Constitutional Hill

SCA provides clarity on the legal effect of Public Protector findings

It is not easy to engage in a clear-eyed and unemotional discussion of any court judgment that deals with the legal status of the findings and remedial action issued by the office of the Public Protector. It may therefore be of some value to try and provide a fair-minded and even-handed legal analysis of the reasoning of the Supreme Court of Appeal (SCA) in the case of South African Broadcasting Corporation and Others v Democratic Alliance and Others, in which the SCA offered helpful guidance on the legal effect of the findings of the Public Protector in our constitutional democracy.

If you strip away the political considerations and hone in the essential legal question regarding the legal status of the findings and remedial action imposed by the Public Protector, you are confronted with an interesting legal question.

The question is this: what is the legal status of the findings and remedial action imposed by the Public Protector? Are they similar to court judgments (something that is difficult to accept because the Public Protector is not a judge and does not operate as a court of law)? Are they mere recommendations (also difficult to accept because it would destroy the effectiveness of her office)? Or are they binding in the similar way that decisions of administrative bodies are binding (the option preferred by the SCA in the SABC judgment)?

The reason why it is so important to answer this legal question goes far beyond the question of whether President Jacob Zuma is legally required to pay back a reasonable amount of the cost of the non-security related upgrades at Nkandla “as determined with the assistance of the National Treasury”. If the findings and remedial actions of the Public Protector are not at all binding it would allow those found guilty of maladministration, unethical or improper conduct or corruption, to become judges in their own cause. In effect, the guilty would be granted the power to absolve themselves of guilt, turning the Public Protector into a toothless old tiger locked up in a zoo.

As the SCA pointed out the question of “who will guard the guards themselves?” is not a new one. When a person or body is granted the right to exercise public power, the temptation will always arise to abuse that power. In modern constitutional states it has become widely accepted that in order to ensure governmental accountability, it is necessary for the guards to require a guard. If the guardians are not guarded themselves, they will be tempted to abuse their power. “And in terms of our constitutional scheme, it is the Public Protector who guards the guards”.

It is for this reason that section 181(2) of the Constitution establishes the Public Protector as an independent body “subject only to the Constitution and the law”. The section also commands the Public Protector to be impartial and to exercise her powers and perform her functions “without fear, favour or prejudice”. Although section 181(5) states that the Public Protector is accountable to the National Assembly, the Public Protector is not part of the government and is not an organ of state. Nor is it “subject to national executive control.” Quoting from an earlier Constitutional Court judgment the SCA noted that:

This implies the ability to have access to funds reasonably required to enable the Commission to discharge the functions it is obliged to perform under the Constitution and the Electoral Commission Act. This does not mean that it can set its own budget. Parliament does that. What it does mean, however, is that Parliament must consider what is reasonably required by the Commission and deal with requests for funding rationally, in the light of other national interests. It is for Parliament, and not the Executive arm of Government, to provide for funding reasonably sufficient to enable the Commission to carry out its constitutional mandate. The Commission must, accordingly, be afforded an adequate opportunity to defend its budgetary requirements before Parliament or its relevant committees.

Moreover, because the Public Protector is administratively independent there can be no control over those matters directly connected with the functions which the Public Protector must perform. Because another body cannot have any control over the functions performed by the Public Protector it is not permissible for another body or person to establish “a parallel process to that already undertaken by the Public Protector and to thereafter assert privilege in respect thereof”. Such a parallel process would, in effect, compromise the independence of the Public Protector. As the SCA explained:

If indeed it was aggrieved by any aspect of the Public Protector’s report, its remedy was to challenge that by way of a review [in the courts]. It was not for it to set up a parallel process and then to adopt the stance that it preferred the outcome of that process and was thus free to ignore that of the Public Protector.

The SCA further made the obvious point that the Public Protector was plainly better suited to determine issues of maladministration within a body or by a person, than the body or person being investigated would be. While the Public Protector is independent and impartial, any other person or body tasked to investigate the same matter which the Public Protector has investigated and had made findings about, will not be independent and impartial – at least not to the same extent as the Public Protector. This is why the findings and remedial action of the Public Protector “cannot simply be displaced” by an internal investigation conducted by the very body that was investigated (or by any other body or person).

If this is correct, the question arises whether the body or person implicated in wrongdoing by the Public Protector and which she ordered to take remedial action can nevertheless ignore the findings and remedial action of the Public Protector? Clearly, if the findings and remedial action are reviewed and set aside by a court of law, they can be ignored. But what if they are not challenged in a court? Can these findings and remedial action nevertheless be ignored on the basis that the Public Protector is not a judge and that her findings do not have the same status as a court judgment?

Answering this question by agreeing that the findings are far more than mere recommendations, the the SCA advanced several interesting arguments.

First, the SCA pointed out that there was a significant difference between the language used in the interim Constitution regarding the powers of the Public Protector and the language used in the final Constitution.

Instead of empowering the Public Protector to ‘endeavour’ to resolve a dispute, or ‘rectify any act or omission’ by simply ‘advising’ a complainant of an appropriate remedy as under the Interim Constitution, the Final Constitution empowers the Public Protector to ‘take appropriate remedial action’.

This means that the powers conferred on the Public Protector in terms of s 182(1)(c) of the Final Constitution “far exceeded those of similar institutions in comparable jurisdictions”. These powers can be augmented by the legislature as it is empowered to grant “additional” powers to the Public Protector, but these powers remain original powers over and above any additional powers that may be granted by the legislature.

Second, the SCA noted that it would be problematic to assume the findings and remedial action of the Public Protector are mere recommendations which the wrongdoer can either accept or reject.

Our Constitution sets high standards for the exercise of public power by State institutions and officials. However, those standards are not always lived up to, and it would be naïve to assume that organs of State and public officials, found by the Public Protector to have been guilty of corruption and malfeasance in public office, will meekly accept her findings and implement her remedial measures. That is not how guilty bureaucrats in society generally respond. The objective of policing State officials to guard against corruption and malfeasance in public office forms part of the constitutional imperative to combat corruption.

Third, the SCA pointed out that the High Court argument that the findings and remedial action of the Public Protector were mere recommendations “appears to be more consistent with the language of the Interim Constitution”. It thus criticised the High Court judgment, pointing out that the manner in which it conceived of the powers of the Public Protector:

is neither fitting nor effective, denudes the office of the Public Protector of any meaningful content, and defeats its purpose. The effect of the High Court’s judgment is that, if the organ of State or State official concerned simply ignores the Public Protector’s remedial measures, it would fall to a private litigant or the Public Protector herself to institute court proceedings to vindicate her office. Before us, all the parties were agreed that a useful metaphor for the Public Protector was that of a watchdog. As is evident from what is set out above, this watchdog should not be muzzled.

Lastly, the SCA answered the argument that the Public Protector is not a judge and that her findings and remedial action can therefore not be binding and enforceable in the same manner than a court order, by noting that “a court is an inaccurate comparator” to use when we consider the powers of the Public Protector. Instead, it is more appropriate to think of her findings and remedial action as similar to decisions of administrative bodies. It is well settled in our law that until such decisions are set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.

It suffices for present purposes to state that if such a principle finds application to the decisions of an administrative functionary then, given the unique position that the Public Protector occupies in our constitutional order, it must apply with at least equal or perhaps even greater force to the decisions finally arrived at by that institution. After all, the rationale for the principle in the administrative law context (namely, that the proper functioning of a modern State would be considerably compromised if an administrative act could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question), would at least apply as much to the institution of the Public Protector and to the conclusions contained in her published reports.

The SCA thus found a middle way between the argument that the finding and remedial action of the Public Protector is akin to court orders and the argument that they are mere recommendations. Like a decision to award a tender, to grant a permit, or to issue a licence, the decisions (both findings and remedial action) of the Public Protector have clear legal consequences.

These findings and remedial action are not recommendations that can be ignored or set aside by invoking the opinion of another person or body. They create legal obligations which have to be fulfilled – unless, of course, a court reviews and sets aside these findings and remedial action. This implies that Parliament does not have the power to replace the findings and remedial action of the Public Protector or to absolve the person directed to take remedial action from doing so.

Whatever you may think of the judgment (and I suspect how you view the judgment will greatly be influenced by how you feel about the Nkandla matter), it is impossible to deny that the SCA found a clever and elegant answer to a difficult legal problem. It acknowledged that the Public Protector is not a judge and that her findings and remedial action should not be compared to court orders, while at the same time finding a way of ensuring that one of our most important constitutional watchdogs are not muzzled by insisting that the findings and remedial actions of the Public Protector are mere recommendations.

As the legal question of whether the finding and remedial action of the Public Protector are binding and if so how, is a constitutional matter and as the Constitutional Court will consider the matter in a different case in February, the SCA judgment is not the last word on the matter. However, until such time as the Constitutional Court finally put this legal matter to rest, the SCA judgment sets a binding precedent. This means that for the time being, it is not legally permissible for any person or body to ignore the findings or remedial action imposed by the Public Protector.

Why King Dalindyebo is not above the law

Last week the Supreme Court of Appeal (SCA) confirmed a High Court judgment that King Buyelekhaya Dalindyebo is guilty of arson, kidnapping and defeating the ends of justice. The court did set aside the High Court conviction of Dalindyebo for culpable homicide and reduced his effective sentence from 15 to 12 years imprisonment. The king has said that he will appeal to the Constitutional Court. But this appeal is not likely to succeed. Here is why.


The role of traditional leaders in a post-apartheid South Africa was one of the thorniest issues to be decided during the constitutional negotiations. At the time there was some disagreement between members of the African National Congress (ANC) about the extent to which the status and role of traditional leaders had to be accommodated in a democratic dispensation.

It is perhaps for this reason that the provisions in the Constitution dealing with the recognition of traditional leaders are weak and somewhat vague. Section 211 of the Constitution states that:

The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.

The section further states that it is permissible (but not required) to allow a traditional authority that observes a system of customary law to function. The courts are also enjoined to apply such customary law when it is applicable “subject to the Constitution and any legislation that specifically deals with customary law”.

This means that traditional leaders – like all other South Africans – are subject to the Constitution and the law. Where a community observes customary law and the customary law is in breach of any section of the Constitution the customary law must be developed (either by the community or by the courts) to ensure that it conforms to the other provisions in the Constitution.

In this sense customary law is no different from the common law – which in effect used to be the customary law of the colonisers. The Constitutional Court has also confirmed that customary law has equal status with common law, but – like the common law – customary law must comply with the other provisions in the Constitution.

Section 1 of the Constitution affirms that South Africa is a sovereign, democratic, state founded, amongst others, on the rule of law and on a multi-party system of democratic government.

A basic tenet of the rule of law is that everyone is subject to the same law and that no one is above the law because of his or her position or status. This necessarily means that traditional leaders, including kings, are subject to the Constitution and the law (including the criminal law) in exactly the same manner than any other person.

It also means that no legislative provision or any customary rule can grant powers to a traditional leader that would in any way limit the democratic rights of any citizens. The Constitution thus provides very little scope for the recognition of the institution, status and role of traditional leadership, as any such recognition will have to be aligned with the democratic principles that are part of the founding values in the Constitution.

It is for this reason that the SCA rejected the argument advanced on behalf of the king that he had acted in the best interest of his people when he committed his crimes and that he was merely seeking to protect them from outside influences and upholding customary law. The SCA rightly calls this an “astonishing submission” pointing out that contrary to the kings claim the living customary law demanded that a king acts “compassionately with due regard to the dignity of his subjects”.

But even if there was a customary law rule that allowed the king to act as prosecutor and as judge and to punish his “subjects”, such a rule would be unconstitutional as it would usurp the power of the courts and breach the separation of powers doctrine.

Be that as it may, the SCA confirmed that our constitutional order does not tolerate the kind of criminal conduct engaged in by the king and continued:

The lesson that cannot be emphasised enough is that persons in positions of authority such as the [king] are obliged to act within the limits imposed by the law and that no one is above the law. The Constitution guarantees equal treatment under the law. The [king] behaved shamefully and abused his position as king.

This he did by acting in a “tyrannical and despotic” manner, setting fire to the houses, crops and livestock of subsistence farmers living within his jurisdiction, kidnapping the wife and children of a subject he considered to be a dissident in order to bend the latter to his will, and then delivered the body of a subject, killed by his supporters, to a bereaved father, ordering the latter not to even consider reporting the truth concerning the circumstances of his death to any authority and then fining the father of the deceased ten head of cattle because, so the King alleged, the son had brought shame to the kingdom.

It is unthinkable that the Constitutional Court will agree with the king that he was entitled by customary law to treat individuals in this manner because of his position as king. To do so would be to endorse the proposition advanced by the king that, in terms of customary law rules, he is above the law. Accepting the proposition would fly in the face of the most important promises of the Constitution – that all are equal before the law and that the inherent dignity of everyone should count equally in our democracy.

A more plausible argument advanced by the king is that he should be acquitted because his trial was unfair. This the king contended because his trial had commenced approximately 8 years after the events on which his convictions were based, breaching his constitutional right to a speedy trial in terms of section 35(3) of the Constitution.

The SCA rejected this argument. The SCA pointed out that the Constitutional Court had previously stated that a speedy trial was important because an accused person’s right to be presumed innocent by the court (but of course not by the public) could be jeopardised. The Constitutional Court explained however that one should look at all the facts to determine whether the trial occurred within a reasonable time. To determine whether the fair trial rights of an accused had been affected one must apply:

a ‘balancing test’ in which the conduct of both the prosecution and the accused are weighed and the following considerations examined: the length of the delay; the reason the Government assigns to justify the delay; the accused’s assertion of his right to a speedy trial; and prejudice to the accused.

In applying this test our courts have also recognised that the administration of our criminal justice system, including law enforcement and correctional agencies, were under severe stress and that some delays in the completion of trials were not uncommon. The SCA further pointed out that in this case “[m]uch, if not all of” the delay in the trial was caused by king:

being obstructive and employing dubious means to thwart the administration of justice, including the intimidation of complainants. Having done all he could to avoid facing prosecution, the [king] attempted to turn his vice into a virtue.

The king’s “dilatory and obstructive behaviour continued after the commencement of his trial”. He employed successive and multiple legal representatives which further delayed proceedings. The SCA thus concluded that it was clear that the king:

had no interest in his trial being finalised. On the contrary, from the onset he attempted to avoid being prosecuted and thereafter focused on obstructing the finalisation of his trial. Insofar as his liberty is concerned, except for the briefest period of incarceration soon after the occurrence of the events in question, he has had the benefit of being freed on bail.

There was also no discernible prejudice to the king regarding his fair trial rights. Witnesses were all extensively cross-examined and none of them appeared to have forgotten any of the events testified about. Moreover, even though threatening to call witnesses who, on his own and the State’s version of events, were crucial to his defence, for example his sister, he did not do so. There was therefore no unfair trial because of the delays.

Although there is, as always, a possibility that the Constitutional Court could find that the right to a speedy trial had been infringed, this seems unlikely. This is partly because our courts are extremely reluctant to reward criminal defendants who abuse the court process to delay their trial – something the king clearly did.

The SCA also rejected the argument that the king’s right to a fair trial was infringed because he was incompetently represented by his lawyers. The king employed no fewer than 11 legal representatives (having fired or caused the withdrawal of subsequent legal representatives). As the SCA noted the king is “no shrinking violet” and was very much in charge of his defence. “He was not averse to dispensing with the services of a legal representative when he was unhappy with the manner in which his case was being conducted and on occasion for no apparent reason.” This ground of appeal is therefore also unlikely to succeed.

If the Constitutional Court rejects the king’s appeal as I suspect it would, the king will have to go to jail. It is not permissible for another chief to serve the jail term on behalf of the king – just as it is not permissible for one student to write another student’s exam.

If the king is sent to jail it would provide some consolation for the various victims of his crimes. It would also re-affirm the important constitutional principle that everyone – regardless of status – should be equal under the law and that no person is above the law.

This principle is not strictly enforced in all democracies (in some democracies, for example, a sitting president is immune from prosecution for as long as he or she is in office). But the drafters of our Constitution decided to have this principle strictly enforced to try and ensure that the lawlessness that occurred during apartheid is never repeated. After all, ours is a “never again” Constitution – something King Dalindyebo and his supporters have failed to grasp fully.

Why does the law allow marriage officers to discriminate against same-sex couples?

Earlier this year a United States federal judge jailed Kim Davis, a Kentucky county clerk, for refusing to issue same-sex marriage licenses. Davis was rightly held in contempt of court after the US Supreme Court legalised same-sex marriages across the US. Strangely, in South Africa section 6 of the Civil Union Act would have allowed Davis to continue to discriminate against same-sex couples by refusing to register same-sex marriages. The time has surely come to scrap this unconstitutional provision of the Civil Union Act.

In 2005 South Africa’s Constitutional Court held in Minister of Home Affairs v Fourie that the common law definition of marriage as between one man and one woman to the exclusion of all others (the common law differing from customary law in this regard) unfairly discriminated against same-sex couples on the basis of their sexual orientation. The court found that because the common law did not permit same-sex couples to get married and to enjoy the same status and benefits associated with marriage, it was necessary for Parliament to rectify the defect.

Probably in an attempt to accommodate the perceived homophobia among many South Africans, our government chose not to fix the problem in the obvious manner – by amending the Marriage Act to cover both different sex and same-sex couples. Instead the government tabled a version of the Civil Union Bill that would have granted same-sex couples the right to enter into “civil partnerships” – but not into “marriages” – in a supposedly “separate but equal” legal arrangement.

At the public hearings conducted by Parliament to consider this draft Bill, some of us pointed out that the draft Bill would not pass constitutional muster. This was so because the Bill did not grant same-sex couples who wished to formalise their unions the right to enter into a “marriage” and because the draft Bill created a separate law for the exclusive regulation of same-sex relationships. As there is obviously a difference in status between a “marriage” and a “civil partnership”, merely granting the right to enter into a “civil partnership” to same-sex couples while allowing only heterosexual couples to enter into a “marriage” would not have removed the unfair discrimination.

The Constitutional Court itself had made it clear that a so called “separate but equal” approach to recognising same-sex unions would be unconstitutional. Although the Court curiously suggested that it may be permissible for Parliament to adopt a separate law to accommodate the recognition of same-sex marriages (in the same way it had adopted a separate law to recognise customary marriages), it also stated that such a law would only pass constitutional muster if it did not imply “repudiation”, connote “distaste or inferiority” and perpetuate “a caste-like status” for members of the LGBTI community.

The Court added that:

this means that whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved. In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples.

Because it would obviously send the signal that same-sex couples are not equally worthy of concern and respect if their unions were called “civil partnerships” while the unions of different sex couples were called “marriages”, a law that did not grant same-sex couples the right to enter into a union that was called a “marriage” would not pass constitutional muster.

The Civil Union Bill was then amended to grant same-sex couples the right to enter into a union called a “marriage”. The Civil Union Act was also opened up to both same-sex and different sex couples in order to prevent sending the signal that the legislature wished to adopt a separate but unequal marriage regime.

At the time many of us celebrated this partial victory against discrimination. But although it was obviously untenable for the law to discriminate against same-sex couples, I am personally far from convinced that entering into a marriage is always a good idea.

Marriage is an inherently conservative institution. It pressurises couples into “performing” their relationship in stereotypical and restrictive ways. The institution is deeply implicated in the maintenance of patriarchy and often helps to perpetuate and to legitimise oppressive gender roles that marginalise and disadvantage women. Marriage is also by its very nature an exclusionary and divisive institution: it purports to bestow not only legal rights but also special status on married couples that are not bestowed on non-married couples, on people in multiple relationships or on single people.

Nevertheless, it remains a personal choice to get married or not and many people still choose to do so. Many, of course, also choose later to divorce. (Although, it must be said, these choices are not always available to individuals who are in relationships in which the partners do not have more or less equal power.)

However, it may remain far more difficult for same-sex couples to enter into a marriage than it does for different sex couples. This is partly because many same-sex couples who wish to get married will encounter resistance from family, colleagues and friends. Some parents of same-sex couples are dead-set against their children getting married because they are homophobic or because they fear of “coming out” as the parents of a gay, lesbian or bisexual child. (It is for this reason that some progressives argue that it is politically more acceptable for same-sex couples to get married than for heterosexuals to get married.)

But it is also more difficult for same-sex couples to get married because section 5 the Civil Union Act explicitly allows religious institutions not to solemnise same-sex marriages. Few same-sex couples are therefore ever going to get married in church. Moreover, section 6 allows marriage officers who work for the state and who object “on the ground of conscience, religion and belief” to same-sex marriage to refuse to solemnise same-sex marriages – just like Kim Davis did in Kentucky.

Section 6 is extraordinary in that it explicitly allows state officials unfairly to discriminate against individuals in contravention of section 9 of the Constitution. While the right to freedom of religion may arguably justify the inclusion of section 5 in the Civil Union Act in order to accommodate the prejudices of religious institutions, the same cannot be said for section 6.

After all it is unthinkable that the Marriage Act would contain a provision stating that any state marriage officer could refuse to solemnise a heterosexual marriage between individuals of different races on the ground of “conscience, religion and belief” – just because the marriage officer is a rabid racist. It is also unthinkable that the law would allow a state official from solemnising a marriage because of the religious beliefs of the couple concerned. Similarly, it is unthinkable that the law would allow a white Home Affairs official to refuse to serve black citizens at a Home Affairs office on the ground of that official’s racist beliefs.

Yet, this is exactly what section 6 allows marriage officers to do regarding the solemnisation of same-sex marriages.

Of course, it would seldom be permissible to force someone to act against his or her conscience, religion or belief. If your conscience, belief or religion commands you not to treat others with equal concern and respect because of their race, sex, religion or sexual orientation, you are free to resign your job and to withdraw from the public sphere to live according to your beliefs. But you do not have a right to work for the state and to have your prejudice endorsed by the state.

A state marriage officer who is opposed to same-sex marriage should not have the right to refuse to marry a same-sex couple as such an exception would endorse unfair discrimination by the state – something that is explicitly prohibited by section 9 of the Constitution. It is for this reason that a constitutional challenge to section 6 of the Civil Union Act would almost certainly be successful.

For some reason no one has as yet challenge this discriminatory provision. It is high time that somebody does.

No, turning off News24 comments is NOT a form of censorship

The decision by News24 to turn off the comments option on the majority of the articles published on its website elicited much criticism. One of the arguments advanced by those criticising the decision was that it amounted to censorship and infringed on their right to freedom of expression. But this criticism is based on a simplistic and erroneous view of freedom of expression. No court in South Africa will agree with this view. This why.

The right to freedom of expression is far more complicated and nuanced than many people would like to admit. There is an intuitive attraction to the argument that the right to free expression is absolute; the notion that “I will die defending your right to say whatever you wish no matter how offensive or destructive it may be”. It is for this reason that many people think they believe that it constitutes impermissible censorship whenever anyone makes it more difficult for anybody to have their opinion heard.

Of course, nobody actually believes this to be true – even when they think they do. We all engage in and support actions that limit the opportunity for others to have their opinions heard. Some of us go to court to get Mr Julius Malema to stop singing what we believe is the song called “Kill the Boer Kill the Farmer”. Others march to an art gallery to protest against a painting that shows the President with his penis hanging out. Others get very upset when they are called an idiot or a racist and demand a retraction.

When someone refuses to invite a colleague to her birthday party because she thinks the colleague is a crushing bore (admit it, all of us who work with others have such a colleague), she is denying her colleague the opportunity to bore her other guests with her inane chatter. When a publisher declines to publish the manuscript of a completely nutty and anti-Semitic conspiracy theorists who argues that the world is run by a Jewish money mafia, the publisher is denying that person the opportunity to have his views widely disseminated.

When a lecturer denies a student the opportunity to use the lecture time to canvass votes for her SRC election campaign he is limiting the opportunity of that student to have her views heard by the class. And when the owner of an art gallery declines to exhibit the paintings of an artist because the work depicts racist, sexist or homophobic stereotypes or because it is even more kitsch than the kitschiest painting ever produced by Vladimir Tretchikoff (see the illustration of The Dying Swan below), that gallery owner is limiting the opportunity of the artist to have his work viewed by (and sold to) the wider public.


Yet, I am not sure even the most ardent free speech activist will argue that the people in the examples referred to above are engaging in impermissible censorship and are infringing on the free speech rights of those who were denied the opportunity to communicate their views or artistic ideas to a wider audience.

There are two reasons for this.

The first is that when we judge whether the right to freedom of expression is being infringed or not, we take heed of the nature and extent of the limitation. The more drastic the limitation, the more likely we are to judge it constitutionally problematic. A law that prohibits certain forms of expression (and imposes a criminal sanction to enforce the prohibition) is far more likely to be judged to be an impermissible infringement of the right to freedom of expression than a decision by a private individual not to provide a boring colleague with a platform to natter on at a dinner party.

The more drastic the limitation on the freedom of an individual to impart and receive information, the more likely it will be judged to be an impermissible limitation on the right to freedom of expression

This is why a decision by News24 not automatically to allow people to comment on the articles published on its website can hardly be said to be a dramatic and unjustifiable infringement of anyone’s right to freedom of expression. There is no law that prohibits the public from creating their own Blogs to comment on the articles published on News24. We do not live in China either, which means the state does not block citizens from accessing Facebook and Twitter and any member of the public is therefore free to comment on News24 articles on these social media platforms.

Of course, the scaling down of the News24 comments section does have a marginal impact on freedom of expression in the sense that fewer people will probably comment on News24 stories and these comments will probably be read by fewer people. But given the fact that in an inherently unequal world it is in any event impossible for every person to have his or her opinions widely circulated, and given the fact that many of those who had access to the News24 comments section have other ways to express their opinions, the impact on freedom of expression can, at best, be said to be marginal and inconsequential.

Even when News24 allowed comments on most of its articles, only a small group of South Africans had the requisite resources (regular access to the internet; a passable command of English; time and energy; the outrage disdain and hatred seemingly required for the task) to comment on these articles.

Which alerts us to the fact that even in a country where there are very few legal limits on free expression, there is not ever a truly free flow of information as not all members of the public are equally free to have their voices heard or to access the views of others.

Moreover, almost all media outlets in South Africa (including the SABC) have an urban and middle class bias. This is not because members of the media get together late at night over glasses of cheap wine or bottles of Carling Black Label (although I am told they often do get together in this way) to conspire about how to censor or present the news. Instead, this occurs partly because media outlets need to make money and have limited resources to report the full spectrum of news and opinion. Additionally, every journalist brings his or her own life experiences, assumptions and concerns to the job, which influences which stories are reported and how these stories are reported.

A second reason why few people would be troubled by the limitations on freedom of expression I highlighted in the examples above, is that none of us value all forms of expression equally. I know of no person who values all forms of expression equally and believes that all forms of expression must be protected equally.

Here it is important to note that the South African Constitutional Court identified two important functions of the right to freedom of expression in a democracy. In South African National Defence Union v Minister of Defence and Another the court held that freedom of expression:

lies at the heart of a democracy.  It is valuable for many reasons, including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.

In other words, expression is especially valuable when it contributes to democratic dialogue and when it enriches an individual’s life by exposing him or her to information, ideas, art and entertainment that assist him or her to make meaningful life choices. (Sadly, far too few people realise the degree to which their lives will be enriched by reading novels.) The more likely the expression is to fulfil one of these functions, the more problematic it will be to discourage the production and consumption of these forms of expression.

Of course, reasonable people may well differ sharply about which forms of expression are more valuable and which less valuable and there will never be consensus about this in any free and diverse society – which is why it is only in extreme cases that it would be permissible for a democratic state to place an outright ban on any form of expression. However, no one could plausibly argue that all forms of expression are equally valuable and equally in need of protection.

For example, personally I do not think there is much value in works of art or novels that endorse and perpetuate racist, sexist and homophobic stereotypes. While I would not endorse a law that prohibits individual artists from producing such works of art, I would have no problem with a decision by an art gallery (or a University) not to acquire or display such works of art in its public spaces. After all, there is sometimes a huge difference between what one has a right to do (make art that perpetuates boring and obnoxious stereotypes) and what the right thing is to do (not to be a complete asshole).

I am sure some of the individuals who commented may disagree, but whenever I made the mistake of dipping into it I found the comments section on News24 of very little value. It seldom contained information or insights that would enrich the life of even a half-sane person by exposing him or her to provocative, brave, nuanced, intellectually challenging, strange or surprising opinions or analysis. Nor did it often enhance democratic dialogue by creating a space where people could argue in any meaningful way about South Africa’s political or economic future.

Instead, the News24 comments section provided a platform to a small group of embittered and angry (if only half-literate) racists, sexists, homophobes and bigots of every imaginable stripe to vomit a stream of invective onto the screen while being very pleased with themselves for doing it.

It is exactly because the limitation on free expression is so marginal and the value of the expression so slight, that no court will ever find that the decision not to allow comments on most News24 articles constituted an impermissible infringement on the right to freedom of expression.

Which does not mean that those whose life only had meaning because they could express their prejudices on News24’s website, are now silenced. Far from it. If they have no other option, they would at least be welcome to post comments on the Facebook page of Afrikaans “singer” Sunette Bridges, whose songs – ironically – are the audio equivalent of the worst Tretchikoff paintings.

To address wrongs of the past Stellenbosch language policy must change

In the now well-known Luister documentary several black students from the University of Stellenbosch speak about the alienation and disadvantage they experience because of the predominant use of Afrikaans as the language of instruction in certain lectures at the University. This raises the question of whether Afrikaans students have a constitutional right to be taught in their mother tongue at Stellenbosch or whether the University should move away from its “Afrikaans-first” multilingual language policy. Can one argue, as some do, that students have a “choice” to study elsewhere and should not complain when they are disadvantaged by the language policy at Stellenbosch?

I was a student at Stellenbosch University at a time when the University was more than 90% white, its language of instruction exclusively Afrikaans, its residence culture authoritarian and oppressive, and its management (needless to say) closely aligned with the racist state.

It was the era when President PW Botha served as the chancellor of the University (as all National Party leaders automatically did), despite the fact that he had never obtained a university degree. On a memorable occasion the Vice Chancellor summoned me to his office and, spitting and fuming with rage, threatened to expel me from the University because I had written a column for the student newspaper in which I had called PW Botha “a clown in a circus”.

Although this is not always readily apparent when you visit Stellenbosch today, I assume much has changed for the better since the time when I was a student there. However attempts to transform the institution – both in terms of its demographic make-up and its culture – have been hampered by its language policy.

Last year, in an attempt to square this circle, the University adopted a language policy that is strikingly vague. The policy states that “Afrikaans and English are applied in various usage configurations” at the University and that “[p]arallel medium teaching and real-time educational interpretation are used as preferred options where practically feasible and affordable”.

But the plan adopted by the University to give effect to the policy provides not only for real-time interpretation of lectures but also for teaching in both Afrikaans and English in the same lecture or for exclusively Afrikaans lectures where resources for multilingual presentation of a course are not available.

Some black students at Stellenbosch argue that this policy, in effect, discriminates against them because the interpretation service provided is often of a poor quality. Even when the interpretation is adequate something is invariably lost when you have to rely on a translator whispering into your ear.

Moreover, it is argued that the “Afrikaans-first” multilingual approach also creates an atmosphere in which black students are deliberately or inadvertently “Othered” and made to feel unwelcome because they cannot speak the language of those who belong to the dominant culture at the University. This “Othering” is exacerbated by direct or indirect forms of racism. This, so the argument goes, is partly why Stellenbosch is the University in South Africa with the lowest number of black African students.

Those who support the retention of Afrikaans as the default language of instruction in a multilingual environment at Stellenbosch often invoke section 29(2) of the Constitution and argue that mother tongue education is a human right guaranteed by the Constitution. However, section 29(2) does not guarantee an absolute right to mother tongue education for everyone at state sponsored educational institutions. Instead, the section states that everyone has the right to receive education in the official language of their choice only:

where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.

The Constitutional Court provided some guidance on the meaning of this section as it relates to schools in the case of Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another. Deputy Chief Justice Moseneke pointed out in this judgment that while the section “places an obvious premium on receiving education in a public school in a language of choice” that right is qualified.

Justice Moseneke pointed out that the choice to be taught in Afrikaans would only be available when it would be “reasonably practicable” to provide that option to learners. In determining what would be reasonable the specific context within which the determination is being made would be crucial. That context would include the history of racial discrimination and exploitation which allowed Stellenbosch to become one of the most highly regarded and well-funded institutions of higher learning in South Africa.

However, Justice Moseneke also noted that when a learner already enjoys the benefit of being taught in an official language of choice at a particular school the state would bear the duty not to take away or diminish the right “without appropriate justification”.

In the debate about the language of instruction at Stellenbosch University the essential question would therefore probably be whether there is an appropriate justification for moving away from the present approach that favours multilingualism with Afrikaans as the default language of instruction.

It would probably be possible for the state to show that it had an appropriate justification for diminishing the rights of the privileged language group (Afrikaans) if it could show that this was fair in the context and was necessary to satisfy the need to remedy the results of past racially discriminatory laws and practices. In other words, one should ask whether it is fair and reasonable to require the University to move away from a language policy that, in fact, made it more difficult for black students to succeed at the University and in fact discouraged many talented black students from applying for admission to the University.

What would matter is not whether there was proof of an actual intention to exclude or discriminate against black students. What would matter is whether the policy had a discriminatory effect on some students or in fact discouraged some potential students from attending the University.

The counter-argument raised by some of the defenders of the status quo at Stellenbosch is that the vast majority of Universities in South Africa do accommodate students who wish to study in English and that students who feel excluded by the language policy at Stellenbosch therefore have a “choice” to study at one of these institutions.

But this argument would not hold water if the “choice” open to black students who cannot speak Afrikaans is the choice between obtaining a better quality education at Stellenbosch or an inferior quality education at another University elsewhere.

In this regard it is important to note that Stellenbosch is partly funded by public funds. Public funds must be used appropriately, given the constitutional obligation of the government to address the effects of past and ongoing forms of discrimination. It would not be easy to justify the use of public funds to advance the narrow financial and political interests of a group when many of its members continue to enjoy the benefits of apartheid privilege.

It is also relevant that not all Universities in South Africa provide students with the same quality of education. Stellenbosch is arguably one of the best Universities in South Africa. Access to the University is highly sought after and is therefore limited. If its language policy has the effect of limiting the number of black students studying there, it denies some black students who cannot speak Afrikaans a benefit that is provided to students who can speak Afrikaans.

In any event, the notion that impermissible discrimination occurs even where students have a “choice” to attend another education facility, is not unique to South Africa. In United States v Virginia the US Supreme Court ruled that the state of Virginia impermissibly discriminated against women when it maintained a male only military academy and provided female students with the “choice” of attending a women only academy nearby.

In this judgment, Justice Ginsberg noted that the women only academy did not provide female students with the same quality of education than the male institution and thus denied women an “extraordinary educational opportunity” in a discriminatory manner. The court compared the quality of the academic staff, the range of courses on offer, the quality of the facilities, and the number of graduates who obtained PhDs of the male only and women only schools and concluded that the latter institution was not the equal of the former.

Moreover, the court argued that the women excluded from the male only school are being denied the many benefits associated with having a degree from an institution with an excellent reputation. This included the benefits associated with becoming an alumnus of the school and with benefiting from the informal alumni networks associated with a highly valued and influential institution.

I would therefore argue that any language policy that made it more difficult for non-Afrikaans speaking black students to study at Stellenbosch would be discriminatory. Such a policy would not be reasonable and Afrikaans students would not have a right to have it maintained.

Conversely, while changing the policy to address its exclusionary effect may diminish the right of Afrikaans students to be taught in their mother tongue, it would not be too difficult to justify this by demonstrating that the change was aimed at addressing the effects of past racial discrimination at Stellenbosch, and at eliminating existing racial discrimination in the institution in order to provide students of all races with a wider choice of educational opportunities in South Africa.

Ultimately this about correcting the wrongs of the apartheid past and creating a more fair and equal society – although many defenders of the status quo will deny this.

On the “snake pastor” and limitations on freedom of religion

Last week the Commission-With-The-Long-Name (also known as the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities) announced it will investigate the financial affairs of churches, mosques, synagogues and other houses of religion and spirituality. The investigation is reportedly aimed at formulating “sweeping regulations” of religious institutions to protect individuals against money-making charlatans. It is, however, unclear whether such regulation aimed at protecting believers will be constitutionally valid.

On a recent visit to Rome I dutifully visited the Vatican museums where I was struck by the opulence and wealth displayed there. (I was also struck by the display of the many priceless artworks of very young naked and half-naked men). Although it is estimated that in recent years the church has paid out more than $3 billion in compensation to victims in sexual abuse cases in the United States alone, the church remains a wealthy institution.

The Economist estimates that annual spending by the church and entities owned by the church was around $170 billion in 2010. The vast majority of this money is now spent on laudable causes. The Economist estimates that the church spends 57% of this on health-care networks, 28% on colleges, and only 6% on parish and diocesan day-to-day operations.

While the Catholic Church is one of the oldest and most powerful religious organisations on the planet, it is by far not the only religious institution that has amassed enormous wealth, at least partly by extracting money from ordinary believers made to believe that donating money to the religious institution will be well rewarded in this or in the “afterlife”.

From time to time the media criticises religious institutions that are not socially dominant or politically powerful (the various revelations about the Scientology Church and the recent ruckus about the pastor who convinced his congregants to eat snakes, come to mind). But more traditional and established religious institutions often get a free pass and are seldom subjected to criticism by either the media or politicians. (To be fair, after turning a blind eye for the previous 300 years the media has in recent years exposed many cases of child sexual abuse by Catholic Priests.)

But even non-mainstream religious institutions are almost never held to the same standards than non-religious institutions. When the creator of a pyramid scheme convinces people to hand over their money by making promises that cannot be kept, he or she may be prosecuted for fraud. However, at present it is unthinkable that any religious institution inducing believers to give it money by promising them a better life on earth or an eternal life in “heaven” will ever be criminally prosecuted in South Africa.

There is, of course, no evidence that a person will prosper on earth or gain entrance to “heaven” for giving money to a religious institution. While many people may believe this to be true (as is their right), there is no factual basis for this belief. Some would say that this belief in something that cannot be proven is at the heart of many peoples’ religious faith.

When a religious institution or leader makes such a promise in exchange for donations (without believing it to be true) this may amount to fraud. But because religious institutions still often get a free pass (and because it will be difficult to prove that a religious leader does not believe the promises he or she makes), it is at present unthinkable that a police officer will investigate allegations of fraud against a religious institution or that a prosecutor will prosecute an institution who makes fraudulent promises to religious believers.

The reason for this reluctance to look more closely at the financial affairs of religious institutions is clear: it would require the state to make an assessment about whether the claims or professed beliefs of a religious institution are true and whether those who make the claims believe them to be true.

Some argue that when we decide to regulate even the most harmful religious beliefs and practices because we do not ourselves believe these beliefs or practices to be valid, true or sincerely held, we strike at the heart of the right of religious freedom.

When the state tells a religious institution that eating snakes is harmful and cannot possibly be a valid religious practice, it in effect tells that institution that the practice is not a “real” religious practice or that the pastor who propagates it cannot truly be said to believe it is a valid religious practice.

If we truly believed that eating snakes would get us into heaven, we would never think of prohibiting a religious group from eating snakes. Similarly if we did not believe it ourselves, but thought a pastor truly believed that eating snakes would get you into heaven we would be cautious about limiting the right of that pastor to advocate the eating of snakes.

When we consider the limits of religious freedom, we are forced to make difficult choices about whether a specific belief or practice is harmful or not. But it will be far easier to agree that a belief or practice is harmful if we do not believe it to be true.

But who decides that this belief or practice is untrue and invalid? Who decides that only a charlatan would get his congregants to eat snakes or to donate pots of money to the church? Who decides that the homophobia of a preacher is not sincerely based on religious belief? Do we use the average atheist; the average believer of the religion being scrutinised; or the reasonable religious believer as a yardstick?

When a decision is made that a certain belief or practice is not religiously based or false, the state in effect claims for itself the power to limit the rights of believers to believe whatever they wish – no matter how bizarre or idiotic these beliefs and practices might seem to some of us or how harmful they may be to believers or to those targeted.

Confronted with his problem, our courts have not always been entirely consistent. In Prince v President of the Law Society of the Cape of Good Hope the majority had no problem in endorsing limitations imposed on the Rastafari religion, despite that this, in effect, turned most Rastafarians into potential criminals merely because of their faith. Mr Prince challenged the law that regulates the possession and use of cannabis because it failed to provide Rastafarians with an exemption to such laws.

All the judges accepted that Rastafari was a religion. After all the difference between a religion and a sect is often no more than the difference between a socially acceptable religion and a marginalised religion. In dealing with arguments made by the state that the use and possession of cannabis was not a central aspect of the Rastafari religion and hence not important to Rastafarians judge Ngcobo (for the minority) declined to judge the beliefs and practices of Rastafari and stated:

[A]s a general matter, the Court should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is central to the religion. Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet, that their beliefs are bizarre, illogical or irrational to others or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of the practice.

If we follow this view expressed by the minority in Prince the state would seldom be allowed to place limits on money driven religious practices at religious institutions. Nor would it easily be allowed to regulate the propagation of beliefs aimed at harming black people, women or gays and lesbians. If we allow religious institutions a wide discretion to practice their religion, we will have to allow them to discriminate against black people, women and gays and lesbians in conformity of their religious beliefs.

But should the state not protect individuals against charlatans in both mainstream and marginal religious institutions? Should it not stop religious groups from propagating hatred that may cause tremendous emotional and physical harm – especially if these beliefs merely mirror the widely held but damaging prejudices in society at large?

For example, if donations from congregants are used to finance the lavish lifestyles of church leaders, should the state not be permitted to regulate the religious institution to prevent gullible people from being exploited? If religious beliefs and practices fuel racism, sexism or homophobia, should the state not be allowed to limit the propagation of such beliefs and to prohibit discrimination in order to protect the human dignity of all?

These are not easy questions to answer. This is because beliefs are inherently contested and not easily evaluated by using the tools of rationality and logic. In South Africa, for example, the drafters of our Constitution decided to prohibit discrimination against gay men and lesbians. But many religious groups believe that gays and lesbians are not fully human and deserve to be discriminated against. These beliefs are neither logical nor rational, but they are often very passionately held.

Interestingly, the majority of judges in the Prince case found that it was permissible for the state to prohibit Rastafari from smoking cannabis. This means that the Constitutional Court has already endorsed the imposition of dramatic limits on the right to freedom of religion on the basis that this was needed to protect individuals in society against the perceived harm of cannabis use.

But Rastafarians do not believe the smoking of cannabis is harmful as it allows the user to get closer to God. The judges in effect rejected this belief. Because the majority of judges accepted that the smoking of cannabis was harmful, it chose not to endorse a basic religious practice of the Rastafarian faith. Instead, it said that the practice was harmful and could be prohibited.

Using the harm principle the court made a value judgment about a specific religious practice and endorsed legislation which fundamentally limits the ability of the specific religion from engaging in practices which the court found to be harmful.

If the majority of judges on the Constitutional Court had also believed that the smoking of cannabis was not truly harmful and brought one closer to God, it is surely unthinkable that they would have endorsed the criminal prohibition on the use of cannabis.

Does this mean courts will in future rely on the harm principle to sanction drastic limitations on the propagation of religious beliefs and on practices that harm believers themselves or that harm those branded as perverts or sinners?

If there is a degree of consensus that extorting money from believers to finance the lifestyle of religious leaders harm many believers, would it not be permissible to regulate the finances of religious institutions and to prohibit such institutions from making false promises to believers in order to extract money from them? If our Constitution promotes the achievement of a non-racist, non-sexist and homophobic free society, should religious institutions not be prohibited from spreading hatred based on race, sex and sexual orientation?

Until now the court has only sanctioned limitations on religious beliefs and on practices deemed harmful of small, relatively powerless, religious groups. Will the day arrive when our courts rely on the harm principle to sanction the protection of marginalised and vulnerable people from the harm caused by some of the religious beliefs and practices of the more powerful and socially dominant religions in our society?

Why perceptions of political interference in NPA fuel corruption

After the end of apartheid South Africa adopted some of the most expansive and comprehensive anti-corruption laws in the world. But if these laws are not vigorously and efficiently enforced (in an impartial and fair manner) by a Prosecuting Authority completely free from interference by powerful politicians and business elites, they will have little or no effect in curbing both public and private sector corruption. It is for this reason that the ongoing instability at the National Prosecuting Authority (NPA) is of concern to every South African.

The drafters of the South African Constitution understood that those who wield political power or financial influence do not like to be held accountable and may well try to abuse their power as politicians or as rich businessmen and women in order to protect themselves against criminal prosecution by the NPA.

It is for this reason that section 179(4) of the Constitution demands that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”

Section 32(1) of the NPA Act gives effect to this constitutional command by stating as follows:

(a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

Anyone who interferes improperly, hinders or obstructs the NPA in carrying out its duties is guilty of an offence “and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.

It will not be easy to prove such interference as those who seek to interfere with the NPA to stop a prosecution (or to target an enemy for prosecution) is not likely to do so by sending an email or an sms that can be traced back to them. Criminals usually do not leave many clues as to their illegal activities.

Any half clever politician or businessman or woman will seek to interfere in the activities of the NPA informally or indirectly. They will do so either by giving instructions verbally (often through a third party and never over the phone where it can be recorded) or by ensuring that pliant individuals are placed in pivotal positions within the NPA. Such individuals could then be manipulated (or could be relied upon) to protect your interests and the interests of those who are loyal to you, while prosecuting your enemies in an opposing faction of the governing party or in opposition parties, or your competitors in the private sector.

It matters not whether members of the NPA are in fact impartial or whether they are beholden to politicians and business elites. What matters is whether there is a widespread perception that some of them in influential positions are beholden to the dominant faction within the governing party.

When a perception takes hold that you will be protected from prosecution by pliant individuals within the NPA as long as you remain loyal to the leader of the dominant faction within the governing party, corruption will flourish among many people who are prepared to show blind loyalty to the leader of the dominant faction of the governing party. (This is so because most people commit crime when they believe they will not be caught or prosecuted.)

A second consequence of such a perception taking hold is that it will diminish democratic contestation within the governing party as it will cement the power of the political leader and the dominant faction associated with him or her and will discourage some within the party from contesting internal party elections for fear of losing their perceived protection and being targeted for prosecution.

It is within this context that the announcement yesterday by Shaun Abrahams, the new Director of Public Prosecutions, that the NPA had decided to drop perjury and fraud charges against Deputy Director of Public Prosecutions, Nomgcobo Jiba, will not allay widespread perceptions that the NPA may be beholden to the interest of the dominant faction within the governing party.

As Abrahams did not provide a comprehensive legal motivation for the dropping of charges against Jiba, it is not possible to say with certainty whether the decision was legally sound or not. Abrahams did say that the main reason for the dropping of charges was the clause in the Prevention of Organised Crime Act (POCA), which states that a member of the NPA could not be prosecuted for anything “done in good faith” under the Act.

What was not made clear was on what basis the NPA had decided that Jiba had acted “in good faith” when she apparently misled the court when charging Johan Booysen, a major general in the police, with several offences created by POCA.

Booysen challenged this decision by Jiba in the High Court, who reviewed and set it aside her decision in Booysen v Acting National Director of Public Prosecutions and Others. In doing so, the court addressed the argument by Booysen that advocate Jiba had been “mendacious” (in other words, “untruthful” or “dishonest”) when she claimed that she considered particular statements together with the other information in the “docket” before making the impugned decisions.

Although Jiba was invited to explain how she could have taken into account information on oath that objectively did not exist at the time of taking the decision, she did not do so. This led the court to comment harshly on her behaviour in the following terms:

In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence [from Jiba]. In such circumstances, the court is entitled to draw an inference adverse to the NDPP…. Most significantly, the inference must be drawn that none of the information on which she says she relied linked Mr Booysen to the offences in question. This means that the documents on which she says she relied did not provide a rational basis for the decisions…

In effect, the court said that Jiba had lied to the court by claiming to have considered documents (which did not exist) before deciding to charge Booysen. In the absence of comprehensive legal reasons for the decision to drop charges against Jiba, it is not possible to say whether this dishonest behaviour on the part of advocate Jiba was indeed a “good faith” mistake or whether it was, in fact, a bad faith mistake made to pursue a political agenda.

However, given the widespread suspicions (true or not) that advocate Jiba is politically conflicted and may not be able to make impartial decisions regarding prosecutions of well-connected politicians and business people, it is regrettable that the NDPP did not provide comprehensive reasons for the dropping of charges.

Although there may well be solid legal reasons for dropping the charges, the fact that such reasons were not shared with the public will fuel speculation that the charges were dropped because Jiba is politically well-connected and because she is being protected because she is beholden to a dominant faction within the governing party and is doing its bidding within the NPA in order to protect corrupt politicians.

This perception might be incorrect. However, the remarks made by the Supreme Court of Appeal (SCA) about Jiba’s actions in the so called “Zuma spy tapes saga” do raise some questions about advocate Jiba’s impartiality and about her possible allegiance to President Zuma. In Zuma v Democratic Alliance and Others the SCA criticised Jiba’s seeming reluctance to assist the court in dealing with the spy tapes saga as follows:

In the present case, the then ANDPP, Ms Jiba, provided an ‘opposing’ affidavit in generalised, hearsay and almost meaningless terms. Affidavits from people who had first-hand knowledge of the relevant facts were conspicuously absent. Furthermore, it is to be decried that an important constitutional institution such as the office of the NDPP is loath to take an independent view about confidentiality, or otherwise, of documents and other materials within its possession, particularly in the face of an order of this court. Its lack of interest in being of assistance to either the high court or this court is baffling. It is equally lamentable that the office of the NDPP took no steps before the commencement of litigation in the present case to place the legal representatives of Mr Zuma on terms in a manner that would have ensured either a definitive response by the latter or a decision by the NPA on the release of the documents and material sought by the DA. This conduct is not worthy of the office of the NDPP. Such conduct undermines the esteem in which the office of the NDPP ought to be held by the citizenry of this country.

The establishment of an NPA that is truly effective and impartial and is perceived to be impartial would create an environment in which far fewer politicians and business people would be prepared to take the chance of a 15-year jail term by engaging in corrupt activities.

This would potentially save billions of Rand of public funds that could be used to build schools, pay for the upkeep of roads, ensure that life saving medicine is delivered to hospitals, increase social grants or otherwise be used to better the lives of those who truly need the assistance of the state to live a dignified life. The question to ask is why more concerted efforts are not made to address the actual or perceived political bias within the NPA and who benefits from this.

Why an LGBTI organisation needs your help to narrow the gap between constitutional promise and practice

It is often said that South Africa has one of the best and most progressive Constitutions in the world. But there is a huge gap between the constitutional promise of creating a society in which every person counts equally, and the lived reality of many citizens. For many gay men, lesbians, bisexual, transgender and intersex people the right to equal dignity promised by the Constitution remains illusive. This is why the work done by LGBTI organisations like Triangle Project remains so important. But the continued existence of this organisation is hanging in the balance and without help from fellow South Africans it may not survive.

Several years ago I spent an eye-opening Saturday in Atlantis conducting a workshop on human rights with a group of gay men, lesbians, and transgender young adults.

Atlantis is a town created by apartheid social engineers to house people classified as “coloured”. The town is purposely situated far away from the city centre of Cape Town in line with apartheid geographical design. The majority of young adults attending the workshop in Atlantis were unemployed. Some had been thrown out of their homes by their parents when their sexual identity became know. Others have lost their employment because of their sexual orientation.

The workshop was nevertheless a festive affair. The gay men, lesbians, and transgender attendees were feisty, outspoken, dignified, mischievous, irreverent; in short they were fabulous.

I was having a great time talking with participants about the constitutional prohibition on sexual orientation discriminating and the many ground breaking judgments of the Constitutional Court in which the equal dignity of all gay men, lesbians, bisexuals, transgender and intersex persons have been affirmed. I quoted the ringing words of former Justice Albie Sachs who wrote in the very first judgment on sexual orientation discrimination:

The acknowledgment and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage…. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them. What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative.

The idea that we should move away from the belief that heterosexuality is normal and same-sex love and desire is not, is, in its way, a revolutionary one. It challenges deeply entrenched beliefs and prejudices of the majority of South Africans and call us to think differently about difference.

But as we proceeded to discuss the Equality Act and the impressive mechanisms created by the Act to challenge discrimination on the basis of race, sex, gender and sexual orientation – in both the public and the private sphere – a young man raised his hand while shaking his head.

“You are not serious,” he said with something between a smirk and a snigger. “You really think if I go to the Magistrate’s Court to report the fact that I have been discriminated against anyone is going to attend to my case? Get real!”

A murmur of agreement ran through the group. Several participants nodded approvingly.

“When I was raped last year,” the young man continued, “and I tried to report it to the local police, I was chased away. ‘Fokof, you moffie,’ the police officer shouted at me while his colleagues taunted me and laughed in my face. They all thought it was a joke. ‘Julle moffies kan mos nie gerape word nie want julle soek daarvoor,’ (‘You faggots cannot be raped because you are looking for it’) the policeman told me.”

The young man had provided a horrific real-life example of the gap between the promise of equal dignity contained in the Constitution (ostensibly given effect to in the Equality Act), and the lived reality of many individuals.

Of course this gap is not only present as far as the rights of members of the various LGBTI communities are concerned. Racism and sexism continue to make the lives of some more difficult than others in South Africa while economic inequality rob many people of the opportunity to reach their full potential. For some, the hurdles are even more daunting because they are not only members of an LGBTI community but also female, black or poor, thus facing double or triple oppression.

The Constitution and the laws passed to give effect to some of its clauses cannot magically change the intolerant attitudes, the deeply ingrained prejudices, the fear and the hatred that some people harbour against others because of their race, their sex, their gender, their sexual orientation or their economic status. Much more is needed than the mere passing of laws to begin to create a world in which we can all feel safe and equally valued – regardless of our race, our sex, our gender or our sexual orientation.

Ideally our government should ensure that gay men, lesbians, bisexual, transgender and intersex persons are protected from the emotional and physical harm visited upon us by those whose fear, ignorance and hatred drive them to inflict vicious verbal and physical harm on some of us.

But because government departments and institutions are staffed by ordinary citizens who sometimes harbour the same prejudices and hatred that is prevalent in the larger community, it is not easy to transform the deeply-rooted prejudices of some police officers, home affairs officials and other government officials.

Moreover, while our government has adopted progressive policies on LGBTI rights, the fact that the LGBTI community is not a politically powerful or influential one, means that there is not always a great appetite to implement these policies vigorously and consistently in all spheres of government.

It is for this reason that civil society organisations play a pivotal role in helping to protect members of the various LGBTI communities from harm. It is also for this reason that civil society organisations are of the utmost importance to engage in advocacy work and grassroots mobilization aimed at bringing lasting change in our society.

The Triangle Project is one of the civil society organization who has done this kind of work over the more than 20 years of its existence. It supports gay men, lesbians, transgender, bisexual and intersex people who are victims of hate crimes. It helps individuals to come to terms with their sexuality. It engages in advocacy work to ensure that government policies are implemented vigorously. It works to change the attitudes of state officials and to make them aware of their constitutional responsibilities.

It is for this reason that I continue to serve on the Board of the Triangle Project. But because of both management challenges and a difficult fundraising environment, the organization will soon run out of money to run the many projects it is involved in.

I have never before used this platform to exhort readers (well, those with the financial means, at least) to donate money to any cause. But because I believe passionately in the work done by the Triangle Project and because I am acutely aware of the severe need for such an organization and the importance of its work for the creation of a society in which the equal dignity of everyone is protected, I am today making a plea for you, dear reader, to donate money to the Triangle Project.

It’s as simple as logging on to this website ( and clicking on the “Donate Now” button.

If you cannot donate money, maybe you can donate some of your time and your expertise to the work done by the Project? Why not host your own fundraiser, donate a piece of art (if you’re an artist), “donate” a space in which to host a fundraising dinner – the possibilities are endless. Get in touch with Matt at Triangle ( to coordinate. To learn more about the work done by Triangle Project you can also go to the Triangle Project website:

What the rules say about the removal of MPs from Parliament

In what is becoming a ritualised enactment of political theatre, EFF leader Julius Malema is this week set to ask President Jacob Zuma yet again when he will comply with the remedial action imposed by the Public Protector and when the President will “pay back the money”. If recent appearances by the President in the National Assembly (NA) are anything to go by, some EFF members may well at some point be instructed to leave the Chamber. It is at this point that the new rules on the removal of MPs from the Chamber will be invoked. The question is whether these rules are constitutionally compliant or not.

It is clear that President Jacob Zuma has decided not to implement the remedial action imposed on him by the Public Protector when she found that he and his family improperly benefited from the use of public funds for the renovations of his private house near Nkandla. The Public Protector ordered the President to:

Pay a reasonable percentage of the cost of the [non-security related] measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.

The President has refused to comply with this remedial order. (This decision is either rational and valid or irrational and not valid, but the parliamentary ad hoc Committee on Nkandla cannot turn an otherwise irrational and invalid decision into a rational and valid one by “exonerating” the president, as it does not have the legal authority to do so.)

It is unclear what will happen when the President is once again asked about this matter later this week in the NA. However, if the President again fails to answer the question or fails to provide an answer that satisfies the members of the EFF, the presiding officer might well find him or herself in a position where the recently adopted rule 53A is invoked to justify the removal of some EFF MPs from the NA.

Rule 53A of the NA purports to deal with a situation where an MP refuses to leave the Chamber when ordered to do so by the presiding officer in terms of rule 51. Rule 51 allows a presiding officer to order an MP to leave the Chamber:

if the presiding officer is of the opinion that a member is deliberately contravening a provision of the rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly.

The presiding officer will of course first have to inform the targeted MP which rule he or she is “deliberately contravening” or on the basis of which rule he or she is “in contempt of the authority of the presiding officer”. This requires the presiding officer to have an intimately knowledge of (and respect for) the rules.

Unfortunately the current Speaker has demonstrated neither an intimate knowledge of the rules nor a great respect for them. Neither has she always acted in an impartial manner or been able to avoid a reasonable perception of bias on her part. This lack of preparation and inability to apply the rules with even a modicum of fairness or wisdom has eroded the authority of the Speaker, the legitimacy of her rulings and the dignity of Parliament as a whole.

It points to a truism that legal rules alone cannot bestow authority and legitimacy on a person who, through his or her own actions, is hell bent on undermining his or her authority and legitimacy. It also reminds us that the crisis in Parliament is not in the first instance about the rules, but about the manner in which the rules are interpreted and applied and the failure of the Speaker to command the respect of MPs across political party lines.

It is not as if the existing rules of the NA do not provide presiding officers with the authority and legal means to act fairly but decisively against MPs who disrupt proceedings in Parliament. (Of course, engaging in robust, raucous and even chaotic debate in parliament does not disrupt proceedings. Making it altogether impossible to participate in any form of debate does.)

For example, rule 49 states that whenever a presiding officer “rises during a debate, any member then speaking or offering to speak shall resume his or her seat, and the presiding officer shall be heard without interruption”.

This means that while MPs are allowed to raise points of order during a session of the NA (including during a session in which the President answers questions), they are not allowed to interrupt the presiding officer while he or she is commanding the floor. Of course, the rule presupposes that the presiding officer will not be politically biased and will not abuse his or her power by ignoring the rules of the NA and the rights these rules bestow on MPs merely to protect individual politicians.

Rule 47 also prohibits any MP from interrupting another member whilst speaking, “except to call attention to a point of order or a question of privilege”. This means that MPs have a right to raise a point of order while anybody other than the presiding officer is speaking (thus also while the president is answering questions) and the presiding officer must recognise the MP and hear him or her out.

However rule 50 further allows the presiding officer to order an MP to discontinue his or her speech if the MP persists in irrelevance or repetition of arguments, but only after having warned the MP of this first. It is unclear whether this rule applies only to MPs delivering speeches and individuals answering questions, or whether it also applies to MPs raising points of order. As the rule is currently phrased I would guess it does not apply to the raising of points of order.

Rule 63 prohibits an MP from using “offensive or unbecoming language” in parliament. The use of swear words or other so called vulgar words by MPs is therefore prohibited. What is not prohibited is the use of “unparliamentary language”. This means when the presiding officer rules speech impermissible on the basis that it is unparliamentary, he or she has no obvious legal authority to do so. Lastly rule 66 prohibits an MP from reflecting on the competence or honour of a judge, or of other individuals serving in constitutional bodies such as the IEC, Human Rights Commission, Public Protector or Auditor General.

The problems will arise when the presiding officer fails to follow these rules when dealing with MPs who raise points of order or otherwise raise uncomfortable questions. If the presiding officer makes a patently unlawful ruling for partisan political reasons, the question will arise whether MPs are still legally obliged to yield to his or her authority? Would an order by a presiding officer to leave the Chamber be lawful even when the original ruling by him or her is patently and absurdly unlawful?

In other words, if a presiding officer makes a ruling that no honest person with knowledge of and respect for the rules could have made, would this justify MPs’ ignoring the ruling? (It is akin to asking whether a motorist would be justified to ignore an order by a traffic police officer to hand over a R1000 bribe to him or her.)

Clearly, it would not normally be permissible for an MP to second guess the rulings of a presiding officer – even when reasonable people might well disagree on the interpretation or application of a rule by the presiding officer. It is less clear what the situation would be if the ruling of the presiding officer is so outrageous or so patently illegal that no reasonable and impartial person could honestly have made such a ruling.

In any event, if we assume a situation will arise where the presiding officer has lawfully ordered an MP to leave the Chamber and the MP refuses, the new rule 53A will guide the proper way to deal with the situation.

Rule 53A(1) allows the presiding officer to instruct the Serjeant-at-Arms to remove the MP from the Chamber and the precincts of Parliament if the MP refuses to leave as instructed by the presiding officer.

If the Serjeant-at-Arms is unable in person to effect the removal of the member, the presiding officer may call upon the Parliamentary Protection Services to assist in removing the MP from the Chamber and the precincts of Parliament. Obviously, only the MP who is in breach of the rules and has specifically been named can so be removed. All the MPs of a political party cannot be removed because the presiding officer had ruled that one of its MPs was in breach of the rules.

If an MP resists attempts to be removed from the Chamber either the Serjeant-at-Arms or the Parliamentary Protection Services “may use such force as may be reasonably necessary to overcome any resistance”. Other MPs are prohibited from physically intervening in, preventing or obstructing the removal of an MP being removed. The presiding officer is authorised to instruct the removal of any MPs who intervene in the removal of another MP. Once again, this cannot apply to all the MPs of a political party where some MPs have intervened.

Rule 53A(11) further states that in the event of violence, or a reasonable prospect of violence or serious disruption ensuing in the Chamber as a result of a MPs resisting removal, the presiding officer may suspend proceedings, and members of the security services may be called upon by the presiding officer to assist with the removal of members from the Chamber and the precincts of Parliament “in terms of Section 4(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act”.

One could argue that the new rule 53A does not fall foul of the provisions of section 58 and 71 of the Constitution which guarantee free speech in Parliament and prohibit MPs from being arrested for anything they says in Parliament. In terms of this argument, rule 53A does not target MPs directly for what they say, but for their refusal to obey the orders of the presiding officer. I would agree with this argument on the condition that this will only be correct if it is assumed that the rule would not apply when an MP refuses to obey a patently unlawful ruling by the presiding officer – one that no reasonable person with knowledge of and respect for the rules could possibly have made.

In the absence of this assumption, the presiding officer would in effect be allowed to have any MP removed from the Chamber for any reason the presiding officer sees fit. Just as one would not normally argue that a legislative provision that authorises a police officer to arrest a suspect is constitutionally invalid because of the possibility that the police officer would use the section corruptly to arrest a person who refused to pay him or her a bribe, one would not be able to argue that the parliamentary rule is invalid because of the likelihood that the presiding officer will abuse his or her power and will flout the rules.

Where a presiding officer displays at least a working knowledge of the rules and apply the rules more or less fairly, no injustice will be visited on an MP who is ordered to leave the chamber. But if the presiding officer abuses his or her power and flouts the very rules he or she is mandated to uphold, the potential injustice is evident. Such a flouting of the rules will also undermine respect for the presiding officer and his or her authority and ultimately for parliament as an institution.

It is for this reason that it remains important that the presiding officers in parliament act fairly and in a non-partisan manner. If they do not, they themselves bring parliament into disrepute.

Why do dominant religions so often get a free pass from courts?

Why do religious beliefs and practices – especially the religious beliefs and practices of powerful and dominant religious groups – so often get a free pass from society and the courts? Should certain religious beliefs and practices not be evaluated in the same manner that all other beliefs and practices are evaluated to determine whether they are true and whether they infringe on the rights of others?

Pope Francis, the “infallible” head of the Catholic Church, has been getting some great press recently. Because he has made statements that seem to reflect a sincere and pressing concern for the plight of poor and vulnerable people, because he has embraced the issue of climate change, and because he seems genuinely humble and down to earth, he has received much praise in the mainstream media.

Yet, he heads a church that institutionalises discrimination against women and against gay men, lesbians and transgender people. It is unthinkable at present that a woman, an (openly) gay man or lesbian or a transgender person could become the Pope or could serve in any other role in the top leadership of the Catholic Church.

If the Catholic Church was not a religious organisation but another influential cultural institution (think of Afriforum or the FAK), there would have been widespread condemnation of its catastrophic denial of the basic human dignity of fellow citizens. Its leaders would have been vilified, instead of lauded as progressive visionaries.

Moreover, there would have been little doubt that (in South Africa at least) the Constitutional Court would have declared these practices in breach of the equality clause and would have ordered the institution to stop discriminating against people on the basis of their sex, gender and sexual orientation.

(The Catholic Church and Pope Francis are not alone in this and I do not wish to pick on the institution and its leader – I am merely using it as a handy example. In fact, compared to his predecessor Pope Francis has indeed expressed views on some matters that will warm the heart of any person concerned about social and economic justice.)

Of course, not all religious beliefs and practices get such a free pass. If you happen to be a member of a small and relatively powerless religion, the law is likely to take a much harsher view of your beliefs and practices.

For example, Rastafarians are automatically turned into criminals in South Africa for practicing their religion (even though this harms no one else) as the law prohibits Rastafarians from using and possessing cannabis as prescribed by their religion. But because Rastafarianism is a small, unorganised religion and because it is not politically powerful, the criminalisation of these religious practices has remained largely uncontroversial.

But some religious beliefs and practices do get a free pass – both from society and from courts who have to enforce the sometimes conflicting rights contained in the Bill of Rights.

First, this may be the case because many of these religious beliefs and practices mirror the deeply embedded beliefs and practices of the economically and politically powerful in society. For example, in a patriarchal society like South Africa, one in which the lives and feelings of women, gay men, lesbians and transgendered people are not valued to the same degree that the lives and feelings of heterosexual men are valued, it is perhaps not surprising that many religious institutions endorse discrimination against members of the former groups.

It is not possible to disentangle religious beliefs and practices from the political and cultural beliefs and practices dominant in the larger society. Religion and the activities associated with it remains a cultural phenomenon and are entangled with the broader societal culture. It would be naïve to think that religious beliefs do not inform cultural beliefs and practices and vice versa.

As societies change and as the balance of power in a society shifts, these religious beliefs and practices are likely to shift as well.

Thus, before 1994 the Dutch Reformed Church argued that apartheid was necessitated by scripture, until the transition to democracy occurred and the church suddenly changed its mind on these supposedly timeless religious beliefs. Similarly, in societies in which homophobia has decreased drastically many religious institutions have softened its bigotry towards gay men, lesbians and transgender people – what was viewed as an abomination suddenly becomes a challenge to be dealt with in the spirit of love and compassion.

It is for the same reason that sections of the Christian Bible are now ignored by all Christian churches. Leviticus 25:44 comes to mind. This section states: “As for your male and female slaves whom you may have – you may acquire male and female slaves from the pagan nations that are around you.” Yet, no Christian church today would argue in favour of slavery.

From a human rights perspective there is a more important reason for giving religious institutions a free pass – even when their beliefs and practices harm members of vulnerable and marginalised groups. The reason is that almost every general human rights instrument contains a provision that guarantees freedom of religion – which includes the right to express religious beliefs and to practice your religion.

The inclusion of such a right has its origins in the view that the religious beliefs and practices of different people should be protected to avoid the oppression or persecution of those whose beliefs do not accord with the majority view. It is also often said that such a right prevents violent conflict and even war as it accommodates religious diversity and serves to defuse tension between people who passionately (and sometimes irrationally) hold on to their religious beliefs and wish to enforce them on others.

Difficult questions arise when there is a direct clash between this right to freedom of religion, on the one hand, and any of the other rights in the Constitution, on the other. Often those who exercise their religious freedom will do so in ways that will infringe on the rights of others by discriminating against others or by failing to respect the inherent human dignity of others. Although different rights that are in tension can sometimes be accommodated, in some cases the one set of rights will have to yield to the other. In such cases the religious rights of some will either trump or have to yield to the rights of others.

Clearly not all religious beliefs and practices will automatically trump the rights of others. It is unthinkable that a religion which advocates the sacrifice of babies in order to placate the gods will today be allowed to sacrifice babies in the name of freedom of religion.

But why do we assume this as a given? I would guess it is because most of us would assume that the right to life trumps the right to freedom of religion in such a case. The severity of the infringement of the rights of others (nothing can be more severe than being killed) renders the baby-killing unconscionable. But it will also be because most of us believe that the belief that baby-killing is mandated by god is bizarre and wrong. We would dismiss the value of the belief and would have no qualm in choosing the rights of babies above the rights of what we would think of as a crazy religious belief.

But what happens when the religious beliefs and practices of a religious institution discriminate against individuals based on their sex, gender or sexual orientation? Or when religious people utter hate speech in the name of freely expressing their religious beliefs?

The reason why there is no general agreement on how to answer this question is, first, that individuals do not agree on how severe the impact of a specific religious belief or practice will be on those affected.

If you believe homosexuality is an evil sin, you are probably going to argue that gay men, lesbians and transgender people are not seriously affected by your bigoted religious beliefs and practices and even if they are that this is justified by the greater importance of upholding your religious beliefs.

You are also not going to view said religious beliefs or practices as bizarre, wrong or untrue. Instead, you will probably feel that it is extremely important to uphold such beliefs and practices – to the detriment of homosexuals.

If, however, you do not hold such religious beliefs you will acknowledge the severe impact that the words and deeds of members of a dominant religion could have on a vulnerable and marginalised sexual minority. You are also probably going to view the particular religious belief or practice as toxic, illogical, bizarre and hence completely untrue and of no value and will have no problem with outlawing the practice and the expression of the belief.

Our courts – just like courts in other constitutional democracies – have tended to side with the members of dominant and powerful religions against members of vulnerable and marginalised groups. It is for this reason that it seems unlikely that a South African court at present will order a church to stop discriminating against women if that church claims that the gender discrimination is authorised by their God. It is also for this reason that a court may think twice before labelling homophobic speech as hate speech – despite the fact that the hate speech provision in the Equality Act does not provide for a religious exception to hate speech.

The interesting conceptual question to ask is whether courts are not better suited to protect the vulnerable against the powerful than to protect the powerful who act to the detriment of the vulnerable? Should our courts not move away from their bias in favour of religious beliefs and practices in order better to protect those who really need their protection? Should courts not make such beliefs and practices subject to the discipline of other constitutional rights in order to help protect the most vulnerable and marginalised members of society?

However, anybody who has studied the phenomenon of white privilege will know that a privileged group (in this case those who are members of a powerful and dominant religious group) seldom admit to their privilege and are seldom prepared to give up that privilege voluntarily. This means, in the short term, the debate about whether our courts should continue to give an array of religious beliefs and practices a free pass (to the extreme detriment of women and gays, lesbians and transgender people), is not likely to lead to the more robust legal protection of those on the receiving end of religious prejudice.

This state of affairs is clearly immoral, but until enough people are prepared to challenge the inherent immorality of the beliefs espoused by some religious institutions, there is little likelihood that this injustice will end.