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Cutting and pasting judicial decisions

Sep 3rd, 2010
by Pierre De Vos.
46 comments

In a speech delivered in 2008, Supreme Court of Appeal Judge Carole Lewis implicitly questioned the appointment of some black and female judges to the various courts in South Africa since 1994. She argued in a speech  that the JSC has become dominated by politicians after the adoption of the final Constitution in 1996 and that “there is a perception now that political fealty is a more assured path to appointment as a judge than ability”, then continues:

I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants…. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.

She also argued that in order to safeguard the independence of the judiciary “appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC” and that “politicians should take lessons in constitutionalism and realize that they are not above the law”. The implicit link between a lack of  ”skill” and the race or gender of a judge was (rightly, in my view) condemned at the time. 

A remarkable judgment handed down yesterday by the Constitutional Court in Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others suggests that Lewis might have had a point. However, in this case the perceived problems had nothing to do with either race or gender – at least not in the manner in which Lewis used those terms in her speech. 

The Appellants (Stuttafords and Others) in this case approached the Constitutional Court to challenge the decision by (now retired) judge Dion Basson to recuse himself from any matter dealing with the parties involved after he handed down judgment in favour of the Salt. The recusal application was based on the contention that the main judgment by Basson “exhibited little or no sign of any original or independent application and reasoning, that it essentially copied the written heads of argument of Salt’s counsel and, consequently, created a perception of bias in favour of Salt”. 

For various reasons that are not relevant here, the Constitutional Court decided that it was not in the interest of justice to hear the appeal. It carefully pointed out that it was not making any finding on whether there would be grounds to ask for the recusal of a judge where he or she basically copied the written heads of argument of one of the parties and presented it as his or her judgment. The Court nevertheless felt that it was necessary to comment on the remarkable case and implicitly – in its ever polite and indirect way – rebuked the now retired judge for his conduct.

As the Constitutional Court noted, the original judgment was remarkable for various reasons. The judgment by Basson J consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing.

The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like “it is submitted” and emotive comments on The Gap and Stuttaford’s contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttaford’s heads of argument, except for references carried over from Salt’s heads of argument.

If this had not been a judgment by a court of law but an academic article or a newspaper column someone might have suggested – rather less kindly than the Constitutional Court – that this was a case of plagiarism. The Constitutional Court was more circumspect, but did comment on this remarkable turn of events (to say the least) in the following manner:

While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own word. 

“The true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

“. . . The very act of having to summarize in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.”These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.” 

These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.  We have deliberately refrained from dealing with case law on the issue whether the extensive use of counsel’s heads could lead to a perception of bias, because it is not a question we need to decide here. Suffice to state, however, that if these wise words are heeded by judges the necessity of deciding the issue in the future should not arise.

To my knowledge this is the first time the Constitutional Court comments in such an negative manner on a judgment handed down by a High Court judge. This suggests that the case in issue is an exception and that the vast majority of judges do indeed write their judgements in their own words (even if many of them also do borrow from the written heads of argument of one or the other side).

I hesitate to note that judge Basson is white, but sadly we live in South Africa where race permeates every aspect of our lives and this fact will be noted by many – even if some people will not comment on it it public. I note the race of the judge not because I believe it is important or that it demonstrates that all white judges are somehow unworthy of serving on the bench, but because I wonder what would have happened if the judge in question was black? How would the majority of white members of the legal profession have responded (at least in private – around braaivleis fires and in tea rooms in law firms and drinks events of colleagues at the Bar)? Would they have seen this as confirmation of the alleged “problems” with transformation highlighted by Lewis JA?

I venture to suggests that quite a few (but thank goodness far from all) lawyers would have seen the case in those terms, as it would have confirmed their worst suspicions about the alleged inferiority and unsuitability of black appointees to the bench, suspicions that are at least some times based not on facts but on racial prejudice.

Or would they – as most of them will surely now correctly do – have seen this as an isolated case related to a specific judge whose race had absolutely nothing to do with the fact that for some bizarre reason or another (or because of personal reasons that we do not know about) he had decided to cut and paste the heads of arguments of one of the parties and serve it up as his own judgment?

Just wondering.

Posted in: Constitutional Court, Judiciary, Race, Transformation, Uncategorized.

Invitation to a Public Lecture by Chief Justice Sandile Ngcobo

Sep 2nd, 2010
by Pierre De Vos.
9 comments

University_of_Cape_Town_coat_of_arms

The Chief Justice of South Africa, the Hon. Mr Justice Sandile Ngcobo, will deliver the first Claude Leon public lecture on the topic:

“The importance of public confidence in the judiciary in South Africa”

Date: Thursday 16th September

Time: 17h30

Venue: Lecture Theatre 1, Kramer Building, Middle Campus, UCT

Please join us afterwards for drinks and snacks

RSVP: Rene 021 650 3072 or Rene.Francke@uct.ac.za

Sponsored by Juta Publishers

Posted in: Governance, Judiciary.

More thoughts on Blade and the cabinet

Sep 1st, 2010
by Pierre De Vos.
96 comments

When Minister Blade Nzimande was appointed to the Cabinet by President Jacob Zuma, some voices in the South African Communist Party (SACP) questioned the wisdom of him continuing to serve as the general secretary of the SACP. Given the experience of the SACP with some of its members who served in Thabo Mbeki’s cabinet and who often seemed to follow cabinet decisions instead of SACP policy (Geraldine Fraser-Moleketi being the most obvious example), some SACP members were worried that Nzimande’s membership of the cabinet would make his position as leader of SACP untenable.

They warned that he would be required to serve two masters at the same time. Although both masters were members of an alliance, these masters did not always take the same position on a particular issue. Nzimande would then be forced either to defy the cabinet in breach of the Constitution when, as its leader, he would be required to put forward the official SACP position, or he would be forced to abide by cabinet decisions and thus would become incapable of diligently performing his function as leader of the SACP.

As I pointed out earlier this week, South Africa has adopted a system of political party government in which strict party discipline is enforced in the legislature and individual and collective cabinet responsibility for the executive is mandated by sections 92 and 96 of the Constitution. 

This means that ordinary MPs may debate an issue vigorously within the ANC until the caucus has made a decision on it, after which they were obliged to toe the party line or face the consequences (the most severe of which would be to be redeployed out of a job, as happened with Andrew Feinstein when he refused to follow instructions from the ANC - and especially Essop Pahad a.k.a Essops Fables – to stop his vigorous pursuit of arms deal corruption as a member of SCOPA). 

If ANC MP’s in Parliament also happened to be SACP leaders or COSATU leaders they would find themselves in a difficult position as they would be required to vote in favour of measures which their parties did not support. Other MP’s would also face such difficulties – as was the case with the adoption of the Termination of Pregnancy Act and the Civil Union Act.

Similarly, a cabinet minister could forcefully argue his or her position inside and outside cabinet until the cabinet had taken a position on that issue, after which the cabinet minister had to abide by that decision or had to resign. What the cabinet minister cannot do is stay in the cabinet but criticise a decision of that cabinet in his or her capacity as leader of Cosatu or the SACP because this would undermine cohesive government and collective cabinet responsibility.

It also undertmines the authority of the President, who is the  leader of the cabinet. In some jurisdictions the Prime Minister or the President fires Ministers who show too much dissent – often when the President or the Prime Minister is insecure and paranoid about his or her future or has a vindictive streak beyond that which politicians are known for.

This suggests that those in the SACP who expresssed disquiet with Nzimande’s duel role might have had a point: being the leader of the SACP or COSATU is probably incompatible with membership of the Cabinet or the National Assembly. Blade Nzimande sees things differently, of course. If all cabinet Ministers followed his example the cabinet would become even more dysfunctional and cabinet government would run the risk of breaking down completely, in which case service delivery would suffer a further blow. Policy would be made and amended on the trot (something former cabinet Minister Kader Asmal warned against earlier this year) and the system of individual and collective accountability of cabinet ministers provided for in the Constitution would break down.

Are there ways to deal with this and to save Minister Nzimande from having to choose which master he is serving? Could he hold on to his R1.1 million BMW and the perks associated with being a Minister (including occasional two week stays at the Mount Nelson Hotel) while also holding on to his job as general secretary of the SACP?

Murray and Stacey, in their Chapter in Constitutional Law of South Africa, suggest a few options. One would be for a Minister to use the “unattributable leak”. A Minister could leak his opposition to a specific cabinet decision to the media on condition that he or she not be named. Cabinet Ministers in the United Kingdom are masters of this ploy. It allows one to have one’s views known to those sections of the public whose support one wishes to retain (always a good thing when one has to stand for a leadership position), without officially breaking the rules of collective cabinet responsibility. Given the fact that such unattributable leaks are one of the reasons advanced by Nzimande and others for the establishment of a Media Appeals Tribunal, Minister Nzimande might not find this option appealing.

Another option would be to release carefully crafted statements that hint at dissent without actually defying the President and cabinet colleagues. Those who support Nzimande’s statement on behalf of the SACP about the strike argue that this is exactly what he did. I am far from convinced that they are correct, but judge for yourself. According to its spokesperson, Themba Maseko, cabinet had agreed as follows on the strike:

Cabinet is disappointed with the public sector unions’ rejection of the state’s offer of a 7% annual increase and the R700.00 a month housing allowance for public servants. The offer is already way above the inflation rate of 4.5 %. The state’s final offer represented a move from the original offer of 5.2 % and a R500.00 a month housing allowance. This is a clear demonstration that Government was negotiating in good faith in an attempt to meet the demands of our employees.  While Government fully understands and appreciates the plight of all the public servants regarding low wages, it has to be mindful of its responsibilities to all South Africans as the final offer already places a huge burden on the fiscus. We had to make a choice between increasing the salary bill to unaffordable levels by meeting the union demands and cutting other urgently needed services.It’s a choice between improving the wages of state employees and continuing to address the service delivery needs of poor communities and the unemployed.

Nzimande’s statement on behalf of the SACP reads partly as follows:

The CC calls on government and the unions to ensure that there is a very speedy resolution to the strike. It is about to enter its third week now and the longer it is prolonged the more everyone suffers and the danger of unbridgeable positions becoming entrenched increases. The SACP once more reiterates its conviction that the demands of the public service workers are legitimate and we support them in their struggle for just remuneration. In particular, we note that the wage gap in the public sector between the highest paid echelons and the lowest is 91 to 1. Although the gap in the private sector is even wider, we cannot deny that the public sector wage gap is shameful, and every effort must be made to progressively close this unacceptable gap. In this regard, the CC calls on government to set an example by ensuring that there is a collective moratorium on salary increases in the upper echelons of government.

I guess if one parses words one could argue that the two underlined sections are not in direct opposition to one another, but it would take some nifty verbal gymnastics and would stretch the meaning of words a bit further than any ordinary person would be able to do – at least while keeping a straight face. Can one at the same time be disappointed with the actions of strikers who rejected an offer of government and decided to strike and support their strike? I guess its a matter of interpretation (as is almost everything else in life) but my head feels like bursting just trying to reconcile those two statements.

And what about the poor ordinary MP’s who are far more vulnerable as they are not in leadership positions and have not been directly elected so can lose their seats in parliament at the whim of the leadership? What must they do when their party takes a position with which they vehemently disagrees, but which they cannot defy by voting against it for fear of losing their seats in Parliament?

One option would be to take a leaf out of the book of Schabir Shaik and to develop a serious illness on the day that a vote is to take place. But this will not signal to one’s constituents that one really did not like what the party did. Another would be to leak news of one’s opposition to a specific decision to the media on condition that one’s name is not mentioned and then to vote for the bloody measure (or against it – if that is what one’s party had decreed) in any case. Political party leaders and whips hate this kind of thing, but it does happen all the time. Andrew Feinstein did it in protest against President Thabo Mbeki’s speech to the caucus in which he argued that HIV and Aids was part of a CIA plot. It builds some flexibility into the system while retaining a semblance of discipline.

Where a political party leader is at the top of his or her game and wields power confidently or, in some cases, ruthlessly, there is less of this kind of ill discipline. With the exception of Pregs Govender and Andrew Feinstein, for example, few ANC MP’s ever dared to go against the party line once Thabo Mbeki had spoken and had indicated what the official line was going to be (sometime after vigorous “debate”). Of course, because of this in the end the seething resentment against King Thabo built up to such a degree that he was thrown out of office at Polokwane.

The fact that Ministers are leaking stuff left right and centre, that Blade Nzimande issues statements that seem to contradict the official cabinet position and that ordinary ANC MP’s are gossiping and leaking to the media like over-excited school boys and girls, suggests that President Jacob Zuma does not nearly have the same stranglehold on his Parliamentary party as Thabo Mbeki did.

But ironically, it might save Zuma’s bacon – at least for now – because all the factions in the party feel that they have a chance to have their side of the story heard and even to have their view prevail because the King is so weak and not nearly as ruthless – at least not on the surface – as that other guy whats-is-name who used to strike terror into the hearts of MPs and cabinet ministers to such a degree that they were all too scared even to admit to journalists that they believed that HIV was a virus that caused Aids.

Posted in: ANC, COSATU, Constitution, Governance, HIV/AIDS, Thabo Mbeki, democracy.

Time for a rethink on marriage, my China

Aug 31st, 2010
by Pierre De Vos.
30 comments

Ordinary South Africans, as well as our courts, seem to have a schizophrenic attitude towards marriage. On the one hand many people – as well as our courts – seem to revere the traditional institution of marriage. From a young age boys and girls are told that getting married would be one of the ultimate milestones in their lives and when the day finally arrives (for some) their families often spend vast amounts of money on wedding dresses, catering and the other bells and whistles that would hopefully make the day a memorable, if rather an expensive, one.

Many fundamentalists Christians argue that marriage between one man and one woman to the exclusion of all others for life (or at least for as long as it lasts – ask Ray McCauley) is something sacred and God-given and rail against the Constitutional Court and Parliament for extended marriage to same-sex couples. 

Despite the fact that section 9(3) of the Constitution states that no one may be unfairly discriminated against on the basis of marital status, our courts have also endorsed marriage as one of the prime organising features of our society (thus indirectly endorsing discrimination against couples who have not tied the knot). As Justice Albie Sachs wrote in his judgment in Minister of Home Affairs v Fourie dealing with discrimination experienced by same-sex couples excluded from the right to marry:

It should be noted that the intangible damage to same-sex couples is as severe as the material deprivation. To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture. It may be that, as the literature suggests, many same-sex couples would abjure mimicking or subordinating themselves to heterosexual norms. Others might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice as whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way.

On the other hand, statistics show that more and more South Africans enter emotional and sexual relationships and live together without getting married or without planning to get married. The “choice” not to get married is often dictated by the skewed power relations between the parties in a relationship. Often men decline to marry their partner because they do not want to encumber themselves with future financial and other obligations, leaving the women in their lives vulnerable and – at the dissolution of the relationship – potentially in dire straits.

Parliament has adopted legislation that recognises polygamous customary marriages and attempts to regulate such marriages and protect the vulnerable partners in such unions – usually the wives – from the harsh consequences that might flow when such unions come to an end. Many other pieces of legislation have also extended legal rights usually associated with marriage to permanent life partners who are not married.

Section 7 of the Recognition of Customary Marriages Act emphasises the fact that all spouses in a customary marriage have equal status and capacity. This section is aimed at protecting both the existing spouse or spouses and the new spouses in a custmoray polygamous union by requiring that the husband must obtain the court’s consent to enter any further customary marriages. The court must also approve the proprietary arrangements of the polygamous marriage to protect all the spouses. Recently the North Gauteng High Court found in the case of Mayelane v Ngwenyama and Another that a failure to register such a polygamous marriage and obtain the court’s consent would make the subsequent polygamous marriage invalid in the eyes of the law.

After details of this judgment became known, newspaper reports speculated on whether President Jacob Zuma had complied with the mandatory provisions of section 7 of the Act. If he had not, the protections afforded by the Recognition of Customary Marriages Act to his subsequent polygamous marriage partners would not apply. President Zuma or any of his spokespeople have not yet commented on these speculations so its impossible to know whether he is complying with the law and whether his other wives are protected by the law or not.

Incidentally, it is rather peculiar that fundamentalist Christians who attacked the passing of the Civil Union Act because it extends full marriage rights to same-sex couples and is seen as a frontal attack on the traditional (Western) definition of marriage as being between one man and one woman, do not object to the provisions of the Recognition of Customary Marriages Act which extend the definition of marriage to include a union between one man and more than one woman. Maybe black people living under customary law are invisible to them and therefore do not count? Or is it just that American fundamentalist Christian groups who inspire and fund our own home grown activists are unfamiliar with these laws?

A report in City Press on Sunday that Gloria Bongi Ngema, President Jacob Zuma’s fiancée, accompanied him on the state visit to China, neatly illustrates the schizophrenic attitude many South Africans have towards marriage. It also casts doubt on the ability of the Recognition of Customary Marriages Act to protect subsequent spouses in a customary marriage and may pose questions about our President’s commitment to gender equality. But that is a topic for another day.

The presidency explained that full payment of lobola and the traditional ceremonies that accompany the payment had been made and that Ngema was thus viewed as his “fiancée and life partner”. She was thus entitled to the same privileges as Zuma’s other wives – Sizakele Khumalo, Thobeka Mabija and Nompumelelo Ntuli – as the government’s spousal policy now gave her the same status as his life partner and fiancée.

Although the legal requirements of section 7 of the Recognition of Customary Marriages Act had therefore not been complied with, Ms Ngema nevertheless had an official status as life partner of the President. If we leave aside for the moment that the law does not yet protect Ms Ngema and that there might therefore be serious problems with the ability of the law to protect vulnerable spouses in polygamous unions (just as there are serious problems with the law protecting vulnerable partners in non-marital life unions), one must concede that the official policy of the Executive regarding life partners is rather progressive.

Unlike the judges of the Constitutional Court (and – when it suits them – Christian fundamentalists) who have often claimed a special place and status for couples who have formally tied the knot, this policy recognises that practically many permanent relationships fulfil the role of what our law recognises (rather narrowly and unrealistically) as legal marriage.

It suggests that maybe it is time to rethink the way in which our law privileges those intimate relationships which have been formalised in law above other, just as worthy and important, relationships which have not been formalised by marriage – either in terms of the Marriage Act, the Civil Union Act or the Recognition of Customary Marriages Act.

Is it not time that we find a way to bring the law in line with the lived reality of millions of South Africans who are in permanent life partnerships but who are, for various reasons, not legally married? Should Parliament not urgently adopt legislation that extends the rights and privileges as well as duties associated with marriage to permanent life partners and do away with the anachronistic legal rules that punish some couples who do not have a piece of paper called a marriage license while rewarding and protecting others who do? 

Should marriage not really be a private affair of little concern to the state, to be entered into at churches, mosques, synagogues, on wine estates or at other venues of choice, but without any legal significance? Should the law not, in a functional manner, recognise and regulate important intimate relationships with one or more life partners in order to protect the more vulnerable partner or partners – regardless of whether they had entered into a valid marriage or not? In this, our President seems to be leading the way. Should we not applaud him, rather than complain that he has taken his girlfriend on an official trip to China?

Posted in: Dignity, Jacob Zuma, Sexual orientation, Transformation, discrimination.

Champagne socialism at its best

Aug 30th, 2010
by Pierre De Vos.
168 comments

I was not sure exactly how to react when I read that Higher Education Minister Blade Nzimande (who also moonlights as the Secretary General of the South African Communist Party) yesterday expressed his support for striking public servant workers and said the government must deal with the huge salary gap between low-earning public servants and the government’s “highest paid echelons”.

The central committee [of the SACP] calls on the government to set an example by ensuring that there is a collective moratorium on salary increases in the upper echelons of the government…. We note that [the] wage gap in the public sector between the highest-paid echelons and the lowest is 91 to one.

Should one applaud what appears to be a fine sentiment, or should one point out a few inconsistencies in Comrade Blade’s position? Oh well, let’s opt for the second option.

First, it seems perhaps just a tad hypocritical of Nzimande to bemoan this huge gap in salaries when he has been feeding at the through himself without complaining at all – at least not in public. Was he not the guy who last year purchased a R1.1 million BMW 7501 with tax payers money as one of his official vehicles (of course, all in line with that Bible of Ministers called the Ministerial Handbook)?

He was also criticised when it was revealed that he had stayed at the Mount Nelson Hotel (Cape Towns’ most prestigious address) for fifteen days. A room at the Mount Nelson costs between R6000 and R13 000 a night but Minister Nzimande got a government discount so it “only” cost tax payers about R40 000 for his hotel bill. 

As a Minister, Nzimande owns R1.7 million a year, which obviously excludes the perks such as free stays at the Mount Nelson, driving in R1.1 million BMW and having access to round the clock bodyguards to protect you from attacks by bullies called “Bees”, “Vleis” or “Klippies”. The President earns R2.254 million and ordinary MP about R760 000.

Nzimande and his fellow MP’s sure are lucky. 99% of South Africans earn less than these “servants of the people”. The median salary in South Africa (in the private sector) for a financial manager, for example, is around R367 000, while a construction project manager earns slightly less. The median salary for a personal assistant is about R110 000. The minimum wage for a domestic worker has been pegged at R1400 a month, which is R16800 a year. (For the price of Nzimande’s stay at the Mount Nelson almost three domestic workers could have been paid an annual minimum wage.)

Minister Nzimande’s statement might have had more credibility and might not have reeked of hypocrisy if he had also announced that he was trading in his BMW for a Toyota or a Small Volvo and that he was donating the money to a job creation scheme. It might also have helped if he at the same time had launched a bitter attack against the Ministerial Handbook and the excesses allowed by it and had decried the habit of cabinet Ministers who stay in the poshest Hotels on tax payers money while they are being paid a salary that is more than 100 times that of the minimum wage of a domestic worker.

Maybe a proposal by him for a 50% salary cut for all Ministers and other members of the Cabinet would also have gone a long way to give his otherwise hollow statement at least a tinge of credibility. I thought that I was a bit of champagne socialist, but Minister Nzimande really takes the cake.

I have nothing against hard working people earning a decent salary and can understand that Ministers must be paid more than a domestic worker. However, when one complains about the gap between the salaries in government paid to those in the top eschelons and those at the bottom one should at least signal that one was prepared to put one’s money where one’s mouth was. The statement by Nzimande looks suspiciously like: one rule for others and another for myself. 

Second, Nzimande’s expression of support for striking workers – while commendable in the abstract – seems to break every convention of collective cabinet responsibility as enshrined in section 92(2) of the Constitution. When a government has adopted a particular position after a discussion of the matter in the cabinet (which one assumes is what happened when Cabinet decided on offering no more than its 7% increase to workers), all cabinet ministers have an obligation to support that position and not to criticize it in public.

So, either the government is dysfunctional and never discussed this matter of vital importance for the governance of the country – which means we have no Cabinet government in South Africa and that policy decisions are made on a completely random and ad hoc basis – or Nzimande is in flagrant breach of his constitutional duty to observe collective cabinet responsibility.

Usually when a cabinet Minister disagrees with a government policy, that Minister can forcefully argue his or her case in Cabinet but once Cabinet has rejected the view of the Minister and adopted a policy (say a policy to offer only a 7% increase to striking workers), that Minister must either shut up or resign from the Cabinet. He or she would then be free to criticise the cabinet decision as a backbencher in Parliament (although he or she would then face the danger of being redeployed as South Africa’s ambassador to Outer Mongolia).

But a Cabinet Minister cannot have it both ways, enjoying the perks of Cabinet office and the power that goes with it, but criticising Cabinet decisions when it is expedient to do so. This is unfortunately not a demonstration of high principle, but rather hints at political opportunism. It also completely undermines the notion of collective cabinet responsibility enshrined in section 92 of our Constitution.

But it seems that Nzimande has decided that the R1.7 million salary of a Minister and the R1.1 million BMW will make resigning from Cabinet on a matter of principle far too painful. Ordinary MP’s don’t get to stay at the Mount Nelson and in outer Mongolia the Hotels are just not up to standard. No wonder he seems to be ignoring the Constitution. This allows him to take a position that diverges from that of the Cabinet while holding on to his fat cat salary and all the perks that go with the position of a Minister.

Some would say this is opportunism and hypocrisy masquerading as principle. I would be one of them. Wonder when the workers will also notice that the Secretary General of the SACP is wearing no clothes.

Posted in: ANC, Constitution, Governance.

The Windows of Heaven (and your wallets) are open!

Aug 27th, 2010
by Pierre De Vos.
140 comments

One of the (many) reasons why I am not a fascist or a Stalinist is because I am rather worried that people might begin to think that I am a repressed and self-hating homosexual who is trying to hide his true self by embracing rightwing Christian fundamentalism. If I ever wavered in my commitment to remain a constitutional democrat and if I ever feared that I would fall into the arms of dangerous spin merchants, there will always be people like Mr Errol Naidoo (who is the director of an outfit called the “Family Policy Unit”) to keep me on the straight and narrow (no pun intended).

Errol2

Mr Naidoo (see picture on the left), who has the suave charm of a Verimark infomercial presenter and the fading good looks of a celebrity contestant on Fear Factor, is a busy man. (I must confess, if we were both a bit younger and if he had been a bit more careful about his diet, I might have lusted after his body – if not his mind.)

In an email addressed to his fans entitled, “The Windows of Heaven are Open!, he informs all who wish to listen of his latest exciting escapades and thoughts (I use the latter term rather generously, of course). He informs us that he had spent an “exhilarating” two days in the Kruger National Park with his wife, Arlene (whom he refers to with suspicious regularity). “Being up close and personal with God’s awesome creation – in their natural habitat – is an experience Arlene and I will long remember,” he enthuses.

(Why he had to go to the Kruger Park – instead, say, of going to the local Shoprite in Brackenfell or to an HIV clinic in Khayelitsha – to get close to God’s awesome creation is unclear. I guess the folks who demonstrate their sincere commitment to God by donating buckets full of money to his outfit do not begrudge him this little extravagance. After all, people are dirty, troublesome, sinners who have a tendency to make fun of you, while wild animals never talk back and live in the Kruger Park – which is rather more glamorous than Brackenfell.)

But I digress. In the email, Mr Naidoo (I make no comment about the fact that his surname sounds rather similar to an Afrikaans word often used at Stag parties) has the following to say about his wheelings and dealings with politicians and about our sacred constitutional democracy:

There appears to be a growing sense amongst Christians across the country that God is giving the Body of Christ in South Africa a “window of opportunity” to rise up & impact the nation. Despite all the negative reports in the media, many Christians believe God is supernaturally removing barriers to areas of power & authority to provide access for the influence of the Church.

I noticed this shift in attitude towards the Church since the Zuma administration came to power. My submission on gambling law reform to parliament, my partnership with the Dep Minister of Home Affairs, Malusi Gigaba to ban internet pornography, and my work to inform government about the dangers of legalised prostitution, all bear witness to a more family-friendly environment.

The liberal media also appear to recognise this shift in attitude toward family values and are openly attacking government for granting access to the “rightwing Christian fundamentalists”. Several hysterical articles appeared in the media recently criticising government for talking to “shady” Christian organisations like Family Policy Institute. Apparently, groups that disagree with homosexuality and oppose abortion, pornography etc, have no right to engage government.

Read this article by so-called constitutional expert and homosexual activist, Pierre de Vos. ‘The return of fake morality’. A similar article by Tony Weaver was published in the Cape Times. When the Mbeki administration suspended South Africa’s democratic principles in 2006, to railroad same-sex “marriage” legislation through Parliament – despite massive public opposition – people like Pierre de Vos and the pro-homosexual media were conspicuously silent! Ironically, this attitude – promoted in the media – is a violation of core constitutional freedoms…..

P.S. Please forward this to a friend

As I do not like sending spam emails, but at the same time do not want people to think that I have anything against poor Mr Naidoo, I decided to reprint the sizable section of his email above. Hey, Errol, you know what they say: “All publicity is good publicity.” (Or was that rather: “All publicity brings in the bucks?”)

However, it saddens me to note (and I do hope Mr Naidoo and his followers do not take this in the wrong way) that all that time with Gods creatures in the Kruger Park seemed to have affected Mr Naidoo’s ability to construct a rational argument. Mr Naidoo also sadly seems to have lost his memory and has forgotten that we now live in a constitutional democracy (and not in the Christian Nationalist state of the apartheid era).

He seems blissfully unaware that we now have a justiciable Bill of Rights in which the power of the state to oppress people and to discriminate against them based on their personal attributes and characteristics (like their race, sex, disability and sexual orientation) is severely limited.

In a constitutional democracy the religious views of some – and I have no reason to believe that Mr Naidoo and his lovely wife Arlene do not hold their religious views deeply and sincerely – cannot be imposed on society as a whole as this would be in fundamental breach of the rights of those who do not share these views. Sincerity and deeply held convictions do not justify unfair discrimination in a constitutional democracy.

While every person is entitled to believe what he or she wishes (one can believe, for example, that Simba the Lion King is the God Almighty, or that all homosexuals will burn in hell or, even, if one wants to stretch the point, that 300 000 believers will be whisked away to Heaven on the day of the Rapture) a person cannot get the state to force his or her beliefs down the throats of others as this would constitute a fundamental breach of our human rights. (For example, a religious group – even if it had the support of the majority – could not legitimately demand that the state ban all driving on a Sunday because the group happens to believe the Rapture would occur on a Sunday and that driving on that day would therefore cause too many accidents.)

Mr Naidoo is therefore entitled to believe that same-sex marriage is just as evil as child abuse or woman’s liberation – as the leadership of the Catholic Church seem to do, at least about woman’s liberation – but he cannot require the state to enforce that belief by banning same-sex marriage. If he wanted the state to ban same-sex marriage or to force woman to stay barefoot and pregnant in the kitchen, he is of course free to emigrate to Saudi Arabia. (I hear Iran also has lovely game parks and rather strict laws on homosexuality – although I am not sure whether they will embrace emigration by right wing Christians.)

He is free to believe what he wants, to preach what he wants and to even practice what he preaches (the latter being a rare occurrence in the overtly pious – at least in my experience). And in the unlikely event that, like many Evangelists in the USA, his animosity towards homosexuals is fueled by a secret desire to have sexual relations with members of the same sex, he is even free to divorce his wife and marry another man – although he will have to go on a diet, radically revise his beliefs, and read a few satyrical novels before I would seriously consider his marriage proposal.

The claim by Mr Naidoo that the “core constitutional freedoms” have been breached by the adoption of same-sex marriage laws can only be sustained if one believed that freedom had nothing to do with freedom at all, and hence that freedom was completely divorced from the notion that people had a right to live their lives free from hatred and discrimination. His view of “constitutional freedoms” would require one to endorse the idea that the state had a right to enforce the views of some on society as a whole.

Such a society would not be free, of course, and neither would it be a substantive democracy. In such a society the only people who would have “core constitutional freedoms” would be those who wielded power and could therefore ensure that their beliefs were enforced through the barrel of a gun and through torture (perhaps by forcing people to listen to Gospel music played backwards), imprisonment or campaigns of social vilification. Such a society would be one in which the human dignity of almost all people would be flagrantly disrespected and would be decidedly undemocratic (a bit like Texas without the big hats, the funny accents, the Hummers and the occasional election).

PS: This post must be read in the same spirit in which Umberto Eco wrote his novel, The Name of the Rose. In this novel a Fransciscan Friar discovers that Monks are being poisoned in a monastery when they read humorous books because some members of the church hierarchy believe that laughter is the antidote to fear and that if one stopped fearing one might also stop believing in God. As Wikipedia explains: “As the plot unfolds, several other people mysteriously die. The protagonists explore a labyrinthine medieval library, the subversive power of laughter, and come face to face with the Inquisition. It is left primarily to [the main protagonist] William’s enormous powers of logic and deduction to solve the mysteries of the abbey.”

Posted in: Constitution, Dignity, Humour, Liberal, Uncategorized, discrimination, freedom of religion.

Why Steven Friedman is wrong

Aug 26th, 2010
by Pierre De Vos.
61 comments

Steven Friedman, writing in Business Day yesterday, argued that journalists do not have much to fear from the proposed Protection of Information Bill. In the process of making an excellent point, namely that those that will be the hardest hit if the Bill is passed will be ordinary citizens who wish to engage in grassroots activism, Friedman wrongly interprets the punitive provisions of the Bill and completely underestimates the possible chilling effect of the Bill on the work of journalists.

Friedman points to section 17 of the Bill to justify his argument. However, perhaps because he is not a journalist or a lawyer, he completely misreads the Bill and naively but dangerously underestimates its potential effect on the media – and perhaps on ordinary citizens. Referring to section 17 of the Bill he writes:

It stipulates that information may not be classified if the purpose is to conceal illegal acts, or “incompetence, inefficiency or administrative error” by the government. Nor can it be used to “restrict access to information in order to limit scrutiny and thereby avoid criticism” or to “prevent embarrassment to a person, organisation, organ of state or agency” or to “unlawfully restrain or lessen competition”. These qualifications will not get officials to respect the rights of citizens, particularly the poor. But they should ensure that journalists, particularly those in the commercial media, will be protected…

The protections in the bill may be ignored by officials who classify information, but they will shape the findings of the courts. And so, those with the means to challenge, in court, classifications designed to prevent media reporting on misdeeds or disadvantage private businesses will ensure that the law does nothing to them, while those who lack those means will be prevented from knowing what the government is doing. And since hiring lawyers requires money, the bill would disadvantage the poor rather than the affluent — and is more likely to make grassroots activism harder than it is to make journalism difficult.

Section 17 of the Bill states that classification decisions must be guided by the considerations stated by Friedman (along with the Orwelian consideration that “secrecy exists to protect the national interest”). This means that if a document is wrongly classified and this is challenged in court, a court can rule that the relevant official had wrongly classified the document because he or she was motivated by one of the factors mentioned by Friedman. A court will be able to do so if it found that the classification was motivated by one of the factors mentioned by Friedman and was not motivated by the need to protect the “national interest” – Also taking into account the other factors mentioned in section 17 of the Bill.

But the Bill does not merely impose criminal sanctions on those who had distributed, received or published the content of documents that have been correctly classified. Section 18, read with section 39 and 39, makes it a criminal offence for any person to possess or distribute any classified document or to publish its content – even if these were incorrectly classified.

These sections do not provide for a defence that the documents were wrongly classified. Some of the other criminal provisions prohibit only the “unlawful” possession or distribution of classified documents knowing that it could harm the state’s interest. These sections could arguably be read to include a defence that the documents were wrongly classified and that the possession, distribution or publication was therefore not “unlawful” as required by the Bill.

But the criminal offences created by sections 18, 38 and 39 prohibits any person from being in possession of a “classified record” and from disclosing the information in that record and provide for a minimum three year sentence for those who contravene this prohibition. As I read it, even the best lawyers in the world will not assist a journalist caught in possession of a classified document – even if it was classified wrongly for the reasons mentioned in section 17.

But even if I am wrong, it would almost always be impossible to prove that documents were classified for one of the invalid reasons stated in section 17 and not for one of the valid reasons stated in section 11. Because section 11 of the Bill states that any document can be classified to protect the “national interest”, which includes “all matters relating to the advancement of the public good”, the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations”, there will almost always be a valid purpose for classifying documents – alongside the ulterior purpose set out in section 17.

For example, if a document reveals massive corruption in the arms deal and is classified by an official, it could be that this was done to avoid criticism or cover up corruption. But it could just as well have been done in the “national interest” because it would have been necessary to advance  the “public good”. Surely to reveal this information would be potentially damaging to the economic growth of the country, could destabilise the monetary system, and could affect free trade with those countries from whom we had bought expensive arms.

If one is charged in terms of the provisions of this proposed Bill, one will have to show that the official classified the documents not for the valid purpose set out in section 11 but for the invalid purpose set out in section 17.  To prove this will almost always be impossible to do. How does one prove that official X had an invalid motive for classifying a document when that official maintains that he or she classified the document for the valid purpose mentioned in section 11? 

Unless a very brave official comes froward to testify that a fellow official had told him or her that the document was classified for an ulterior purpose, one will have to assume that the document was classified for one of the reasons mentioned in section 11. Section 17 is therefore little more than a paper guarantee that will have little effect.

But even if I was wrong about this too, one will have to ask which journalist would be brave enough (or stupid enough) to risk his or her freedom on the off-chance that he or she would be able to convince a court that the documents were not classified for the valid purpose in section 11 but for the invalid purpose set out in section 17? If the journalist failed to convince the court that the document was wrongly classified (which would be rather difficult to do given the extraordinarily broad  discretion given by section 11 to classify documents), that journalists would have to spend three years in jail. (One assumes even a sudden case of life threatening high blood pressure would not allow the journalists to return to the golf course.)

The Bill, if passed, will therefore no doubt have a chilling effect on the media and will limit the ability of the media to report on ineficiency, corruption and maladministration.

This is therefore one of those cases where the interests of journalists and the media on the one hand and the interests of grassroots activists (indeed, all 45 million South Africans who are not politicians or government officials) on the other, dovetail completely. Ordinarily, grassroots activists do not run around with classified documents which then help them to hold the politicians to account for the service delivery failures or for corruption. Such activists will therefore seldom be the target of the Bill and will seldom face criminal sanction in terms of this Bill. They will therefore have less to fear from the criminal sanctions of the Bill than journalists.

This does not mean that the Bill is not an utter disaster for active citizenship and for the work done by grassroots activists. The problem is not that grassroots activists will be jailed because they have no access to good lawyers when they are caught in posession of classified documents. Rather the problem is that grassroots activists will not get access to the information they need in the first place because the media won’t publish it.

Such activists mostly rely on the media for information which they can then use to take action and to hold the officials or politicians to account. If the media is intimidated by the Bill and stops investigating matters because of a fear of imprisonment, grassroots activists will have very little chance of getting access to the information needed. Both journalists and ordinary citizens therefore have a lot to worry about if this Bill ever becomes law.

That is why I believe it represents a fundamental attack on our democracy.

Posted in: ANC, Freedom of expression, corruption, media.

On race, transformation and freedom of testation

Aug 24th, 2010
by Pierre De Vos.
135 comments

The South African Constitution contains provisions – including section 8 and section 39 – that allow courts radically to transform the common law and even to reinterpret legislation to bring it in line with the “spirit, purport and object” of the Bill of Rights. One of the concepts in our law that has long been held to be of fundamental importance has been that of freedom of testation. In general our law allowed a person to bequeath his or her assets in any way he or she deemed fit.

If Mrs Brody wanted to give away her fortune to the SPCA or leave her money in trust to support her surviving ten cats until their sad demise - leaving no money to her greedy and unloving children - she had every right to do so. If Mr Walpole wanted to leave his money to a young gentleman “friend” – instead of to his wife of 50 years – he had the freedom to do that too.

Legislation has since modified this position somewhat. However, in Volks v Robinson our Constitutional Court, displaying a rather untransformed belief in the sanctity of the institution of marriage and in the principle of freedom of testation, found that the provisions of this legislation did not extend to unmarried couples.

Mrs Robinson had lived with her (male) partner for many years and had supported him through illness and depression, but they never married (out of respect, so her partner claimed, for his deceased wife) and when he died and left her only a pittance the Constitutional Court found that she was not entitled to maintenance in terms of the relevant legislation (as she would have been had she been married to her partner).

In the light of the above, the decision by judge Nicholson (yes that judge Nicholson) in the Durban High Court in the case of University of Kwazulu-Natal v Makgoba and Others - which for some strange reason has been challenged in the Supreme Court of Appeal (SCA) -  is of some significance. The High Court ruled that a trust created by the will of Sir Charles Smith, which made money available for study at the University of KwaZulu-Natal to “poor girls”  from ”European”, “British” and “Dutch” descent could be amended.

At present the trust holds that “European girls born of British South African or Dutch South African parents who have been resident in Durban for a period of at least three years immediately preceding the grant”, could benefit from the fund. The fund contains about R27 million and disburses about R4 million a year so we are talking about a sizable amount of scholarships that are being made available exclusively for poor white women.

Section 13 of the Trust Property Control Act 57 of 1988 provides for amendments of a trust in specific circumstances. One has to show that the trust contains a provision “which brings about consequences which in the opinion of the court the founder of a trust did not contemplate or foresee” and, inter alia, was now in conflict with the public interest.

To amend a trust created in a will can obviously fundamentally interfere with the freedom of testation of the (now deceased) person. Sir Charles, for example, might have been a good feminist, creating a trust for “poor girls” and naming the trust after his mother, but who knows whether he might not have been a rabid racist who would turn in his grave if he knew that black women would now also be allowed to benefit from his money.

Judge Nicholson admitted in his judgment that the public interest mentioned in the relevant legislation is tied up very comprehensively with the freedom of testation and the equality debate and stated: “I accept that there is a significant public interest in the fact that a testator’s desire are carried out”.

Nicholson J could rely on a judgment by Griessel J in the Cape High Court in Minister of Education v Syfrets Trust Ltd NO (in a case brought to court by UCT and then Minister of Education Kader Asmal) where the judge found that in cases like this considerations of equality were of more importance than the freedom of testation. 

Whether a provision of a trust or a will was in conflict with the public interest now had to be determined largely with reference to the provisions in the Bill of Rights. As the value of equality is one of the founding values in the Constitution and permeates the Bill of Rights, it is difficult to imagine a situation where a trust, created by a will, which unfairly discriminates on the basis of race could ever be found by a court not to be in conflict with the public interest.

The question to be asked is why this case is being appealed to the SCA at all. In the High Court it was agreed by all parties that references to British and Dutch parentage had to be deleted from the trust. However, it was also argued that a certain sum of money (30% of the annual pay-outs) should be reserved for poor white girls. The High Court rejected this notion, applying, one assumes, the principles of substantive equality as developed by our Constitutional Court.

It would be interesting to see whether the SCA agrees with this finding which, so it seems to me, is perfectly in line with the jurisprudence of the Constitutional Court. Personally, I would be surprised if the SCA came to any other conclusion than the High Court but I guess if one litigates with the money of a trust one can afford to go all the way to Bloemfontein to try and defend the indefensible.

Posted in: Constitution, Transformation, discrimination.

The ANC is not the state

Aug 22nd, 2010
by Pierre De Vos.
67 comments

Living in a constitutional democracy can be unsettling and complicated – especially if one has not embraced the values underlying a functioning constitutional democracy. In such a democracy all role players must accept that there are competing views of what constitutes the public good. They also have to accept that it is legitimate for members of different political parties to advance alternative versions of what would constitute the public good or how to achieve it.

Even if one passionately believes that one’s own version of the public good (or the version of the public good espoused by the political party of ones choice) is the correct one, one has to embrace the idea that other, competing and even radically different visions, are legitimate – even if one believes that these alternative versions are dangerously misguided and immoral or that pursuing such alternative versions would be detrimental to the wellbeing of the majority of the citizens (or the majority of citizens who voted for the party of ones choice).

One must also accept that the political party of one’s choice has to compete for votes in free and fair elections and that the party who wins the majority of votes at an election (even if it is the party that one belongs to, supports steadfastly and may have been one of the parties involved in the struggle for a just South Africa), has no divine right to rule and holds power only temporarily and at the mercy of voters.

One must accept (even if one is its leader and the President of the country) that the current ruling party’s continued rule is subject to the continued support of the majority of voters who at any future free and fair election can reject the vision put forward by that party and vote into government another party or parties to rule the country.

What flows from this is the need to accept that there is a fundamental difference between the ruling party and its interests, the government and its interests, and the state. If the ruling party is voted out of office the state will continue functioning; ID books and passports will continue to be issued, social grants will continue to be paid, judges will continue to interpret and enforce the law and the constitution – even if the party of one’s choice is rejected at the ballot box and a new party or parties (temporarily) take over the government.

In a constitutional democracy the health and wellbeing of the ruling party is not to be equated with the wellbeing of the citizens. Taxpayers can therefore not be required to pay for party political activities – except to the extent that all political parties in the legislature are funded in a fair and equitable manner.  The party in government cannot utilize government resources to fund its activities. If it did, it would be abusing its powers to gain an unfair electoral advantage and this will make free and fair elections impossible.

Where the party in government abuses public resources to advance its own party political interests it therefore acts in an anti-democratic manner and undermines the basic values underlying the South African Constitution. When the governing party abuses state resources to keep itself in power, it signals the death of democracy.

Where one political party dominates the political landscape (in, what is called a dominant party democracy) and continues in office for a considerable period the distinction between the majority party, the government and the state tends to get blurred. Members of such a governing party have a tendency to begin to believe that the party, the government it leads and the state are the same thing and that the state and the government are there to further the interests of the party (because the party is the embodiment of the aspirations of the people).

Because it is wrongly assumed that such a governing party’s vision of the public good is the only legitimate vision and the only one that could possibly be morally valid (because the majority party has won successive elections with large majorities of the popular vote), members of such a majority party can begin to believe that the interests of the party, the interests of the state and the interests of the citizens of the country are all one and the same thing.

Only the majority party is then seen as being capable of advancing the interests of the majority of citizens and a belief may take hold that the majority party has a right to continue ruling the country in perpetuity. The party and the state becomes difficult to distinguish from one another because it is assumed that the party will continue in government for a very long time (or even for ever – remember Iain Smiths comment that his party would rule “Rhodesia” for a 1000 years) and that it therefore “owns” the state.

This view is deeply problematic because it negates the essence of democracy, namely that a political party does not own the state but only temporarily holds the reigns of state power, serving the people as the governing party until the next election – when it can be returned to government or can be rejected by voters while the state continues to function in its normal fashion.

It is against this background that reported remarks by President Jacob Zuma at the ANC National Executive Committee (NEC) meeting of the ruling ANC last month must be viewed as rather disturbing. President Zuma is reported to have proposed that ANC NEC members should be allowed time off to advance the interests of the ANC:

If it is necessary, for example, to release NEC members in government to do organizational [thus ANC] work for two weeks every quarter, then we should agree to do so. People may be concerned that government work will suffer as a result. But it will suffer far more if there is no viable ANC to drive the process of social change.

These reported remarks illustrate, rather alarmingly, the tendency I have highlighted above. Because the ANC is (righty or wrongly) seen as the only body who can legitimately drive valid social change, the roles of members of the ANC government are equated with the roles of these members as leaders of the majority political party.

If President Zuma was reported correctly, he is clearly not a democrat in the sense that the term is usually used. The remarks suggest that Zuma fails to understand that in a constitutional democracy members of the government are elected by the voters and their salaries are paid by tax payers to do government business and that party business and government business is not the same thing.

Party business relates to activities aimed at mobilizing and promoting the political party to allow it to remain in power. Government business relates to the running of the country and implementing the policies of the governing party. Neither the party or the government “owns” the state.

The suggestion that ANC members in government must be allowed to do party political work for 8 weeks a year, assuming while they are being paid a salary by taxpayers, because the ANC is the only party that can drive social change, is therefore quite outrageous and anti-democratic. It conflates the party and the state and also assumes that the interests of the party and that of the government are the same.

President Zuma’s proposal is clearly not in line with what is allowed by the Constitution. Several provisions in the Constitution recognizes the fact that we live in a multi-party democracy in which free and fair elections forms the basis of the legitimacy of the government of the day. If President Zuma’s reported proposal is adopted it would completely subvert the multi-party nature of our democracy and would bring an end to any semblance of democracy in South Africa.

If President Zuma was reported correctly, he is not a democrat as envisaged by our constitution. In any case, his proposal would be unconstitutional. Someone should whisper in his ear and tell him this. Maybe it is time for the democrats in the ANC (of which there are many, along with the Stalinists and the kleptocratic nationalists), to stand up to our President (as they eventually did with Thabo Mbeki after he had embarked on a catastrophic and murderous questioning of the link between HIV and Aids and refused to roll out life saving ARVs to those who could not pay for it).

The ANC does not own the government or the state. Suggesting, as our President reportedly did, that it is, is just as troubling as the moves by the ruling party to muzzle the press. If he was reported correctly, every true democrat in South Africa would rightfully be outraged and a bit scared by his comments. Maybe its time for someone like Jeremy Cronin to show the same kind of backbone he showed in speaking out against the dictatorial tendencies of Thabo Mbeki.

Posted in: ANC, HIV/AIDS, Jacob Zuma, democracy.

Why now?

Aug 19th, 2010
by Pierre De Vos.
98 comments

There is no doubt that the media is facing the greatest threat to its freedom since the advent of democracy. The proposed Protection of Information Bill and Media Appeals Tribunal, the proposed Protection from Harassment Bill (which thankfully seems to have been put on hold), the proposed Independent Communications Authority of South Africa Amendment Bill and the proposed Public Broadcasting Service Bill all aim to tighten the control of the government over the free flow of information.

We are far from the dark days of apartheid (see picture below) when the Nationalist government muzzled the press to try and retain its illegitimate power. We live in a constitutional democracy now and our courts will probably play a pivotal role in preventing the muzzling of the media (or will at least limit the effectiveness of such attempts). They will do so, because most judges understand that the free flow of information is, of course, the lifeblood of any democracy.

The question is: why now? Why is the government of the day orchestrating this concerted effort to change the way in which our media report on government activities? It is tempting to find an answer by turning to the personalities involved and arguing that President Zuma and other ANC leaders are upset about how the media has reported on their own activities and actions. But another reason for this attack on the media suggests itself and can be found in the utterances and documents of the ruling party itself.

Picture 080

Perhaps the move against the free media is based on a realistic acknowledgement on the part of the ANC that it is facing a crisis of legitimacy. It seems incapable of addressing this crisis, so some of its leaders might believe that the only way to deal with the problem is to stop the reporting on events that has precipitated this crisis.

I offer a few quotes below to illustrate this point. President Jacob Zuma at a March 2008 National Executive Committee (NEC) Meeting:

When elected leaders at the highest level openly engage in factionalist activity, where is the movement that aims to unite the people of South Africa for the complete liberation of the country from all forms of discrimination and national oppression? When money changes hands in the battle for personal power and aggrandizement, where is the movement that is built around membership that joins without motives of material advantage and personal gain? When the members of the NEC themselves engage in factionalist activity, media leaks and rumour-mongering, how can we ex pect the membership of our movement to carry out their duties toobserve di scipline, behave honestly and carry out loyally the decisions of the majority and the decision of higher bodies?

From the admirably frank document on “Leadership Renewal, discipline and organizational culture” prepared for the ANC National General Council later this year, which highlights the following tenancies in the ANC:

12.1 Leadership in the ANC is seen as stepping-stones to positions of power and material reward in government and business (Organisational report to the 1997 Mafikeng Confe rence).

12.2 The emergence of social distance between ANC cadres in positions of power from the motive forces which the ANC represent, with the potential to render elements in the movement “progressively lethargic to the conditions of the poor.” (Strategy and Tactics, 1997)

12.3 Disturbing trends of “careerism, corruption and opportunism,” alien to a revolutionary movement, taking roots at various levels, eating at our soul and with potential to denude our society of an agent of real change. (Midterm Review, NGC, 2000)

12.4 Divisive leadership battles over access to resources and patronage becoming the norm and allegations about corruption and business interests of leadership and deployed cadres abounding (Organisational report to the Stellenbosch Conference, 2002).

49. Failure to build a New Person (continued the 2000 NGC document), among revolutionaries themselves and, in a more diffuse manner in broader society, will result in a critical mass of the vanguard movement being swallowed in the vortex of the arrogance of power and attendant social distance and corruption, and, ultimately, themselves being transformed by the very system they seek to change. An important challenge, among others, is thus to ensure a systematic intervention by the ideological centres and institutions of society, as well as mothers and fathers and the family as a whole in shaping social values and a new morality.

53. Strategy and Tactics (2007: par. 138) recognizes the challenges and ‘sins’ of incumbency (patronage, bureaucratic indifference, arrogance of power, corruption) and suggests approaches to the management of relations within the organization. Our ability to manage this minefield, it contends, will determine “our future survival as a principled leader of the process of fundamental change, an organization respected and cherished by the mass of people for what it represents and how it conducts itself in actual practice.”

From the various ANC discussion documents it is clear that the problem of legitimacy facing the ANC has long been acknowledged by the movement. As far back as the Stellenbosch conference in 2002 these “tendencies” were identified. But now, eight years later, the problem has become more acute and the movement has been unable to address them in any meaningful way. It is one thing to admit the problem. It is a completely different matter to deal with it effectively.

A culture of forgiveness (or some would call it impunity) starting at the very top of the leadership, makes it very difficult to address the problems and to take decisive action against ANC leaders in government.

Tony Yengeni, due to his admirable role in the struggle, is carried shoulder high to prison. President Jacob Zuma, due to his admirable stance against the dictatorial tendencies of the former President, is elected as leader of the movement despite the fact that he took money from a crook, did favors for that crook and then submitted a fake loan agreement to Parliament to try and justify this. Ebrahim Rasool is accused of handing out brown envelopes to journalists and, because of his good work in the Western Cape, is appointed as ambassador to Washington. MP’s abuse the travel scheme of Parliament, is convicted and remain in their positions.

The list is endless.

The only way the ANC is going to address the problems so frankly and admirably highlighted in the discussion documents is to fundamentally change its prevailing culture which rewards (or at least turns a blind eye) to transgressions, illegality and even criminality.

What is needed is a body (perhaps an improved version of the Scorpions) that will vigorously and impartial investigate corruption, nepotism and the like across the board. Such a body should instill fear in the hearts of every official and politician – whether it is the President or a ward councillor in Lusikisiki. For such a body to have any effect, no one should feel safe from investigation and prosecution. And once a person is investigated and successfully prosecuted he or she should be expelled from the movement – at least for a certain period.

But because the problem seems so widespread (one could say endemic) – as is made clear by the ANC discussion document – it will be very difficult if not impossible for the ANC to take this rout. That is why the Scorpions was abolished and, I would suggest, why the ANC is trying to tighten its grip on the media. Many ANC leaders understand that it has a problem and know that the movement is incapable of dealing with it effectively. The next best thing is therefore to try and hide this fact from the electorate.

But because we live in an open and democratic society this will not be possible. The attempts by the ANC to deal with the firmly entrenched master narrative (a narrative that suggests the ANC has become corrupt and heartless) by muzzling the media is therefore doomed to failure. But I guess some in the ANC believe it is worth a try.

Posted in: ANC, Freedom of expression, corruption, media.

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