Constitutional Hill

What the High Court really said about the powers of the Public Protector

The Western Cape High Court this week provided the first authoritative interpretation of the nature of the powers of the Public Protector. Although the Constitutional Court will ultimately have to decide whether to endorse the approach taken by the High Court, I believe the High Court judgment got it more or less right. Here is why.

Because of the highly charged nature of the standoff between the Public Protector and the President about the latter’s failure adequately to consider and implement the remedial action imposed by her office regarding the state-funded renovations of President Jacob Zuma’s private home near Nkandla, a court judgment clarifying the powers of the Public Protector was always going to elicit much partisan comment and “spin” from those with a vested interest in the matter.

Those truly interested in the legal consequences of the judgment would do well to ignore the spin from members of the governing party and from the opposition about what the judgment actually means. Instead, it may be helpful to analyse the judgment in detail to ascertain what the court actually found. As is often the case with complex legal matters, the devil is in the detail.

In Democratic Alliance v SABC and Others Schippers J in the Western Cape High Court confirmed that the Public Protector is not a court of law and that the findings of her office and the remedial actions imposed by that office are hence not directly binding and enforceable.

The court found that because the office of the Public Protector is modelled on the institution of the Ombudsman (which is widely found in European democracies), the power of the office lies in its ability to investigate and make findings in a cost-effective manner and to ensure a change of behaviour of government officials and members of the executive through reasoned engagement.

Where government officials and members of the executive are persuaded through such reasoned engagement to change their behaviour, it will change the way they think and behave and this will have a lasting beneficial effect on the standard of governance in a country. (The court is silent on what may happen if – for political or personal financial reasons – organs of state refuse to engage in a reasoned manner with the findings and remedial action imposed by the Public Protector.)

The High Court did not consider the fact that South Africa – unlike most European democracies with an Ombudsman – is a constitutional democracy in which the Constitution (and not Parliament) is supreme. It also did not engage in detail in the wording of section 182 or the Public Protector Act to augment its detailed reasons why it held that the Public Protector’s findings are not binding.

It is of course possible (but it is far from certain) that the Constitutional Court will agree with the Public Protector that her office differs from that of the Ombudsman in the European countries referred to. I suspect it is for this reason that the Public Protector has indicated that she would like to have the decision of the High Court reviewed.

But I am not convinced that such a review will be successful and that the Constitutional Court will ultimately agree with the Public Protector. The reason for this is that the High Court judgment does provide for the effective implementation of the findings and remedial action imposed by the Public Protector, without giving her office the status of a court of law – which would be constitutionally problematic.

I say this because after finding that the remedial action imposed by the Public Protector does not have the status of a court order, the High Court proceeded to warn that:

the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject.

Consequently the findings of the Public Protector can never be ignored. Where an organ of state ignores the findings and remedial action by the Public Protector it would fail to comply with the constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

Disregarding the findings and remedial action subverts the Public Protectors powers under s 182 of the Constitution.

It would not always be sufficient, stated the court, to rely on Parliament and its committees to ensure that the findings and remedial action of the Public Protector are not ignored and that they are implemented. Because Parliament is a political body, it does not provide an effective legal remedy to ensure that the findings and remedial action of the Public Protector are properly dealt with.

Ultimately, the Public Protector or one of the complainants in a case may approach a court to ensure that the findings and remedial action are not ignored and, in appropriate cases, a court may order the relevant organ of state to implement the findings and the remedial action imposed by the Public Protector.

This is exactly what the High Court did in the case under discussion, ordering the SABC to institute disciplinary proceedings against the newly appointed COO of the SABC, Mr Hlaudi Motsoeneng, as was directed by the Public Protector, and further ordering his suspension while the disciplinary process takes its course.

To ensure that the office of the Public Protector “is not undermined”, the organ of state against whom findings are made or who is directed to take remedial action, must carefully consider the findings and remedial action imposed by the Public Protector.

If the organ of state decides to reject any of the findings and remedial action of the Public Protector, this will only be legally valid if the organ of state can produce “cogent reasons” for doing so. If it fails to provide such cogent reasons, its refusal to implement remedial action would be irrational and unconstitutional.

Here is the crux of the matter: the organ of state would not be acting rationally if it rejected the findings and the remedial action imposed by the Public Protector merely because it prefers its own view of the relevant facts or the remedial action above those findings and remedial action imposed by the Public Protector.

Even when the organ of state reached its own view (that differs from that of the Public Protector) on rational grounds, this would not make the rejection rational and lawful. This is so because if an organ of state could refuse to accept and implement the findings and remedial action of the Public Protector merely because it happened to hold a different view of the matter, it would subvert the powers of the Public Protector and would fail to act in a manner that ensured the effectiveness of that office.

What the organ of state would have to show is that (irrespective of whether it agreed with the findings and remedial action or not) there were other “cogent reasons” for rejecting the findings of the Public Protector, given the constitutional duty on the organ of state to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

The facts of the case under discussion illustrate this point and explain the “bite” hidden in the judgment regarding the obligations of those directed to take remedial action by the Public Protector. The Minister argued in her papers before the court that after the Public Protector made a finding that Mr Motsoeneng lied about his qualifications, the Minister looked at the evidence on which the Public Protector based her finding and came to a different conclusion.

Not only did the Minister not provide any reasons for coming to this decision, she also did not state that she had consider the other findings made against Mr Motsoeneng by the Public Protector. Neither did the SABC Board. The Minister and the Board in effect preferred their own view on Mr Motsoeneng above that of the view expressed by the Public Protector and did not bother to provide detailed reasons to show why this would be rational.

In the light of this failure to provide any reasons, let alone cogent reasons, for rejecting the findings and remedial actions imposed by the Public Protector regarding Mr Motsoeneng, the court found that the Minister’s and the SABC Board’s actions were “arbitrary and irrational and, consequently, constitutionally unlawful”.

The judgment mean that neither the President (nor Parliament) would be acting rationally if it decided that it preferred its own view of the facts and the appropriate remedial action regarding the Nkandla scandal above those imposed by the Public Protector and then rejected her findings and remedial action. Merely referring to the findings of the Ministerial Task Team would also not suffice.

This does not mean (in terms of the High Court judgment) the President could under no circumstances reject some of the findings and remedial action imposed by the Public Protector regarding the Nkandla matter. For example, where it would be impossible to implement the remedial action, it would be entirely rational for the President to refuse to implement the remedial action imposed by the Public Protector.

But given the fact that the President has a constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness, it would not be sufficient for the President to say he had a different view from the Public Protector regarding her findings and remedial action about the Nkandla matter. If the President ignores some or all of the findings and remedial action by the Public Protector and does not provide cogent legal reasons for this (apart from having formed a different view about the matter), he would be acting irrationally and would be in breach of the Constitution.

I would think that it is therefore in the interest of President Zuma to respond in more detail to the findings and remedial action imposed by the Public Protector, to indicate whether he accepts or rejects each and every one of the findings and remedial action and, if he rejects a finding or a remedial action, to provide cogent legal reasons for doing so. If he fails to do so he would be in breach of his constitutional obligations – at least as understood by the judgment discussed here.

When some rights are more equal than others

Over the weekend, in a speech lauding the right to freedom of expression, President Jacob Zuma reportedly cautioned that rights — such as freedom of expression — should be balanced with responsibilities and that no one should assert their rights while trampling on the rights of others. The idea that you cannot (or should not) exercise your rights when this infringes on the rights of others is widely held. But the idea is wrong. Here is why.

Human rights are not always the best prism through which to view our responsibilities in the world we live in. This is so because what you have a right to do and what is right to do is not always the same thing. In other words, a Bill of Rights does not contain a complete set of ethical rules that can guide us on how to live a virtuous or ethically responsible life.

In political arguments the right to do something is often conflated with whether it is right to do it.

So, when an artist produces a controversial work of art, some of the defenders of the artists will argue that the artist has a right to artistic freedom and that any criticism of the artists therefore amounts to an attempt to censor the artist. Conversely, some of those who believe the work of art reflects racist, sexist or homophobic sentiments will argue that the artist had no right to produce the work of art and that the work of art should thus be destroyed or the artist should be prohibited from exhibiting it.

Instead of engaging in a discussion about the merits of the work of art, of its political intent or effect, or of whether it was ethically defensible for a museum to exhibit it at all, some people will invoke artistic freedom to defend the artist and his or her work while others will invoke the rights of those wounded by the work of art to argue in favour of censoring the work of art.

A political or ethical disagreement becomes a fight about rights and an opportunity is lost to engage meaningfully with each other about the disagreement at hand.

But this juridification of political and ethical disagreements is not the main reason why it is wrong categorically to state that no one should assert their rights while trampling on the rights of others.

Instead, the heart of the problem is that rights often clash with one another and it is therefore not always possible to respect all rights equally at the same time. Sometimes the very essence of your right will encompass the “right” to trample on the rights of others. Depending on the rights involved and the context in which they are being exercised, one right must give way to another.

For example, the right to freedom of religion will often clash with the right to equality. When the Catholic Church asserts its right to appoint only heterosexual, male priests, it asserts the right to discriminate against women, gay men and lesbians. Either the right to freedom of religion must give way to the right to equality, or the Catholic Church must be permitted to trample on the rights of a majority of citizens.

Similarly, the right to freedom of association will often clash with the right to equality. When the owner of a Bed and Breakfast or a holiday resort asserts her right not to open the doors of the establishment to black people or to gay men or lesbians, this will trample on the rights of black people or gays and lesbians. In such a case, it is impossible to respect the right to equality and the right to freedom of association at the same time. One right must trump the other. There is no other way out.

Moreover, the right to freedom of expression will often clash with the right to dignity. If you call somebody dishonest, or question his or her intellect, or claim that he or she is a pervert, it may well infringe on the dignity of the person you have insulted in this manner. Either your right to free expression must give way and you must be prohibited from making such a statement (even if possibly true and even if making the statement may be in the public interest) or the other person’s right to dignity must give way to your superior right to freedom of expression.

These examples illustrate that in some cases you will have no choice but to trample on the rights of others in order to assert your own rights. In such cases a claim that somebody should not trample on your rights when he or she asserts his or her own rights is no more than a claim that your rights should trump theirs. When a politician makes such a claim it will often sound suspiciously like he or she believes his or her rights should trump the rights of ordinary citizens.

Sometimes the text of a Bill of Rights would give an indication which of the clashing rights should be upheld. But when it does not, difficult questions arise.

Why should the right of religious organisations to discriminate trump the rights of citizens not to be discriminated against? Why should the right to equality trump the right of racists, sexists and homophobes to associate with whom they wish? Why should the right of citizens to be kept informed about the nefarious doings of politicians or powerful businessmen and women trump the right of the politician or businessman or woman to have his or her dignity respected?

The court sometimes answers these questions in favour of one group because the views of that group is widely accepted or because of the overwhelming political power and influence of the group. As Justice Sachs pointed out the Prince v Law Society of South Africa when explaining why the religious practices of dominant religious groups are often upheld even when it infringes on the rights of others:

all over the world religiously motivated circumcision of infant boys has survived even the most stringent of child protection laws. Powerful religious organisations support it and it has become an everyday and accepted part of the social scene. This suggests that what matters is not the intrinsic nature of the act, but the degree of official acceptance of the actors.

Sometimes the court answers the question by looking at the aim to be achieved by the right and by asking how important this aim is for society as a whole. For example, in open and democratic societies the dignity of politicians will almost always yield before the right of citizens accurately to be kept informed about matters in the public interest. Freedom of expression is pivotal for the safeguarding of democracy and where politicians are allowed to invoke their right to dignity to protect them against criticism and against the exposure of wrongdoing, the quality of the democracy will be fatally compromised.

Lastly, the court sometimes answers to question with reference to the particular history of a country and political context in which rights are asserted. For example, given South Africa’s colonial and Apartheid past, its history of gender discrimination and its past vilification and marginalisation of sexual minorities, the right to equality will usually trump the right to freedom of association. This means that the court will almost always reject the claim by the owner of a Bed and Breakfast that his or her right to freedom of association should trump the rights of citizens not to be discriminated against based on race, sex or sexual orientation.

Of course, it is important to note that in some cases the claim that you are trampling on the rights of an elected politician by asserting your own rights is itself spurious. When you criticise a an elected representative (especially one holding high office) for not doing his or her job; when you ask difficult questions about that person’s conduct; when you demand that the person obeys the law, you are not infringing on his or her rights. What you are doing is engaging in democratic debate and contestation.

In such cases, the argument that no one should assert their rights while trampling on the rights of others becomes a plea to be excused from being held accountable by the voters who elected you.

Why is Afriforum threatening to censor a work of art?

Afriforum, an organisation that fights for the preservation of white privilege, is threatening to go to court to have the song of a Cape Town based hip-hop collective called Dookoom declared hate speech. The song (deploying Afrikaans in all its exquisite richness) is entitled “Larney, jou poes”. The threat by Afriforum raises several interesting questions – only some of a legal nature.

It is trite to say that racism remains deeply entrenched and widely practiced in South Africa. Some forms of racism are structural in nature, but sadly many “white” South Africans who perpetuate it and benefit from it often deny its existence. (By “white” I mean to refer to those of us who benefit from being perceived by ourselves or by others to be members of the constructed category of “white”)

This denial is probably based on a genuine belief that structural racism does not exist. After all, not everyone understands the direct link between power and racism.

Having no theory (or an impoverished theory) of power and little understanding of how history, social and economic factors and cultural context influence how we experience the world and how we are seared by the words and actions of others, such individuals do not have the intellectual tools to identify injustice in its complex multiplicity.

They do not understand that questions of power – who has it and why; who are able deploy it and to what effect; what is the context in which it is being deployed and to what end; is it being deployed to challenge or to reinforce deeply entrenched patterns of privilege and advantage – loom large when we try to understand what racism is and why some forms of denigration can be racist while other forms can be anti-racist.

For many (but not all) “white” South Africans their racial privilege thus remains comfortingly invisible – much like the air they breathe. When somebody claims “not to see race” I try to give that person the benefit of the doubt and to assume he or she does not have the intellectual tools to realise that such a denial helps many of us “white” South Africans to remain soothingly blind to the structural racism from which we benefit – whether we choose to do so or not.

This does not mean that we are not mired in a cesspool of more crass forms of racist hatred. You only have to visit the comments section of most news websites or the Facebook page of alleged singer Sunette Bridges (the page optimistically refers to her as an “artist”) to know that some “white” South Africans, using their economic and social power (if not always their intellect), regularly indulge in the most hateful forms of racist speech.

If Afriforum were truly concerned about racist hate speech it would, of course, long since have threaten people like Sunette Bridges and some of her ardent followers with court action for alleged hate speech published on her site.

But Afriforum has not done so because it is not concerned about the words or actions of “white” racists. Instead it is concerned about the words and actions of those who criticise “white” racists; of those who challenge “white” privilege; of those who threaten the social status and economic dominance of “white” people who identify themselves as “Afrikaners” (a political term for a certain group of Afrikaans speaking “whites” who strongly identify with a romanticised version of the history of “white” Afrikaans-speakers).

Because of the self-serving hypocrisy inherent in the threat issued by Afriforum against Dookoom, it is tempting to dismiss Afriforum’s threat out of hand. But that would be making the mistake (so commonly made by those who engage in political “debate” in South Africa) of conflating motive with the merits of an argument. Just because Afriforum usually takes up the cudgels in defence of white privilege does not necessarily mean that in this particular case it may not have a legally valid (if possibly an ethically tenuous) point.

To explore whether this is the case, it is important to say a bit more about the song that caused all the trouble. “Larney jou poes” is a hip-hop track, a genre of music that is steeped in anger against the status quo; in aggression; in feelings of alienation and torment. In this case the song’s intent is signalled by the banging beat and industrial-strength synths over which the angry lyrics are rhymed.

Invoking a biblical imagery the song starts as follows: “Farmer Abrahams has many farms / Many farms has farmer Abrahams / I work one of them / And so do you / So let’s go burn them down.” In another verse the political context of the song is made more explicit:

Bra, remember you came here in 1652 / You a skollie too / You were fokken sentenced with a convict crew / You robbed and screwed the natives / Now who’s the savage?

The chorus underlines the anger of the song by repeatedly exclaiming, “Jou poes, my larney”.

I can imagine that this form of artistic expression – displaying a level of originality and talent lacking in many other South African “artists” – would upset many privileged South Africans, especially “white” South Africans who own farms or have family members who own farms.

I might be wrong, but I suspect most people in South Africa won’t like being called a “poes” (and not only because the term is sexist), and won’t like to be told that they are “skollies” and thieves. Nor, I imagine, would many farm owners – whether a “larney” like Deputy President Cyril Ramaphosa, a larney” like Transvaal Agricultural Union President Louis Meintjes, or a “larney” like Julius Malema (before he lost his farm to SARS) – appreciate lyrics of a song that talks about the burning down of farms.

But does it constitute hate speech?

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) states that no person “may publish, propagate, advocate or communicate words” based on any prohibited ground like race, sex, gender, sexual orientation, language or culture “against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.

Afriforum will only be successful in getting a court to censor the song if it could convince a court that the song targeted a group of people based on their “race”. (Ironically, those who claim to believe that race as a lived reality does not exist and that they do not see it, will therefore not be able to rely on this section). In addition, it will have to show that a reasonable person (a person who has an understanding of racism and how power works, is not too thin-skinned and self-righteous and thus not your average member of Afriforum) would believe that the song was intended to hurt or harm a group of people based on their race.

The High Court has not interpreted this section contextually as it was supposed to do. Neither has it interpreted the section with reference to the link between racism and power. It was for this reason (much criticised by legal academics) that it found against Julius Malema in the Dubul’ ibhunu judgment. As the case was never appealed, we do not have the benefit of a more informed and nuanced analysis of the hate speech provisions of PEPUDA by the Constitutional Court.

Given the narrow and a-contextual interpretation of section 10 provided by the High Court, I would have to assume for the moment that Afriforum would be able to convince a court that the relevant factors existed and that in terms of section 10 of PEPUDA the song constitutes hate speech.

But because these are not the words of a politician shouted at a political rally, but words contained in a work of art, that would not be the end of the matter This is so because section 12 of PEPUDA excludes “bona fide engagement in artistic creativity” from the hate speech prohibition in section 10.

Anyone who watches the video and listens to the (very angry but very clever) lyrics of “Larney, jou poes” would agree that this song is indeed a bona fide engagement in artistic creativity. This means that it is difficult to see how a court could find that this song constitutes hate speech. Just because a work of art is upsetting to a section of the population (as art often is) does not mean that it can be censored on the basis that it constitute hate speech.

Of course, some of the same people who shouted “freedom of speech!” when people complained about the implicit racism in the painting of Brett Murray’s “The Spear”, would now demand that the song be banned. Similarly, some of the same people who demanded that “The Spear” be banned will now champion this song and vehemently oppose it being censored.

But, sadly, not many South Africans seem to have the ability to be consistent or to take positions not based on the person involved in a case but rather based on the applicable principle or legal rule. This inability to be principled is sad, but also so tediously predictable that nothing else need to be said about it.

Far more interesting would be to engage in a debate about the merits of the song.

Is it a brilliantly angry and clever hip-hop track or mediocre at best? Does it express a profound truth about the injustice of capitalism and white privilege or is it a cheap and uninteresting form of sloganeering? Will it help to conscientise farmworkers about their exploitation at the hands of many (but not all) black and white farm owners or will its bristling anger and anarchic spirit alienate the very people it aims to politicise? Does it express a political truth that too many people are afraid to verbalise or is its artistic merit diminished by prejudiced generalisations? What’s up with the misogyny of certain hip-hop artists?

Works of art are meant to trouble, provoke, disturb, anger, inspire or move those who are exposed to them.

It is therefore a pity that members of Afriforum either do not have the intellectual tools to engage in such a vigorous debate, or are too scared that they will lose the debate if they do, to engage in it. Instead they are threatening to approach a court to help it censor a work of art because the work of art troubles and disturbs them.

Spy tapes: Still no reason to drop charges

Extracts from the so-called “spy tapes” (for some inexplicable reason the complete version has not yet been made available) reveal that former Scorpions head Leonard McCarthy is both an inveterate gossip and a staunch Thabo Mbeki supporter. What the tapes do not provide are credible legal reasons for dropping more than 700 criminal charges against President Jacob Zuma. Here is why.

The practice of appointing politicians or politically connected individuals to leadership positions in the National Prosecuting Authority (NPA) has seriously dented the credibility of the NPA. This politicisation of the NPA (as the spy tapes demonstrate, this process started long before the election of Jacob Zuma as president) has thus eroded its independence, its credibility and its effectiveness.

It is now inevitable that the National Director of Public Prosecutions (NDPP) (or the relevant Director of Public Prosecutions) who decides to charge or to drop charges against a politician or a politically connected businessman or woman will be accused of political motives.

When a politician is charged with any crime, I almost always suspect – rightly or wrongly – that said politician must have fallen out with the faction aligned to the president. (In the case of Julius Malema, he fell out with the faction aligned to the president and was subsequently kicked out of the party.) When serious accusations of criminality are made against a politician or businessman or woman and he or she is not charged or charges against him or her are dropped, I almost always suspect – again, rightly or wrongly – that this must be because of political interference in the NPA.

This does not mean that all allegations of corruption or fraud levelled at a politician or a politically connected businessman or woman holds water. Neither does it mean that those politicians and politically connected individuals who are charged have not acted in contravention of the law and that they should not be convicted and imprisoned for corruption. But sadly, this is not how the public discourse operates. Partly because of the politicisation of the NPA, some unscrupulous (but guilty) individuals use accusations of political conspiracy to avoid both criminal accountability and public censure.

In paranoid South Africa, the first thing a politician or controversial businessman or woman accused of a crime will do will be to allege that the allegations or criminal charges brought against him or her were due to a “political conspiracy”. Interestingly enough, few people fingered for corruption or other crimes ever claim that the evidence procured against them were fabricated. The logic seems to be that if political motives animated an investigation or a prosecution, it matters not that the accused committed the crimes. A political motive magically erases the corruption and the bribery and renders the accused innocent of all wrongdoing.

As the Supreme Court of Appeal (SCA) pointed out in 2009 in National Director of Public Prosecutions v Zuma when it overturned the judgment of Nicholson J (which itself was used as a pretext to remove then President Thabo Mbeki from office) “it is generally accepted that any prosecution authority ought to be free from executive or political control”, but “this was and is not necessarily the norm in Anglo-American countries”. In many countries the Attorney-General (called the NDPP in South Africa) is a political appointee – often at ministerial level – but is nevertheless required to act without any interference from the executive.

In South Africa, the position is not much different. The NPA is headed by a NDPP who is a political appointee (appointed by the president for a fixed term) and although section 179 of the Constitution states that national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice, it also states that the Minister of Justice must exercise final responsibility over the NPA. The NDPP must also determine a prosecution policy (in terms of which decisions to charge or to drop charges against suspects should be made) with the concurrence of the Minister of Justice. As the SCA stated in the Zuma judgment:

These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held… that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

This means that members of the prosecuting authority (including the politically appointed NDPP) must serve “impartially” and must exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” subject only to the Constitution and the law. At the same time the NDPP has a duty when so requested to keep the Minister of Justice informed about his or her work. However, the Minister has no power to interfere in prosecutorial decisions of the NDPP or any other member of the NPA.

Moreover, the NPA Act prohibits anyone (including the minister or the president) from interfering “improperly” with the NPA in the performance of its duties and functions. If the minister or anyone else were to interfere in prosecutorial decisions they would be committing a criminal offence.

As the SCA pointed out, the Constitution prohibits members of the NPA (including the NDPP) from taking account of political considerations when making prosecutorial decisions and also prohibits the Minister of Justice or any other member of the executive from interfering with a decision to prosecute or not to prosecute a suspect.

Where politicians or politically aligned individuals like Leonard McCarthy, Bulelani Ngcuka or Menzi Simelane are appointed to the leadership of the NPA, the temptation will be great to blur these lines and to take account of political considerations when making prosecutorial decisions. After Vusi Pikoli was fired for not taking into account political considerations when charging Jackie Selebi, NPA bosses (even those without strong political loyalties) must be acutely aware that their careers may be terminated if they stick to their principles and follow the Constitution. More worryingly, even where the lines between the political considerations and prosecutorial considerations are not blurred, the perception will inevitably arise that political interference occurred when a controversial prosecutorial decision is made.

But what happens if – as was the case with the prosecution of Jacob Zuma – some members of the NPA who may or may not have been involved in any decisions about his prosecution displayed a clear bias against him?

Recall that Mr Zuma (as he then was) and his lawyers never argued that there were no legal grounds to prosecute Zuma. Nor did they argue that all the evidence against him were fabricated or invented as part of a political conspiracy to frame him for corruption. Although they argued that they would try and block the admissibility of certain evidence (including the “encrypted fax” which demonstrated that a bribe was solicited on behalf of Zuma), Mr Zuma never argued that he had not received any money and that he had not done any favours for those from whom he received money. Instead he argued on procedural grounds that despite the evidence he could not receive a fair trial.

The SCA in its Zuma judgment was pretty clear that such arguments would seldom be of any legal relevance. The SCA pointed out that a prosecution could never be used solely to achieve an “ulterior purpose”. For example, prosecuting a person without any prospect of securing a conviction with the sole purpose of putting him out of business would be unacceptable. But where credible evidence existed that might secure a conviction and where the purpose of the prosecution was at least in part to secure such a conviction, this would not taint the prosecution.

A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.

In the Zuma judgment (written before the so called spy tapes came to light) the SCA stated that there was no “ulterior purpose” in prosecuting Zuma and the prosecution could thus not be tainted. The spy tapes did not change this because as the SCA stated in rejecting Zuma’s argument that the prosecution must be set aside because it was tainted by a political motive:

In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.

No one has ever argued that Zuma was prosecuted without the intention of securing a conviction. This means that the reasons offered by the then acting NDPP for dropping charges against Jacob Zuma do not seem to be in line with the law and may well be irrational. This conclusion is strengthened by the fact that, in terms of the Constitution, the prosecution policy must be observed in the prosecution process. When deciding to prosecute or not to prosecute or to drop charges against a suspect, the decision-maker must do so in compliance with the prosecution policy.

The prosecution policy lists a range of factors prosecutors should take into account when deciding whether or not to institute a prosecution: the strength of the state’s case, the admissibility of the state’s evidence, the credibility of the state’s witness, the strength of the defence’s case, and the extent to which the prosecution would be in the public interest. Curiously, the acting NDPP did not refer to this prosecution policy when he announced the dropping of the charges against Jacob Zuma. This means that the policy that – constitutionally – ought to have guided the decision to drop charges against President Zuma was not considered at all.

This means that it will be difficult for the NPA to convince a court that the dropping of charges against President Zuma was legally valid. Of course, whether too much time has now elapsed since the commission of the alleged crimes to allow for a fair trial is another question. But that would be a question for a court (and not the NPA) to decide.

Spare a thought for ANC Nkandla committee members

The ad hoc committee of the National Assembly (NA) formed to deal with the fall-out from the Nkandla scandal has all but collapsed after all opposition parties withdrew from it at the end of last week. But why was it set up at all if – as all committee members agree – the committee has no power to review and set aside the findings and remedial action imposed by the public protector?

Neither the Constitution nor the relevant legislation specifically states that the NA has an obligation to consider and deal with all reports of the public protector. But this does not mean that the NA does not (in certain circumstances) have a constitutional duty to call the president, other members of the executive, other politicians or members of the public to account for findings contained in a report of the public protector.

When a report of the public protector deals with a breach of the executive members ethics code, the Executive Members Ethics Act does require the President “within a reasonable time, but not later than 14 days after receiving a report” from the public protector “submit a copy of the report and any comments thereon, together with a report on any action taken or to be taken in regard thereto” to the NA.

However, the Act is silent on how the NA is supposed to deal with this report from the president.

When a report (or aspects of a report) of the public protector does not deal with a breach of the ethics code, there is no specific obligation on the president to report the findings of the public protector to the NA.

However, the speaker can request the public protector to provide the NA with one of her reports. The public protector can also (on her own initiative) submit one of her reports to the NA when she deems it necessary or if she believes it requires the urgent intervention of the NA.

For example, where a report finds that the president is in serious breach of the Constitution or the law, the public protector may submit the report to the NA with a view of allowing the NA to start impeachment proceedings against the president.

As I pointed out above, this does not mean that the NA is not obliged to engage with reports by the public protector regarding breaches of the ethics code and of maladministration and corruption by the president or any other member of the Executive in cases where a report is not submitted directly to the NA.

Section 55(2) of the Constitution imposes a positive constitutional obligation on the NA to hold members of the executive – including the president – accountable for their actions and to maintain oversight over their activities. This accountability goes beyond the performance of their formal functions and duties and includes accountability for a serious violation of the law, serious misconduct or serious breach of the Constitution. This is so because the NA can impeach a president who is guilty of such unlawful actions or misconduct.

Section 92(2) confirms the powers of the NA to hold the president and his executive accountable by stating that all members of the cabinet (which includes the president) are individually and collectively accountable to Parliament for the exercise of their powers and performance of their functions.

The NA is empowered to summons any person (including the president, other cabinet ministers or any official from any political party or any private citizen) to appear before it or to give evidence and to produce any documents relating to the accountability and oversight mandate of the NA. A person who is summonsed to appear before the NA or one of its committees is obliged to appear and produce any documents requested by the committee. A failure to do so may result in a conviction for contempt.

Moreover, section 181(3) imposes another obligation on the NA. Like all other organs of state it is constitutionally required, “through legislative and other measures” to “assist and protect” the public protector “to ensure the independence, impartiality, dignity and effectiveness of these institutions’.

What does this mean?

The NA is constitutionally obliged to hold the president or other member of the executive accountable for how they respond to the findings and remedial actions imposed by the public protector in the wake of findings of maladministration, unethical conduct in breach of the code or corruption.

Where the president, other member of the executive or other individuals comply fully with the remedial action imposed by the public protector, the NA would have no need to engage with those responsible for implementing her findings, regardless of whether the matter deals with a breach of the ethics code or with other forms of maladministration or corruption.

But where the president, other member of the executive or other responsible individuals fail to comply with the remedial action imposed by the public protector, the NA has a constitutional duty to hold the responsible parties accountable for what may turn out to be a serious breach of the Constitution.

At the very least, the NA must require the president (or other members of the executive) to explain to the relevant NA committee why he or she has failed to implement the remedial action imposed by the public protector and why this failure to comply is rational and hence lawful.

As the president has so far refused to provide the NA with comprehensive reasons for failing to adhere fully to the remedial action imposed by the public protector (in a letter to the NA the president declined to comment at all about the findings of the public protector and whether he deems the findings to be correct and appropriate), the NA may first provide the president with another opportunity to do so and if he again fails to provide comprehensive reasons for his refusal to comply, the NA has a duty to summons him before the NA to account for this failure.

This would be constitutionally required because it must be obvious that any failure by the president to comply with the remedial action imposed by the public protector in terms of section 182(1)(c) of the Constitution would prima facie constitute a breach of section 181(3) of the Constitution.

This is so because such a failure would almost certainly undermine the effectiveness of the public protector – instead of protecting it as the Constitution requires. After all, why would anyone in the world comply with the remedial action imposed by the public protector if the man right at the top refuses to engage with the remedial action in a systematic, diligent and rational manner?

The NA could, of course, also summons the president to appear before it to ask why the president had seemingly undermined the dignity, independence and effectiveness of the public protector by failing to answer a majority of the questions posed to him by the public protector. This failure to answer the questions of the public protector constitutes a prima facie criminal offence as the Public Protector Act says it is a criminal offence not to answer the questions posed to you by the public protector.

But this would be additional to the obligation set out above: in the absence of impeachment proceedings it is not the main constitutional reason why the ad hoc committee of the NA is obliged to engage with the Nkandla report. The main obligation of the ad hoc committee is to hold the president accountable for the manner in which he responded (or failed to respond) to the report.

Where no satisfactory explanation is provided to the NA by the president, the NA could institute a vote of no confidence in the president or his cabinet in terms of section 102 or could start impeachment proceedings against the president in terms of section 89 of the Constitution. If such a move succeeds, the president would be removed from office – the ultimate form of accountability.

As far as the public protector’s Nkandla report is concerned, it appears that none of this will be done, which means the NA will not comply with its constitutional duties regarding the Nkandla report.

This is not surprising. In fact, if I had been a member of the governing party serving on the ad hoc committee I would probably also have been extremely reluctant to hold the president accountable and to comply with my constitutional duties to do so.

The reasons for this are obvious.

Where the members of the governing party serving in the NA believe that no serious electoral harm will be done to their party if they fail to hold the president accountable, they will almost certainly act in a manner aligned with the interests of the president. From their perspective, it would be madness for them to act against the leader of their party (or against other senior members of their party who serve in cabinet and retains the confidence of the president) and to hold them accountable.

This is so because they might fear to act against the leader of the party, who may well possess incriminating information about their financial affairs or private lives that may be leaked to the media, SARS or the NPA. The leadership of the party will also be able to sabotage their careers by having them “redeployed” from the NA if they displease the leadership.

Some might be protecting the president out of personal loyalty to him. Others may harbour genuine fears that complying with the Constitution will further damage the image of the political party they are loyal to and love, and which they rely on for their jobs. Yet others may not have an ethical compass and may genuinely believe that there is nothing wrong with the use of public funds to personally enrich the president.

This means that – as is the case in many other democracies – the constitutional accountability measures break down where there are no negative political consequences for the governing party who fails to fulfil its accountability mandate.

The day that voters send a signal to the governing party that it will be punished at the polls for failing to hold the executive accountable will be the day this dynamic will change. Until then, spare a thought for the ANC members on the ad hoc committee who are caught between doing the right thing and doing what (for the moment) appears to be in their own best interest.

The Speaker’s dilemma

The raucous, often childish and rude, and somewhat chaotic debate on the motion of no confidence introduced by some opposition parties against the current speaker of parliament failed to engage in any meaningful manner with principled questions about the proper role of a speaker in a Constitutional democracy like our own. Leaving aside the question of whether Baleka Mbete is a good speaker or not, it may be helpful to ask what the appropriate role is a speaker ought to play in the South African parliament.

Should the speaker of the South African parliament be impartial? Should he or she ceremoniously distance him or herself from the party he or she belongs to after election as speaker in order to avoid a perception of bias and unfairness? Should the speaker resign as a member of the party’s caucus and escape its discipline?

Or should the speaker serve in a partisan capacity to advance the interests and political agenda of the majority party in parliament in order to promote the interests of the majority of voters? Should the speaker use his or her power to shield the members of the executive from the partisan attacks and questions from the opposition?

The text of the South African Constitution does not give an explicit answer these questions. But, as I point out below, the Constitutional Court has strongly suggested our Constitution requires adherence to the former rather than the latter model for the speaker.

The tradition in Westminster style parliaments is that a speaker cuts all ties with the party he or she belongs to after elevation to speaker and serves in a non-partisan and absolutely impartial manner to serve the interest of all the members of parliament (so serving the interests of all voters – not only those who voted for the governing party).

However, speakers in other systems serve in a more partisan capacity. For example, the speaker of the US House of Representatives is actively involved in advancing the interests and legislative agenda of the majority party (although he or she seldom preside over debates).

In terms of section 52(1) of the South African Constitution (read with Schedule 3) the members of the national assembly (NA) must elect a speaker in a secret ballot from among its members. Section 52(4) also allows the members of the NA to remove a speaker from office by adoption of a motion to that effect.

Only a member of the NA can serve as speaker. Given the electoral system through which members of the NA are elected, this means that the speaker must belong to one of the political parties represented in the NA.

In terms of the rules of the NA the speaker has considerable powers. He or she is the administrative head of parliament and either the speaker or another presiding officer preside over debates in the NA. The speaker has final authority over the interpretation and application of the rules of the NA (subject to control by the judiciary). He or she is also allowed to give a ruling or frame a rule in respect of any eventuality for which these rules do not provide.

In terms of section 90 the speaker may also (in very exceptional circumstances) serve as acting president of the country until a new president is elected.

As the Constitutional Court pointed out in Oriani-Ambrosini v Sisulu our Constitution requires MPs to make decisions (usually through majority vote) to pass legislation; adopt resolution; determine the time and duration of the sittings of the Assembly; elect a speaker and a deputy speaker; elect officers to assist the speaker; remove a speaker; and determine its processes through the making of rules.

In a democratic system of government, the members of the majority party therefore have the power to decide whether any of these decisions are passed or not (unless super majorities are required for a decision in which case the support of several parties may be required). It is the essence of majority rule that the majority party has a conclusive say in the decisions taken by parliament.

This does not necessarily mean that the South African Constitution envisages a system in which only the members of the majority party receive a fair chance to state their views and to influence decisions. There is a difference between the principle that the majority party rule when important decisions are taken and the principle that the majority party rule during deliberations that may eventually lead to a majority decision.

As Sachs J stated in Democratic Alliance v Masondo: “

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered…

Because the South African Constitution establishes an “open and deliberative” form of democracy it emphasises the need for dignified and meaningful participation by all MPs in the activities of parliament. As Sachs explained our form of democracy:

is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, ‘South Africa belongs to all who live in it…’

There are good reasons why the Constitution does not (in theory) allow the majority party to use its majority or its control over decisions such as who should be elected speaker, to silence the voices of those MPs who represent the millions of voters who have not voted for the majority party.

As Chief Justice Mogoeng pointed out in the Oriani-Ambrosini judgment:

South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.

The Constitution is (at least partly) aimed at preventing a recurrence of the horrors of the apartheid past. Having learnt from this past, the drafters of the Constitution also sought to prevent any recurrence of the undemocratic practices that were embedded in the apartheid state and helped to sustain it for so long. That is why the Constitution prohibits the suppression of dissent, criticism or protest against those in government.

What these Constitutional Court judgments emphasise is that ours is a democracy that values fair and equal participation in debate and in the processes that lead to the decisions that are ultimately taken by parliament. While the majority ultimately decides what the decision is, the minority must have a fair opportunity to take part in the deliberations that lead to a decision.

The judgments suggest that the rules of parliament should be formulated clearly and with sufficient precision and in in enough detail to prevent the rules from being abused by the presiding officer. The rules must be aimed at ensuring fair and meaningful participation of all MPs in the debates in parliament and in the other activities of parliament.

I suspect the rules as currently employed by presiding officers are far too vague and open to abuse to fulfil this basic Constitutional requirement. For example, the practice of ruling that statements must be withdrawn because they are “unparliamentary” has led in the past to the silencing of dissent and the asking of difficult questions. Anything can in theory be ruled to be “unparliamentary”, which means it is a term that can be abused to silent dissent.

The Constitutional Court judgments also suggest that our Constitution requires the speaker or any other presiding officer to act fairly and impartially at all times – also when he or she presides over a debate in parliament. Not only must the speaker be impartial and unbiased, he or she must act in a manner that would avoid the apprehension of bias or partisanship on his or her part.

If a speaker or other presiding officers are not impartial and are not manifestly seen to be impartial, parliament will not be able to function in a manner that promotes pluralistic democracy (the kind of democracy in which dissenting voices are heard loud and clear). This would be in conflict with the jurisprudence of the Constitutional Court.

However, this leaves the speaker of the South African parliament in a difficult position. As the speaker is elected to the NA on a party list and can easily be removed from the NA by his or her party, there will be strong pressure on him or her to serve the party and the executive and not the parliament as an institution.

In our system it is therefore very difficult for a speaker to be truly impartial and unbiased. For a speaker who is a member of the governing party this pressure will be even more severe as section 5.4 of the Constitution of ANC states that:

ANC members who hold elective office in any sphere of governance at national, provincial or local level are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the Constitutional structures of the ANC.

Whether this section of the ANC Constitution is compatible with the Constitutional Court judgments mentioned above (as well as theRamakatsa judgment) is open to debate. But as long as the Constitutional Court does not declare the section unconstitutional, it places any speaker from the governing party in the impossible position of having to serve the Constitution and to act impartially while also enforcing the decisions of the party.

I therefore have sympathy with the speaker. She has to serve two conflicting masters – something that is currently impossible to do.

For this reasons I believe the rules of the NA (and if needs be the provisions of the Constitution) should be reviewed to allow for the speaker to become a non-partisan and impartial officer of parliament as a whole, serving to protect and promote the pluralistic democracy in a manner that will ultimately be to the benefit of all South Africans.

The rules should prohibit a speaker from being a member of his or her party’s caucus and from serving in any position in his or her party. The rules should also protect the speaker by prohibiting his or her party from removing him or her from parliament for the duration of the parliament.

If the rules are not amended to secure the impartiality and independence of the speaker, parliament will continue to provide us with strident but ultimately vacuous entertainment – to the detriment of our democracy.

The President’s reply to the Public Protector: why it won’t hold water

In response to a letter written to him by Public Protector Thuli Madonsela about his failure to respond appropriately to her findings regarding the renovations at state expense of his private home at Nkandla, President Jacob Zuma questioned the Public Protector’s interpretation of the scope of her powers. Although no South African court has given a definitive answer to the exact scope of the powers of the Public Protector, some of the President’s claims are at best debatable. Here is why.

President Jacob Zuma says he disagrees with the Public Protector that findings of her office are by law not subject to any review or second-guessing by a Minister and/or Cabinet. He also challenges the view that only a court of law can review and set aside findings made and remedial actions taken by the Public Protector.

He states that the Public Protector’s role “is akin to that of an Ombud and quite distinct from that of a judge”. Her findings, argues the president, are useful tools to assist the government but they have no binding effect on the president. Because her findings do not emanate from an adversarial process, they cannot be binding. The president claims that he would be acting irrationally if he only considered responding to her findings in two ways: either to review her findings or to rubber-stamp them.

The Public Protector is a constitutional body exercising public power in terms of the Constitution and the Public Protector Act. She is empowered by section 182(1) to investigate alleged improper conduct in state affairs or the public administration and to make appropriate findings about the alleged improper conduct.

As the Supreme Court of Appeal (SCA) pointed out in 2011 in its judgment of The Public Protector v Mail & Guardian the Public Protector is not a mere Ombud, as the president alleged in his letter to her. This is because the Public Protector Act:

makes it clear that while the functions of the Public Protector include those that are ordinarily associated with an ombudsman they also go much beyond that. The Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances.

The powers of the Public Protector are indeed wide-ranging; far exceeding those normally associated with an Ombud. As the SCA further pointed out, the Act confers “sweeping powers” on the Public Protector’s office to enable her to conduct her investigations. The Act empowers the Public Protector to:

call for explanations, on oath or otherwise, from any person, he or she may require any person to appear for examination, he or she may call for the production of documents by any person, and premises may be searched and material seized upon a warrant issued by a judicial officer… He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.

Because the findings and remedial action taken by the Public Protector are made in terms of the Constitution and the relevant legislation, it cannot be correct to argue – as the president does – that the president, a Minister or the Cabinet can review or set aside her findings.

Just as the president or the Cabinet cannot set aside a decision of the CCMA, the Electoral Commission or the Pension Fund Adjudicator (or any other body authorised by law to investigate and make findings on matters in an independent and impartial manner) it cannot do so with findings of the Public Protector.

To hold otherwise would be completely to negate the independence of the Public Protector, which section 181(2) states is “subject only to the Constitution and the law”. It would also be in conflict with the duty imposed by section 181(3) of the Constitution on organs of state to “assist and protect” the Public Protector and to ensure its “independence, impartiality, dignity and effectiveness”.

Surely, were the very politicians implicated in wrongdoing by the Public Protector empowered to review and set aside her findings and remedial action, it would strike a fatal blow against the “effectiveness” of the institution of the Public Protector. To understand why this is so, consider an extreme example: imagine it was legally possible for a convicted murderer to review and set aside his or her conviction or the sentence imposed. That court of law’s effectiveness would be fatally undermined if this were to be allowed.

If the president or the Cabinet could review and set aside the decisions of the Public Protector, the legal powers bestowed on her office would thus become illusory.

The principle of nemo iudex in sua causa (no one may be a judge in his or her own cause) must surely also apply here. If the independence and impartiality of the Public Protector means anything, it must mean that her findings should not and may not be extinguished by the say-so of those against whom she has made findings of maladministration or misconduct.

I am therefore pretty sure only a court of law can review and set aside her findings and then only on the basis that she overstepped her powers, misconstrued the law or otherwise acted irrationally.

But if this is correct, does this mean that the president and his cabinet is bound by her decisions and that they are legally obliged to comply with the remedial action imposed by her office?

Our courts have not finally answered this question, but the wording of the relevant sections of the Constitution and the Public Protector Act suggest that her findings and remedial action may be binding. If this is correct, the Public Protector’s position would differ markedly from the position of most Ombudsman in other democracies – something the SCA has already confirmed.

The president is correct that the Public Protector is not a court of law. The argument could therefore be made that holding that the findings and remedial actions of the Public Protector are binding would be troubling as it would create confusion about the separation of powers between the judiciary and other constitutional bodies.

However, the Constitutional Court has said that South Africa has a unique system of separation of powers and that our understanding of it will develop over time. The starting point to understand our system will always remain the text of the Constitution. In this regard it may be significant that section 182(1)(c) of the Constitution states that the Public Protector has the power “to take remedial action” as regulated by national legislation.

This phrase suggests that the Public Protector does have the power to take binding steps to rectify wrongs committed by those in power, but that the power must be further elaborated upon in the Public Protector Act.

This seems to have been done in section 6(4)(b) of the Public Protector Act. This section provides some textual support for the argument that her findings and remedial action are indeed binding on the executive and on those directed to correct mistakes.

First, the heading of section 6 of the Act states that section 6 deals with the “additional powers of the Public Protector” and thus clearly deals with granting of powers to her as envisaged by the Constitution. Second, section 6(4) states that the Public Protector shall be competent:

to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by (i) mediation, conciliation or negotiation; [...] (iii) any other means that may be expedient in the circumstances.

This section is quite extraordinary in its scope. It empowers the Public Protector to take any steps she believes to be expedient in the circumstances to rectify the wrongdoing. “Any steps” must surely include ordering remedial steps. If the Public Protector is empowered to take any steps to rectify wrongdoing it must therefore include, say, ordering the president to repay a reasonable amount of the money with which he and his family were enriched by the renovations at Nkandla.

However, section 8 of the Act troubles the waters slightly as it states that the Public Protector may “in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her”.

Does this mean her factual findings are binding but that when she directs that remedial action be taken these are only recommendations?

A court of law will have to decide on this, but I suggest that there are two ways of reading the provisions of the Act.

First, it could be read as saying that the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary and is binding on the executive.

However, as the Public Protector is not a court of law, whenever a person directed by the Public Protector to take remedial action fails to do so, it would be necessary to approach a court of law for an order finding that the Public Protector’s directions were not complied with and asking the court to direct the president or other responsible person or body to implement the findings and remedial action imposed by the Public Protector.

Alternatively, the Constitution and the Act could be read as saying that while the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary, these findings and remedial action are not strictly binding (in the same way a court order is binding) on the president or other responsible persons or bodies who have been required to implement the findings and remedial action.

According to this second view, what would be required would be for the president or other responsible person to respond in a rational manner to the findings and remedial action imposed by the Public Protector in a manner that would assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of her office as required by the Constitution.

Whether it could ever be rational to ignore the remedial action imposed by the Public Protector (given that such a move would almost certainly undermine the independence and effectiveness of the Public Protector) is a good question to ask.

What would certainly be true is that ignoring the remedial action required by the Public Protector or failing to consider all the relevant findings when formulating a response to a report of the Public Protector would not be rational.

If I am correct, no matter whether a court ultimately prefers the first or second view set out above, the president runs the risk of being told by a court of law that he has acted irrationally in responding to the Public Protector’s report and that his response was therefore unlawful and invalid.

Pistorius judgment: Was there no intention to kill someone behind the toilet door?

The acquittal of Oscar Pistorius on a murder charge on Thursday (he may yet be convicted of culpable homicide) has puzzled some lawyers. This is why.

It did not come as a big surprise that Judge Thokozile Masipa found that the state had not produced sufficient evidence to prove beyond reasonable doubt that Oscar Pistorius intended to shoot and kill Reeva Steenkamp allegedly hiding behind the toilet door in his house “in a prestigious gated community in Pretoria”.

Although Judge Masipa highlighted several “peculiar” aspects of the case (for example, why did Pistorius pump 4, instead of 1, shots through the toilet door?), she found that the evidence produced to try and prove the “premeditated murder” of Reeva Steenkamp was almost exclusively circumstantial.

It would be difficult to convict somebody for murdering his girlfriend merely because the state produced evidence that they had fought on Whatsapp and (contradictory) evidence that neighbours heard them fighting on the night of the killing.

The high-water mark of the state’s case in this regard was the questions raised about how likely it would have been for Pistorius not to notice that Steenkamp was no longer in bed when he grabbed his gun and proceeded to the bathroom. But as the onus falls on the state to prove its case beyond reasonable doubt, it is not surprising that the judge found that there was not sufficiently evidence to convict Pistorius of murdering Steenkamp in a premeditated manner.

However, the judge also found that Pistorius could not be convicted of murder for killing who he had claimed he believed was an “intruder” locked in the toilet.

In South African law it is not a valid defence to claim that you did not have the intention to kill X because you had in fact intended to kill Y and had killed X by mistake. Thus if Pistorius had intended to kill an intruder (and not Reeva Steenkamp), he would still be guilty of murder as long as the state had proven beyond reasonable doubt that he had intended to kill the person behind the door whom he might (or might not) have thought to be an intruder.

It was not possible for Pistorius to rely on self-defence (which would have rendered his actions lawful) because objectively speaking there was no threat to his life and he could therefore not have acted in self-defence to protect himself.

Although there was some confusion, Pistorius seemed to have offered two different defences focusing on his intention to kill.

First, he argued that he acted in putative self-defence. In other words, he contended that although there was no threat to his life, he genuinely believed that there was such a threat and hence did not have the intention unlawfully to kill anyone.

This defence would have succeeded if the judge had found that Pistorius had genuinely believed that his life was in danger and that he was using reasonable means to avert an attack on himself or his property.

As intention is tested subjectively, the pivotal question would be what the actual state of mind of Pistorius was at the time when he killed the victim. Did he really believe that he was acted in self-defence and did he really believe that he was using reasonable means to avert the threat? I could not tell whether the court accepted this defence.

During cross-examination Pistorius offered a second defence of involuntary action. If the judge had found that Pistorius had not acted voluntary he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”. The judge rejected this argument.

Instead the judge found that Pistorius lacked not only the direct intention to kill Reeva Steenkamp, but also the indirect intention (dolus eventualis) to kill the person he believed was hiding behind the toilet door.

The state can only prove intention via the concept of dolus eventualis where the state can prove that while Pistorius might not have meant to kill the victim (Reeva Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions (in legal terms he nevertheless reconciled himself to this possibility and went ahead).

In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen (which would speak to whether he is guilty of culpable homicide).

In this case the judge found that Oscar Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person behind the toilet door when he pumped four bullets through the door.

For me the puzzling part of the judgment is the reasoning employed by Judge Masipa to come to this conclusion. Amongst others, she found that all the evidence suggest that he was truly distressed about having killed Reeva Steenkamp. How could he subjectively have foreseen that he would kill her if after the fact he was so distressed?

But although this might show that he did not subjectively foresee that he would kill Reeva Steenkamp, it says nothing about subjectively foreseeing that he would kill who he had thought was an intruder hiding behind the door. Given all the evidence presented in court about Pistorius’s knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed.

I might be wrong or might have misheard, but to my mind the judge did not engage with this issue in sufficient detail to explain convincingly why she found that Pistorius did not have the dolus eventualis to kill an unknown person behind the toilet door.

Given that Pistorius himself was unclear about what he felt and believed when he pumped four bullets through the door, and given the absolute improbability that any person (even somebody who is not at all reasonable in his or her actions) would not have foreseen the possibility of killing somebody in those circumstances, the lack of detailed analysis not linked to Pistorius’s intention to kill Reeva Steenkamp, raises questions about the finding.

It also raises questions about whether Judge Masipa might not wrongly have found that Pistorius could not have the requisite dolus eventualis because there was not sufficient evidence that he foresaw that his actions would lead to the killing of Reeva Steenkamp (as opposed to the killing of another person hiding behind the toilet door).

Of course, it is not easy for any judge to make a decision about what is in the mind of the accused. In order to convict Pistorius of murder the judge in this case had to look at all the facts and had to decide that she was convinced beyond reasonable doubt that – subjectively – Pistorius had foreseen that by pumping four “zombie stopper” bullets into a toilet door behind which a human being was standing could lead to the killing of that human being. In doing so the mere say so of Pistorius that he did not foresee this would not be the only evidence to consider. As the Court explained in Humpreys:

[S]ubjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight, derived from common human experience, with other members of the general population.

In the Pistorius case the question is whether there was any reason to believe Pistorius did not share the foresight that his actions could lead to the killing of a human being. The judge found that there was. The question is whether the facts support such a finding.

How to have a meaningful discussion on affirmative action

It is not easy to have a reasoned and intelligent discussion about the legal scope of affirmative action measures. The many agitated (but completely uninformed) responses to the recent affirmative action judgment of the Constitutional Court illustrate this point. Perhaps it may be helpful to begin to dissect the judgment and to analyse the fascinating and subtly different opinions on affirmative action expressed by various justices of the Constitutional Court.

Anyone familiar with the text of the equality clause in the South African Constitution (section 9), equality theory developed over the past 70 years and well-settled international human rights law on equality and non-discrimination will know that there is nothing legally or conceptually controversial about the implementation of affirmative action measures based on race, sex, gender or other grounds like sexual orientation and disability.

This does not mean that academics, lawyers and judges with a basic knowledgeable of equality and non-discrimination law do not engage in serious and important debates about the limits of affirmative action measures and the interplay between various forms of disadvantage and discrimination. In the judgment of South African Police Service v Solidarity obo Barnard various judges of the Constitutional Court begin to engage with some of these issues.

But to understand the judgment, it is first important to state what the case was not about.

The Barnard case was not about whether race-based affirmative action measures are permissible in South Africa. (It has long been settled by our courts that they are – not surprisingly, as section 9(2) of the Bill of Rights explicitly says so.) Neither was the case about the constitutionality or the legal validity of the employment equity plan devised by the police. (The validity of the plan was never challenged.) Neither was the constitutionality of the Employment Equity Act in issue. (Solidarity wisely decided not to challenge the provisions of the Act.)

The narrow question in the Barnard case was whether the National Commissioner of Police acted lawfully when he twice declined to appoint Renate Barnard as superintendent in order to ensure the effective pursuit of the numerical goals for racial representativity set out in the SAPS affirmative action policy. (The question of why other suitably qualified black candidates who also applied were not appointed was not raised or considered by the Court.)

It is also important to note that the SAPS affirmative action policy does not prevent the promotion of white applicants. Nor did it prevent Barnard from being promoted. In fact, after the National Commissioner declined to appoint Barnard to the post in question, she was promoted to Lieutenant Colonel in the National Inspectorate Division of the SAPS.

The judgment contains four different opinions by various judges of the Constitutional Court. All the justices agreed that the implementation of the employment equity plan by the National Commissioner of the SAPS complied with the requirements of the Employment Equity Act, but offered slightly different reasons for their decision.

All the judgments once again confirmed the importance of addressing the effects of past racial discrimination through the implementation of affirmative action measures. It affirmed that affirmative action measures are required to achieve equality and, implicitly, that such measures are not a departure from the right to equality, but a necessary requirement for its achievement.

Equality cannot be achieved by always treating all people in exactly the same manner, because all people in South Africa have not (and do not now) enjoy equal privileges and benefits. (In any case, the very essence of legal regulation is to authorise the different treatment of different groups of individuals for a salutary or valid purpose.) In the words of Deputy Chief Justice Moseneke, the Constitution “has a transformative mission. It hopes to have us re-imagine power relations within society”.

Importantly, in the main judgment Moseneke reminded us that affirmative action measures cannot do all the work to advance social equity. Moseneke therefore confirmed that affirmative action is an important mechanism to effect transformation, but that more is required from the state than to oversee its implementation.

A socially inclusive society idealised by the Constitution is a function of a good democratic state, for the one part, and the individual and collective agency of its citizenry, for the other… In the words of our Preamble, the state must help ‘improve the quality of life of all citizens and free the potential of each person’. That ideal would be within a grasp only through governance that is effective, transparent, accountable and responsive. Our public representatives will also do well to place a premium on an honest, efficient and economic use of public resources.

Moseneke thus reminds us that where the government is not effective, transparent, accountable and responsive, that government hampers transformation. Those who justify government secrecy, maladministration or tardiness are therefore the enemies of transformation.

All the justices also agreed that the transformative ethos of the Constitution means that those who have been (or continue to be) privileged because they are white or male (or because of other attributes such as their heterosexuality or able-bodiedness) might sometimes have to bear a limited burden associated with redress.

In the pursuit of correcting past injustices and achieving substantive equality, which may allow all South Africans to enjoy equal life chances (something that is still far from the case) the law may burden the privileged in ways authorised by the Constitution. Justice van der Westhuizen – implicitly drawing a comparison between white South Africans and post-Second World War Germans – best explained the reason for this:

So it may be a historical fact that the innocent often have to account for sins committed before they were born or able to act independently. However, ‘innocence’ of conduct by one’s ancestors or predecessors that in hindsight are widely recognised as morally repulsive, does not mean that the innocent have not over time benefited from injustice. One can benefit from a wrong without being guilty of wrongdoing.

All the justices further agreed that the Employment Equity Act does not allow strict and rigid quotas to be enforced but does allow an employment equity plan to set targets to be pursued by an employer. Rigid quotas would in effect place an absolute bar on the employment or promotion of a member of a privileged group. The SAPS employment equity plan did not impose such rigid quotas and neither did the manner in which the plan was being implemented.

There was also agreement that the Employment Equity Act does not allow for the employment or promotion of a person who is not suitably qualified for the job. To hold otherwise would be insulting to many black South Africans who only got their fair chance to shine and succeed because of redress measures. As Moseneke explained:

I pause to underline the requirement that beneficiaries of affirmative action must be equal to the task at hand.  They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment. The Act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent. Plainly, a core object of equity at the workplace is to employ and retain people who not only enhance diversity but who are also competent and effective in delivering goods and services to the public.

Where the justices seemed to have differed is on the exact standard imposed by the Employment Equity Act to measure whether a constitutionally valid employment equity plan was implemented lawfully.

In the main judgment Moseneke did not finally answer this question, but found that when an employment equity plan is implemented in a capricious manner or for an ulterior or impermissible purpose it would be unlawful.

As a bare minimum, the principle of legality would require that the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct in implementing a lawful project attracts unlawfulness. Therefore, implementation of corrective measures must be rational. Although these are the minimum requirements, it is not necessary to define the standard finally.

However, on this score there are important differences between the main judgment written by Justice Moseneke and one of the concurring judgments written by Cameron, Froneman and Majiedt. (The other concurring judgments seem to agree with the main judgment of Moseneke on this point.)

The judgment of Cameron, Froneman and Majiedt holds that a valid employment equity plan must not only be implemented rationally but also fairly.

The third judgment of Van der Westhuizen raises questions about the wisdom of imposing this “fairness” standard to measure whether an employment equity plan was implemented lawfully. For reasons that are complicated to explain in short, Van der Westhuizen worried that introducing such a standard may lead to internal inconsistencies and may seem incoherent, given the fact that valid affirmative action measures are not subject to the fairness test in terms of section 9 of the Constitution.

In this case nothing turned on this possible disagreement because all the justices agreed that as the employment equity plan was not implemented in an overly rigid fashion, as there was no evidence that it placed an absolute barrier on the appointment of white SAPS members and as there was a clear need for affirmative action measures in the unit of the SAPS under discussion, the decision of the National Commissioner was lawful.

I do detect a slight difference in tone between the judgment of Cameron, Froneman and Majiedt on the one hand and the other justices on the other hand as the former emphasises the so-called “intersectionality” of different forms of disadvantage.

In laymen’s terms, this means the judgment highlighted the fact that a person can be severely disadvantaged because he is black, while being relatively advantaged because he is male or heterosexual or able-bodied. A person can also be more disadvantaged because she is a poor, black woman living in a rural area and not a middle-class, black man living in Sandton.

In line with this concern about the “intersectionality” of different forms of disadvantage, justices Cameron, Froneman and Majiedt stated that although race is still a vitally important measure of disadvantage and must be considered when employment equity targets are formulated:

We should also be careful not to allow race to become the only decisive factor in employment decisions. For this may suggest the invidious and usually false inference that the person who gets the job has done so not because of merit but only because of race. Over-rigidity therefore risks disadvantaging not only those who are not selected for a job, but also those who are.

These differences of emphasis in the various judgments did not affect the outcome of the case. However, the judgments illustrate that it is possible to have an informed, intelligent discussion on the scope and content of affirmative action measures and about the best way to ensure that each South African has equal life chances while also protecting the human dignity of all.

But this can only really happen if we agree on the incontrovertible fact that many South Africans still do not enjoy equal life chances because of past (and on-going) racial and other forms of discrimination. If we refuse to acknowledge this injustice and if we attempt to deny that some of us have been (and continue to be) privileged because of such injustice, an informed debate about the matter remains impossible.

Can Parliament act against EFF MPs for demanding answers in Parliament?

Can members of National Assembly (NA) who belong to the Economic Freedom Fighters (EFF) be suspended from Parliament for breaching the rules of the National Assembly? And if they “disrupt” proceedings by insisting that the speaker acts impartially and that the President answers the questions validly posed to him, can they be arrested – as suggested by a slightly unhinged Gwede Mantashe last week?

Parliament is supposed to be the engine room of South Africa’s democracy. Apart from considering and passing (constitutionally valid) legislation, Parliament is also required to hold the executive accountable, to oversee its activities and to provide a platform for debate about important issues of the day.

For members of the majority party there is an inherent conflict between fulfilling these constitutional obligations as elected representatives (and hence acting as servants of the people) and submitting to the strict discipline of the party who they represent in Parliament and following the instructions of their party leaders.

How do you hold the members of government accountable if they are leaders of your party who may have a decisive say in whether your name appears on the electoral list at the next election? How do you insist on accountability when you know Gwede Mantashe might call you in for a tongue lashing if you dare to ask the right questions? How do you insist on holding the executive to account if you run the risk of being “redeployed” as third assistant secretary to the South African ambassador of Tjkitjikistan?

Nevertheless, section 58 and 71 of the Constitution states that both Cabinet members and members of the National Assembly (NA) and the National Council of Provinces (NCOP) enjoy enjoys freedom of speech in Parliament and in its committees, “subject to its rules and orders”.

This means freedom of expression can only be limited if authorised by the rules and orders of Parliament. It cannot be limited by arbitrary rulings of the speaker not explicitly authorised by the rules and orders of Parliament.

As the Supreme Court of Appeal (SCA) ruled in the De Lille judgments many years ago, customs that apply in the British Parliament do not form part of South Africa’s Parliamentary rules and cannot be applied here without being incorporated into the rules and orders of our own Parliament.

The need for clearly defined, precise and narrowly tailored written rules on what kinds of speech can be limited in Parliament is important in a system like ours in which the speaker is neither independent nor impartial but a political leader of the majority party with a vested interest in protecting members of government against any accountability and criticism.

In the absence of clear rules, the speaker will have a blank cheque to make-up rules or to misapply vague rules to stop debate and to protect the members of cabinet from being held accountable by MPs who have a constitutional duty to do so.

It is for this reason that many of the rulings made by the speaker disallowing so-called “unparliamentary statements” by MPs are probably illegal and unconstitutional. There is no rule or order that authorises the speaker to limit “unparliamentary” statements and when she does make such a ruling it is therefore not authorised by law and almost certainly infringes on section 58 (or 71 if done by the Chairperson of the NCOP) of the Constitution.

Besides, the notion of “unparliamentary statements” is so vague and incomprehensible that it all but invites the speaker and other presiding officers to invoke it to stifle debate and free speech in Parliament in order to protect the members of the executive from criticism, scrutiny and accountability.

However, the rules of Parliament as well as the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act do regulate some forms of speech and conduct in Parliament.

Thus rule 49 of the NA requires members of the NA to take their seats when the presiding officer rises to speak. Rule 50 allows the presiding officer to order a member to stop his or her speech when the member persists in irrelevance or repetition of arguments. Rule 63 prohibits members from using “offensive or unbecoming language”. Rule 66 prohibits members from reflecting “upon the competence or honour” of a judge or a member of a Chapter 9 institution.

It is important to note that rule 72 of the NA makes clear that every member of the NA has a right to raise a point of order and may speak to do so. (Where a speaker refuses to hear a member who raises a point of order – as she did during the debate in which President Zuma refused to answer questions put to him by the EFF – she is in breach of the rules which she is supposed to uphold.)

Despite this, the speaker does have broad powers. She has a right to order a member to withdraw from the chamber where there is a breach of the rules or, in serous cases, to suspend the member. If the speaker is presiding this cannot be done after the fact, but must be done while the house is sitting. This means the speaker does not have the authority to suspend members of the EFF for what happened in the House last week, as she did not suspend them at the time – she merely suspended proceedings of the House, as she was entitled to do.

This does not mean that members of the EFF may not still potentially face legitimate suspension, as the Powers, Privileges and Immunities Act provides for suspension of members for up to 30 days and for a docking of an MPs pay for up to one month if they are found guilty of contempt of Parliament.

Contempt includes, amongst other things, improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions; assaulting or threatening another MP; while Parliament or a House or committee is meeting, creating or taking part in any disturbance within the precincts; bribing MPs or taking a bribe; or hindering or obstructing a staff member in the execution of the staff member’s duties.

A “disturbance” is defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or committee”.

This definition is vague: does it include statements made by MPs in which they raise points of order to demand that the President answer questions posed to him, when the President is illegally protected by the speaker from having to answer? And if it is a disturbance, is it an improper disturbance as required by the Act? Is an improper disturbance not only related to threats, violence and destruction of property and not to disturbances caused by the exercise of freedom of speech by MPs?

Given the fact that the Constitution guarantees the right of MPs to free speech in Parliament, these provisions have to be given a narrow interpretation to limit their scope. It may therefore very well be that an impartial body would find that what the EFF MPs did, does not amount to an improper disturbance of Parliament.

But who exactly caused the disturbance in the case relating to the (non) answering of questions by President Jacob Zuma in the NA? Was it the President who refused to answer the questions posed to him? Was it the speaker who bent the rules of Parliament to protect the President? Or was it the EFF members who refused to obey the rulings of the speaker and insisted that the president answer the questions? Or was it perhaps all three groups?

In terms of section 12 of the Powers, Privileges and Immunities Act, a standing committee of the NA (the Powers and Privileges Committee) must now decide these questions. An ad hoc Committee of the NA cannot decide on these questions as this would be in breach of section 12 of the Act read with section 191 of the rules of the NA.

The Act requires this committee to “enquire into the matter in accordance with a procedure that is reasonable and procedurally fair” and then to “table a report on its findings and recommendations in the House”. The House can then act against individual MPs if the standing Committee on Powers and Privileges makes a finding against them, based on the relevant facts, after having conducted a fair hearing.

It would obviously not be procedurally fair for the Committee to prejudge the matter or for the majority of the Committee members from the governing party to make decisions on the “guilt” or “innocence” of the EFF MPs based on the instructions of their party leaders. Where a perception has been created that the matter has been prejudged by some members of the Committee the fairness of the hearing will be called into question.

Given the statements made by some ANC leaders (and especially the Secretary General of the ANC) calling for strong action against EFF MPs, it is difficult to see how the Committee can actually conduct a reasonable and procedurally fair inquiry with ANC MPs present on the Committee. The Chief Whip of the ANC may very well have created a reasonable apprehension of bias on the part of ANC members of the Committee because of his premature statements about what happened in a branch of government.

Ironically, by commenting so hastily on the matter, the ANC leaders may well have provided the EFF members with a valid legal argument to nullify the work of the standing committee.

Lastly section 11 of the Act states that:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

If this section applies to MPs as well as other persons who are not MPs and if “disturbance” includes a disturbance made through rowdy and unpopular speech, the section is clearly unconstitutional. This is so because section 58 and 71 of the Constitution prohibits MPs from ever being arrested for anything any of them has said in either of the houses of Parliament or its committees (even if what they have said was disrespectful, disruptive or in breach of the rules and the orders of Parliament).

These sections are not limited in any manner, providing MPs with an absolute right against arrest for what they say in Parliament.

But the section could also be read in conformity with the Constitution by reading it as not applying to MPs and I suggest this is the correct interpretation of the section. It is for that reason that the statement by Gwede Mantashe that EFF MPs should have been arrested and any suggestion by so called “Security Cluster” Ministers that MPs could be arrested for what they say in Parliament is dangerous and unconstitutional nonsense.

All this does raise an important question: has the time not come to consider the need to appoint a more independent and impartial person as speaker to apply the rules fairly and in a more even handed manner?

Should an MP who is elected as speaker not give up membership of the party or any leadership positions in that party for the duration of his or her speakership? Surely, a more fair and impartial speaker would instil more respect from all MPs, would ensure impartial rulings and may well prevent a recurrence of the kinds of actions taken by EFF MPs last week.