will involve the transport company Thandanani Packers & Hauliers, which owes R400 000 in e-toll bills.

The company has stated that it cannot afford e-tolls, and if they were forced to pay this money the business will need to close.

Outa said the case will focus on the overall legality of the e-tolls system and will be used for the main dispute of the overall “legality challenges” to the e-tolls system itself.

The legal team for the supporters of Outa wanted Sanral to suspend enforcement of all other e-toll legal claims against motorists, but Sanral’s team would not agree to this.

“Sanral’s lawyers said a general stay could not be agreed whilst road users were being encouraged not to pay e-tolls,” Outa said.

Sanral added that it would continue to issue a significant number of summonses and proceed with e-toll claims.

Police take IT supplier to court

By Angelique Serrao for News24

The battle between the police and a supplier that switched off access to critical IT systems last week has hit the courts.

Last week, Forensic Data Analysts (FDA), a police supplier which has been accused of corruption, threatened to suspend the police’s Property Control and Exhibit Management (PCEM) and Firearm Permit System (FPS), unless the police and the State Information Technology Agency (SITA) pay them.

The company, run by businessman Keith Keating, claimed SITA had not paid them for five months for their services.

The two systems – as well as a system called the VA-Amis proprietary solution – supplied by Keating’s other company Investigative Software Solutions (ISS) – were all switched off, leaving the police’s capacity to handle forensic evidence, firearm controls and their ability to do in-depth investigations stranded.

Police responded publicly to FDA by saying that it was coming up with contingency solutions.

Behind the scenes, in a letter seen by News24, attorneys for the SAPS and SITA wrote to FDA and ISS saying that, in barring the police from accessing the three systems, the companies were acting unlawfully.

They went into detail about each of the three systems and their functions, and stated why they believed FDA could not block them from accessing them.

FPS, they said, was initiated in 2006 to perform critical functions of marking, identifying, issuing and tracking its firearms. It also enables the storage of information regarding the ballistic characteristics of the firearms.

The letter said SAPS was granted a permanent, non-expiring licence to use the FPS and to make sufficient copies for backup purposes. SAPS paid a once-off licence fee of R11.6-million and this meant that, by stopping the police from using the system, the FDA was acting unlawfully, the letter stated.

The PCEM system is used to log evidence and track it throughout the process, ensuring the chain of evidence is not broken.

Lawyers representing SAPS said in the letter that SAPS access to the PCEM system was governed by a written agreement concluded between the police and Unysis Africa in 2010.

“In exchange for the PCEM licence, SAPS was required to pay a once-off licence fee of R35 910 000,” the letter said.

“Notwithstanding, the fact that SAPS paid the full licence fee to Unysis under the PCEM Licence Agreement, FDA has with effect from 5 April 2018, unlawfully prevented SAPS and/or any of its members from accessing the PCEM system.”

The VA-Amis contract, SAPS said, was governed by a written agreement between SITA and ISS concluded in June 2017.

In exchange for the licence and performance of the VA-Amis services, SITA was required to remunerate ISS in the form of service fees which could not exceed R80 954 179, the letter said. This full amount was paid to ISS the SAPS lawyers said.

Police and SITA then threatened to go to court on an urgent basis if the systems were not turned on.

News24 understands that the police were set to approach the North Gauteng High Court in Pretoria earlier this week on an urgent basis, but the application was halted after the systems were restored.

The case is set to be heard on Thursday instead.

The State wants the companies to restore the police’s possession of, access to and use of the intellectual property for the three systems.

Keating told News24 that FDA was served with an urgent application on Monday afternoon to restore all the services “due to the fact that SITA and SAPS now suddenly admit that the services are mission critical and of national importance”.

Keating said they agreed to switch on VA-Amis, but “due to SITA legal now playing games around the terms of switching back on, this has still not occurred”.

SITA and SAPS re-established the services for FPS and PCEM illegally, Keating said.

He said that FDA would approach the court on an urgent basis.

Judge President Dunstan Mlambo says none of the grounds of review of former Public Protector Thuli Madonsela’s State of Capture report have any merit and President Jacob Zuma is not entitled to the review he seeks.

Zuma had applied to the High Court for the State of Capture report to be reviewed and set aside.

Mlambo says the president was ill-advised and reckless to launch this review, adding that his court challenges had delayed resolution of state capture allegations.

Earlier on Wednesday found that the Public Protector does have the power to instruct the president to exercise executive authority.

This means the remedial action instructing Zuma to appoint a state capture commission of enquiry – led by a judge appointed by the chief justice – was lawful.

The court further held that the Public Protector’s powers are wide.

It also ruled that Zuma will have to foot the legal bill for trying to halt the state capture report.

Zuma has been dealt a second legal blow with the High Court dismissing his application to set aside the public protector’s state of capture remedial action.

The president has also been ordered to establish a commission of enquiry led by a judge chosen by the chief justice within 30 days.

The full bench in Pretoria rejected every ground of Zuma’s argument for review.

He was also ordered to personally pick up the costs of this application as he was ordered to pay the costs of an earlier application which was dismissed on Wednesday.

In the nearly two-hour judgment, Mlambo rejected each and every one of President Zuma’s grounds of review.

“None of the grounds of review has any merits and the president is not entitled to the relief that he seeks. The remedial action taken by the Public Protector is lawful, appropriate and reasonable and rational.”

He says Zuma’s statement to Parliament that he intended to establish a Commission of Enquiry undermined any basis to challenge the remedial action.

“The review application was a clear nonstarter and the president was seriously reckless in pursuing it as he has done. His conduct falls far short of the high standard expressed in Section 195 of the Constitution.”

The president has been ordered to establish the commission of enquiry, and fully support the judge appointed by the chief justice.

Rule of law upheld

Former Public Protector Thuli Madonsela has given her first reaction to Wednesday’s judgment.

She says it upholds the rule of law and enforces accountability.

“The essence of this judgement is the rule of law… justice and as Judge President Mlambo said, it’s really about restating and reinforcing the rule of law.”

Madonsela was also asked about how the ANC should have responded to reports of state capture.

“I expected nothing from the governing party, given the fact that we govern through indirect democracy because of proportional representation. I believe that the governing party should’ve ensured that this matter is investigated.”

Victory of accountability

The Economic Freedom Fighters (EFF) has released a statement in response to Mlambo’s ruling.

The EFF welcomes the judgement of the North Gauteng High Court that Zuma must personally pay the legal costs in the case.

“We welcome this damning judgment as a victory of accountability because many public representatives use public resources to defend personal interests and not those of the state or the public.”

The EFF says Zuma is one individual who has used taxpayers’ money to defend personal wrongdoing.

He has engaged in expensive litigation not to defend public interest or even state interest, but a persona, the opposition party said.

“We call on Zuma to immediately comply with the directive of the court and personally pay all the costs of the litigation. He must waste no time and no single taxpayers’ cent to appeal a clear and cogent judgment.”

Read the whole State of Capture report here.

By Barry Bateman for EWN 

Hapless Public Protector loses SARB ruling

The legitimacy of the Public Protector’s office and her reputation may be damaged if she takes a dismissive or procedurally unfair approach as she has done in the matter regarding the South African Reserve Bank (SARB), Judge John Murphy said.

The judgment, delivered on Tuesday by Justice Cynthia Pretorius on behalf of Murphy, sets aside Public Protector Busisiwe Mkhwebane’s remedial action.

According to a report issued by the Public Protector’s office in June, which was based on an investigation into the apartheid-era Bankorp bailout, Mkhwebane ordered that the Reserve Bank’s constitutional mandate to protect the currency be changed instead to ensure the socio-economic well-being of citizens and the achievement of socio-economic transformation.
Mkhwebane also ordered the Reserve Bank and the chairperson of the portfolio committee on justice and correctional services to submit an action plan before August 18. This has also been set aside.

In his judgment, Murphy said that it is “disconcerting” that Mkhwebane seems “impervious” or “disinclined” to address criticism of her conduct during the investigation.

Murphy acknowledged that the Public Protector has a difficult task and is expected to deal with complex and challenging maters with limited resources and without the “benefit of rigorous forensic techniques”. This would make it easy to make errors in informal alternative dispute resolution processes.

But Murphy added that the Public Protector is the “constitutionally appointed custodian” of legality and due process in the public administration. “She risks the charge of hypocrisy and incompetence if she does not hold herself to an equal or higher standard than that to which she holds those subject to her writ,” he said.

“A dismissive and procedurally unfair approach by the Public Protector to important matters placed before her by prominent role players in the affairs of state will tarnish her reputation and damage the legitimacy of the office.”

Murphy said the Public Protector should reflect “more deeply” on her conduct during this particular investigation, and she should consider the criticism made by the SARB and Parliament.

Professor Jannie Rossouw, head of the Wits School of Economic and Business Science, said that if the matter had gone any other way, it would have been a “constitutional crisis”. “From that perspective it is a very positive judgment,” he said.

‘Maybe she should just resign’

The judgment also raises questions on whether Mkhwebane is fit to hold office, he said. “Maybe she should do the honourable thing and just resign.”

Econometrix chief economist Dr Azar Jammine said the ruling may have damaged the image of the Public Protector, and that some may argue that her days are numbered. He said the ruling showed the strength of South Africa’s institutions and the judiciary.

A different judgment would not have been viewed favourably by ratings agencies, he said.

By Lameez Omarjee for News24

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