Constitutional Hill

Thuli Madonsela: Wrecking Ball

There is not enough laughter in our politics. Thank goodness for the team at ZANews.

Nkandla: Zuma’s convoluted series of Houdini moves

Over the past week the governing party released a veritable sea of red herrings into the political pond (more like a cesspit) in an attempt to avoid confronting the embarrassing but incontrovertible fact that President Jacob Zuma violated the Executive Ethics Code and improperly benefited when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations at his private Nkandla palace. It’s time to cut through the verbiage and explain what must happen next.

The Public Protector is the only independent constitutional institution that has conducted a comprehensive and impartial investigation into the Nkandla scandal. That institution produced a 447-page report clearly indicating what went wrong with the Nkandla palace upgrade and clearly setting out the remedial steps that must be taken to correct the wrongdoing.

The findings and remedial action imposed by the Public Protector are not popular in some quarters, but like all factual findings made by an independent constitutional institution they are not subject to changes made by the majority of MP’s in Parliament. If that were so, then the Public Protector would be irrelevant – just as the courts would be irrelevant if their decisions could be amended by Parliament.

What must happen next – in accordance with the Constitution – is that these remedial steps must be implemented forthwith (“speedily and without delay”, as the Constitution would have it). The rest is irrelevant political noise.

The Ministerial Task Team who first “investigated” the Nkandla scandal was not an independent body and did not conduct an impartial investigation. It was a body of people tasked with investigating their own bosses.

If Oscar Pistorius’ uncle Arnold Pistorius had been asked to rule on whether Oscar was guilty of murder, uncle Arnold’s “ruling” would probably have been more credible than the report produced by the Ministerial Task Team.

Such a “ruling” by uncle Arnold would also have had the same legal status as the Ministerial Task Team investigation and report. The investigation of the Ministerial Task Team was an informal one, not explicitly authorised by any law or any constitutional provision. It therefore has no legal standing. As a public relations exercise it might have had some value, but in law it is irrelevant.

The Special Investigative Unit (SIU) is also not an independent and impartial constitutional body. Because it is not independent and because its functions stray too far from that associated with that usually performed by a judge (who does have to be impartial) the Constitutional Court ruled that a judge couldn’t head the SIU.

In terms of the SIU Act its head is appointed by the president and can at any time be removed by the president. The SIU head thus serves at the pleasure of the president and he would therefore be foolish in the extreme to make any finding against President Zuma if he wanted to remain in office.

In any case, the SIU can only investigate matters when he or she is authorised to do so by the president. When the president authorised the SIU to investigate the renovations at Nkandla he (unsurprisingly) did not authorise the SIU to investigate whether President Zuma had breached the Ethics Code or had improperly benefited from the renovations when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations.

The SIU can institute civil proceedings against those it has investigated to recover damages or losses incurred by the state. It can therefore go after the architect and others who allegedly unduly benefited from the Nkandla renovations. The SIU should do so forthwith. However, even if it had wanted to (which would have been career suicide for its head) the SIU cannot hold the president to account for breaches of the Ethics Act or for improperly benefiting from the Nkandla palace renovations because President Zuma ensured that it could not investigate him.

The ad hoc committee of Parliament also has a role to play in holding the president and others accountable. In this it is to be assisted by the Public Protector, the president and other Ministers and functionaries found to have acted in breach of their legal and constitutional duties. Its role is to ensure that the president, the various ministers and the functionaries comply with the remedial action provided for by the Public Protector.

The ad hoc committee must therefore study the remedial action imposed by the Public Protector with a view to hold the executive accountable for complying with the remedial action. To this end it is empowered by section 56 of the Constitution to summon the president or any minister to appear before it to give evidence on oath or affirmation, or to produce documents (including the documents the president unlawfully refused to provide to the Public Protector). It can also require the president or any minister to report to it on any aspect of the scandal.

This it can do to ensure that the president, the relevant ministers and other functionaries comply with the remedial action imposed by the Public Protector’s report.

What the ad hoc committee cannot do is to either purport to review and reject the findings and remedial actions of the Public Protector. Chapter 9 institutions are independent and as Parliament itself found in an ad hoc Report on Chapter 9 bodies, neither the legislature nor the executive may interfere with the core business of a Chapter 9 institution.

The core business of the Public Protector is to investigate maladministration and breaches of the Ethics Code and to direct that remedial action be taken.

This means that the ad hoc committee has no authority to either review or ignore the findings and remedial action of the Public Protector. If it purports to review its findings and to replace the findings with different ones, it would be acting ultra vires and hence illegally. If it ignored the findings that are relevant for its oversight and accountability functions it would act irrationally and hence unlawfully.

This is made obvious with reference to an example from another Chapter 9 institution, the Electoral Commission. If the Electoral Commission declares candidate A from an opposition party to be the winner in a constituency in a local government by-election, a committee of Parliament cannot review that decision and decide that candidate B of the governing party should be elected instead. If it purported to do this it would represent a fundamental attack on democracy and would represent a flagrant unconstitutional power grab on behalf of the majority party in Parliament.

Similarly, if the ad hoc committee purports to review and set aside the findings of the Public Protector because the findings are unpopular with President Zuma, then the ad hoc committee would be launching a full frontal unconstitutional attack against the Constitution. In order to protect our democracy a court would have no problem in declaring such action by the ad hoc committee unconstitutional.

The various persons and bodies will probably not comply with the steps as set out above. In order to shield the president from the consequences of his own actions and to endorse the unlawful self-enrichment of the president and his family at taxpayers’ expense, the law and the Constitution (as well as Parliament) will probably be undermined and degraded. All because the president refuses to pay back the money that he owes to South African citizens.

Public Protector tries to assist President to act lawfully – to no avail.

Politicians often behave like alcoholics who refuse to acknowledge that they have a drinking problem. Instead of accepting the help they so desperately need to recover from the devastating illness, they attack those who try and assist them and vilify those who have their best interest at heart for “interfering in their lives”. The response of President Jacob Zuma (and, recently, that of the ANC) to the many attempts by Public Protector Thuli Madonsela to assist the President to deal properly and in a constitutionally and legally valid manner with the Nkandla scandal is a case in point.

In her most recent letter addressed to President Jacob Zuma about his response (or substantial lack thereof) to her report on the Nkandla scandal, Public Protector Thuli Madonsela points out that she is “currently preparing a special report to the National Assembly regarding progress achieved by organs of state with the implementation of remedial action”.

In order to protect the President and the government he leads she wishes to avoid a situation in which she has to advise the complainants and the National Assembly that the President has failed to engage with the substance of the report or implementation of the remedial action proposed in it.

Having to provide such advice would obviously cause further embarrassment to the Presidency and would also further expose the Presidency to legal action on the basis that his response to the report and his failure to implement the recommendations of the Public Protector are irrational and hence unlawful.

In terms of section 182(1)(c) of the Constitution the Public Protector has the power “to take appropriate remedial action” whenever that office finds that there was a breach of any law or whenever it was found that an organ of state acted unethically or in breach of its legal duties or is guilty of maladministration.

Section 181(3) of the Constitution further places a legal duty on all organs of state (including the President) to “assist and protect” the institutions of the Public Protector to ensure its “independence, impartiality, dignity and effectiveness”.

Relying on this power bestowed on her by the Constitution the Public Protector required the President to “take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures” implemented at his private residence “that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool”.

It further required the President to “pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document” and to “reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused”.

Lastly, in accordance with section 3(5) of the Executive Members Ethics Act the President was required (over and above the requirements set out above), to “report to the National Assembly on his comments and actions on this report within 14 days”.

It would not be appropriate for the Public Protector to be seen to interfere with the process according to which the National Treasury determines what portion of the money President Zuma should pay back.

But it is appropriate for the Public Protector to try and assist the President in order to prevent him from acting unlawfully by purporting to usurp the power of the courts and thus by infringing on the separation of powers doctrine.

As the letter by the Public Protector makes clear, neither the President, nor the Minister of Police is legally authorised to reconsider the findings and remedial action contained in the Public Protector report. Only a court of law can review and set aside the findings and remedial action instituted by the Public Protector.

The decision by the President to task the Minister of Police “to report to Cabinet on a determination to whether the
President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports” is therefore not authorised in law.

If challenged a court would almost certainly set aside this decision of the President on the basis that it is irrational and hence unlawful.

It is also clearly in breach of the separation of powers doctrine as the President is purporting to bestow a judicial power on the Minister of Police. As the President and other members of the executive have often in the past emphasised how important they regard the separation of powers doctrine, this purported action by the President is surprising indeed.

As the Constitutional Court found in Democratic Alliance v President of South Africa and Others when exercising his powers or fulfilling legal or other constitutional duties the President cannot ignore factors relevant to the decision (legal obligations and factual findings about wrongdoing being such relevant factors):

There is therefore a three stage enquiry to be made when a court is faced with an executive decision where certain factors were ignored. The first is whether the factors ignored are relevant; the second requires us to consider whether the failure to consider the material concerned (the means) is rationally related to the purpose for which the power was conferred; and the third, which arises only if the answer to the second stage of the enquiry is negative, is whether ignoring relevant facts is of a kind that colours the entire process with irrationality and thus renders the final decision irrational.

Where the President ignores the fact that his Minister of Police does not have the legal authority to review and set aside the decision by the Public Protector to require the President to pay back a reasonable amount of the money spent on non-security related upgrades, he is ignoring factors relevant to the exercise of his powers and acts irrationally.

By ignoring the fact that neither himself nor the Minister of Police (or the National Assembly for that matter) can review and set aside the findings or the remedial actions imposed by the Public Protector, the President is therefore proposing to act in an irrational and hence unlawful manner.

The letter of the Public Protector alerts the President to this fact, presumably with the hope that the irrational and unlawful action will be rectified before it becomes necessary to approach a court of law to set aside the President’s decision. It is a pity that the Public Protector is now being criticised for trying to assist the President to act lawfully.

Some confusion has been created about the role of the National Assembly in this matter.

In terms of section 3(5) of the Executive Members Ethics Act the President has a further duty (over and above his duty to implement the remedial actions of the Public Protector in a rational manner) to submit a copy of the report of the Public Protector on breaches of the Ethics Code and any comments thereon, together with a report on any action taken in this regard to the National Assembly.

This became necessary because the Public Protector found that the failure of the President “to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”.

(The President’s response that the Public Protector found that: “President Zuma did not mislead Parliament or violate the Executive Ethics Code when he addressed Parliament regarding the security upgrades” could therefore be misleading.)

This provision of the Executive Members Ethics Act recognises the role of the National Assembly in holding the executive to account. It allows the National Assembly to play its appropriate role in ensuring that the findings and remedial actions of the Public Protector are properly implemented. But the National Assembly cannot usurp the powers of a court or of the Public Protector. Its role is circumscribed.

Two important conclusions flow from this.

First, the National Assembly is not authorised to review and set aside the findings and remedial actions of the Public Protector. If the National Assembly purports to do so, it would act in breach of the separation of powers doctrine. Its task is limited to holding the executive accountable by checking whether the executive has implemented the recommendations and remedial actions set out by the Public Protector.

Second, it would be improper for the National Assembly to engage with an irrational and hence unlawful response by the President.

Recall that where the President acts irrationally by unlawfully authorising the Minister of Police to review the findings and remedial actions of the Public Protector, it taints the whole process and renders it irrational and unlawful. It is akin to a soccer game in which a player is ruled offside: everything that follows from the offside is null and void. Any goal scored after the offside ruling was made will not count.

It is therefore of no use for the National Assembly to engage with the irrational and unlawful recommendations of the President. The National Assembly is not a court of law and cannot render the actions of the President lawful by a say-so. If the National Assembly now engages with the irrational and unlawful recommendation of the President it would, at best, be wasting its time. At worst, it may endorse illegality.

It is for this reason that it was entirely appropriate for the Public Protector to write to the President in an attempt to protect the Presidency, the Ministry of Police and National Assembly and to ensure that these institutions refrain from acting unlawfully or from endorsing illegality.

It is rather unhelpful to shoot the messenger because the message she brings – no matter how true and timely – is unpleasant or embarrassing.

Just like it is unhelpful for the alcoholic to attack his or her friends and family members for pointing out that he or she needs help to deal with the illness at hand, so it is unhelpful for the President and the ruling party to attack the Public Protector for trying to assist the President (and the National Assembly) to deal lawfully and appropriately with the Nkandla scandal.

Money, power and the everyday oppression of gender roles

During this women’s month, platitudes about how we all respect and admire women (especially if they are our mothers, girlfriends, wives or sisters) will trip off the tongues of even the most zealous sexist. But until we begin to disturb and dismantle some of the most deeply entrenched assumptions and practices regarding gender roles, these platitudes will only serve to legitimise male domination and the oppression of women.

“oor die bedkassie skuif jy my maandelikse tjek/ek sien hoe skerp die woord geld, trek op geweld…” (you shove my monthly cheque over the bedroom table/ I notice how sharply the word money, resembles the word violence…) – Antjie Krog in Lady Anne

My mother was not a great fan of washing dishes, cooking dinner, washing baby nappies or cleaning the house. She preferred drinking white wine or pink Cinzano campari’s and smoking her Ransom Select cigarettes while arguing with the men about politics, books and rugby.

When she had to submit baked goods for the Vroue Landbou Unie Skou, she asked me to bake it. (We won first prize every time.) When she did bake she would leave the kitchen in an terrible mess and I would hear her mutter: “Oh, dashitall, this is a big smash”.

She was rather disdainful of the way in which some of her women friends tended to congregate in the kitchen to make salads and to talk about babies, bridal showers and hysterectomies. (Is it really true that doctors once thought that problems with the womb were responsible for emotional disturbances in women, so they labeled those diseases “hysteria” or “disease of the womb”?)

But on those days when dishes had to be washed, dinner had to be cooked or the house had to be cleaned, she did it with a white, burning, rage that awed and frightened us.

It was only later that I understood her anger.

Somehow my father – whom I had always though of as a liberated man – never cleaned the house, changed any nappies or washed the dishes – not for as long as any of us children were living at home. And only as a special “treat” did he ever make his “famous” pea soup or scorched the meat on the braai.

Despite being a liberated man, he enjoyed his male privilege without too much shame.

Of course, in the world my parents lived in my mother had no choice in the matter. She had to raise her children and (sometimes) do the housework – even though she was never paid a salary to do it.

In our culture, women seldom get paid a salary for doing so called “women’s work” for the families they are part of.

No wonder my mother was sometimes angry.

(The very idea that there might be “women’s work” is of course a deeply oppressive construct. It is no coincidence that such work has a low status in our culture and in a capitalist society more generally. It is also no coincidence that – even when it is done for a salary for other families – it is a low-paying job. Ask any domestic servant.)

A woman who cannot afford to pay another woman (very little) to do her housework and to raise her children and whose partner does not share in the household responsibilities (because he or she claims it is “women’s work”) often does it for free; mostly with the understanding that as long as the partner (who always has the final say) wants the woman to stay around, he will contribute financially to the household expenses.

This way of organising the world, in which different gender roles (sometimes with some modification) are assumed to be normal and natural, ensures the maintenance of male domination. In this arrangement the man in the relationship always has more power than the woman.

There is nothing normal about this arrangement. It serves the interests of patriarchy and bestows privileges on men who are in long-term relationships with women.

The fact that it is presented as “normal” is the way in which male privilege is maintained. Just as the fact that feminism and feminists are demonised as men haters and hysterics help to maintain the status quo of women’s exploitation.

The exploitation of a group of people is often maintained through the normalisation of the assumptions and practices that ensure the oppression of the less powerful group.

Ask many of us white people who lived through apartheid and (if we are honest) we would say that life seemed shockingly normal to us. For many white people apartheid was just the order of things, something that was never questioned because – from the vantage point of privilege – the enormity of the inhumanity was largely invisible to us.

Although the two kinds of oppressions are not exactly the same and although different forces are at play in the two types of oppression, it is interesting to see how many men who oppose racial oppression and talk about the need for the achievement of economic freedom for black South Africans, insist that traditional gender roles for men and women are “normal” and that there is nothing exploitative or oppressive about the ideology invoked to maintain such roles.

Often this is justified with reference to religion, tradition, culture or biology.

Thank goodness, the emergence of less traditional families now pose a fundamental threat to this model – which is one of the reasons why so many men feel deeply threatened by lesbian relationships and why they ridicule men who share household duties with their partners.

My mother did not have complete economic freedom and for periods of her life she depended financially on my father. Because my father often had the better paying job he had a form of power that my mother did not have. Even when he behaved atrociously, my mother was constrained to do anything about it: his relative economic freedom and power gave him some control over my mother.

She was a strong and independent woman. But my mother did not enjoy the kind of economic freedom that would truly allow her to be free to make choices that would always serve her own best interest. And that is the position that many men like women to be in.

When the Constitutional Court had the opportunity to consider the corrosive effect of the assumptions about traditional gender roles that underlie much public policy and legislation in child rearing (and the way such traditional assumptions are preserved and promoted by policies and legislation), the majority of the Court failed to grasp the seriousness of the matter.

Surprisingly, perhaps, it was Justice Johan Kriegler who demonstrated a better understanding of the issue. Kriegler might at first glance not look like your average feminist. But I have met his wife Bettie and (perhaps unkindly to judge Kriegler) have always thought that she looks like a person who would have taught him a thing or two about sexism and patriarchy.

In his dissent in the case of President of the Republic of South Africa and Another v Hugo Justice Kriegler found that an act by the President which pardoned only certain female prisoners on the (lamentable but factually correct) assumption that women “bear an unequal share of the burden of child rearing”, unfairly discriminated against women by perpetuating discriminatory stereotypes about them.

In my view the notion relied upon by the President, namely that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns.

Kriegler wrote that he found it “startling” that the discrimination was justified on this basis. In a world in which it is assumed that women has no choice in the matter and that they will be the primary caregivers of children, you rob women of the ability to make dignity-bestowing life choices.

[T]here are decided disadvantages to womankind in general in perpetuating perceptions foundational to paternalistic attitudes that limit the access of women to the workplace and other sources of opportunity. There is also more diffuse disadvantage when society imposes roles on men and women, not by virtue of their individual characteristics, qualities or choices, but on the basis of predetermined, albeit time-honoured, gender scripts.

Of course, in an ideal world men and women would have the same social status and economic power and if they form relationships and have children (instead of forming relationships with somebody of their own sex) they would all make rational choices on how to allocate housework and childrearing duties that will have nothing to do with the sex or gender of the partner.

Now here is a thought: This month instead of promoting the sentimental and sexist infantalisation of all women as supposedly weak, emotional, and caring, we can begin to challenge those who actively or through omission valorise stereotypical gender roles.

Let us call them what they are: the oppressors of women.

The freedom to be fabulous

South Africans do not all agree on the meaning of freedom. Whenever there is talk of the need to achieve economic freedom or the need to protect the freedom to be different, it becomes evident that we do not all mean the same thing when we talk about “freedom”. Maybe it is time to reflect more deeply on what we mean when we talk about freedom – before “freedom” becomes a meaningless cliché only trotted out by politicians when they want to stop us from thinking critically.

Last week President Jacob Zuma was on top form when he responded to the debate on the presidency’s budget in the National Assembly. In his speech a jovial Zuma lectured DA Parliamentary leader Mmusi Maimane, telling Maimane that he and his family were very fortunate to be living in a free South Africa, noting that this freedom was attained through the blood, sweat and tears of many selfless freedom fighters, in a liberation struggle that was led by the ANC.

We are indeed fortunate to live in a country where basic political freedoms as well as basic economic freedoms are protected in the justiciable Constitution. We are fortunate that the ANC, as the most prominent liberation movement in South Africa, ensured this expansive protection of freedom in the Constitution.

However, the gap between the promise of the Constitution and the lived reality of ordinary citizens can sometime look insurmountable. As I was once told when I spoke at a workshop in an extremely impoverished community: “We cannot eat your Constitution and your rights.”

The indisputable fact is that despite a dramatic improvement in the well being of most South Africans since the ANC came to power after the fall of apartheid, all of us are not equally free. As the Constitutional Court remarked several years ago:

We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services…. For as long as these conditions continue to exist that aspiration will have a hollow ring.

Too often politicians talk too glibly about freedom, as if it relates only to the right freely to choose those who represent us in Parliament. While this kind of freedom is of vital importance for the restoration of the full dignity of all South Africans and to protect us from the kind of tyranny that prevailed during the colonial and apartheid eras, it ignores the lack of economic freedom faced by many South Africans.

The problem of how to achieve a semblance of economic freedom as promised by the Constitution is a vast and complex topic, better left for another day.

Instead I wish to reflect on another form of freedom that too many South Africans (especially from an older generation) lose sight of or undervalue. That is the freedom to choose how you want to live your life; the freedom to be different; the freedom not to conform to how others expect you to live your life.

A trio of young men from Johannesburg (Ashwin, Lee-Ché and Rogue) who call themselves the Vintage Boys personifies this kind of freedom. (See video above.)

They revel in being different. Shopping in what looks like bargain clothing stores they create their own style by “editing” the garments. That is, they take to the garments with a pair of scissors and needle and thread and create something new. The creations that emerge are always fabulous and unique. Sometimes they challenge the traditional gender categories. Judging from the YouTube video, the outfits are never boring.

In the video clip one of the young men bemoans the fact that South Africa remains essentially a very conservative country. “Many people still carry the Apartheid with them and because they were not free, they don’t want us to be free.”

The young men rebel against traditions, also deeply entrenched traditions about how gender should be performed.

For me, Ashwin, Lee-Ché and Rogue are poster boys for a certain kind of freedom protected and promoted by the Constitution. By breaking the rules of how men are “supposed” to dress, they assert their agency as human beings and celebrate the freedom that our Constitution guarantees.

Of course, many South Africans do not have the freedom to make the kind of choices that Ashwin, Lee-Ché and Rogue can make because of economic deprivation. But that does not mean that these young men are not every bit as revolutionary as any fighter marching in their red berets to demand economic freedom.

It is by breaking the many of the societal rules (without harming anyone in the process), rules that were also enthusiastically promoted and enforced by the apartheid government, that they create their own meaning of what it means to be free. They challenge traditional stereotypes about our country and our continent through their creativity, energy and verve.

They might not be aware of this, but what these three young men are doing were foreshadowed by Justice Albie Sachs in 1998, when he wrote the following in a concurring judgment in the Constitutional Court case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others:

The acknowledgment and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are…. What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

For some South Africans this radical form of freedom is not easy to cope with. Radical departures from the status quo are seldom embraced by a society – especially an essentially conservative society in which great fear accompanies any form of change.

In the video the three men are shown walking down the streets of Johannesburg in their fabulous outfits while men and women on the street look on.

At one point in the video one of the onlookers being interviewed (a soberly clad older gentleman) expresses disapproval of the way the three young men are dressed because that is not the “proper” way in which an African man should dress. Ironically, he indicates that the “proper” way an African man should dress is like a boring middle class heterosexual man from Europe. But the irony is lost on the interviewee.

(I would contend that it is the same kind of attitude that led to the ban on the wearing of overalls by Economic Freedom Fighter (EFF) legislators in the Gauteng legislature.)

Ashwin, Lee-Ché and Rogue shriek with delight when they hear the man say that it is the first time that he sees someone dressed like this. “Thank you! Thank you!” they exclaim while applauding. By expressing his disapproval, the man confirms to Ashwin, Lee-Ché and Rogue that they are indeed unique and fabulous.

Of course many South Africans will not follow their example. And that, too, is their right. After all the Constitution also protects the right of people not to be rebels.

If you want to follow traditional norms and conform to rules imposed by traditional culture or imported into South Africa through the process of colonialism, this too is your right – as long as your norms and traditions do not discriminate against or marginalise others.

It is a great pity that so many South Africans begrudge others the freedom to live their lives as they please; the very freedom they themselves enjoy because they happen to conform to some or other constructed norm or tradition.

Home Affairs: Is it harassing lawyers illegally

The right to a fair trial – protected by section 35(3) of the South African Constitution – can only be safeguarded if the state refrains from harassing and intimidating lawyers and if lawyers are not indirectly punished for standing up for the rights of ordinary citizens. Where paranoid government officials target lawyers who dare to challenge the unconstitutional abuse of power by government departments, they undermine the Constitution and Rule of Law. Recent actions of the Department of Home Affairs may very well be posing such a threat.

Back in 2005, after Schabir Shaik was convicted of soliciting a bribe on behalf of Jacob Zuma from an arms company and of bribing him with other ridiculously small amounts of money, the now defunct Scorpions conducted search and seizure raids on various properties, including on Mr Zuma’s flat in Killarney (it would be many years before the money of taxpayers and other benefactors would transform Nkandla into a palace) and the offices of Michael Hulley, Mr Zuma’s lawyer.

These raids were part of the Scorpions investigation aimed at building what (at the time) it believed to be a watertight case of corruption against Jacob Zuma.

The searches and seizures must have been successful, because although charges against Mr Zuma were eventually dropped, this was not done because the National Prosecuting Authority (NPA) believed that it did not have the evidence to secure the criminal conviction of Jacob Zuma. Even on the day the charges were dropped, the then acting National Director of Public Prosecutions insisted that the NPA had ample evidence to secure the criminal conviction of Mr Zuma.

Be that as it may, the Constitutional Court rejected the legal challenge to the validity of most of these search and seizure warrants. It did, however, agree that parts of the warrants that authorized a blanket search and seizure of any documents at Mr Hulley’s office was invalid on the basis that it breached the attorney/client privilege between Mr Hulley and Mr Zuma and threatened Mr Zuma’s right to a fair trial.

As the Constitutional Court pointed out in the Zuma judgment, the right to legal professional privilege is a general rule of our common law. It states that communications between a legal advisor and his or her client are protected from disclosure, provided that certain requirements are met.

The rule is very important as it facilitates the proper functioning of an adversarial system of justice by encouraging full and frank disclosure between lawyers and their clients. Where the state uses the police to access such privileged information, it intimidates lawyers and potentially inhibits clients from speaking frankly to those engaged to protect their rights. Without the vigorous protection of this privilege there can be no fair criminal justice system and no fair trial.

In the context of criminal proceedings the right to have privileged communications with a lawyer protected is necessary to uphold the right to a fair trial in terms of section 35 of the Constitution, and for that reason it is to be taken very seriously indeed. As the Constitutional Court explained in the Zuma case:

Accordingly, privileged materials may not be admitted as evidence without consent. Nor may they be seized under a search warrant. They need not be disclosed during the discovery process. The person in whom the right vests may not be obliged to testify about the content of the privileged material. It should, however, be emphasised that the common-law right to legal professional privilege must be claimed by the right-holder or by the right-holder’s legal representative.

It is because the right to protect privilege is so important that the Constitutional Court declared invalid the wide-ranging warrant authorizing the search and seizure of documents at Mr Hulley’s office in a “catch-all” fashion. The Court found that the “full and indiscriminate execution” of such a warrant “would have posed a great danger to legal professional privilege, particularly if no one had happened to be present in Mr Hulley’s offices that morning”.

It cannot be denied that searches of attorneys’ offices pose a heightened risk concerning privileged material, and for that reason all such searches should be carried out with great care and circumspection. The catchall paragraph, however, purported to authorise a wide-ranging search through Mr Hulley’s documents, files and computer records. In my view, it opened the door too widely and provided insufficient direction to the searchers and searched in the specific context of the search of an attorney’s office.

It is therefore worrying to read that the offices of a Cape Town immigration lawyer, Craig Smith, were raided late on Friday afternoon and many of his files and computers seized.

The law firm is now challenging the validity of the search and seizure warrants and seeking a return of the documents and computers seized by the police and the Department of Home Affairs. Smith claims that the officials and the police refused to entertain his claims that the warrant was illegal and also refused entry to his Advocate who arrived to deal with the alleged breach of the attorney/client privilege. The officials left with many documents including recent case files.

If the lawyer attempted to alert the officials about the privileged nature of many of the files seized and if it is true that those executing the search ignored this, it would constitute a flagrant breach of section 29(11) of National Prosecuting Authority Act. (Even the Scorpions adhered to this section when it raided the offices of Mr Hulley.) The section states that if, during the execution of a warrant or the conducting of a search:

a person claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the investigation and that such information is necessary for the investigation, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.

But in this case officials from the Department of Home Affairs took away the files without involving the protection of the registrar. The worrying fact is that Mr Smith is representing a number of people in court opposing the Department of Home Affair’s new draconian and paranoid immigration regulations.

If the raid and the seizure of some of the files of some clients relate to these cases, the Department of Home Affairs would have subverted the criminal justice system in the most flagrant manner in an attempt to intimidate Mr Smith. (At this point we only have the version of Mr Smith as Home Affairs have declined to comment.) Such intimidation would constitute a scandalous abuse of power and would border on the criminality. It would all be aimed at protecting a new immigration regime that is almost certainly not going to pass constitutional muster.

The new regulations make it very difficult if not impossible for many couples in permanent life partnerships to form such intimate relationships or (if they do) to live together in South Africa as partners. This seems to be in direct contravention of the Constitutional Court judgments in National Coalition for Lesbian and Gay Equality v Minister of Home Affairs andDawood v Minister of Home Affairs.

Regulation 3 states that an applicant who wishes to apply for a visa or a residence permit in terms of the Act on the basis that the applicant is married to a South African citizen or permanent resident of South Africa must prove that the relationship had existed for at least two years before the date of the application for the visa or permit.

This means if you meet a foreigner, fall in love, and marry that foreigner, your husband or wife will not be entitled to be granted a South African visa or permit unless you can prove that you have been in a relationship with the love of your life for at least two years.

As the regulations make it almost impossible for a South African citizen to live with his or her beloved in South Africa for the first two years of the relationship, it would make it very difficult if not impossible for most South Africans to enter into and sustain an intimate relationship with a non-South African resident. This would constitute a fundamental infringement of every South African’s right to human dignity.

Moreover, if you actually manage to sustain such a long distance intimate relationships for two years, it would be rather difficult to prove that you have been in an intimate relationship for those two years. I can imagine the Kafkaesque nightmare of having to convince an official of the Department of Home Affairs that you sustained an intimate relationship with somebody for two years while that person was living abroad.

But even if such a couple, against all odds, manages to form such an intimate relationship and gets married within two years of having met, they would not be allowed an uninterrupted joint stay in South Africa for the first two years. They would be forced to live in different countries despite being married to one another. Of course, for those who are not rich and cannot afford the expense of travelling from their home country to South Africa or vice versa, the infringement of their right to happiness would be even more severe.

The regulations bestow draconian powers on the Director General of Home Affairs to revoke a visa or a permit after it was granted. It affords no hearing to the partners whose right to life together in an intimate partnership would be fundamentally affected. For these reasons I would be extremely surprised if the Constitutional Court does not declare some of these regulations unconstitutional. In Dawood the Constitutional Court stated:

The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfilment in an aspect of life that is of central significance… [S]uch legislation would clearly constitute an infringement of the right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that will constitute an infringement of the right to dignity, but any legislation that significantly impairs the ability of spouses to honour their obligations to one another that would also limit that right. A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honour that obligation would also constitute a limitation of the right to dignity.

Is the Department of Home Affairs really subverting the very essence of our criminal justice system by illegally attempting to intimidate lawyers and their clients in order to defend these rules, which are almost certainly not in accordance with the basic guarantees of our Bill of Rights? If so, are they doing this out of sheer, irrational, paranoia and/or because of undeclared xenophobia?

Either way, it is respect for the human dignity of every citizen that is being threatened.

Hlaudi weather: The fog is even thicker than it looks

The appointment of Hlaudi Motsoeneng as the SABC’s Chief Operating Officer (COO) despite his dishonest and prima facie criminal behaviour raises serious questions about the willingness of public institutions and our government to respect constitutional institutions and to obey the law. It suggests that instead of viewing the public protector as an ally who can assist in rooting out dishonesty, maladministration, corruption and criminal behaviour, some public institutions and government ministers view the public protector as an irritating impediment to impunity.

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Some days I yearn for the time before the National Assembly selected Thuli Madonsela as public protector. In those more innocent and altogether more soothing times, I could read a report of the public protector without having my remaining trust in the basic decency and honesty of most human beings shaken to the core.

Now, because South African journalists who are not employed by the SABC often hunt in packs (journalists from the SABC seldom hunt at all) they often manage to create a negative image of an individual that accords with their own agendas, anxieties and prejudices.

Once the pack identifies a public persona as worthy of scorn, the good publicity ends and the relentless, predictable vilification continues apace. Nuance, even-handedness, and any consideration of the other side of the story seldom come in to the equation. I therefore try to be circumspect and not to assume the worst of a public official or politician in the absence of clear evidence that he or she is a scoundrel.

Over the past week, as the hysteria around the appointment of Hlaudi Motsoeneng reached a crescendo, I wondered whether Mr Motsoeneng may not have been unfairly targeted in this way because of his (authoritarian-sounding) support for the licencing of all journalists. Maybe it is not such a big deal that Mr Motsoeneng does not have formal qualifications – as long as he does his job diligently and with the necessary integrity?

I therefore went back to the report published by the public protector earlier this year on the shenanigans at the SABC to determine whether Mr Motsoeneng was not being unfairly painted as a dishonest, bumbling, scoundrel. Sadly, in this instance, the report of the public protector suggests, if anything, that journalists have been too kind to Mr Motsoeneng.

The public protector found that when Mr Motsoeneng first applied for a job at the SABC he completed an application form in which he indicated that he had passed Standard 10 (“matric”) in 1991 at the age of 23. However, he only provided symbols for 5 subjects (in which he indicated he had attained 4 E and one F symbols).

During an interview with the public protector, Mr Motsoeneng admitted falsifying his matric qualification and blamed others, whom he said told him to make up his matric symbols from the top of his head, which he did. With regard to the matric certificate, the form says “outstanding”, giving the impression that the certificate exists and would be submitted in due cause.

The report quotes Mr Motsoeneng as telling the public protector:

From me … for now because I do understand all the issues, I was not supposed, to be honest. If I was … now I was clear in my mind, like now I know what is wrong, what is right, I was not supposed to even to put it, but there they said, “No, put it”, but what is important for me Public Protector, is everybody knew and even when I put there I said to the lady, “I’m not sure about my symbols” and why I was not sure Public Protector, is because I go, a sub, you know I remember okay in English I think it was “E”, because it was you know after … it was 1995.

The report quotes from several letters sent by the SABC HR Department in which Mr Motsoeneng is requested to provide a copy of his outstanding matric certificate. It also quotes an undated response from Mr Motsoeneng, in which he indicates that he was still not in possession of the said certificate. He undertook to provide it as soon as he received it.

Now, in law, you commit fraud – a criminal offence – when you unlawfully make a misrepresentation with the intention to defraud which causes actual prejudice or which is potentially prejudicial to another.

It would not be a defence to claim that another person had told you to commit fraud, just as it would not be a defence to murder to claim somebody else told you to kill a person. Neither is it a defence to fraud to say that your fraudulent representation was known to be fraudulent by many people.

Where you persist in your misrepresentation (as Mr Motsoeneng did when he promised to provide the “outstanding” matric certificate) it will be easier for the state to prove that you had the intention to defraud.

In law, the actual or potential prejudice need not be financial but can also be to reputation or dignity. More importantly it exists where some aspect of public administration is materially inconvenienced.

The fraudulent nature of the misrepresentation was confirmed by a 2003 SABC Group Internal Audit, which confirmed that Mr Motsoeneng had misrepresented himself by stating that he passed matric in 1991. The Group Internal Audit also established that when Mr Motsoeneng applied for an Executive Producer’s post at Lesedi FM in 2003, the requirements for the post was a Degree or Diploma in Journalism with eight years’ experience in the production of Radio Current affairs programme.

Given this overwhelming evidence and given the admission of wrongdoing by Mr Motsoeneng himself the public protector concluded:

The allegation that Mr Motsoeneng committed fraud by stating in his application form that he had completed matric from Metsimantsho High School is substantiated. By his own admission during his interview, Mr Motsoeneng stated in his application form that he had passed standard 10 (matric), filled in made-up symbols in the same application form and promised to supply a matric certificate to confirm his qualifications. He did so knowing that he had not completed matric and did not have the promised certificate. His blame of Mrs Swanepoel and the SABC management that stating that they knew he had not passed matric, is disconcerting. If anything, this defence exacerbates his situation as it shows lack of remorse and ethical conduct.

What seem particularly disconcerting is that Mr Motsoeneng persisted in his dishonest behaviour, first lying to the public protector by denying he misrepresented his matric results but then, after being confronted with the employment application, admitting to the fraudulent misrepresentation.

Three perplexing questions arise form this sorry saga.

The first is why Mr Motsoeneng had not been prosecuted for fraud. Why had the relevant authorities at the SABC not requested the police to investigate the alleged fraud perpetrated against the SABC by Mr Motsoeneng?

The second question that arises is why so many people – including the previous and current chair of the SABC Board – have been eager to support the employment of a confidence trickster like Mr Motsoeneng in one of the most important positions at the corporation?

The previous Chair told the public protector in writing that “the SABC perused Mr Motsoeneng’s file and could find no evidence that he misrepresented his qualifications.”. This could not have been true as Mr Motsoeneng left the SABC under a cloud in 2003 after its own Group Internal Audit investigation found that he had misrepresented his qualifications.

Now, as Prof Burchell states in his textbook on Criminal Law: “Fraud is the crime of the liar, the cheat, the confidence trickster”. Why have so many people – some of them of high standing – been prepared to support and protect a “liar”, a “cheat”, a “confidence trickster”? Was there political pressure on them to do so, or did they do so because of their own lack of a moral compass?

The third question that arises is why the newly appointed Minister for Propaganda, Faith Muthambi, would ignore the recommendations by the public protector that the SABC should take disciplinary steps against Mr Motsoeneng for his dishonesty, abuse of power and improper conduct. This failure is almost certainly irrational and I would be extremely surprised if a court does not set aside the decision to confirm Mr Motsoeneng’s appointment.

The failure is also in conflict with the stated policies of the governing party to be serious about rooting out maladministration and corruption. The office of the public protector was created to assist public officials – including ministers – to adhere to the law and to act in a manner that would enhance trust in public bodies like the SABC. Yet, in the case of Mr Motsoeneng the Minister ignored the findings of the public protector and acted in a way that further eroded public trust in the SABC. It cannot be in the interest of the governing party to destroy the credibility of the SABC as it would then be far less likely to be believed by ordinary voters.

The Presidency issued a carefully worded statement claiming that President Jacob Zuma “has no role to play in the appointment of SABC management or staff and did not play any role in the said appointment”. This non-denial denial did not state that the President had not communicated his wishes about the desired appointment to Minister Muthambi or had not “requested” her to ensure the appointment of Mr. Motsoeneng as COO.

Whether the appointment was done to comply with the wishes of President Zuma is not clear. In any event, the statement by the Presidency does not deny it.

What is very clear is that the bizarre statement by Minister Muthambi that an independent law firm’s legal opinion to the board “cleared Mr. Motsoeneng of wrongdoing” and thus renders the appointment rational is a legal nonsense.

In fact, the claim by the Minister that the opinion of a private lawyer can trump the official findings of a constitutional body like the public protector may arguably open the Minister to criminal prosecution for contempt of the public protector in contravention of section 9 of the Public Protector Act.

Why would a new Minister risk her career to endorse a clearly illegal decision that opens her up to criminal prosecution? Could it be that she was merely complying with the request/instructions of the person who appointed her as Minister? Only the minister and the president would be able to enlighten us.

Attacks on Madonsela: blaming the messenger

The public protector is increasingly coming under attack from governing party politicians who fear that maladministration, misspending of public funds, disrespect to voters and outright corruption will be investigated and exposed. This is to be expected. No one wishes to be called to account for “eating” public funds or for acting in ways that completely disrespect the dignity of voters.

Last week an ANC MP, Bongani Bonga, complained before a justice portfolio committee meeting in the National Assembly (NA) that public protector Thuli Madonsela should desist from voicing views “that are political in nature”.

The Chair of the justice portfolio committee Mathole Motshekga supported his colleague and suggested that Chapter Nine institutions were duplicating each others’ work, and that this was adding to the public protector’s excessive caseload. Addressing Madonsela, he said: “I think the powers of these institutions, including yours, should be reviewed to avoid this costly duplication.”

While these attacks are not surprising or novel (after all, politicians all over the world will always try to protect themselves and the leaders of the party they belong to), they are not particularly well informed.

In terms of section 182 of the Constitution the public protector has the power to investigate “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action”.

Section 6(4) of the Public Protector Act further states that the office of the public protector may investigate a wide range of acts and omissions – either on his or her own initiative or on receipt of a complaint.

These include any alleged maladministration in connection with the affairs of government at any level; abuse of power or unfair, capricious, discourteous or other improper conduct by a public official; corruption with respect to public money; and improper or unlawful enrichment by a person as a result of the actions in the public administration at any level of government. However, for obvious reasons (relating to the independence of the judiciary) the public protector may not investigate court decisions.

The Nkandla investigation by the office of the public protector thus fell squarely within her mandate as set out above, relating as it did to maladministration, possible corruption as well as the improper and unlawful enrichment of President Jacob Zuma.

The only possible overlap in jurisdiction between the public protector and other Chapter Nine institutions relates to investigations of unfair or discourteous conduct by state officials. When the unfair or discourteous treatment may constitute unfair discrimination based on race, sex, gender, sexual orientation or some other relevant ground this may also be investigated by the Human Rights Commission or the Commission for Gender Equality. The Equality Courts can also deal with the same matters.

If the honourable Motshekga believes that discrimination based on race, gender or sexual orientation is not a particularly important matter and that citizens should rather not have the option of approaching different bodies to have this investigated, the Constitution or the relevant legislation can therefore be amended to make it more difficult for citizens to challenge racism, sexism and homophobia. But I suspect that is not official ANC policy.

No other Chapter Nine body may investigate maladministration, corruption, self-enrichment or discourteous and tardy service not related to the abuse of human rights. It is therefore unclear what Mathole Motshekga was referring to when he stated that the public protector and other Chapter Nine bodies were duplicating each others work.

It is important to recall that the independence and impartiality of the public protector is constitutionally protected. Another body – such as Parliament or the Presidency – cannot amend the findings of the public protector because such a body disagrees with these findings. This is so because it is a criminal offense to do anything in connection with an investigation of the public protector that would have constituted contempt of court if it had been done or said about court proceedings.

Just as it would constitute contempt of court for any individual to try and amend the findings of a court of law, so it would constitute a criminal offense to do so regarding an investigation of the public protector. It is also a criminal offense to insult the public protector or deputy public protector. You are liable for imprisonment for a period not exceeding 12 months if you commit such an offence.

Of course this does not mean that anyone – including Members of Parliament – cannot discuss the findings of the public protector and cannot criticize the findings on substantial grounds. However, imputing bad faith on the part of the public protector – as some politicians have been doing – does not constitute criticism of the findings of the public protector and would therefore constitute a criminal offence.

The public protector is in a difficult position. Her office does not have the same powers as a court of law and her findings cannot be enforced in the same manner as the orders of a court.

Nevertheless section 182 requires the public protector to “take appropriate remedial action” when necessary. This means that after concluding an investigation the public protector must make findings and must recommend the appropriate remedial action to be taken by the relevant authority.

Because the findings of the public protector do not have the same force of law as a court judgment, often the only way to ensure that the “appropriate remedial action” is taken is through publicity of the findings. That is why section 8 of the Public Protector Act provides for the publication of the public protector’s reports. Often the public protector will have to ensure the wide dissemination of her findings and recommendations to try and shame the relevant public officials or the politicians into taking the required remedial action.

I suspect it is this aspect of the public protector’s mandate that has upset the honourable Bonga. I assume the honourable Bonga believes the public protector must desist from using her authority and standing as an honest and independent investigator to try and shame or embarrass public officials and politicians into taking her findings and recommendations seriously.

But where politicians launch criminally prohibited personal attacks on her integrity in order to try and discredit the uncontested factual findings in her reports, she may be forced to engage with the public directly about the findings of a report.

Ironically then, were public officials and politicians to stop launching personal attacks on the public protector as the honourable Bonga did (an attack that may well constitute a criminal offence), it would be unnecessary for the public protector to engage widely in the media about the findings of a particular investigation.

Some of the investigations conducted by the public protector relate to the unlawful or possibly criminal conduct of state officials or members of the government. In such cases any engagement about the findings of such a report will inevitably be viewed as “political in nature”. When it is revealed that a politician has acted unlawfully or has unlawfully benefited from public funds, such a revelation inevitably has political consequences as it lowers the standing and the trust of that politician in the eyes of ordinary voters.

This does not mean the public protector who made the findings and then talked about them is making statements of a political nature. She is making statements based on her investigations and findings.

The person to blame for the bad publicity is of course the politician, not the public protector. To blame her and to say that she makes statements that are political in nature is nothing more than blaming the messenger. It is a bit like attacking a person for calling out another person on his or her racism, sexism or homophobia.

Interestingly, the honourable Motshekga may well have had a point when he argued that there is a costly duplication of powers of some chapter 9 institutions.

I am not sure he actually read the Report on Chapter 9 institutions prepared by the ad hoc Committee of the NA chaired by the late Kader Asmal. If he did, he would know that the Report found that the mandates of the South African Human Rights Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities do overlap.

The Asmal Report recommended that these three bodies – along with the Pan South African Language Board – be amalgamated into one “super” Human Rights Commission, empowered and resourced to assist ordinary citizens with enforcing their human rights.

Because it is prohibitively expensive for almost all of us to approach a court of law when our rights are being infringed, both private institutions (especially big companies) and state officials are guilty of undermining the basic rights of citizens – especially the vulnerable and marginalized citizens in our society.

Creating a “super” Human Rights Commission with the powers and resources to investigate and resolve human rights complaints would empower citizens vis-à-vis powerful private and public institutions. It will help to affirm the human dignity of all and will create a body of similar stature as the public protector in the field of human rights protection.

Imagine such a “super” Human Rights Commission had the resources to investigate and deal with every single complaint about the systemic racism, sexism and homophobia that still plague our country; the racists, sexists and homophobes across the country would quake in their boots – just as the politicians now do when they hear the current public protector is going to investigate them.

If our government was truly serious about restoring the human dignity of all citizens, it would take down the Asmal Report from the shelf where it has been gathering dust and would be discussing ways of implementing these radical proposals aimed at protecting ordinary citizens from the most flagrant human rights abuses.

In an ideal world Mathole Motshekga and the other members of the justice portfolio committee would be spearheading such a move instead of attacking the public protector for doing what she has been constitutionally tasked to do.

White, Afrikaans universities – when will they truly transform?

The damning independent report on the various dehumanising initiation practices that still occur at the Potchefstroom campus of North West University (NWU), and the response of many members of the Afrikaner establishment to criticism about these practices, again raise the question of whether there is a legitimate place in South Africa for a publicly funded University (or campus) that mainly serves (white) Afrikaans students.

Ag nee man, there is no code for that,” the woman who had to sign off on my registration form told me on the day when I had to register for my third year LLB studies at Stellenbosch University in the late nineteen eighties.

I had insisted that I wanted the form changed. I was no longer a member of the NG Kerk. Instead I wanted the form to reflect that I am an atheist. The woman looked appalled. I suspected that in her eyes being an atheist was almost as bad as being a kommunis or some other kind of landsverraaier. I might as well have told her I was an ANC supporter.

“But there is no code for atheist,” she insisted. “Choose something else.”

“So you want me to lie?”

She hesitated. Lying was not approved of. It was up there with being an atheist or a landsveraaiende kommunis.

“Why don’t we just write ‘atheist’ on the form instead of writing in the code?” I suggested.

She shook her head firmly. “That is against the rules. Can’t we just write in the code for NG Kerk?”

“No, the NG Kerk supports Apartheid. I can’t be associated with them,” I said in the self-righteous and pleased-with-myself tone that comes easy to a 22-year-old white student whose head was spinning with new ideas.

“I will make a plan,” she said, primly pursing her lips.

When the registration letter came back I saw that I had been turned into a Christian Scientist. Probably the closest the woman could get to an atheist.

I was reminded of this minor, vaguely amusing, incident while reading the leaked Task Team Report into initiation practices at North West University. (The full Report can now be accessed here.)

At the time when I was studying at Stellenbosch University, the authoritarian, racist, homophobic culture (profoundly antagonistic towards those who did not fit in), was deeply alienating to those who dared to be different from the deeply embedded norm.

I mean, the University even threatened to expel all those of us who took part in a protest march to demand an end to residential Apartheid in University residences. At that march students from various residences threatened to physically attack marchers for daring to state a view that contradicted official National Party policy.

I know too well that one of the ways in which this kind of conformity was imposed was through a violent, degrading, semi-militaristic initiation programme aimed at humiliating first year students and then assimilating them into the koshuis culture.

Apparently (and quite remarkably) much the same thing continues to this day in residences on the Potchefstroom campus of NWU. While NWU claim to abhor this culture and while its rules officially prohibit it, it has turned a blind eye to it in a cynical move to placate alumni while pretending to obey the law.

Thus the NWU Council attempted to suppress large parts of the most recent Independent Report. (This Report made many of the same findings than several pervious reports, which were never acted upon, as the culture of initiation continues at the University.)

The NWU Council presumably tried to suppress the most recent Report because it yet again contains damning findings about the anti-intellectual institutional culture of intimidation and censorship at the Potchefstroom campus and of the prevalence of racism and formal and informal racial discrimination on that campus.

The Report finds that there is an atmosphere of fear and victimisation on the Potchefstroom campus, that many academics who challenged the non-existent transformation of that campus were hounded out of the University through the use of disciplinary and other mechanisms, and that many students and staff were fearful when they spoke to the task team.

According to the Report, “independent thought is often dismissed as disloyal” by those in leadership positions at the University.

As the Report wryly comments: “It cannot be right that taxpayers’ money is spent towards suppressing freedom of expression” on a University campus. How anyone could get even the semblance of a quality education in such an authoritarian atmosphere is beyond me.

The task team also found that on the Potchefstroom campus a tacit quota system applies to University residences to limit the number of black students allowed in residences. In other words, on the Potchefstroom campus they are enthusiastic about affirmative action – in favour of white students.

Those who defend the University and wish to preserve the predominantly white, Afrikaans, quasi-authoritarian ethos on the Potchefstroom campus of NWU, argue that the Constitution protects the right of a state funded University like NWU to retain its unique cultural character. Some also argue that demands for the creation of a more inclusive campus, respectful of diversity in terms of language, race, religion and sexual orientation, must be seen as a frontal attack on the constitutionally protected right to teach white Afrikaans students in Afrikaans.

These arguments cannot be sustained and lack any understanding of the South African Constitution and how it is usually interpreted by the Constitutional Court. It is ignorant of (or chooses to ignore) the fact that the provisions of the Constitution must be interpreted contextually with reference to both South Africa’s particular history of racial discrimination and oppression and to the social and economic context within which education is offered in the country.

The arguments of those who defend Potchefstroom fail to recognise that the Apartheid state severely curtailed the ability of black students to obtain a quality education while providing white students with every possible opportunity to study at any of a number of whites-only Universities. The consequences of this 100-year programme of radical affirmative action for white students have not evaporated overnight.

These arguments also ignore the fact that South African Universities are public institutions, are funded by taxpayers’ money and provide a limited number of places to an ever increasing potential pool of students.

University places are a finite resource. Where some prospective students have more and better choices of where to study than other prospective students, the former group is privileged and the latter group is being discriminated against.

An argument that there are many Universities that cater for black students can therefore not be sustained. It would be like saying because there are many Shoprite Stores it would be perfectly acceptable for Woolworths to be reserved for white shoppers only.

This means that if a University mainly caters for white or Afrikaans students, that University denies black and non-Afrikaans students the opportunity to compete on an equal footing for places at that University, which is a public asset providing a public service, funded by taxpayers.

Thus, when policies, practices and the institutional culture at a University aim to restrict access to that University to a privileged segment of the population who largely benefited from Apartheid, it constitutes unfair racial discrimination in contravention of section 9 of the Constitution.

The defenders of the uniquely white (or even the uniquely Afrikaans) culture and traditions of a campus like that of Potchefstroom fail to recognise that the historically white Universities built up their reputations and amassed their financial and academic resources over many decades during Apartheid when most South African students were prohibited from attending such institutions.

During Apartheid the state spent vast sums of taxpayers money on these institutions as part of its policy of almost exclusively promoting the education of white students.

What the supporters of Potchefstroom and the more conservative promoters of “Afrikaner culture” at places like Stellenbosch University are demanding is that the state continues to subside white privileged to the detriment of especially African students.

They might argue that there are no legal rules that prohibit an African student from attending Potchefstroom campus of NWU or from attending Stellenbosch University. But a conservative, Afrikaans, semi-authoritarian institutional culture at a university can make it very difficult for black students to succeed at that University and will often in fact be exclusionary and hence discriminatory.

This means that in the name of preserving Afrikaans as an academic language or of preserving a “traditional culture” (a culture where no one thinks anything of requiring first year students to salute senior students in a manner that looks suspiciously like a Nazi salute), access for black (especially “African”) students to these taxpayer funded national treasures will be informally restricted.

This is in breach of section 9(3) of the Constitution, which does not only prohibit direct discrimination but also indirect discrimination. Indirect discrimination occurs when rules or practices that are applied to everyone nevertheless have the effect of disproportionately excluding a certain sector of society based on race, sexual orientation or language. This is what is happening at Stellenbosch University and at the Potchefstroom campus of NWU.

To counter this blindingly obvious constitutional fact, those who defend the rights of these Universities to teach in Afrikaans and to retain cultural practices and traditions that is alienating to the vast majority of taxpaying South Africans, refer to section 29(2) of the Constitution.

This section states that everyone has the right “to receive education in the official language or languages of their choice in public educational institutions”. However, this right is limited to situations “where that education is reasonably practicable”.

The problem is that where a scarce resource such as a place to study at a University is indirectly denied to the vast majority of South Africans on the basis of race, because a university adopts certain rules about the language of instruction or refuses to dismantle the exclusionary, semi-authoritarian, institutional culture on its campus, the Constitutional Court will never find that it is nevertheless “reasonably practicable” for the university to continue its discrimination.

In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another the Constitutional Court affirmed in the context of schooling that “the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular”.

But if it were at all possible to accommodate the teaching of students in their home language without limiting access to education for others (either in absolute terms or in terms of quality education) then it would be permissible.

As the Constitutional Court made clear, nothing in the Constitution prohibits Stellenbosch University or NWU from teaching some of its students in Afrikaans – as long as the university culture is totally transformed to make it welcoming to all students and as long as this will in no way exclude students who cannot understand or study in Afrikaans.

This means, first, that all classes must also be open and available to English students. Second, it means that exclusionary initiation practices must be eradicated.

As far as I can tell neither Stellenbosch nor the Potchefstroom campus of NWU comply with these basic constitutional requirements and are therefore in breach of the Constitution. The question is: how long will the rest of us who pay our taxes and subsidise these institutions tolerate this kind of discrimination?

NPA crisis: Open warfare was just the beginning

Politically the appointment by President Jacob Zuma of Mxolisi Nxasana as National Director of Public Prosecutions (NDPP) – and the subsequent eruption of open warfare between various factions inside the National Prosecuting Authority (NPA) – has been a monumental embarrassment for our government. But the instruction allegedly subsequently issued by Justice Minister Michael Masutha to NPA leaders not to comment on any organisational matters was almost certainly illegal, as it interfered with the independence of the NPA.

Regardless of the legal technicalities or the merits of his appointment, it is clear that President Jacob Zuma should never have appointed Mxolisi Nxasana as NDPP.

The appointment was a monumental political blunder as it further eroded the legitimacy of the NPA. The organisation’s credibility had already been badly dented by the various scandals and political controversies which have plagued that body ever since it first started investigating allegations of corruption against President Jacob Zuma more than ten years ago.

It has now emerged that Nxasana had previously twice been convicted of assault, and – according to the mother of one of his former lovers – had also assaulted his former lover and is thus allegedly a women beater.

Politically, it matters not that Nxasana may well today be a man of the highest integrity who will always act in a fearless manner to apply the law impartially. What matters is that the unsavoury facts about his criminal record and allegations of past involvement in gender-based violence had given his many enemies ammunition to tarnish his name and to further discredit the integrity of the NPA.

Not that his enemies inside the NPA are necessarily people of high integrity. Nxasana fingered both Nomgcobo Jiba (who acted as NDPP before Nxasana’s appointment) and Lawrence Mrwebi (who heads the NPA’s specialised commercial crimes unit) as his enemies, working to oust him from office. Both have had their honesty called into question by court judgments.

Earlier this year the KwaZulu-Natal Local Division of the High Court found in Booysen v Acting National Director of Public Prosecutions and Others that  Jiba, had misled the court when she had claimed that she had considered four statements before deciding to prosecute. As the Court stated:

In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence. In such circumstances, the court is entitled to draw an inference adverse to the NDPP.

The character of Lawrence Mrwebi was also torn to shreds in the judgment of the North Gauteng High Court in Freedom Under Law v National Director of Public Prosecutions and Others.

It is therefore difficult to come to grips with the exact contours (and the political significance) of the toxic infighting that is destabilising the NPA.

The independent media often report on these fights in a simplistic manner – as if these squabbles simply relate to disagreements between those whose only aim is to protect President Zuma from prosecution and those who are prepared to enforce the law without fear, favour or prejudice.

I suspect that the matter is far more complex.

Not that some of those NPA leaders involved in what often appears to be petty squabbles about power and positions do not see loyalty towards President Zuma as the pivotal issue.

On Wednesday the suspended head of the NPA’s internal integrity unit, Prince Mokotedi, phoned in to a Gauteng radio station and made the remarkable statement that he welcomed the opportunity to clear his name at a disciplinary hearing:

because it will be the first time a so-called Zuma man will come out and enter the public platform to put across my side, or their side, of the story.

Whether there are indeed a “Zuma camp” and a camp opposed to President Zuma inside the NPA may be of less concern for many ordinary citizens concerned about the prosecution of criminals. For many citizens of more concern would be the fact that the political infighting must surely have affected the morale of NPA members as well as the efficiency of that organisation.

These squabbles may well make it more difficult for ordinary prosecutors to get on with the job of prosecuting those accused of crime and of achieving high conviction rates.

This is why even those citizens who could not care less that some politicians and well connected businessmen and women are (for political reasons) not being prosecuted for corruptions while political enemies of the dominant faction inside the ANC may be targeted for prosecution must worry about the chaos and infighting at the NPA.

When the organisation is ripped apart because of political infighting, when its legitimacy is destroyed by political meddling, when morale plummets and the good prosecutors start to leave the sinking ship, it becomes more difficult for the NPA to go after ordinary criminals (of the non-political kind) and leave us all more vulnerable to criminals.

Moreover, where perceptions take root that the NPA is not independent and that it takes decisions on who to prosecute for corruption and fraud (and who not to prosecute) based on the suspects’ political affiliations or his or her access to leaders of the dominant faction of the governing party, the legitimacy of the entire criminal justice system is called into question.

It is then when every two-bit crook will try to undermine the NPA and the criminal justice system by making wild allegations that he or she is being prosecuted as part of a political conspiracy.

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

Because section 179(6) further states that the “Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority” it is often wrongly assumed that the NPA operates under the control of the Minister of Justice and that it is therefore not a truly independent body but one directed by the Minister.

But as the Supreme Court of Appeal explained in National Director of Public Prosecutions v Zuma although “these provisions may appear to conflict… they are not incompatible”. There is nothing wrong with the Minister interacting with the NPA, discussing issues relating to the prosecution of criminals and even making suggestions on how best to solve internal disputes. But what the Minister is not authorised to do is to instruct anyone in the NPA to do or not to do something. That is the job of the NDPP.

As the SCA made clear in the Zuma judgment:

[A]lthough 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.

The fact that the NPA is independent and that the Minister cannot instruct its members to do or not to do something, but can ask it to provide it with information in order to exercise final responsibility for the NPA, is further made clear by various other provisions of the NPA Act that give effect to section 179 of the Constitution.

Section 32(1)(a) of the Act requires members of the NPA to serve “impartially” and to exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law.

Section 32(1)b) further prohibits anyone (including the minister or the president) from improperly interfering with the NPA in the performance of its duties and functions. Where somebody interferes in the affairs of the NPA this constitutes a criminal offence.

Section 33(2) reaffirms that the minister must exercise final responsibility over the NPA and obliges the NDPP, at the request of the minister, to furnish the latter with information or a report with regard to any case and to provide the minister with reasons for any decision taken.

To protect this independence of the NPA neither the Minister of Justice nor the president can easily remove the NDPP from office. Section 12(6) of the NPA Act states that the president may provisionally suspend the NDPP, pending an inquiry into his or her fitness to hold the office of NDPP.

However, the president can only remove the NDPP from office on account of the following objective criteria:

(i) for misconduct;

(ii) on account of continued ill-health;

(iii) on account of incapacity to carry out his or her duties of office efficiently; or

(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

When Vusi Pikoli was removed from office this was almost certainly done unlawfully as – objectively – there was no clear evidence that Pikoli had been guilty of misconduct or was no longer fit and proper.

If Pikoli had pursued his case in court he would almost certainly have been reinstated. The reason for this is that a court would have asked whether – objectively – the Ginwala Inquiry provided any proof that Pikoli had been guilty of misconduct. As it did not, there was no legal basis for his removal.

This means that if an NDPP is prepared to fight for his job it will not be easy for the President to remove him – especially not on the basis of having been convicted many years ago of a criminal offence.

As President Zuma ponders how to fix the political mess created by his appointment of Nxasana as NDPP, his lawyers – if they are reasonably well informed – will warn him to think twice before attempting to remove him from office, given the difficulty of doing so in a legally valid way.