Constitutional Hill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why the ad hoc Committee on Nkandla is legally irrelevant

It is unclear why an ad hoc Committee of the National Assembly (NA) is considering a report prepared by Police Minister Nathi Nhleko on the remedial action imposed by the Public Protector regarding the use of public funds for the renovation of President Jacob Zuma’s private home at Nkandla. In terms of the Executive Members Ethics Act and the Constitution, the President (not the Minister nor the NA) is legally responsible for implementing the remedial action imposed by the Public Protector. Only the President can make a legally valid decision not to obey the remedial action imposed and then only if he acts rationally on the basis of cogent reasons.

Section 3 of the Executive Members Ethics Act of 1998 empowers the Public Protector to investigate breaches of the Executive Members Ethics Code by the President and other members of the Executive. Only the Public Protector is empowered by the Act to make findings on breaches of the Code. Ministers and Parliamentary Committees are not authorised to make findings about breaches of the Ethics Code. Any reports on this from these bodies therefore have no legal standing.

Section 3(2) of the Act requires the Public Protector to submit a report on breaches of the Code of Ethics to the President for appropriate action. Section 3(5) then states:

The President must within a reasonable time, but not later than 14 days after receiving a report on a Cabinet member or Deputy Minister referred to in subsection 2 (a), 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 National Assembly.

As the President is the head of the National Executive (in terms of section 85 of the Constitution) and has the power to appoint and dismiss members of the National Executive in terms of section 91(2) of the Constitution, it is appropriate that the Act empowers the President to take action against members of the Executive found to have breached the Code of Ethics.

However, as the Public Protector has pointed out previously, the drafters of the Act did not envisage a situation in which the President himself is found guilty of a breach of the Code of Ethics. This means the Act empowers the President to decide whether to implement the remedial action imposed by the Public Protector in the wake of a finding of a breach of the Ethics Code by the President himself.

Section 182 of the Constitution, read with section 6(4) of the Public Protector Act also empowers the Public Protector to investigate, on his or her own initiative or on receipt of a complaint, any alleged: maladministration; certain forms of corruption; or improper or unlawful enrichment.

In terms of the High Court judgement on the powers of the Public Protector (which must guide the discussion until such time as the Constitutional Court gives a definitive answer on the powers of the Public Protector), the remedial action imposed by the Public Protector are not binding in the same manner as a court order would be binding. However, the High Court also held that the findings and remedial action imposed by the Public Protector cannot be ignored by the President.

[T]he 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…. an organ of state cannot ignore the findings and remedial action of the Public Protector.

The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state (in this instance, the President) must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.

Where the President refuses to implement the remedial action imposed by the Public Protector, he or she can also be held accountable by the NA and can, ultimately, be removed from office by a majority vote in the NA if the majority loses confidence in the President. To this end, section 8(2) of the Public Protector Act provides for a report of the Public Protector to be submitted to the NA and for the NA to consider the report and to decide whether it would be appropriate to remove the President from office or not.

This does not mean the ultimate legal duty to deal with the remedial action imposed by the Public Protector lies with the NA or the Minister. It would be in breach of the separation of powers if the NA purports to make decisions on behalf of any member of the executive – including the President. All the NA can do is call members of the executive to account where such members fail to implement the remedial action imposed by the Public Protector and, in extreme cases, to remove the President and cabinet from office for failing to fulfil their legal duties.

The Public Protector made several important findings in her Nkandla report and directed that several bodies take remedial action in terms of it. In the most important finding that directly implicates the President, she found that when news broke in December 2009 of alleged exorbitant amounts spent at Nkandla (at the time R65 million), the President had a duty to take reasonable steps to order an immediate inquiry into the situation and to correct any irregularities and excesses. This is because the President, as head of the Executive, has the ultimate legal and constitutional obligation to ensure ethical government and to prevent self-enrichment of members of the Executive.

The Public Protector hence found that the failure of the President to do so and to act in protection of state resources constituted 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.

Recall that the Public Protector found that when President Zuma told Parliament that his family had built its own houses and the state had not built any for it or benefited them, this statement was not true. Curiously the Public Protector nevertheless accepted the evidence that the President “addressed Parliament in good faith” and therefore did not lie in breach of the Ethics Code.

In other words, while he did not tell the truth, he did not lie. This finding may well be reviewed and set aside by a court of law on the basis that it was irrational as it is unclear how one can find that a person did not tell the truth but can then find that the person did not lie.

Be that as it may, regarding the finding of a breach of the Executive Ethics Code, the Public Protector imposed the following remedial action on the President, ordering him the to:

11.1 Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW 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.

11.1.2.  Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.

11.1.3.  Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.

11.1.4.  Report to the National Assembly on his comments and actions on this report within 14 days.

When the President decided to ignore this remedial action and to ask the Minister of Police to determine whether he should repay any of the money and if so what amount, the legal question arose as to whether the President had offered “cogent reasons” for refusing to implement the remedial action imposed by the Public Protector and if such cogent reasons existed at the time when the President made this decision. Thus far the President has not offered such cogent reasons for his decision to anyone.

The role of the NA, as the democratically elected branch who is constitutionally mandated to hold the President accountable, is to ask the President why he had refused to implement the remedial action imposed by the Public Protector. It is unclear why the NA is engaging with another report then prepared by the Minister of Police on the matter, as legally the Minister of Police was not empowered or entitled to decide on whether the remedial action imposed by the Public Protector should be implemented or not. In other words, the NA is focusing on the wrong decision by the wrong person.

The President cannot delegate a power entrusted to his office by legislation and by the Constitution to a Minister as that would constitute an abdication of power. As the Constitutional Court stated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others “[w]hen contemplating the exercise of presidential powers, …[w]hat is important is that the President should take the final decision”.

In terms of the Ethics Code and the Constitution (read with the High Court judgment) that obligation rests with the President to make a decision either to implement the remedial action or not to implement it and to be held accountable for this decision. The purported attempt by the President to delegate this duty to the Minister of Police is an abdication of his responsibilities and in my opinion hence unlawful.

The NA may, of course, for political reasons, decide not to hold the President accountable and not to engage with his decision to ignore the remedial action. But by focusing on the decision of the Minister of Police the NA is really misconstruing its duty to hold the person accountable who is legally responsible for the decision either to implement or not to implement the remedial measures imposed by the Public Protector.

As long as the High Court judgment stands, the only relevant legal question is whether the President had cogent reasons for not implementing the remedial action imposed by the Public Protector. The only person who can provide such cogent reasons is the President. The Minister cannot provide such reasons on behalf of the President as the Minister did not make the decision not to implement them.

It seems to me in the light of this legal position the work of the ad hoc Committee on Nkandla is really a side show with little or no legal standing or effect. It is focusing on the wrong person (the Minister of Police) and the wrong decision (his report “exonerating” the President).

The only relevant decision is the one taken by the President not to take advice from the Treasury as to the amount to be paid back but rather to ignore the Public Protector’s findings and to ask the Minister of Police to review these findings. Was this decision rational and hence are there cogent reasons for this decision?

Ultimately, when this matter reaches the courts, I suspect this will be the question they will ask. The report by the Minister of Police (and the strange but irrelevant engagement of the NA with it) will merely become a humorous footnote in the seemingly never ending scandal.

On eating snakes, punching sharks and animal cruelty legislation

There seems to be curious anomalies in the manner in which many South Africans (and the law) view the mistreatment of animals. The arrest of Pastor Penuel Mnguni for animal cruelty over the weekend for feeding his congregation live snakes illustrates this point.

Most South Africans have no qualms with having certain domesticated animals – such as sheep, chickens, pigs and cows – killed in abattoirs (often in the cruellest manner) before cooking and eating parts of these animals at home. (Curiously having sex with these animals – seemingly far less cruel than killing and eating these animals without their consent – remain both a societal taboo and a criminal offence.)

But for some reason most South Africans are not keen to kill and eat other domesticated animals such as dogs, cats and snakes, drawing a distinction without a difference (probably based on habit and cultural practice). Moreover, society increasingly also frowns on the hunting of certain animals (lions, elephants, giraffes), but not others (antelope).

These anomalies are reflected in the manner in which legislation deals with the mistreatment of animals in South Africa. There are several problems with the Animals Protection Act, which was passed by the apartheid regime in 1962 and remains on the statute books.

First, the Act reflects the world view, values and practices of a small segment of society and thus fails to accommodate the cultural practices and attitudes of many black South Africans towards the treatment of different types of animals in different situations.

Moreover, section 8 of the Act grants members of the SPCA wide powers to investigate animal cruelty, and even (without a warrant) to arrest persons reasonably suspected of such cruelty.

It is unclear to what extent the staff of the SPCA are always aware of the cultural diversity of South Africa and to what extent some of them might harbour internalised racial prejudices, which may affect the manner in which they respond to allegations of animal cruelty by different people, depending on the race of the accused person.

Second, the Act criminalises the mistreatment of “animals”, but defines “animals” in a peculiar way to mean:

any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal, wild bird or reptile which is in captivity or under the control of any person.

This means the Act prohibits the mistreatment of all domestic animals, but only the mistreatment of wild animals if such wild animals are in captivity or under the control of a person. Mistreating a lion held in a zoo will thus fall under the Act, but mistreating the same lion roaming the Kruger Park will not. Similarly, punching a shark held in an aquarium may therefore be a criminal offence, but punching the same shark in the open sea will not.

Third, section 2 of the Act criminalises a range of activities relating to these animals, but the criminalised activities are described in imprecise and vague terms, making it difficult to determine what types of treatment of animals will constitute a criminal offence and what will not.

It is thus a criminal offence to “overload, overdrive, override, ill-treat, neglect, infuriate, torture or maim or cruelly beat, kick, goad or terrify any animal”. It is also a criminal offence to “confine, chain, tether or secure any animal unnecessarily or under such conditions or in such a manner or position as to cause that animal unnecessary suffering or in any place which affords inadequate space, ventilation, light, protection or shelter from heat, cold or weather”.

Goading or infuriating a snake kept as a pet or under your control is therefore a criminal offence. But what does this mean? What type of treatment of the said snake will “infuriate” that snake? Would the mere act of imprisoning the snake in a glass cage not infuriate that snake? Would milking a cow every morning and every evening “infuriate” or “goad” it? The Act does not say. However, I would imagine eating a live snake may well be viewed as an act of infuriating said snake.

The Act also prohibits anyone from “unnecessarily” starving or under-feeding and animal or from denying water or food to an animal. This provision is curious as it is unclear how a court will determine whether it was indeed “necessary” to starve or underfeed an animal. Will it ever be necessary to starve an animal to death, for example and if so why?

The section also prohibits anyone from poisoning an animal “without reasonable cause”. Similar, questions arise as to how a court will determine when it will be reasonable to poison an animal and when not. How will the state prove that it was not reasonable for the person to have poisoned an animal?

Lastly, it seems as if the Act may well apply to a wide range of activities associated with the commercial exploitation of animals – including the entire process through which parts of animals end up in plastic packets in fridges at Pick and Pay and Woolworths. Yet, food producers who raise animals to be slaughtered and sold to the public to serve its dietary needs are seldom if ever targeted for alleged animal cruelty, suggesting there is a bias in the manner in which the Act is being enforced.

Although I have been able to find two reported cases in which action was taken against a farmer for mistreating animals being raised for the market on a commercial farm, I have not been able to find any case dealing with legal action taken against chicken producers for the manner they treat battery chickens. Nor have I found any case taking on the manner in which animals are treated at an abattoir.

A quick search of the internet reveals that almost all chickens raised for their meat are, like other factory farmed animals, raised in less than ideal conditions. While the SPCA has from time to time expressed dismay at the manner in which chickens on some commercial chicken farms are treated, to my knowledge no commercial chicken farmer has ever been prosecuted under the Animals Protection Act for the mistreatment of chickens.

Now, it may well be that a majority of South Africans have no problem with the mistreatment of animals by food producers and slaughterhouses. After all, many of us will later cook and eat those mistreated animals, so it might be hypocritical to insist on their humane treatment during their short lives – only to eat them after they are killed and cooked.

As a society we may choose to hold a sentimental view of some of the animals we are not culturally programmed to eat (cats, dogs and the like) and we may choose to protect only such animals from the cruelty inflicted on them by humans. We may have no qualms with poisoning some beasts (rats, mice, mosquitoes, snakes) that we do not like or that we fear will cause a nuisance. while being horrified by the poisoning of our pets or other “loveable” animals.

However, I would suggest that it would be helpful to have an honest debate about the issue. If we have to justify why we wish to have some animals protected from cruelty and others not, it might force us to rethink our attitude towards animals. In any case, whether such a debate occurs or not, it seems to me the time has come to review the outdated legislation dealing with animal cruelty in South Africa.

Blade Nzimande and the criticism of court judgments

It is a tad surprising that the statement issued last week by the Chief Justice and all other senior judges in South Africa about the independence of the judiciary and the rule of law elicited such excitement in media circles and from some commentators. The statement is remarkably unremarkable. It merely restates the long held and uncontroversial principles on which any constitutional democracy founded on the rule of law is based. The only vaguely interesting aspect of the statement relates to the criticism of judges and court judgments. But even this was not really controversial. None other than Minister Blade Nzimande appears to have heeded the advice of the judges about how to criticise court judgments – unfortunately not with great success.

Over the past few weeks some politicians attempted to use the judiciary as a scapegoat in order to distract attention from their own problems. Often resorting to wild and unsubstantiated conspiracy theories or sweeping generalisations about the judiciary, politicians such as Gwede Mantashe, Marius Fransman, Nathi Nhleko and others attacked the judiciary and court judgments in vague and overheated terms.

These attacks reminded me of the attack by then DA leader Helen Zille on a judge appointed to head a commission of inquiry back in 2012. At the time Zille complained that “some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them”. There was no factual basis for this claim and the court who later heard a challenge to the legal validity of the commission declined to endorse this particular conspiracy theory.

Politicians from across the political spectrum as well as many members of the public seem to have some difficulty in distinguishing between valid criticism of court judgments and unsubstantiated and vague attacks questioning the integrity or honesty of members of the judiciary. To this end the statement issued by the Chief Justice and the other senior judges confirmed that:

[j]udges like others should be susceptible to constructive criticism. However, in this regard, the criticism should be fair and in good faith.  Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable.

The statement further acknowledged that judges – “like other mortals” – sometimes make mistakes. That is why litigants can appeal judgments all the way to the Constitutional Court where a full bench of eleven judges may provide a final answer to a legal question. The statement also pointed out that “judgments are often subjected to intensive peer and academic scrutiny and criticism”.

The few legal academics and students who actually read law journal articles (despite the unspeakable tedium and dullness of many of these missives) will attest to the fact that court judgments are sometimes subjected to scathing criticism. But the criticism is always specific and always engages with the legal reasoning employed by a judge to justify the outcome of a case.

Thus, while it is perfectly acceptable to argue that a judgment is wrong because a judge misstated a legal rule (say dolus eventualis) or misinterpreted the facts and to advance an argument about how the judge should have interpreted and applied a specific legal provision or rule instead, it is not appropriate to accuse a judge of bias or a hidden agenda – unless, of course, you provide factual proof for your accusation.

As the Chief Justice pointed out, if there is any evidence that some judges may have been prompted by others to arrive at a pre-determined result, they should immediately report this to the Judicial Conduct Committee of Judicial Service Commission (and should endeavour to provide evidence on which they base their allegations).

Which brings me to the Minister of Higher Education Dr Blade Nzimande, who – commendably – seems to have taken the statement of the Chief Justice to heart and on Saturday stepped back from previous vague allegations against the judiciary and instead singled out for criticism the judgment of the Western Cape High Court in the case of Democratic Alliance v Speaker of the National Assembly and Others. The judgment dealt with the legality of section 11 of the Powers, Privileges and Immunities Act which was used to justify the removal by the Police of EFF MPs from parliament during President Jacob Zuma’s state of the nation address.

Unfortunately it seems that the Minister may either not have read or understood the implications of the judgment or may deliberately have misconstrued the legal reasoning contained in it. Minister Nzimande complained that:

[j]udges must apply a tough test if a case comes before them which is about the [executive or parliament]. If a question comes about rules of parliament, a test must be very tough.

The Minister is also reported as criticising the judgment as “a ruling that tells us that the EFF has a right [to disrupt parliament]”.

This, however, is not exactly what the judgment found. The judgment is careful to acknowledge that sections 57(1) and 70(1) of the Constitutions bestows a general power on parliament to “determine and control its internal arrangements, proceedings and procedures” and to “make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement”.

The judgment further notes that the rules of parliament empowers presiding officers to deal extensively with members who deliberately disobey the rules, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in parliament. For example rule 51 of the NA states that:

if the presiding officer is of the opinion that a member is deliberately contravening a provision of these Rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly, he or she may order the member to withdraw immediately from the Chamber for the remainder of the day’s sitting.

National Assembly rule 56 also allows the presiding officer to adjourn the meeting or suspend proceedings in the event of grave disorder at a meeting.

The judgment also specifically confirms that no MP has a right to disrupt proceedings in Parliament. As the court noted the Constitution permits Parliament to make rules that temporarily exclude disruptive members from the sittings of Parliament. It quoted from a 1999 Supreme Court of Appeal judgment which stated:

There can be no doubt that this authority is wide enough to enable the Assembly to maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society. Without some such internal mechanism of control and discipline, the Assembly would be impotent to maintain effective discipline and order during debates.

It is therefore not entirely correct to claim – as Minister Nzimande did – that the judgment gives the EFF a right to disrupt parliament. Instead the judgment deals with the rather narrow question of whether section 11 of the Powers, Privileges and Immunities Act (relied on by the Speaker to justify the physically removal of EFF MPs from parliament by police officers) was constitutionally valid.

The court found that it was not. This was so because the section was badly phrased and thus overbroad because it allowed for the physical removal of an MP from parliament and for his or her arrest when that MP creates a “disturbance”.

There were two problems with the sections which rendered it overbroad. First, it allowed for the arrest of MPs for what they say in parliament, something that is prohibited in absolute terms by sections 58 and 71 of the Constitution. No exception to this rule is provided for in the Constitution. Second, it allowed for the removal of MPs from parliament for causing a “disturbance”, but defined “disturbance” too broadly.

The impugned section of the Act on which the Speaker relied defined “disturbance” in an extremely wide manner as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of parliament”. But the court found that sometimes robust debate could be viewed as being disruptive and the section could therefore be used to censor, remove and even arrest MPs for speaking their minds in parliament.

In real terms the definition is so broad that the exercise of the right to free speech in the NA, NCOP or parliamentary meeting, which ordinarily and appropriately includes robust debate and controversial speech, can certainly constitute an act which can be construed to interfere with or disrupt proceedings. This extremely broad definition of the word “disturbance” thus potentially detracts from a member’s constitutional privilege of freedom of speech and freedom from arrest as envisaged in terms of s 58(1) and 71(1) of the Constitution.

If applied in this manner it could silence MPs and could be used to rob citizens of their right to hear what their democratically elected representatives have to say in parliament about a matter of pressing public importance.

It is important to note that the court did not rule that legislation may never allow for the removal of MPs from parliament. Indeed the court stated:

It is not difficult to imagine a situation where a [MP] may create or cause a disturbance of such gravity that it undermines the authority or dignity of Parliament as a whole. In those instances common sense dictates that the Presiding Officer must be in a position to take decisive action as an orderly measure to protect the dignity of Parliament from obstruction, disruption and disturbances.

As noted above the Court pointed out the NA and NCOP have established rules empowering presiding officers to deal extensively with members who deliberately disobey a rule, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in Parliament.

The court also rejected the argument that it had been necessary to draft section 11 in such broad terms to ensure parliamentary proceedings was not unduly impeded, noting that parliament has more than sufficient tools to maintain order in its precincts.

It has the Rules and the power to hold members in contempt. There are offences created by section 27, and the power to allow the security forces to enforce them as contemplated in section 4 of the Act. In fact section 4 of the Act provides that members of the security forces may enter the precincts of Parliament and perform any policing functions in the precincts and inter alia take action to prevent immediate danger to life or safety of any person or damage to any property.

Of course, the heavens will not fall merely because a Minister misconstrued a court judgment while purporting to criticise it. On some level voters should expect that politicians will sometimes ignore the carefully reasoned judgments of courts in order to score cheap political points.

However, it is important that citizens stay alert to the propaganda and spin of politicians and are not easily taken in by such misrepresentations. To ensure that citizens are not misled by politicians tempted to misconstrue court judgments, it may be helpful if citizens studied the relevant court judgments themselves to ascertain whether the criticism is correct or not. Alternatively, citizens may do well to treat such attacks with a pinch of salt.

Deployment of troops in South Africa – is it lawful?

Most South Africans probably support the continued deployment of South African National Defence Force (SANDF) soldiers inside South Africa to help “combat crime”. But the ongoing deployment of troops – trained to fight and kill, not to investigate crime and arrest alleged criminals – inside the borders of South Africa alongside the South African Police Service (SAPS) is undesirable. It may also be illegal.

During the xenophobic attacks in April 2015, President Jacob Zuma announced the SANDF would operate within the country “to assist the South African Police Service (SAPS) to maintain law and order in KwaZulu-Natal, Gauteng and any other area in the Republic of South Africa as the need arises”. Reports claim this internal deployment of members of the army has been extended until 31 March 2016.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy, the military should only assist the SAPS in the most exceptional circumstances and only in accordance with strict procedures set out in section 201 of the Constitution, read with section 18 and 19 of the Defence Act.

Section 201 of the Constitution states that only the President, as head of the national executive, may authorise the employment of the defence force in co-operation with the police service. When the defence force is employed with the SAPS inside South Africa, the President:

must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

If you read these sections together – as you must – they need to be understood to prohibit the deployment of the Defence Force in South Africa in broad and general terms. When the President deploys soldiers in South Africa he or she can only do so in a specifically designated area or areas, for a specific purpose and a specific period.

To read these provisions differently would render them meaningless and would make a nonsense of the requirements set out in section 201 for the deployment of troops within South Africa. For example, it would allow the President merely to declare once-off that the SANDF is to be deployed in South Africa to help the police to maintain law and order in any area of South Africa for the next 50 or 100 years. If this were to be legally acceptable, section 102(2) would in effect be no more than flummery with no discernable purpose.

I would argue that for this reason section 102(2) of the Constitution requires the specific authorisation by the President to deploy troops in a specific area inside South Africa to ensure that the President remains accountable for his or her decision. Because a decision of this kind may be politically highly contentious – say if troops are deployed in Marikana or in an EFF stronghold – a President will have to take responsibility for the decision by saying in very specific terms where troops are being deployed, for what reason they are being deployed, how many are being deployed and for how long.

The President is elected by Parliament and is accountable to it. It is for this reason that the Constitution requires him or her to inform Parliament of the momentous decision to deploy soldiers inside South Africa and to do so in appropriate detail, stating when, where and how many soldiers will be deployed. If Parliament is unhappy with the deployment it can call the President to Parliament to account. Ultimately, the National Assembly has the power to remove the President from office if it feels the deployment of soldiers inside South Africa in a specific area for a specific purpose is politically unwise or undesirable.

But the National Assembly can only make a decision of this kind if it is provided with the detailed information of each deployment of soldiers as required by section 202(2) of the Constitution.

A general “catch-all” notice that troops may or may not be deployed anywhere in South Africa over the next 6 months, one year or 50 years as the need may arise would therefore not comply with the provisions contained in the Constitution.

Section 18 of the Defence Act states that “in addition” to the employment of the Defence Force by the President as authorised by section 201(2), the President or the Minister may authorise the employment of the Defence Force for service inside the Republic or in international waters, in order to: (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socio-economic upliftment; and (d) effect national border control.

I suspect this section may be unconstitutional as it grants the President powers that are specifically curtailed by the Constitution. But this is not of particular importance for present purposes as the SANDF have been deployed in co-operation with the SAPS in terms of section 102 of the Constitution, read with section 19 of the Defence Act.

Section 19(2) requires the Minister of Defence to give notice of the deployment by notice in the Government Gazette within 24 hours of the commencement of the deployment. This is an additional requirement to the notice the President needs to give to Parliament.

Section 19(3) then sets out strict procedures and criteria that must be met for such a deployment, stating that:

Service in co-operation with the South African Police Service: (a) may only be performed in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security; … (c) must be performed in accordance with: (i) a code of conduct and operational procedures approved by the Minister; (ii)  such guidelines regarding: (aa) co-operation between the Defence Force and the South African Police Service; and (bb) co-ordination of command over and control of members of the Defence Force and the South African Police Service, as the Chief of the Defence Force and the National Commissioner of the South African Police Service may determine.

I have have not been able to determine whether President Zuma indeed informed Parliament of the deployment as required by the Constitution. It is also unclear whether the President has informed Parliament “in appropriate detail” of the reasons for the deployment and the specific places where the soldiers are being deployed. In the absence of such detailed notice to Parliament, the deployment would be invalid as it would not conform to the basic requirements for the deployment set by the Constitution.

I have not been able to determine whether the Minister had indeed given notice of the deployment in the Government Gazette. Nor have I been able to ascertain whether the deployment is being performed in accordance with a specific code of conduct and other guidelines for co-operation between the SANDF and the SAPS as required by the Defence Act.

It may be that both the President and the Minister of Defence have complies with their Constitutional and other legal duties every time troops are deployed to a specific area in South Africa for a specific purpose and for a specific period of time.

However, if the President and the Minister is relying on a general and vague “catch-all” notice about the deployment of troops “where and as the need arises”, they are almost certainly not complying with their legal obligations which, once again, would render the deployment unlawful.

Difficult question arise about the legal standing of our troops in such sitiuations. Are they acting illegally when they take part in operations inside South Africa which do not comply with the Constitution? Do they have a duty to refuse to obey an order to be deployed if that order is manifestly unlawfuyl? If they kill any civillians during such an operation, will they be criminally liable for murder?

Whatever the answers to these questions, it will be helpful if the Presidency and the Minister of Defence inform the public forthwith whether they are complying with their legal obligations and that they are not exposing our troops to unnecessary legal risks.

What Al-Bashir judgment said and why the Rule of Law is a prerequisite for democracy

The judgment of a full bench of three judges of the Gauteng High Court that South African law required the government to arrest President Al-Bashir and that attempts by the government to grant immunity from arrest and prosecution to President Al-Bashir were amateurish and legally misguided, raises important questions about the quality of legal advice provided to the government and about the threat the exercise of arbitrary power poses to our democracy.

In a postscript to his magisterial book “Whigs and Hunters” the Marxist historian EP Thompson called the Rule of Law “an unqualified human good”. Although highly critical of “the shams and inequities which may be concealed beneath this law”, he nevertheless argued fervently for the protection of the Rule of Law. In its absence, he said, those who exercise public power do so arbitrarily, unguided by the discipline and constraints that an adherence to the law brings.

When public power is exercised arbitrarily, it becomes impossible for those who do not wield state power to participate in politics in any meaningful way. Any semblance of democracy is snuffed out by those who make arbitrary decisions based purely on their own (instead of the common) interest – often in order to cement their power and to silence criticism and dissent.

The judgment of the Gauteng High Court in The Southern Litigation Centre v the Minister of Justice Others provides support for this argument.

At the heart of the judgment stands section 231 of the South African Constitution. The section states that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces”, unless it is an agreement of a technical, administrative or executive nature. Section 231(4) further states that “[a]ny international agreement becomes law in the Republic when it is enacted into law by national legislation”.

What the judgment illustrates is that the lawyers advising our government (in this case the Chief State Law Adviser) either did not know or understand these provisions, or our government chose to ignore them and to exercise its powers arbitrarily.

It is common cause that South Africa duly ratified the Rome Statute that creates the International Criminal Court and that this was approved by the democratically elected legislature. It is also common cause that the Rome Statute became law in South Africa in terms of section 231(4) of the Constitution after our democratic Parliament adopted the Implementation of the Rome Statute of the International Criminal Court Act in 2002 (Implementation Act).

It is furthermore common cause that the relevant African Union Conventions and the agreement between the African Union (AU) and South Africa to host the AU Summit were never made legally binding law in South Africa in terms of section 231(4) of the Constitution. (Informed observers may well ask why our government deemed the former agreement important enough to domesticate, but the latter not, and wonder what it says about our government’s purported commitment to AU.)

The Rome Statute devises a system of international criminal justice wherein the primary responsibility for the investigation and prosecution of those most responsible for serious violations of international law rests with the courts in the country in which the crimes were committed. In principle, a matter will only be admissible before the ICC where a state is either unable or unwilling to investigate and prosecute torture, genocide and other crimes against humanity. Once a matter is referred to the ICC though (either by a state itself or by the UN Security Council) the ICC gains jurisdiction over the prosecution.

The ICC may at this stage request a state to arrest and surrender a suspect. Article 89(1) of the Rome Statute imposes a duty on a state to “comply with requests for arrest and surrender”.

In terms of the Implementation Act adopted by the South African Parliament, South African authorities are enjoined to cooperate with the ICC, for example, to effect the arrest and provisional arrest of persons suspected of war crimes, genocide and crimes against humanity. These crimes have been specifically created in the South African context in terms of section 4 of the Implementation Act.

The question that arose in this case was whether the government had the requisite legal authority nevertheless to grant immunity to a sitting head of state attending an AU Summit on our soil, despite these clear international law obligations and obligations imposed by South Africa’s own law.

The South African government argued that the host agreement between the AU and South Africa provided for the granting of privileges and immunities and thus empowered the South African government to ignore its international law and domestic legal obligations. Clause 1 of Article VIII of this agreement records that the Republic of South Africa shall accord the Members of the AU Commission and Staff Members, the delegates and other representatives of Inter-Governmental Organisations attending the Meetings certain privileges and immunities. Tellingly, it does not refer to heads of state attending the Summit.

The government also referred to section C, Article V (1) (a) and (g) of the OAU Convention (which was not domesticated into South African law), which states that “[r]epresentatives of Member States to the principal and subsidiary institutions, as well as to the Specialised Commission of the Organisation of African Unity [now AU], and to conferences convened by the Organisation, shall, while exercising their functions and during their travel to and from the place of meetings, be accorded the following privileges and immunities” This includes immunity from personal arrest or detention.

In order to do so, the government argued, it published a notice in the Government Gazette in terms of section 5(3) of the Diplomatic Immunities and Privileges Act 37 of 2001 to grant foreign heads of state the requisite immunities during the AU Summit. The High Court found that there were several legal problems with this argument.

First, the Immunities Act in terms of which the immunity was purportedly granted does not domesticate the General Convention on the Privileges and Immunities of the OAU in accordance with section 231(4) of the Constitution. The OAU (now AU) Convention is therefore not binding law in South Africa, and the structures, staff and personnel of the AU consequently do not automatically enjoy privileges and immunity in South Africa.

Second, the hosting agreement between our government and the AU does not in fact confer immunity on heads of state – only on AU personnel and the like – and even if it did, it has not been made binding law in South Africa and therefore cannot trump our duly passed laws, including the Implementation Act.

Third the notice Gazetted by the Minister purporting to grant immunity to heads of states in terms of section 5(3) of the Immunities Act, is not applicable as section 5(3) only deals with the conferral of immunity and privileges on an organisation, which is defined in s. 1 of the Immunities Act as “an intergovernmental organisation of which two or more states or governments are members and which the Minister has recognised for the purposes of this Act”.

It does not deal with, or confer a power to grant immunity on, a head of state, envoy or other representative. It follows that the June agreement also does not confer immunity on President Bashir, and cannot serve to exclude this Court’s jurisdiction.

The high-water mark of the government’s case was that the Immunities Act confers a general discretion on the Minister to grant immunities and privileges on persons of her choosing, which she did by Gazetting a notice to this effect granting immunity to all heads of state.

However, the court rejected this argument, stating that:

she must exercise that discretion lawfully, in accordance with South Africa’s domestic and international law obligations. She cannot lawfully exercise the discretion where the effect will be to prevent the arrest and surrender of a person subject to an ICC warrant and request for surrender.

In other words, where a law grants a discretion to a Minister, it does not grant a discretion to that Minister to break the law while exercising the discretion. The court did not explicitly say so, but another reason why the Minister’s discretion in this regard is circumscribed is that it would be in breach of the separation of powers doctrine to grant a Minister the effective power to amend legislation (in this case the Implementation Act) which was duly passed by the national legislature. To hold otherwise would be to grant the Minister – a member of the Executive – the power to amended duly passed legislation. But legislation can only be amended by the legislature.

If any provision of the Immunities Act did indeed grant such a sweeping power to the Minister to amend the Implementation Act and to grant immunity to a head of state in contravention of the Implementation Act, the provision would therefore be unconstitutional. The Constitutional Court already held as much way back in 1995 in the Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others.

Lastly, even if one ignores section 231(4) of our Constitution which requires that agreements between South Africa and the AU or any other AU Convention only becomes enforceable law in South Africa if domesticated by our Parliament, it runs up against UN Security Council Resolution 1593 (2005) as well articles 25 and 103 of the UN Charter. In essence these require Members of the UN to accept and carry out the decisions of the Security Council. Furthermore, it affirms that in the event of a conflict in the obligations of members of the UN under the UN Charter and their obligations under any other international agreement their obligations under the Charter would prevail.

One could, of course, ask serious questions about the South African Government’s lack of commitment to the AU and the various agreements entered into by South Africa under the AU’s auspices. Why were none of these agreements made binding law in South Africa in terms of section 231(4)? Does this mean our government is not serious about its commitments to the African Union? Was it careless or incompetent in not doing so? Or did it deliberately and consciously decide to give domestic pre-eminence to the UN and to international agreements like the Rome Statute, perhaps in a bid to impress Western powers?

Those who have expressed anger at the South African judiciary for attempting to uphold the Rule of Law, to demonstrate appropriate respect for our domestic legislature and for enforcing the laws actually passed by our legislature, may well re-direct their anger towards our government who has not shown a burning commitment to make agreements entered into under the auspices of the AU binding in South Africa.

It may also direct some opprobrium at the state’s legal advisors who may have demonstrated a tenuous grasp of South Africa’s international law commitments. The failure to foresee the legal problems presented by our government not domesticating AU agreements but doing so with the Rome Statute has caused our government substantial reputational damage on the continent and across the rest of the world.

It has also placed our government in a position where it apparently decided to flout the very laws our democratic Parliament adopted and the court orders issued in terms of these laws, thus acting in an arbitrary manner and eroding respect for the Rule of Law. As the High Court warned in this regard:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.

The South African Constitutional Court has confirmed that principles of the rule of law are indispensable cornerstones of our constitutional democracy. As the High Court remarked:

The emphasis must be on “indispensible”. Where the rule of law is undermined by Government it is often done gradually and surreptitiously. Where this occurs in Court proceedings, the Court must fearlessly address this through its judgments, and not hesitate to keep the executive within the law, failing which it would not have complied with its constitutional obligations to administer justice to all persons alike without fear, favour or prejudice.

Thoughtful political “realists” and hardened cynics may well argue that it would never be in South Africa’s regional interest to arrest the sitting head of state of a fellow African country – even if that head of state is accused of orchestrating the deaths of 200 000 Africans. This would be a strong argument for expecting the South African government to have indicated politely to President Al-Bashir that it would not be in his best interest to attend the AU summit because our courts may order his arrest. It is, in other words, a strong argument in favour of informed, competent, pre-emptive action by our government to prevent the mess it created for itself.

What it is not and can never be, is a plausible argument in favour of the erosion of the Rule of Law – indeed an “unqualified human good” – through its bad planning, a cavalier disregard for laws passed by our democratic Parliament and enforced by our courts, and an indifference towards agreements concluded by our country under the auspices of the African Union.

Al-Bashir: flouting court orders are anti-poor and anti-democratic

The decision by the South African government to ignore the order of the Gauteng High Court not to allow President Omar al-Bashir from North Sudan to leave the country, constitutes a deliberate, pre-meditated, act of contempt of court.  The case raises many complex legal and geo-political questions over which reasonable people could profitably disagree. But even in an overheated political climate in which emotions tend to overpower principles and logic, it is unclear how any level-headed South African could support the deliberate flouting of a court order.

I am not a great fan of the International Criminal Court (ICC). Several years ago, just after Vusi Pikoli was suspended as National Director of Public Prosecutions (NDPP) I attended a conference in The Hague where several officials of the ICC were present. In private conversations, some of these officials did not impress me – I detected, and I make allowances for being hyper sensitive, a kind of cultural arrogance, bordering on racism emanating from some of the ICC officials.

However, in principle it must be possible to create a mechanism to prosecute political leaders of brutal authoritarian states who engage in crimes against humanity by facilitating mass torture, rape and ethnic cleansing. This is not an easy task because it will always be near impossible to bring to book the leaders of countries with the most economic and military power (I think here of the US, China and Russia, amongst others). In a world in which political, social and military power is not distributed equally, it is difficult to hold the most powerful human rights abusers to account.

Nevertheless the South African government decided to ratify the Rome Statute creating the ICC. It went further and became the first country in Africa to domesticate that treaty when its democratically elected representatives passed legislation to make the provisions of the treaty binding in South Africa. This occurred in 2002, eight years after South Africa became a democracy.

There are many cogent reasons for criticising the ICC, based on the fact that political considerations will prevent it from going after some politicians who are guilty of crimes against humanity. One could also argue on pragmatic grounds that it is unsound to arrest and prosecute a head of state because this would endanger the relative stability of the country over which he governs. Even when a leader is accused of facilitating the mass murder of his citizens – as President Omar Al-Bashir has been, with more than 200 000 people killed and more than 2 million displaced – grubby, unprincipled, pragmatic political considerations may militate against that President’s arrest.

But international agreements are entered into voluntary by states. When South Africa signed and ratified the Rome Statute (which establishes the ICC) and when it passed legislation in 2002 to make its provisions applicable within South Africa it did so voluntary.

The democratically elected government of South Africa could have chosen not to sign on to the Rome Statute. It could have chosen to withdraw from it if it believed that the ICC was unfairly targeting politically, economically and military weak leaders from the African continent. That South Africa did not do. Instead, it remained a signatory to the treaty and retained the law making that treaty applicable in South Africa on the statute books. In the same manner it has passed laws prohibiting rape and corruption, it has passed a law prohibiting crimes against humanity and placing a duty to on the government to co-operate with the ICC.

Those who oppose the extradition by South Africa to the ICC of a tyrant who allegedly was instrumental in facilitating the rape and killing of hundreds of thousands of Africans, are really critical of the ANC government decision to adhere to these obligations.

Any lawyer worth his or her salt would also have been aware that any immunity granted in terms of the Diplomatic Immunities and Privileges Act of 2008 to foreign heads of state on the assumption that the AU is akin to the UN would be on shaky legal ground. The international instruments and the South African Act was always likely to be interpreted to apply only to United Nations related personnel and was never likely applicable to the Presidents of foreign countries wanted by the ICC who attends an African Union summit in South Africa.

Although this area of the law is not well-settled, it was at least likely that a court would find that an attempt to grant immunity to President Omar Al-Bashir under this Act would not be legally valid and binding and would be trumped by South Africa’s constitutional obligations and international law obligations in terms of the Rome Statute.

(I am not an expert on international law, so I find the various conflicting provisions of the Rome statute, its interplay with the South African Constitution and how this relates to customary international law norms, rather perplexing. But even a brief search on the internet informed me that at the very least this is a grey area of law and that it was at least likely that a South African court would not find the legal immunity purportedly granted under this Act to be legally valid.)

It was therefore always at best unwise and at worst inviting a complete diplomatic meltdown, for South Africa to give the go-ahead for President Al-Bashir to visit South Africa. It was also arrogant and recklessly endangering South Africa’s standing on the African continent and in the international community not to warn President Al-Bashir that he may face legal consequences if he visited South Africa. If the South African government had explained that its laws may require it to arrest and extradite President Al-Bashir he would not have arrived.

Once an NGO approached the High Court about the matter and the High Court issued an order prohibiting President Al-Bashir from leaving until the matter was considered in full, the South African government had a full blown diplomatic crisis on its hands – entirely of its own making due to its arrogance and/or incompetence.

Then our government proceeded to make a bad situation worse by facilitating the departure of President Al-Bashir in clear and direct conflict with a court order not to do so.

Once a government flouts court orders it undermines the legitimacy of the courts – not only in highly charged political matters but also in ordinary matters affecting ordinary citizens. It is a calamity for every citizen – even if this may not at first be apparent to some citizens who might even, in a particular case, support the flouting of a court order and the lawlessness that it entails.

As former Chief Justice Sandile Ngcobo pointed out in a public lecture the judiciary needs to retain the public’s confidence in order for it to fulfil its role properly. Public confidence was important, suggested Ngcobo CJ, because it is necessary for the effective performance of judicial functions.  What was required was for members of the public to recognise the legitimacy of individual decisions of the court even when it disagreed with the outcome of such decisions: in other words, public opinion related to the institutional position of a court and hence courts had to act in such a manner that it retained the confidence – if not always full agreement – of the public it served.

When a democratically elected government flouts the orders of a court, it undermined public confidence in the courts and undermines the legal system as a whole. If members of the public come to believe that what matters is not what a specific legal principle require, but what those with money and power dictate, lawlessness in its most extreme form logically follows.

To quote former Chief Justice Ishmael Mahommed:

[u]nlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will.  The superior courts and the Constitutional Court do not have a single soldier.  They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts.  The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.

It is important to the rule of law that people and governments develop such confidence in the judiciary that they routinely accept and comply with judicial decisions. This acceptance is most necessary in the case of decisions that are controversial and unpopular. Every day courts make decisions that injure or offend people. Of course, there is a greater good underlying these decisions — respect for the law, and the policy goals and the protection of rights that the law represents.

Yet that greater good is not always apparent to losing parties or to those who do not support the court order. And yet the rule of law depends upon peaceful acceptance of those decisions, and compliance with court orders, even if they are strongly resented. Here the argument, familiar for political scientists, seems to be that it would be difficult for a Constitutional Court (or the judiciary at large) to survive institutionally if its decisions were routinely ignored or flouted by those with power and with connections to those with power.

The result would be a system in which who you know and how much money you have would become the only, the absolute only, determinant of whether you will enjoy the protection of the law or whether, alternatively, you will be thrown at the mercy of those with connections, money and power.

What the South African government did by flouting a court order preventing President Al-Bashir from leaving is to open the possibility to a situation in which who you are, how much money you have, and who you know will determine whether your dignity will be respected or undermined and whether your basic rights will be vindicated or ignored. This state of affairs is not compatible with a constitutional democracy in which the inherent human dignity of all are protected – regardless of economic or social status or political affiliations.

It is especially destructive to those without money and with no access to politically connected individuals as the courts are often their last resort. In South Africa courts have a relatively good record at actually listening and hearing the please of poor people whose rights are being flouted. Ignoring court orders is thus an anti-poor and anti-democratic move which, if repeated often enough, will destroy South Africa’s democracy.

Nkandla: yes the decision may be irrational and can be reviewed

There is an argument to be made that it will be more appropriate and effective to respond politically – instead of legally – to the manner in which President Jacob Zuma has dealt with the Nkandla scandal. The courts alone cannot hold politicians accountable. Voters have a pivotal role to play – both in the periods between elections and at the ballot box –  in holding politicians ultimately accountable. However, if the legal route is pursued, there may be both procedural and substantive grounds on which to challenge the executive’s response to the Public Protector’s report on Nkandla.

The Constitutional Court has not yet provided a definitive answer to the question of whether the findings of the Public Protector and the remedial action imposed by that office in terms of the Constitution, the Public Protector Act and the Executive Members Ethics Act are legally binding. Neither has our top court provided any guidance on when – if ever – such findings and remedial action can be ignored by those affected by the findings and tasked with implementing them.

The Western Cape High Court did provide preliminary answers to these questions in its judgment in Democratic Alliance v SABC and Others. Until the Constitutional Court clarifies the matter, the High Court judgment must guide any legal analysis of the Public Protector’s powers and the legal status of any remedial action imposed by her office.

The High Court held that the findings and remedial action ordered by the Public Protector are not directly binding and enforceable. However, it also held that the findings and remedial action imposed by the Public Protector cannot be ignored.

[T]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…. an organ of state cannot ignore the findings and remedial action of the Public Protector.

The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.

At the very least the organ of state must have acted rationally in declining to implement the findings and remedial action of the Public Protector. To decide whether a decision not to implement the findings and remedial action are rational and therefore lawful, “the underlying purpose of the Public Protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice” – must be considered.

In other words, you should ask whether there is a rational relationship between the need on the part of an organ of state to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice and the decision by that organ of state not to implement the findings and remedial action of the Public Protector.

Usually rationality is not a difficult legal standard to meet. But the manner in which the High Court phrased the rationality test in dealing with the non-implementation of Public Protector reports would make it very difficult for an organ of state to justify a decision not to implement the findings and remedial action. This is because it will be very difficult to show that there is a rational link between the decision of the executive not to implement the findings and remedial action imposed on the one hand, and its duty ensure effective and fair government free from corruption or maladministration on the other.

The executive will in effect have to show that it was necessary to ignore the Public Protector’s report in order to ensure effective and fair government free from maladministration and corruption. Showing that a different decision-maker could have reached a different decision from that reached by the Public Protector would not suffice.

In the absence of any evidence that the Public Protector acted in bad faith or misconstrued her powers it is not easy to see how the executive will manage to convince a court it had acted rationally (and hence lawfully) when it ignored the findings and remedial action of the Public Protector.

In terms of the Constitution and the Executive Members Ethics Act the ultimate obligation to deal with the findings and remedial action imposed by the Public Protector in her Nkandla report lies with the President. It does not lie with any cabinet minister whom the President appoints and can fire at will.

If it is assumed for the moment that the High Court judgment dealing with the powers of the Public Protector is correct, the President would have to show that “cogent reasons” exist that allows him to ignore the findings and remedial action of the Public Protector on Nkandla. It is unclear whether such reasons indeed exist.

First, the Public Protector ordered that the President pay a reasonable amount of the cost of the non-security related upgrades at Nkandla “as determined with the assistance of the National Treasury”. In other words, the President and the Treasury should have made a determination on the matter. This never happened. Instead the President tasked another Minister to determine if he needed to pay any amount and if so how much.

A procedural problem therefore arises because the President failed to involve the Treasury in the process and also failed (on the face of it) to take the decision as required – instead delegating the decision to the Minister of Police. Thus far no cogent reasons have been provided for failing to involve the Treasury as prescribed. Furthermore, no cogent reasons have thus far been advanced for why the President abdicated his responsibility to determine the amount to be paid “in consultation with the Treasury”.

There are, of course, pressing political reasons for the President to appear to delegate the decision on how much to pay to one of his colleagues (whom he appoints and can fire at wil). It places a symbolic distance between the President and a potentially unpopular decision to absolve him from any financial responsibility for Nkandla. Good politicians always manage to get others to take responsibility for unpopular decisions which may ultimately only be in their own best interest. But this would not constitute a cogent reason to justify ignoring the Public Protector’s report.

This seems to render the President’s response to the Nkandla report irrational and hence unlawful and invalid.

But even if this is not so, it is difficult to see how the decision by Police Minister Nathi Nhleko that President Zuma need not pay anything for the state-funded upgrades of his private home at Nkandla could be deemed rational.

The Minister did exactly what the High Court said was not allowed, namely he decided that the remedial action ordered by the Public Protector need not be implemented on the mere basis that he had a different view than the Public Protector about the appropriate findings and remedial action. As the Minister has not argued that the Public Protector acted in bad faith or misconstrued her powers, the decision that President Zuma did not benefit from the Nkandla upgrades and need not pay back any of the money therefore appears to be irrational and hence unlawful and invalid.

The findings and remedial action imposed by the Public Protector may, of course, itself be taken on review and a court can set aside such findings on the ground that due to a misinterpretation of the law or for some other reason the findings or remedial action are irrational.

At least two findings by the Public Protector regarding the Nkandla matter may be vulnerable to such a review, but unfortunately for the President it relates to findings that favour him. (Another body may of course request the court to review and set aside these findings in order to impose a far more onerous financial obligation on the President.)

First, the Public Protector found that while the claim made by President Zuma in Parliament that he and his family built and paid for everything at his private home, except for the security measures was not true, this may have been an honest mistake. The report thus found that there was no breach of section 2 of the Executive Members Ethics Act as it may have been a bona fide mistake that the President had misled Parliament. It is not clear from the Public Protector’s report on what rational basis this finding was made.

Given the fact that the President declined to provide the Public Protector with any information of how the non-security related aspects of Nkandla was financed (information which only the he could have provided) and given the fact that the extensive non-security related building at Nkandla (excluding the contested swimming pool, cattle kraal, chicken coop and amphitheatre) must have cost several million Rand, it is unclear how the President and his family could have financed it without assistance from a bank or from a third party.

(The President did provide evidence of a bond to the Public Protector, which was apparently obtained to finance the building of the first houses at Nkandla more than ten years ago.)

Where a person being investigated by the Public Protector refuses to provide her office with information that could exonerate that person, it would be rational to assume that such evidence does not exist – unless there are cogent reasons for the refusal. It is, at best, unclear whether such cogent reasons were provided to the Public Protector or indeed, whether they exist. If asked to do so, a court may therefore find that this finding was not rational and hence that the President did lie to Parliament in breach of the Executive Members Ethics Code.

Second, the Public Protector found that if a strict legal approach were to be adopted, the President would have been liable for all cost relating to the security upgrade of his private home. This is so because his Nkandla home was declared a National Key Point in terms of the National Key Points Act. The Act requires the owner of the property to carry all cost relating to security improvements.

However, the Public Protector generously found that such a finding would be unfair to President Zuma. This is because, in terms of a Cabinet Policy adopted in 2003 all Presidents and former Presidents are entitled to reasonable security upgrades at their private homes, at their request or that of their office. However, President Zuma stated that no such request was ever made.

There are two problems with the findings of the Public Protector in this regard.

First, the separation of powers doctrine holds that the executive cannot amend legislation adopted by the legislature nor can it decide to ignore applicable law validly passed by Parliament. Where legislation imposes a duty on a member of the executive, a Cabinet policy cannot nullify such an obligation as this would, in effect, amount to the executive usurping the power of the legislature.

Second, the President said he never requested any security upgrades at his private home, which is a requirement for the cabinet policy of 2003 to be activated. In the absence of a request from the President, it is therefore unclear how any rational person could have found that the policy nevertheless applied to the security upgrades at Nkandla. As no request was apparently made, the Cabinet Policy could not apply and the President may therefore be liable for the entire amount of the security upgrades as prescribed by the National Key Points Act.

There is therefore a plausible legal argument to be made that the Public Protector erred and acted irrationally – to the benefit of President Zuma. Although it is never easy to predict how a court would rule in a specific case, I would argue that there is at least a likelihood that, if asked, a court could review and set aside the decision by the Public Protector not to hold the President liable for the entire amount of the security upgrade as required by the National Key Points Act.

I hope I have made clear that while the electorate will ultimately decide whether to hold the executive and the party its members belong to accountable for the Nkandla scandal, there are several interesting legal arguments that could be presented to a court, in the event of the matter coming before it. And the worst case scenario for the President is that a court may rule that he is liable for the entire amount spent on security upgrades at his private home – not only the relatively small amount which he is liable for in terms of the Public Protector report.

At the Venice Biennale – An ugly, condescending scream on the wall

This past Saturday and Sunday I visited the Biennale exhibitions at the sprawling Giardini and Arsenale venues in Venice. I saw many beautiful, disturbing and shocking works of art and some wondrous, confusing and sometimes politically provocative art installations (including Isaac Julien’s continuous reading of Karl Marx’s Das Kapital in the Arena at the Giardini). But one work stopped me in my tracks: Willem Boshoff’s much talked about Racist in South Africa, at the South African Pavilion, which forms part of a group show entitled What Remains is Tomorrow.

I am neither an art critic nor an expert on contemporary art. I do regularly attend exhibitions and, in my own way, try and make sense of the things I see. I try to listen to what a particular artwork wants to tell me and I try to get to that point beyond words where an interesting or provocative work of art stirs up a complex set of feelings and continues to haunt me for days afterwards.

I don’t believe that art needs to be safe or “beautiful” – whatever that may mean. Some of my most cherished interactions with art have shocked, troubled or unnerved me.

I am relatively familiar with Boshoff’s body of work: the intricate play with words in Garden of Words, the names of plants filed away in wooden cabinets or displayed under huge glass panels; the 8 marble slabs in the inner courtyard of the Constitutional Court, entitled Prison Hacks, symbolising the time spent in prison by various political prisoners such as Nelson Mandela (9377 days), Ahmed Kathrada (9269 days), Raymond Mhlaba (9269 days) and Govan Mbeki (8548 days); and Long Shadows, on the grounds of the old awaiting-trial block at the entrance to the Constitutional Court which portrays – again in black marble – the shadows of four hopeful prisoners.

It is for this reason that Boshoff’s work was what I was most looking forward to see as I took the escalator up to the South African Pavilion at the Arsenale.

As you enter the exhibition you are met with the deafening sound emanating from two video screens, a white man on one screen and a black man on another screen delivering the same obnoxious nationalistic political speech in tandem. The point of Brett Murray’s work, I suppose, that there is no difference between the deathly rhetoric of apartheid era National Party politicians and African National Congress politicians in democratic South Africa.

It is a facile and insipid work that disregards the fact that – despite what some lazy and privileged white South Africans may think – there is a world of difference between apartheid South Africa and the democratic dispensation. In the former, nationalistic rhetoric was deployed to justify white minority rule and the political oppression and economic exploitation of the majority of citizens.

Whatever you may think of the (often deathly boring) nationalistic rhetoric of some current day politicians, they operate in a democratic system in which every adult has the right to vote, in which the rights of every citizen is constitutionally protected and those (like Murray) with access to resources can approach the courts to have their rights enforced.

It is within this context that the visitor to the South African Pavilion encounters the work by Boshoff. The work is not visually interesting – a 120cm x 120cm piece of text engraved into aluminium. The text seems to rant in despair about the state of the nation. The work begins with the line “I am proud to be labelled racist in South Africa if it means that…” and contains many statements that are either factually untrue or embody reactionary, right wing political sentiments. Sentiments, it must be said that are widely shared by many white South Africans.

“I can’t stand that more and more tourists are avoiding us like the plague.”

“I could scream in frustration when jobs are given to unqualified people.”

“I weep when villain’s rights are protected more than their victims.”

Of course, more and more tourists are not avoiding South Africa “like the plague”. The number of visitors to South Africa has increased consistently since the advent of democracy. Most tourists did, of course, avoid South Africa “like the plague” before 1994 because it was a pariah state, wracked with fear and violence, a state in which those who opposed the government were detained and held without trial, tortured and murdered.

It is true that sometimes jobs are given to unqualified people in South Africa. This happens also to be the case in most other countries in the world. George W Bush was given a place to study at Yale University because of affirmative action and later became the (disastrously bad) President of the United States, partly because of his family connections and his privilege as a white, heterosexual, man.

But in the context of the often hateful and irrational response of (some) white South Africans to the constitutionally mandated implementation of affirmative action measures, the sentence plays on the deeply embedded racist assumption that black people are unqualified and undeserving of being employed.

It is also factually untrue that the rights of villains are protected more than the rights of their victims. In South Africa rights apply equally to everyone. In any case the assumption that it is somehow morally reprehensible to protect the rights of accused persons who had not yet been convicted of any crime, is a deeply reactionary one, not to be squared with the idea that every individual possesses an inherent human dignity that must be respected and protected.

Being familiar with some of Boshoff’s other work, I wondered whether he was not trying to satirise the racism and prejudice of the average person who comments on the News24 website. Maybe he was deliberately playing the buffoon, performing a virulent form of white, male privilege in order to critique it?

I guess that is how white privilege works – you can almost always count on being given the benefit of the doubt – unlike the supposedly “unqualified” persons mentioned in the work, who will often not be afforded the same privilege.

But there was nothing in the work to hint at such a reading – only the ugly, condescending, words on the wall, unflatteringly juxtaposed with the lazy populism of Brett Murray in the next room.

Because the work was produced by a white, heterosexual, Afrikaans man at this juncture in post-apartheid South Africa, because of the overwhelming presence of these authorial identities in that room, and because of the close connotation in present day South Africa between these identities and the inability to listen to and hear when black people speak, the inability even to begin to imagine the life of the symbolic Other, the work was doomed to fail – even if its creators’ intentions had been different.

For me the work failed as art not only because it reflects an attitude of entitlement; because it inevitably reads as coming from an isolated, arrogant, place; a world in which individuals are catastrophically unable to grapple with the experiences and feelings of black South Africans. It also fails because, ultimately, it is not interesting, provocative or challenging in any way discernible to this viewer. It does not invite you to see the world afresh, to question deeply embedded beliefs or assumptions, to be shocked by a head-on destabilising attack on the status quo.

Instead it just hangs there: impotent, angry, magisterially oblivious to the power and privilege of its creator.

Dying with dignity judgment – moral views of some cannot justify infringement of rights of others

After the North Gauteng High Court ruled that (in precisely defined circumstances) a dying person is entitled to be assisted by a qualified medical doctor to end his or her life, the South African Medical Association (SAMA) warned that even if the law were to permit medical practitioners to help terminally ill patients to end their lives, the ethical rules of the Health Professions Council of SA (HPCSA) do not allow this. This raises questions about the constitutionality of the ethical rules of the HPCSA.

Several years ago my father had a massive stroke while recuperating in hospital from an operation. His heart stopped beating for 15 minutes before he was revived and placed on life support in the intensive care unit of the hospital.

He had previously said – only half jokingly – that the day it becomes impossible for him to read the newspapers us children “would have to make a plan”. For him, being able to read the newspapers was the minimum requirement for living a dignified life, one that was worth living.

After three days of anguish it became evident to us, his family, that my father would never wake up from his coma. After consultation with doctors and among ourselves, all 5 siblings agreed to have the life support machines switched off.

When the doctors switched off those machines they took a decisive step to end his life. But for this act, he might have remained biologically alive for several weeks or even months. The doctors who gave the order to switch off the machines in effect killed my father, but in terms of our law and the ethical rules of the HPCSA they were entitled to do so. I will be eternally grateful for that.

This example (also alluded to by judge Fabricius in his judgment in the case of Stransham-Ford v Minister of Justice And Correctional Services and Others) illustrates the absurdity of the ethical rules on assisted dying currently enforced by the HPCSA.

Judge Fabricius noted that logically where a doctor ends treatment for a dying patient he or she is committing murder in terms of the principle of dolus eventualis – except that this kind of assisted dying has been ruled lawful by our courts and is thus not considered to amount to a crime:

Where life sustaining or life prolonging treatment has been administered and is subsequently withdrawn, the act of withdrawal is nonetheless a commission – it remains an active and positive step taken by the medical staff directly causing the death of the patient (on a factual basis). It is accepted that such medical treatment may be refused from the outset by a terminally ill patient, in which the failure to render treatment would constitute an omission only on the part of the medical practitioner… there can be no distinction between active euthanasia and passive euthanasia in the circumstances where such argument is based on so-called ethical considerations.

The HPCSA ethical rules require that doctors ignore the best interest, as well as the sincere wishes, of the dying patient suffering emotional and physical pain. The cynic in me wonders whether these rules are in place to protect doctors from the bad publicity that they fear will result from allowing doctors to assist patients to die with dignity.

(What seems to make the ethical rules even more irrational is that doctors are allowed to end the life of a patient like my father who, for all they know, had no say in the matter and may not have wanted treatment to stop, while they are not allowed to assist a patient, capable of making the choice, to die with a dignity.)

The High Court judgment may well be appealed to the Constitutional Court.

As it stands it has the effect of developing the common law in an important and profound manner to bring it in conformity with the right of everyone to have their inherent dignity protected and respected (contained in section 10 of the Constitution) and the right of everyone to bodily and psychological integrity, which includes the right “to security in and control over their body” (protected by section 12(2)(b) of the Constitution).

Before the judgment was handed down a doctor (or any other person) who assisted a patient to die because the patient was suffering from emotional or physical agony and wished to end his or her life, would always have been guilty of either the common law crimes of murder or culpable homicide. The judgment develops the common law in that, in certain limited circumstances, it will now be lawful for a person to assist a dying patient to end his or her life.

I wonder (hopefully being too cynical again) whether concern about the status, image and even the profits of doctors or (as judge Fabricius argues) the sincerely held moral or religious convictions of a section of society, may have influenced the HPCSA stance on assisted dying. Whatever the reasons may be, the norms embodied in the Constitution (and not moral or religious views nor other concerns) must guide the development of the common law.

The ethical rules of the HPCSA must also comply with these constitutional norms. In as far as the ethical rules do not comply with the provisions of the Constitution they are invalid and of no legal effect.

Neither public opinion nor the beliefs of the majority of doctors who belong to the HPCSA is decisive in determining whether the rights of individuals should be protected. Public opinion or the moral beliefs of the majority is not decisive in determining whether an infringement of the rights of individuals is justified. As the late Chief Justice Arthur Chaskalson wrote in S vs Makwanyane:

Public opinion may have some relevance to the enquiry but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication.

Unlike the ethical rules of the HPCSA, the judgment is deeply concerned about the values enshrined in the Constitution and the need to respect the inherent human dignity of every person. This is so because the “recognition and protection of human dignity is the touch stone of the new political order and is fundamental to the new Constitution”. As the judge noted, although dignity is not easy to capture in precise terms:

the concept requires us to acknowledge the value and worth of all individuals as members of society. It is the source of a person’s innate rights to freedom and to physical integrity, from which a number of other rights flow, such as the right to bodily integrity. It is my view also that persons must be regarded as recipients of rights and not objects of statutory mechanisms without any say in the matter.

Of course, every person also enjoys the right to life. However, neither the Constitution nor other laws generally impose on individuals a duty to live; a person can waive his or her right to life if he or she wishes to do so. It is thus not a criminal offence in South Africa to attempt to commit suicide. Moreover, as Justice O’Reagan had pointed out in the death penalty judgment the right to life and the right to dignity are interrelated:

the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity…. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society. The right to life, thus understood, incorporates the right to dignity. So the rights to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.

The notion of dignity is also closely associated with the protection of the personal autonomy of individuals. Individuals who cannot make personal life choices because such choices are circumscribed by criminal law or because their life circumstances render it difficult or impossible for them to do so, do not have their dignity fully respected.

Where the law interferes with the ability of individuals to make decisions concerning their bodily integrity and medical care it infringes on their liberty and dignity, leaving them to “endure intolerable suffering, it impinges on their security” of the person.

The irony is… that we are told from childhood to take responsibility for our lives but when faced with death we are told we may not be responsible for our own passing… One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield for one’s country. But one cannot decide how to die.

In any case, as the judge found, for many people there will be no dignity in:

Having severe pain all over one’s body; being dulled with opioid medication; being unaware of your surroundings and loved ones; being confused and dissociative; being unable to care for one’s own hygiene; dying in a hospital or hospice away from the familiarity of one’s own home; dying, at any moment, in a dissociative state unaware of one’s loved ones being there to say good bye.

It is important to note that the ruling does not force any person to end his or her life or to assist anyone else to do so. It remains a personal choice. The judgment thus confirms that the criminal law (or, I would add, the ethical rules of the HPCSA) cannot be used to enforce the moral, religious or ethical beliefs of some on everyone. However, this does not force those who hold such moral, religious or ethical beliefs to act in breach of their beliefs.

Moreover, if the Constitutional Court confirms the judgment it would be desirable for Parliament to pass legislation to establish a system with minimum safeguards in order to protect patients. In the absence of such legislation a patient would have to approach a court for permission to be legally assisted to die.

Judge Fabricius emphasised that in the absence of legislation a court will “scrupulously scrutinize the facts before it, and will determine on a case-by-case basis, whether any safeguards against abuse are sufficient”. The court will have to decide on the facts of each case whether the necessary safeguards are in place before allowing a doctor to assist a patient to die with dignity. The judgment would therefore not have an “uncontrolled ‘ripple effect’” as some people have argued.

The judgment is ground-breaking because it once again affirms that in a constitutional democracy in which the value of dignity is fundamental, the human dignity and autonomy of some may not be sacrificed in order to enforce the narrow moral or religious beliefs of a certain section of society on the population as a whole.