Constitutional Hill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why perceptions of political interference in NPA fuel corruption

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What the rules say about the removal of MPs from Parliament

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.