This is Episode 13. If you wish to read from the beginning, the posts are placed in reverse order here.
Written by Niki Moore, edited by Gudrun Kaiser ….. and you are probably thinking – Oh NO, not an episode that starts with a poem! But stay with me here. Our epistle today deals with the strange world of the Durban High Court and the helpless inevitability of bad legal advice.
You cannot hope to bribe or fudge,
(thank God!) the Saffer legal judge
But, seeing what the man will do
unbribed, there’s no reason to.
With apologies to Humbert Wolfe (British poet)
Our court case, when it finally happened after a breathless wait of close to four years, was a damp squib. In fact, it was less than a damp squib – it was not even a moist spot on the upholstery and a guilty-looking dog. It was not even a whimper.
The only whimper came from me, when I realised – during the court proceedings – that a miscarriage of justice was steaming ahead, pulled by a locomotive of bad legal advice, heading downhill on a track to a broken bridge over a waterfall, and there was nothing I could do to stop it.
While I am not suggesting for a moment that the judge was bribed or influenced in any way, there were certain things about this court hearing that were … well, odd.
The signs, even before the time, were ominous.
The judge on that day was Johan Ploos van Amstel, a large man with an extra helping of nose. It was disquieting to be told that, before he became a judge, his best client had been the eThekwini Municipality.
Activist Emma Kelly and environmentalist Laura Taylor were the only people with me in court. We sat on the hard cold bench feeling conspicuous and uneasy, especially when the judge came in, sat down, and looked at us as if to say: “It’s been a bad day, and now there’s YOU.”
While he was full of smiles and nods for the city’s counsel, the looks he directed at us would have kept meat frozen for a year. His questions to us were stern and impatient. We realised, very early on, that our case – which for us had been a four-year pre-occupation – was merely an irritation that stood between him and his lunch.
He demolished us in less than twenty minutes. Our application was, legally, too late. A Promotion of Justice Act application needed to be brought within 180 days, which had long elapsed. This was true and unarguable. And that was the end of it. We had lost.
This was when the city’s counsel, who had a face like a toothache, decided to move in for the kill. He had clearly been given strict instructions to make us pay. In a sudden attack of virtue, the city’s representative intoned piously that it would be unfair to burden the city’s ratepayers with these legal costs (conveniently overlooking the average R2.3 billion that the city routinely devotes to Wasteful and Irregular Expenditure).
Just in case the judge missed the point, the city’s representative made a special request to submit supplementary papers to ram home the message: we had dared to storm the ramparts of corruption in City Hall with an arsenal of blunderbusses and wet gunpowder, and we must suffer the consequences.
As I sat there in the gallery, I felt a real disquiet. Malice cascaded off this man like dandruff. Our case had been a civic class action in the public interest, and there were several legal precedents – even with a ham-fisted case like ours – where citizens trying to work for the public good would not be burdened with a cost order. I had taken on the risk of the costs, it was my sweetbreads on the chopping block, and I knew that no legal person gets out of bed for less than a couple of thousand rand an hour, but I had not counted on a thirst for revenge.
And so our case ended and judgment was reserved.
Later I read the reasons for his judgment with a feeling of disbelief. I was prepared to accept that we had lost on a technicality, and in my opinion he should have left it there. But the judge said that our case would have ‘failed on its merits’ anyway.
In our application, we had claimed that the city had acted unprocedurally, which had deprived us of our legal prerogative to participate in local government. The city, in the person of Head of Disaster Management Vincent Ngubane, had first written a letter to MTN telling them they did not have to obey the law, and then – a year later – he changed his mind and told them that in fact they did. So, according to the judge, the city had acted properly and procedurally.
But … and I would like to put my finger on a major geopolitical flaw here: the masts had indeed been built without any permissions. If the city had acted procedurally, how could the illegal masts have been built in the first place? If the rules had been followed, as the judge said they had been, there could never have been a ‘misalignment of objectives’ which was the wonderfully abstruse excuse given by MTN.
The fact that keeps shuffling to the centre of the room is this: a massive infrastructure project worth more than R40 million rand takes place in a major metropole over several years – and the only official record of this project is two short letters. And according to the judge, this is OK?
Let’s put it another way, with a rather stretched analogy.
1. Let’s say MTN goes to Vincent Ngubane and tells him they would like to murder someone.
2. ‘Sure,” says Vincent, and gives them a letter telling them that murder is OK.
3. The victim is murdered, and the public gets up on their hind legs and complains.
4. “Oops,” says Vincent. “I made a mistake. Murder is not OK. Here is a letter to that effect.”
5. “Oh dear,” says MTN. “We didn’t commit murder then. It was a ‘misalignment of objectives’.”
But – and here lies the rub … the VICTIM IS STILL DEAD. The presence of a mutilated corpse is a fairly emphatic confirmation that some form of irregular activity did, in fact, take place.
So – to relate to our case … Ngubane told MTN they could break the law. Then, a year later, he tells them they can’t break the law. But they still go ahead and break the law … with Vincent’s unofficial permission. apparently?
Confusing, you think? But stay with me. There is another very important element here. It’s complicated, but effectively explains how the city and MTN thought they could get away with it:
First off, MTN seals a private deal with Vincent Ngubane that they will build a few hundred cell masts across Durban without plans or permissions (the famous ‘infrastructure-sharing arrangement’) and then hand these masts over to his department. At the same time, they undertake formal boilerplate Lease Agreements (such as those concluded with all cellular service providers) with Vincent Ngubane to rent the land from the municipality and put up their own cell masts. These will be their property and they will pay rent for the use of the land. So there are two parallel processes going on here. And the crux of the matter is, and this is what was so darned difficult to convey in court papers, was that these two processes are MUTUALLY EXCLUSIVE.
According to Process No 1, MTN has built infrastructure as a lovely multi-million rand gift to the city, gratefully accepted by one Mr Ngubane without consulting anyone else.
According to Process No 2, MTN has undertaken a very standard Lease Agreement with the city to use municipal sites to put up their masts, but has gone ahead and put them up without complying with the conditions of the lease.
This then becomes a real Schrödinger’s Cat conundrum: the masts belong interchangeably to either the city or MTN ……. at the same time.
When nuisance residents (like me) point out that the Lease Agreement was contravened, the city says it is because of the ‘infrastructure-sharing arrangement’. But when those same nuisances (like me) ask for a record of this ‘infrastructure-sharing arrangement’, the city produces the Lease Agreement like a rabbit out of a hat. And so the circular argument goes on.
The greatest irony here is that the City’s lawyers, in their heads of argument, actually conceded that the masts were illegal. But, as the chorus went: “It wasn’t me”….. how, they say, can the city be held responsible for an illegal project right under their noses?
It is very likely that there was something lacking in our court papers that allowed Judge Ploos van Amstel to miss this point entirely. The resounding lack of information from the city meant that we ourselves took years to figure this out. This entire issue had been deliberately confused, contradicted and counter-contradicted in order to create mental fatigue.
So if this is making your head spin, that is exactly the point. Corruption thrives on claiming that black is just another shade of grey, that white is the absence of black, that guilt is just misunderstood innocence, that something clear is actually murky and ambiguous.
So where to now?
Our original group had been whittled down, through sheer exhaustion, to just me. I was the one who would get it in the neck. MTN and Vincent Ngubane had got away with it.
However, it is not in my nature to give up when there is injustice and wrongdoing. No matter how trivial it must seem to those not involved, my feeling was that getting to the root of this particular MTN and Ngubane corruption might be the tiny thread that unravels the whole jumper. Sensible people might point out that when one is in a hole, one should really stop digging. But hey – how else will you get to China?
I felt like the person who, while facing the firing squad, points out helpfully that the safety catches are on.
The fight had to continue.
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Disclaimer: The opinions expressed in this series of articles are purely those of the writer, they are not endorsed by Safrea or any of its members.
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