Constitutional Hill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How to have a meaningful discussion on affirmative action

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lastly section 11 of the Act states that:

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

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

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

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

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

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

Thuli Madonsela: Wrecking Ball

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

Nkandla: Zuma’s convoluted series of Houdini moves

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two important conclusions flow from this.

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

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

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

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

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

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

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

Money, power and the everyday oppression of gender roles

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

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

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

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

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

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

It was only later that I understood her anger.

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

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

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

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

No wonder my mother was sometimes angry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The freedom to be fabulous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Home Affairs: Is it harassing lawyers illegally

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hlaudi weather: The fog is even thicker than it looks

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

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

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

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

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

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

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

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

The report quotes Mr Motsoeneng as telling the public protector:

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

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

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

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

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

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

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

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

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

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

Three perplexing questions arise form this sorry saga.

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

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

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

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

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

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

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

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

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

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

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