Constitutional Hill

Money, power and the everyday oppression of gender roles

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

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

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

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

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

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

It was only later that I understood her anger.

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

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

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

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

No wonder my mother was sometimes angry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The freedom to be fabulous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Home Affairs: Is it harassing lawyers illegally

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hlaudi weather: The fog is even thicker than it looks

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

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

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

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

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

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

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

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

The report quotes Mr Motsoeneng as telling the public protector:

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

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

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

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

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

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

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

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

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

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

Three perplexing questions arise form this sorry saga.

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

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

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

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

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

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

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

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

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

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

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

Attacks on Madonsela: blaming the messenger

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

White, Afrikaans universities – when will they truly transform?

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

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

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

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

“So you want me to lie?”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NPA crisis: Open warfare was just the beginning

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

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

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

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

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

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

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

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

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

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

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

I suspect that the matter is far more complex.

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

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

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

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

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

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

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

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

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

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

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

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

As the SCA made clear in the Zuma judgment:

[A]lthough the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

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

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

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

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

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

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

(i) for misconduct;

(ii) on account of continued ill-health;

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

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

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

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

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

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

Censoring Malema seems to have no basis in law

Last week Economic Freedom Fighters (EFF) leader Julius Malema was ordered to withdraw an “unparliamentary” remark made in the National Assembly (NA) and was then ordered to leave the NA when he refused to withdraw a remark accusing the ANC of murdering mineworkers in Marikana. It is unclear whether the ruling by the presiding officer to censor Malema was legally valid. Here is why.

At a joint sitting of the NA and the National Council of Provinces (NCOP), Thandi Modise ruled that the remarks about the Marikana massacre made by Julius Malema were “unparliamentary and do not accord with the decorum of this house.”

But the rules of Parliament do not prohibit MPs from making “unparliamentary” statements. Nor do the rules prohibit an MP from making statements that detract from the decorum of the house.

It is in any case unclear what would constitute “unparliamentary” statements and whether arbitrary rulings by a presiding officer (relying on a vague and easy to abuse concept such as “unparliamentary” speech) could legally limit the right of MPs to freedom of speech as guaranteed in the Constitution.

Section 58 and 71 of the Constitution now explicitly guarantee the freedom of speech of all Members of Parliament subject only to “its rules and orders”. The sections further state that members of the NA and the NCOP are not liable for any defamatory statements made before the NA or NCOP or any of its committees.

The question in this case – as in previous cases where presiding officers censored the speech of MPs – is whether there are valid “rules or orders” that limit the right of MPs to make statements that are critical of the governing party or of members of the government. I contend that there are none.

There are no written Parliamentary rules that prohibit MPs – either in the NA or NCOP or at a joint sitting – from making critical statements about a political party or its members, even when these statements are controversial, incendiary or arguably untrue. Neither are there any written Parliamentary rules that prohibit the making of “unparliamentary” statements. Neither are there any written rules of Parliament that regulate alleged breaches of Parliamentary privilege by MP’s.

In the absence of such written rules, presiding officers have no legal authority to discipline MPs for statements made in the house because such actions of the presiding officer would infringe on the rights to free speech of MPs as guaranteed by sections 58 and 71 of the Constitution.

Rule 14P of the Joint Rules of Parliament (mirrored by rule 63 of the NA) does prohibit the use of “offensive or unbecoming language” in Parliament. However, this section does not prohibit the content of speech but only the manner in which the speech is delivered. It covers situations like swearing, calling an MP a thief or a crook (instead of saying the member has an adventurous relationship with honesty or the truth truth) or using racist, sexist or homophobic language.

The rules of the NA also allow the Powers and Privileges Committee of Parliament to discipline an MP relating to contempt of Parliament or misconduct by a Member. However, contempt of Parliament is not defined in either the rules of Parliament or in the relevant legislation, while “misconduct” is defined as a breach of the standing rules of Parliament by a member.

But, as I have already noted, the standing rules of Parliament do not prohibit MPs from criticising the government or even from making incendiary or arguably factually dubious claims about the government or any political party in Parliament. In the absence of such rules it is unclear what legal authority a presiding officer will rely on to justify the kind of ruling made against Julius Malema last week.

Section 13 of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act does regulate speech in Parliament by prohibiting speech that constitutes contempt of Parliament.

However, the section states that an MP is guilty of contempt of Parliament if he or she contravenes various sections of that Act relating, amongst others, to bribing a Member of Parliament and the like. The section also prohibits an MP from assaulting another MP in Parliament.

Section 13 furthermore states that an MP is guilty of contempt if he or she commits an act which, in terms of the standing rules of Parliament, constitutes contempt of Parliament or a breach or abuse of Parliamentary privilege. Section 13 does not prohibit an MP from making critical, incendiary or even false statements about a political party or the government.

The rules of Parliament only limit speech in formal ways, for example, by prohibiting an MP from reflecting on the merits of a pending court judgment or upon the competence or honour of a judge.

Despite this absence of formal written rules that regulate “unparliamentary speech” in Parliament or limit speech considered to be contemptuous of Parliament, subsequent Speakers have curiously relied on customs of the colonial Westminster Parliament to justify imposing limits on the constitutionally guaranteed freedom of speech of MPs. How foreign custom can justify limiting the rights protected in the South African Constitution remains unclear to me.

Subsequent Speakers have thus assumed that something like a “common law of Parliament” (inherited from Britain) still exists in South Africa and that section 58 and 71 of the Constitution (read with the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act) have not extinguished this colonial common law relating to the rights and privileges of MPs.

Invoking what appears to be a non-existent common law of Parliament subsequent Speakers have often ruled that statements made by MPs are “unparliamentary” (once again, I stress this phrase is not found in the rules of Parliament) if they “impute improper motives” to MPs or “cast personal reflection on their integrity as members” of Parliament or “verbally abuse them in any other way”.

Given the judgment of the Supreme Court of Appeal in Speaker of the National Assembly v De Lille I am not sure these rulings have ever had any legal validity. In that judgment Chief Justice Ismail Mahomed (writing for a full bench) affirmed that the Constitution – not Parliament – is supreme and is “the ultimate source of all lawful authority in the country”.

Referring to section 57 of the Constitution the court held that Parliament is authorised to make rules to:

maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society.

In discussing section 58 of the Constitution, the court rejected the argument advanced on behalf of the then Speaker that members of the NA would only enjoy the privileges enjoyed by the House of Commons of the Parliament of the United Kingdom. As Justice Mahomed pointed out:

The threat that a member of the Assembly may be suspended for something said in the assembly inhibits freedom of expression in the Assembly and must therefore adversely impact on that guarantee… What section 58(2) does is to authorise national legislation which will itself clearly and specifically articulate the ‘privileges and the immunities’ of the National Assembly which have the effect of impacting on the specific guarantee of free speech for members in the Assembly. It does not contemplate a tortuous process of discovery of some obscure rule in English Parliamentary law and custom justifying the suspension of a member of Parliament…

Given the fact that the national legislation referred to by Chief Justice Mahomed – in the form of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act – does not in any way regulate or prohibit “unparliamentary” statements made by an MP, it does not seem legally valid for a presiding officer to order an MP to withdraw “unparliamentary speech”.

It is extremely important that rules limiting the free speech of MPs in Parliament are clearly defined and set out in legislation, because in the absence of such clear rules about when speech of MPs overstep the boundaries of protected speech, the presiding officer (who is also a member of the governing party) will be tempted to censor MPs to protect the governing party or its members and to stifle free speech in our legislatures.

It is a fundamental tenet of the Rule of Law in a constitutional democracy that there should be no arbitrary limitations placed on the exercise of constitutionally protected rights. Where a discretion is given to a presiding officer of Parliament to limit the rights of MPs, the rules of Parliament or applicable legislation should spell out in detail how this discretion should be exercised.

As this is not done in either the rules or the relevant legislation and as the presiding officers seem to rely on colonial common law probably extinguished by the provisions of the 1996 Constitution, I would think that most of the rulings of presiding officers in our Parliament ordering MPs to withdraw statements may have been illegal.

Unless the censored speech clearly falls under the category of “offensive or unbecoming language” – which statements like those made by Julius Malema clearly do not – it seems to me presiding officers abuse their power when they order MPs to withdraw statements that they find offensive or problematic.

This does not mean that the rules of Parliament or the relevant legislation may not be amended to further allow for the clear regulation of speech in Parliament. But absent such amendments it seems to me that presiding officers are abusing their power by unconstitutionally limiting the free speech of MPs without the legal authority to do so.

Tlakula: Stark truth, stark choice

The findings of the Electoral Court that the Chairperson of South Africa’s Electoral Commission Pansy Tlakula had acted unlawfully and is hence guilty of misconduct warranting removal from office, leave the National Assembly with a stark choice. Either it ignores the damning findings of impropriety on the part of Tlakula made by three different independent bodies and destroys the credibility of the Electoral Commission, or it takes action against Tlakula and recommends her removal from office.

The judgment of the Electoral Court in United Democratic Movement and Others v Tlakula and Another is another spectacular vindication of the Public Protector and the work she does.

In essence the judgment confirmed the findings of the Public Protector as well as of an independent report commissioned by the Treasury, leaving little doubt that Adv Pansy Tlakula abused her position when she was CEO of the Electoral Commission to ensure the awarding of a lease to a company in which her “friend” and business partner had a substantial stake.

This was a costly favour done for a “friend” at taxpayers’ expense. The Court confirmed that the unlawful flouting of prescribed procedures in securing the lease of new premises for the Electoral Commission led to the wasting of at least R130.8 million of public money.

Moreover, as CEO of the Electoral Commission Tlakula also secured R59,918,380 worth of furnishings for the new office without following the required tender procedure.

As the Court pointed out, the expenses appear to have been incurred “with little or no regard to what the actual cost was”. In fact, Tlakula “had little concern for what things cost and merely bought what [she] wanted”.

This included R957,000 spent on “brushed steel plant pots” (nice to have, I guess); R482,942 on gym equipment; and, tellingly, no less than R898,942 on office furnishings for Tlakula’s office.

The court found that this wasting of money was not a mere mistake and could not be justified on the basis that Tlakula was ignorant of the process. She deliberately flouted the law with the aim of favouring a company in which her “friend” had a stake. The court summarised the matter as follows:

Having deliberately embarked upon an attenuated tender process, the respondent [Adv Tlakula] chose not to abide by the requirements of the law. The respondent’s reference to an error having been made (in hindsight) is refuted by her own evidence that she deliberately took the decision not to insist on the lawful procurement process to be followed. She chose not to abide by the law. Her actions in this regard are unlawful and as such, in our view, constitute misconduct. Save for the urgency issue, which is untenable, the respondent provides no justification for her deliberate decision to break the law. Once the respondent had taken this unjustifiable decision, a plethora of unlawful actions followed. They include the failure to advertise the requirements of the Commission according to the law and a failure to implement the three tiers of bid specification, evaluation and determination.

Perhaps the most damning aspect of the judgment is that it found that in defending herself Adv Tlakula was less than honest. She previously provided one explanation of her actions to the National Assembly (that she deliberately circumvented the prescribed procedures because of the urgency of the matter) before providing a completely contradictory explanation to the Electoral Court (that she made an honest mistake as she was unaware what the prescribed procedures were).

The striking incredulity of the respondent’s version of the making of a mistake appears to be an ex post facto attempt to justify that which cannot be rationally explained. The respondent cannot exercise a discretion deliberately not follow the prescripts and then claim that not to have done so was simply a mistake. One of the versions cannot be true.

In the face of a finding by a forensic report that the “procurement process followed was not fair, equitable, transparent, competitive, or cost-efficient” and that “some of the expenditure could have been avoided had reasonable care been taken”, the court rejected claims by Tlakula that the winning bidder was not unlawfully favoured by her actions and that her actions did not lead to a loss of funds by the Electoral Commission, stating:

Objectively, this statement, made under oath by the respondent, is untrue.

The judgment does not explain why Adv. Tlakula would have flouted the law in such a blatant manner, wasting millions of public funds in the process. However, it does quote from a recent Constitutional Court judgment, which explains why following prescribed tender procedures are so important.

In AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others the Constitutional Court said:

…deviations from fair process may themselves all too often be symptoms of corruption or malfeasance in the process. In other words, an unfair process may betoken a deliberately skewed process. Hence insistence on compliance with process formalities has a three-fold purpose: (a) it ensures fairness to participants in the bid process; (b) it enhances the likelihood of efficiency and optimality in the outcome; and (c) it serves as a guardian against a process skewed by corrupt influences.

In terms of section 7(3)(a) of the Electoral Commission Act the recommendation by the Electoral Court must now trigger a process in which the relevant committee of the National Assembly must first decide whether to accept or reject the factual findings of misconduct made by three independent investigations against Adv. Tlakula.

If the National Assembly accepts the factual findings of unlawful action and misconduct, then it must decide whether to recommend to the President that she be removed from office.

Given the findings against her, it would be troubling of the National Assembly fails to act against Adv Tlakula. The reasons for this conclusion are spelled out by the Electoral Court.

First, the Court found that the conduct of Adv Tlakula “risks the impairing of public confidence in the integrity and impartiality of the Commission”. In the absence of swift action perceptions that the independence of the Commission has been tainted, may well take hold. Moreover Adv Tlakula:

compromised the integrity and independence of the Commission in violation of a requirement that such integrity and impartiality must be above suspicion and beyond question.

In Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 the Constitutional Court explained why the integrity of a body like the Electoral Commission is so important:

They perform sensitive functions which require their independence and impartiality to be beyond question, and to be protected by stringent provisions in the Constitution.

It is not only where the independence and impartiality of the Commission is in fact compromised that the National Assembly would have a duty to act. The mere “appearance or perception” of a lack of independence or impartiality will be devastating for the credibility of the Commission. Quoting from a Canadian judgment the court explained the matter as follows:

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.

There is absolutely no evidence that the integrity of the recent election was compromised by Adv Tlakula’s involvement in helping to oversee it. In the absence of evidence that the voting or counting process was not free and fair, the integrity of the election is therefore not at stake.

But because perceptions matter, the various findings of unlawful conduct and especially the findings by the Court which casts doubt on the honesty of Adv Tklakula, now require swift action from the National Assembly to restore confidence in the Electoral Commission.

In the absence of such swift conduct, those who are not happy with the outcome of a particular election will exploit the doubt about the integrity and impartiality of the Chairperson of the Electoral Commission to challenge the validity of electoral outcomes. That will be bad for democracy and bad for South Africa.

The law vs. religion: Let’s try that again

The debate sparked by Chief Justice Mogoeng Mogoeng after he stated in a speech in Stellenbosch that it would be a good thing if religion influenced “the laws that govern our daily lives starting with the Constitution”, has been both frustrating and misinformed. Instead of focusing on the veracity and desirability of the arguments advanced by Justice Mogoeng, most commentators focused on the irrelevant question of whether a Chief Justice should express his religious views in public at all.

Chief Justice Mogoeng Mogoeng was admirably honest and transparent about his personal convictions when he stated – quoting that great freedom fighter and anti-colonialist, Lord Denning – that he believed “without religion there can be no morality; and without morality there can be no law”.

Judges are not empty vessels, lacking any personal beliefs, values and opinions. Instead, the different life experiences of judges (often focused on their differences in sex, gender, sexual orientation, race, class, religious or non-religious beliefs and other circumstances) may well influence how they view the world and the legal problems they are confronted with and, to some degree, how they will interpret the often open ended provisions of the Constitution in order to solve those legal problems.

Similarly whether a judge is a Pentecostal Christian, an atheist, a cultural Anglican, a Rastafarian, an agnostic, a devout member of the Dutch Reformed Church or a member of the File Sharing Religion may well have some influence on the way in which that judge sees the world and how he or she will resolve the legal problems he or she is called upon to adjudicate on.

Of course, judges need to be impartial. But this does not and – conceptually – cannot mean that a judge is required to have no beliefs or value system on which he or she will inevitably draw to decide complicated constitutional questions raised before him or her.

It only means that a judge must not pre-judge a case and must hear all the arguments before him or her and must consider both the applicable legal text and the relevant binding case law before making a ruling on a specific matter.

I would think it is far better and more honest for a judge to admit to these personal beliefs and to declare them upfront, as the Chief Justice did in his speech. Where judges declare their views openly, it is far easier to engage with the judgments written by that judge and to construct an argument either in support of or critical of the approach taken by a specific judge.

For this reason I have come to the realisation (modifying my previous position) that I have no problem with Chief Justice Mogoeng Mogoeng stating his views on the desired role of religion in law-making and constitutional interpretation in public.

However, I do believe that judges are not beyond criticism and that citizens are entitled to engage critically with the stated beliefs and values of judges.

The far more productive debate about the speech delivered by the Chief Justice would confront the substance of his speech and would construct arguments either in defence of his views or critical of them.

I propose to do the latter. It would enhance democratic debate if others who disagree with me took the time to construct counter arguments.

In this regard I believe the views expressed by Chief Justice Mogoeng on the role of religion in law-making and constitutional interpretation are intellectually incoherent and shallow, nonsensical and (to the extent that one can make any sense out of them) socially and politically reactionary and hence in direct opposition to my own value system and the norms embedded in the Constitution.

It is of course highly controversial to argue – as the Chief Justice did – that religion can be the only source of morality in any society. This claim ignores (or is ignorant of) developments in both traditional African philosophy and Western philosophy of the past 150 years.

For example, for some of us, humanism is an attractive non-religious source of morality, given its emphasis on the value and agency of human beings, individually and collectively, and its focus on the value of critical thinking and evidence over established doctrine or faith.

Given the fact that the value of human dignity is one of the founding values of our Constitution and given, further, that dignity is closely associated with the moral agency of humans, it is easy to square humanism with South African constitutionalism.

However, it is conceptually difficult if not impossible to square the views of the Chief Justice about morality (as prohibiting human beings from engaging in forms of sexual behaviour outside of state recognised marriage – even when this does not harm others) with the demands of the constitution to protect the infinite human dignity of every human being.

If laws were put in place (as the Chief Justice suggest they should) to curtail the freedom of individuals to decide for themselves how they wish to live their lives and how they want to arrange their intimate affairs, such laws would curtail the inherent human dignity of everyone. This would be in direct conflict with one of the founding values of our Constitution, a value, which our Constitutional Court has said, runs like a golden thread throughout the Constitution.

Moreover, anyone familiar with Immanuel Kant’s attempts to formulate rules on how to determine right from wrong through the categorical imperative (the idea that actions can only be considered moral if they could be imitated by anyone else and produce good results) would also be hard-pressed to agree with the Chief Justice that religion is the only possible source of morality in society.

You might not agree with Kant, but at the very least his philosophy – which former Constitutional Court Justice Laurie Ackermann has argued forms the intellectual basis for any understanding of the Constitutional Court’s dignity jurisprudence – posits an alternative source of morality not associated with any religious doctrine.

Of course, this idea that religion is the only source of morality for a society is especially common among those who associate morality with sexual behaviour.

Although it is difficult to tell exactly what the Chief Justice means by “religion” (there are many different religious traditions and many conflicting moral beliefs even within the Christian tradition, a tradition which the Chief Justice claimed to source his views from) his speech does suggest that he associates religious values with a strand of Pentecostal Christianity that focuses on sex as the root of all evil in the world.

Thus Justice Mogoeng stated in his speech that:

a legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.

At a press conference called to “clarify” his views, he reiterated that he saw a clear link between “morality” (as he understands it) and sexual behaviour, stating that:

Concerns that cannot be left unattended relate to the effect of religious principles on the right to secure a divorce, the freedom to indulge in adultery and promiscuous fornication.

I am sure many South Africans will claim to agree with this view of morality as espoused by the Chief Justice (even as they fail to live their lives according to it). But in a pluralistic society the moral views of the majority cannot be used to infringe on the rights of others and to rob those who do not wish to adhere to the majority view of their dignity and freedom.

Be that as it may, personally I find the views of the Chief Justice on “promiscuous fornication” and the need for laws to force people to remain married even if they wish to divorce, deeply conservative and objectionable.

This is because religious rules relating to how and with whom we are allowed to have sex function to control and discipline citizens (especially their bodies) and rob them of the freedom to decide for themselves how they wish to live their lives. It imposes the view of some about how we are allowed to use our bodies for pleasure on all of us and robs people of their right to live according to their own beliefs about how to arrange their intimate affairs.

Suggesting that the law should ideally regulate consensual sexual activity and the freedom to enter into and terminate relationships that have little or no bearing on the material wellbeing of people is disrespectful of the freedom of those who do not share your very narrow religious view of morality. It has the potential to interfere with the private choices of individuals and requires the church or the state to have a decisive say over our bodies.

This is potentially devastatingly invasive of the right of everyone to bodily and psychological integrity, which includes the right to make decisions concerning reproduction and to security in and control over their body guaranteed by section 12(2) of the Constitution.

It is therefore difficult to see how the views of the Chief Justice can be accommodated within the current constitutional regime.

Moreover, the morality espoused by the Chief Justice, does not seem to focus on the need to respect the inherent human dignity of every person and the idea that each human possesses moral agency to decide for him or herself how to live their life – as long as this does not harm others.

Instead, it seems to lean towards the view that the law as well as the power and authority of the state should be deployed to inculcate a specific religiously inspired morality in citizens.

In this regard the argument put forward by the Chief Justice that principles sourced from all religions could be infused into a “national moral code that could be taught at home and school from a tender age all the way up to adulthood” is particularly worrying. It is also intellectually incoherent as it directly contradicts other statements made by the Chief Justice in his speech.

In Stellenbosch the Chief Justice referred to the fact that the Constitutional Court has embraced the notion of South Africa as a pluralistic society. He even quoted the Court’s judgment in Prince where it stated that: “The protection of diversity is the hallmark of a free and open society.”

But once you recognise that our Constitution demands protection of this diversity – including diversity related to religious and other beliefs such as the belief not to believe in any God – it is intellectually incoherent to then argue that a very narrow conception of religious morality should influence laws that regulate the private and intimate lives of citizens. It is also incoherent to argue that certain religious values should be infused in a national moral code, which should be used to indoctrinate vulnerable children.

A society that respects diversity cannot enforce or propagate a narrow religiously inspired moral code on society as a whole. Instead, a society that respects diversity will celebrate difference – also different attitudes about morality.

For example, for some a “moral” society will be a society which censors and regulates the sexual activities of citizens and emphasises the moral superiority of monogamous marriage between one man and one women (and maybe two and a half children and a dog) till death do them part.

For others a “moral” society may be a society in which individuals are free to decide for themselves (without interference from the state) how to arrange their consensual, private, intimate affairs and in which we all fight to eradicate social injustice and economic inequality.

Because of these vastly different conceptions of what is good and moral, a society in which diversity is respected cannot enforce or promote a uniform moral code as the Chief Justice suggested.

Moreover, the view that religious values should influence laws and the interpretation of the Constitution is also in direct conflict with the precedent developed by the Constitutional Court.

In the Fourie judgment (ironically, perhaps, dealing with the need to recognise same-sex marriage), the Constitutional Court in no uncertain terms rejected the argument that religious beliefs should form the basis of legal regulation, stating as follows:

It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.

It is exactly because there is no universally accepted set of moral norms – religious or otherwise – on which any court can rely that the South African Constitution (not any set of religious beliefs) serves as the source of our constitutional morality.

We have a choice: either we amend the Constitution in order to ensure that the religious beliefs of some become the moral loadstar for legislation and constitutional interpretation – thus rejecting any accommodation of diversity – or we stick with the constitutional values which celebrate religious and other forms of diversity and respect for human dignity and prohibit the law from enforcing the narrow religious morally inspired beliefs of some on the whole of society.

If you favour the first route, the Chief Justice is your man. If you favour the second, well, then his speech will make you extremely nervous.