Constitutional Hill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However, the court rejected this argument, stating that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To quote former Chief Justice Ishmael Mahommed:

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

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

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

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

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

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

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

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

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

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

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

[T]the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject…. an organ of state cannot ignore the findings and remedial action of the Public Protector.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Religion in schools: time to decolonise our education?

It is not always easy to hold an unpopular or minority view. It is even more difficult to hold a minority view on the emotive subject of religious belief and organised religion. When you happen to be a vulnerable and impressionable child, indoctrinated by parents and subjected to relentless peer pressure, it becomes even more difficult to hold any opinion of your own on the matter. It is for this reason that the right of children not to believe in a specific God or in specific religious dogma, must be jealously protected.

The Federation of Governing Bodies of South African Schools (Fedsas) contend in court papers that it was perfectly acceptable for schools to embody a Christian ethos and to promote “Christian values” (whatever this may mean) in public schools as long as the vast majority of parents desire it.

In its papers it quotes alleged “research” done among more than 7000 learners in the six schools being taken to court for promoting Christian values and practices in these schools which shows that only 3 percent of learners stated that it was unpleasant to be part of these Christian values that is embodied in the culture of each of these schools. According to the research 95% of the primary school children canvassed are perfectly happy when Christian prayer is conducted during assembly and other public events.

Of course, this survey really canvasses the beliefs of parents and not of primary school children because young children almost always believe what their parents tell them to believe. Given the relentless pressure from parents and society at large, the notion that young children in South Africa in fact have autonomy to decide for themselves whether they believe in a God and if so, what kind of God they believe in, is a laughable fiction.

The line or reasoning advanced by Fedsas is not only problematic because it wrongly assumes that almost all children have a free choice in the matter. It is also problematic because in South Africa the religious views of the majority cannot extinguish the rights to religious freedom of a minority.

Unless Fedsas can demonstrate that religious observance at schools (both in individual classes and during mass events like assembly) is completely voluntary and that various beliefs are treated equitably in the school, it will have difficulty convincing the Constitutional Court that the public schools being taken to court are not in breach of the Constitution and the relevant section of the Schools Act.

Some South Africans wrongly believe that ours is a Constitution that demands a complete separation between religion and the state. Unlike in the United States, where the US Supreme Court (interpreting the First Amendment and following the phrase first used by Thomas Jefferson) claims that religious freedom requires a “wall of separation between church and state”, the South African Constitution recognises a limited but significant role for religion in state institutions.

(I have always been struck by the fact that the popular US formulation of the rule requiring a separation of “church” and state is so exclusionary as it completely ignores religious traditions – such as Islam and Judaism – that are not dominant in US society. In these religions synagogues and mosques – and not churches – represent the formal consecrated public spaces where a particular version of God is worshipped, but the traditional formulation completely ignores this.)

In any event, the preamble to the 1996 South African Constitution explicitly refers to a “God”, and thus concludes as follows:

May God protect our people.

Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

Of course, the preamble to the Constitution has no legal effect and cannot be enforced, so these references to God are merely symbolic and of no legal consequence. Moreover, section 15(1) of the Constitution contains an expansive right protecting not only religious freedom, but also the freedom of conscience, thought, belief and opinion of everyone.

This means that section 15(1) equally protects the rights of those who are religious to hold their religious beliefs, to state such beliefs and to practice their religion than it protects atheists to hold their beliefs, to state that they do not believe in God and to arrange their lives accordingly.

But this is not the end of the matter. Section 15(2) of the Constitution explicitly rejects the notion that there should be a complete wall of separation between the state and religion, and thus accepts that:

[r]eligious observances may be conducted at state or state-aided institutions, provided that (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.

In the Constitutional Court judgment of S v Lawrence , S v Negal ; S v Solberg justice O’Regan emphasised that the section prohibits religious observance that would have the effect of coercing somebody (either directly or indirectly) to observe religious practices with which they do not agree or to coerce them into accepting certain religious beliefs, such as the belief that there is indeed an all-powerful God.

The requirement of free and voluntary attendance at religious ceremonies is an explicit recognition of the deep personal commitment that participation in religious ceremonies reflects and a recognition that the freedom of religion requires that the state may never require such attendance to be compulsory.

Coercion can be direct, but it can also be indirect. The state (or any state institution like a public school) cannot place its power, prestige and financial support behind a particular religious belief or behind religious belief vis-à-vis non-belief because it would result in indirect coercion on non-believers and on religious minorities to conform to the majority view.

Justice O’Regan further held that where a state institution like a school publicly observes religion “the observance of such practices must still be equitable”. Because our society possesses a rich and diverse range of religions the state (and state aided schools) cannot be permitted to act inequitably. The requirement of equity is something in addition to the requirement of voluntariness. What this requires is, at the very least, that the state (or state-aided school) act even-handedly in relation to different religions.

As O’Regan explained in her majority opinion:

The requirement of equity in the conception of freedom of religion as expressed in the … Constitution is a rejection of our history, in which Christianity was given favoured status by government in many areas of life regardless of the wide range of religions observed in our society.

This view has now explicitly been incorporated into our law as section 7 of the South African Schools Act states that:

Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.

Two important consequences flow from the legal regime in place in South Africa for the protection of freedom of religion and conscience.

First, it is illegal for a state school to directly or indirectly coerce learners into observing a specific religion or any form of religion, either at public events such as assembly or in individual classrooms.

Where a school observes religion at public events it needs to provide a clear alternative for children who wish not to participate. This alternative cannot be presented in such a manner that it indirectly places pressure on a vulnerable child sensitive to peer pressure to attend the religious observance.

Where a school observes religion in classes or wishes to embody teaching with “Christian values” it would have to provide two streams of education in the form of different classes – one class catering for teaching that accords with the Christian ethos and one class completely free from such views and values. A school that unashamedly promotes a Christian ethos and provides no clear and equitable alternative is acting unconstitutionally and illegally.

Second, even where a school has rules in place to ensure that children are neither directly or indirectly coerced into observing religion at public events or in classes, it would still have a duty to treat various forms of belief equitably. This does not mean such beliefs have to be treated in exactly the same manner, but it does mean that a school is prohibited from exclusively advancing the beliefs or teaching of one specific religion or of religion vis-à-vis non-religion.

I suspect very few state schools at present comply with the Constitution and the law because there has been no systematic attempt to dismantle the underlying Christian nationalist ethos that permeated the apartheid education system.

If we are going to decolonise not only our Universities but also our schools, it is time that schools and school governing bodies comply with the Constitution and the law.

Odidi against xenophobia and homophobia

This video aims to shock us into taking responsibility for Hate Crime; specifically anti-lesbian and xenophobic hate crimes. It features my friend Odidi Mfenyana, singing Billy Holiday’s siren protest song Strange Fruit. Although the song originally referred to the grotesque lynching of blacks in the United States, this version aims to prevent us becoming habituated and de-sensitized to the occurrence of violent hate crimes in South Africa. “Strange Fruit” is intended to cause a measure of discomfort and to call us to action.

Xenophobic statement: Is King Zwelithini guilty of hate speech?

Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini in a speech delivered in March fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?

Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.

But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.

(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)

With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.

When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):

[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).

The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.

In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.

He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.

Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.

In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.

To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:

could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.

Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).

What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:

foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”

The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.

In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.

All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.

As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.

Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.

Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.

If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.

Steve Hofmeyr at the KKNK: why the idea of false equivalences is destructive and wrong

The idea that fairness and justice requires identical treatment of all people in equivalent situations regardless the context or the relative power of the persons or institutions involved, is attractive to many powerful and privileged people with vague and undefined liberal inclinations. The problem is that the idea is destructive, illiberal and deeply unfair.

On Monday morning at the Klein Karoo Nasionale Kunstefees (KKNK) in Oudtshoorn – the “N”, here, is as vital as the “R” in Proes street or the “N” in Pniel – I was involved in a discussion on the right to freedom of expression and on whether the KKNK was correct not to invite racists like Steve Hofmeyr to the festival or to provide them with another platform.

The discussion was both frustrating and revealing. Frustrating because not all the speakers avoided the trap of self-indulgence and narcissism. Revealing because it soon became clear that a sizeable number of audience members were unhappy with the decision of the KKNK management not to provide Hofmeyr and other racists with a platform to perform and to take part in debates.

Now, it might well be that some of the speakers at the debate were yearning for the presence of Steve because he dares to express the racist fears and prejudices that they themselves harbour but are too scared, hypocritical or polite to express (at least in public).

On at least two occasions during my three-day stay at the festival, I encountered the most shocking and brutal forms of racism from festival-goers. I suspect that these bruising encounters (I was confronted by the use of the “K” word and an expressed desire to recreate exclusive “whites” only spaces) framed – for me, at least – the discussion I was involved in. (It was, perhaps, of some consolation that one of the encounters revealed such a catastrophic inability to reason, that it made me wonder whether the person was not in need of strong anti-psychotic medication.)

Because I have lived in South Africa for most of my life and am excruciatingly aware of my own continuing struggle to rid myself of the racism, the sexism, the homophobia and the HIV prejudice that still stalk the land like an incurable disease, I have to admit that I usually assume the worst of the (“white”) strangers that approach me in public places.

I try to wear the cynicism about my own kind as a form of armour to protect myself against the hatred and bigotry that sometimes seems to saturate our society, just like the stench of shit saturates the air around those portable toilets in Khayelitsha.

All “white” South Africans might not always realise it, but at least sometimes the horrid actions or words of fellow “white” people are imputed to all “whites” – just as racist logic have always demanded (and still does) that the inexcusable actions or words of one “black” person be imputed to all “black” people.

When I thus encounter fellow “whites” who exhibit some sensitivity about racism and even a tentative willingness to confront their own prejudice and that of others, I often feel pathetically relieved and grateful.

And it does happen – imperfectly; often haltingly and with confused earnestness; sometimes in a disastrously self-righteous and self-congratulatory manner – but some “white” South Africans do try to grapple with the fact that 350 years of colonial conquest and apartheid have deformed our society and, at best, turned us into strangely disconnected beings.

This willingness of “white” people to try and confront race and racism is often reflected in a certain alertness to the way power determines how a specific instance of the politics of race plays out. This happens when us “white” people – not ever having been on the receiving end of structural racism and thus not forced every single day to live with its horrors – nevertheless attempt to get to a place (a place we probably can’t ever get to), where we will constantly be aware of how black people experience the structural violence of racism that surrounds us and that we are often implicated in.

It reminds me of the attitude towards shit captured in a poem of Antjie Krog. In the poem Krog describes the horror of a visit to a filthy toilet while menstruating, with her handbag clenched between her teeth and her blood-red tampon (folded into bank deposit slips) clutched in her hand.

pis ek rillend verstard effens hurkend/ tussen my bene deur/ in ‘n toiletbak tot in die helfte opgehoop/ met minstens vier verskillende kleure kak/ elke senupunt van weersin orent om mal te word/ as maar net ‘n enkele druppel op teen my sou spat. (I piss shuddering, rigid, half squatting/ between my legs/ into a toilet bowl heaped halfway full/ with at least four different colours of shit/ every nerve-ending of aversion alert to go mad/ if even a single drop would splash against me.)

In the debate at the KKNK I argued that if we want to judge the correctness of the decision by the festival management not to provide Hofmeyr with a platform, we must take into account the disparities in power between different people and institutions and the different effects divergent forms of expression have on different human beings formed by different experiences.

We should not insist that as a matter of principle the right to freedom of expression requires us to treat all forms of speech in exactly the same manner. Neither is it conceptually tenable to believe that all decisions to censure a person for what he or she says should be viewed as equally problematic.

Context matters.

And who wields power and how much power that person or institution wields will have a significant influence on whether we decide whether the limitation placed on freedom of expression is constitutionally and ethically acceptable or not.

The test is one in which different interests must be balanced against each other in complex ways. The more drastic the limit on free expression, the more skeptical we should be of that limitation. In contrast, the more drastic the effect of that expression on the human dignity of others, the easier it would be to justify limiting the expression. The number of permutations is infinite and in each case we have to balance all the interests in a manner that protects both the freedom and the dignity of all people.

The state and its institutions have the power to incarcerate and (as we have seen at Marikana) to kill its citizens. The state consequently has enormous power to silence different, controversial or unpopular forms of expression. The spectre of the abuse of state power to limit expression in order to advance narrow political, sectarian or economic interests is high. I am therefore very hesitant to endorse state censorship of expression. In my view, the power of the state should only be used to limit the most extreme forms of hate speech.

In different contexts different individuals and private institutions do not have the same power to circumscribe forms of expression that are hateful, unpopular, strange or that threaten the commercial interests of individuals or companies.

If a private individual decides not to invite Steve Hofmeyr to dinner because of his racist views or because he sings Die Stem, it would have no effect on Steve or those who think like him or support him.

If a large company refuses to sponsor a festival where Hofmeyr performs, it will have a more drastic (but not absolute) impact on his freedom of expression. Seeing that he would still be able to attend other festivals, organise his own concerts (in Orania and elsewhere) or to take to his Blog or Twitter to express his bigotry and – indirectly – that of his supporters, the limitation on his freedom of expression is not absolute.

But from both a constitutional and ethical point of view, this is not the only factor to consider. The nature of the expression and the nature of its effect on others must also be considered. Now, from an ethical point of view I would contend that it is undesirable for an arts festival catering to a diverse audience to refuse to host artists or to disallow the performance of plays merely because the material may offend certain sections of the public.

This is so, first, because it would make it more difficult for others to see the performances or plays and second, because festival-goers should ideally have a choice to buy tickets and to attend the plays or performances it chooses, based on their tastes and values. But, thirdly and most importantly, the offensive words or ideas do not call into question the basic humanity of anyone, nor does it disrespect the inherent human dignity of anyone.

Performances and plays that offend the sensibilities of some do not undermine the constitutional injunction to respect the inherent human dignity of all. In fact, one could argue that censoring such performances and plays would in fact infringe on the dignity of individuals, because it would treat people as empty vessels with no agency of their own. Individuals are treated as passive bystanders in whose interest decisions should be made in the name of “good taste” or “respectability”, which will be decided on by a few gatekeepers who may well bend to the wishes of large corporate sponsors who might wish to censor any radical critique of corporate greed or complicity in exploitation.

In most cases the specific worldview, political orientation, religious views, other values and cultural assumptions of individuals will mediate their response to the work of an “artist” (I use the latter term generously to include the concerts of Hofmneyr).

A very religious person may be extremely offended by an artist like Jack Parow who swears heavily on stage. A homophobic bigot may find two men or two women kissing on stage disgusting or disturbingly erotic. A progressive person may find a play based on an Ayn Rand novel offensive because of the message of selfishness or the lack of empathy for the vulnerable people reflected in the play.

In fact, at the KKNK several conservative theatregoers walked out of an Afrikaans adaptation of Anton Chekhov’s The Seagull because they were disgusted with the use of swearwords like “naai” and “fok”. (Personally I loved the play, but I believe those who walked out had every right to do so.)

The examples I provide above centres on reasonable disagreement about our values and about how best we can live an ethical or meaningful life. Such reasonable disagreements are the lifeblood of a democracy.

Freedom of expression must be protected exactly to allow this reasonable disagreement to flourish (even in the form of irrational outrage and the expression of disgust). A space in which many ideas (also ideas that are unpopular or that offend the majority) can be expressed, safeguards the freedom of individuals to choose for themselves what to think and feel and how to live their lives. In a democracy it is not desirable that the management of an arts festival (committed to constitutional values) decides on behalf of festival-goers about matters of taste and decorum.

But I contend that the matter is different when we deal with a performer who incessantly makes racist, sexist or homophobic statements and denies the basic humanity of others or where a play uncritically endorses and perpetuates racism, sexism and homophobia.

In an open democracy racism, sexism and homophobia cannot form part of a debate in which reasonable disagreement remains in play.

When we begin to treat the question of whether some people are fully human (and thus deserving of respect and concern regardless of their race, their sex or their sexual orientation) as part of a reasonable debate (and when those who contend that some people do not, hold considerable social and economic power), we legitimise the racism, sexism and homophobia and create an atmosphere in which the denial of the basic humanity of people who are on the constant receiving end of bigotry are legitimised.

We send a signal that it is not shameful, nor a basic attack on the humanity of fellow citizens, to question their right to exist equally and in full dignity with others. We claim the right to treat individuals not as humans but as things over which we may exert godlike authority. We create a space in which it becomes acceptable to deny others the sense of well-being and self-respect that we demand for ourselves. We endorse, either directly, or through omission, the attack on their humanity and in the process we dehumanise ourselves.

When we do not signal that we consider the racist, sexist or homophobic views objectionable, we create the impression in the minds of many festival-goers (and the wider community they belong to) that their hatred and bigotry and their refusal to recognise the full humanity of black South Africans is a reasonable, even noble, response to what they perceive to be the confusing and threatening world they live in.

Forms of racist, sexist and homophobic speech are thus fundamentally different from other forms of expression which we disagree with or that make us uncomfortable.

Because such forms of racist speech potentially have far more devastating effects on the well-being of “black” South Africans (whom “white” South Africans systematically oppressed and attempted to rob of their humanity over 350 years), a decision by the KKNK not to provide a platform for a person lauded in certain circles partly because he proudly engages in racist speech is not only permissible but, I would argue, an ethical  (if not a legal) imperative.

The story of the runaway date

This is a presentation I gave earlier this week at a conference in Stellenbosch on Slow Violence, the idea that unspectacular life circumstances can also have a devastating effect.

I know where this particular narrative must end. More or less. But where should it begin? I am not sure what kind of detail I must include in the narrative and what would better be left in the private domain. How brave am I?

The story could begin with the man, a greying, middle aged constitutional law professor who often comments in the media on current affairs and the law, receiving a message from B on Gaydar, a popular gay male dating and sexual hook-up site. B writes that he is a young lawyer who loves movies and fashion. He suggests an email correspondence with a view to meet “for a date, the old fashioned way”.

The man studies B’s profile picture for clues of his personality. He thinks B is sexy – in a nerdish kind of way. Or maybe he only decides this later, after their first date. In the picture B’s head is clean-shaven. Delicate hands peek out from the sleeves of the well-tailored black jacket. (On their first date the man would approvingly note that B’s nails had been carefully painted black. Trust him to hook up with probably the only camp, coloured, Goth on Gaydar.) B’s smooth olive skin radiates health. But it is the eyes, partly obscured by thick-rimmed glasses, that convinces the man to take a chance – despite his apprehension. Huge eyes. Slightly watery and a little bit sad. Kind eyes, the man assumes. It is the eyes that reveal that at least some of B’s forbears arrived in South Africa from South East Asia centuries ago, perhaps as slaves. “Slaves”. The word sticks in the man’s throat, a reminder of what his kind is capable of doing.

The man spends hours composing the emails he exchanges with B. He strives for a light, witty, but intellectually clever tone. He keeps the polite boasting to a minimum, but hopes he comes across as erudite and informed, yet attuned to popular culture and not over serious. About the calamity, the man, says nothing. B agrees to a “date”. They will go to “On Broadway” to watch a revue performance of scantily clad men singing about love and love lost. The man is nervous. He has never been on a real first date with any man in his life before. In the past he has always first slept with a man and then decided afterwards whether he would see him again. But now it’s become more complicated. The date goes well. They drink moderate amounts of wine – not enough to get drunk, but enough to get over the first awkwardness. Did they drink white wine or red wine? Several years later, the man cannot remember these details. The man is just tipsy enough not to pull away when his knee touches that of B under the table. B is a little giggly when the man drops him off outside his flat in Vredehoek. They kiss hurriedly – like teenagers on a fist date – and this too, goes well. A second date is on the cards.

Having gotten this far, I am not sure how to proceed with my story. It is still a problem of where to start, of how to structure my story, of what to reveal and what to keep to myself. Do I even remember these events relatively accurately? Do I have to stick to the facts – as if this is a legal document? Or can I lie to get to another kind of truth? How do I present my case to you, my jury, without sounding too self-indulgent or narcissistic? How do I elicit a sympathetic verdict and why do I care? How do I write a story without it sounding like an article published in the South African Law Journal – which, let’s face it, is not really a publication read for laughs.

Only the most formalistic lawyer will deny the fact that legal “cases are decided not only on their legal merits but on the artfulness of an attorney’s narrative” presented to the court. Does life not imitate the law in this regard? I recall reading an article by Robert Cover – not his famous article which starts with such a bang: “Legal interpretation takes place in a field of pain and death.” – no, not that one, but rather another article published in the Harvard Law Review about narrative, meaning and the law in which Cover wrote:

“We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. … No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”

The story could also begin at an altogether safer, more familiar, place. The man is standing in front of a class of 250 students at the University of Western Cape. He is teaching students about the right of gays and lesbians not be discriminated against, protected in the South Africa’s Bill of Rights. This happens several years before he went on a date with B, during an altogether happier time.

A short chubby woman with protruding teeth – one of the talkers in the class who, many years later, would bombard the man with a string of Facebook messages, asks whether you can reconcile the Constitution and the Bible. “The Bible is mos a mess about gay rights,” she laughs. Whatever happened to this student? In the Facebook messages the man later receives the former student suggests that she had lost her job as part of an unnamed conspiracy aimed at her because she has become a reborn Christian. “I know you will find this strange but God speaks to me in visions,” she writes on Facebook.

But that is far into the future. In class, the man proceeds with some delicacy. The majority of students do not support the prohibition of discrimination against gays and lesbians. “So you want to discriminate against me,” the man laughs. “If I did not know you better I would feel offended.” He flashes a smile. “And let me tell you, my boyfriend is not going to like this.” A snigger runs through the class. Another smartly dressed woman with long braids – the one who approached him early in the year, wetted her middle finger and tried to rub off the beauty spot from his left cheek – speaks up. “If the law prohibits discrimination it does not prevent anyone here from believing what they want to believe.”

“Let me ask a different question,” the man laughs. “Is it acceptable to discriminate against someone because, for whatever reason, you do not like that person?” A murmur runs through the class. A man with rosy cheeks and a goatee pipes up: “If you fail me because you don’t like me I will really be pissed off.” Everybody laughs. Nothing like some swearing in class to liven things up. It is time for the quote from the Constitutional Court judgment in Hoffmann v SAA. It is the case of the SAA who claimed it could not appoint Mr Hoffmann as an air steward because he was HIV positive and because their clients would not fly with SAA if it employed HIV positive staff. The man loves the quote. He tells the students it encapsulates all that is good about South Africa’s Constitutional Court and, for once, he says it without any irony.

“We must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests…. Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.”

I am stuck again. I used to quote that passage from the Hoffmann case so easily and with so much joy and pride. Now it sounds a bit cheesy. I open the Safari browser on my laptop and start searching Google Scholar and the Taylor and Francis electronic database for academic papers and books on how to tell a story of shame and loss and internalised stigma. During this search I chance upon Jerome Bruner’s book Making Stories: Law, Literature and Life. Bruner also writes about the way in which the law – like our lives – is about the telling of stories, about arranging facts in a manner that appeals to a judge (or, in the US context, a jury). A storyteller – like a lawyer presenting a case – needs to decide what to include and what to leave out. But what strikes me with some force is the following passage from his book: “Stories are surely not innocent: they always have a message, most often so well concealed the teller knows not what axe he may be grinding.” Is this story, then, about an axe I still have to grind with B? Or is it really about my fury at M, who, in the months before he left me, could not look me in the eye when we had sex? Or – dare I ask this? – is this story really about the axe I still have to grind with myself?

The story could also begin on a Sunday morning on a sunny day in January – 18 months before the man met B – in the front room of the house the man shares with M in Sea Point. The man nervously wipes the sleep from his eyes. Or maybe he is just fidgeting with his hands because he is anxious about what is to come. The smell of shit from his most recent bout of diarrhoea lingers on his fingertips. He wonders whether M can smell the shit from where he is perched on the armrest of the chair nearest the door, ready to flee to freedom. M, the man’s partner of 9 years, is uneasily fidgeting with his cell phone. He is wearing the yellow and green havianas the man brought back from a recent trip to South America. M has the habit of placing his hand in front of his mouth when he laughs in order to hide his protruding teeth. A few years before on their way to Grahamstown for the Arts festival a petrol attendant in Graaf Reinette told M that he looked like the Brazilian soccer star Ronaldinjo – although he did not call him Ronaldinjo but tandjies. M is not in the mood to laugh this morning. His left leg bops up and down as he speaks. “I can’t go on like this,” M says “because of what you have done to me. Because of everything”. A classic case of: it’s not me, it’s you. M stares out of the window towards the frangipani tree in full bloom, studiously avoiding eye contact. Maybe he is not staring at the frangipani tree but at something else. In any case, M is definitely not looking the man in the eye when he speaks. At least M is embarrassed. But probably not because he had to reach for a cliché to finally say the words which for the past three months have been hovering in the air, just this side of being spoken. There are no tears. The man jumps up from the couch and rushes past M. “Sorry,” he says, then dashes to the toilet to deal with another bout of diarrhoea.

Only several months later M would tell him about the love letters M wrote three years previously to a communal friend living in London. And it would be another year before M would phone him on a bright morning on new years day, teary and incoherent, and confess that he, M, had told his friends the previous night while he was high on too much acid and cocaine that he had never loved the man and that the nine year relationship was one more of convenience than emotional commitment. But when exactly was it that the gas heater M demanded for himself during the break-up exploded, gutting M’s new apartment in the ensuing fire? And when did the man’s oldest friend, hearing of M’s calamity, joke that the fire was to be expected “Dit wys jou net”, (It just goes to show) “Want God slaap mos nie” (Because God does not sleep).

I return to Bruner’s book on law and literature. Perhaps I can find an appropriate quote to cloak my sad and self indulgent story in a somewhat more intellectual garb. Bruner writes that “A self is probably the most impressive work of art we ever produce, surely the most intricate. For we create not only one self-making story, but many of them…. The job is to get them all into one identity, and to get them lined up over time… [It] is not only who and what we are that we want to get straight but who and what we might have been, given the constraints that memory and culture impose on us, constraints of which we are often unaware.” But a self is now conseptualised as a fragmented, ambiguous and ever changing cultural construct. Who you are is forever being created by power relationships over which you have no control. “Autobiography, then, is not a genre or a mode, but a figure of reading or understanding that occurs, to some degree, in all texts.” The self becomes a storyteller. Which is no longer a demeaning term, not someone who tells lies but who creates the self.

Every Sunday afternoon the man turns the house in Sea Point over to the estate agent while he wanders in a haze on the promenade. He returns home with only a vague memory of the afternoons. The taste of regret in his mouth. The house quiet and empty. The “For Sale” sign on the front gate telling its own story. The bare stubby branches of the frangipani tree casting melancholy shadows over the stoep. Not, it must be said, that the man would have noticed the frangipani at this stage of his life. He hardly notices anything not directly linked to his misfortune.

The man invites B for dinner at the house. B does not have a car, so the man drives to B’s flat to pick him up. B is carrying a small stylish leather bag. The man imagines it contains a toothbrush and a pair of clean underwear and socks. B is talkative. He keeps on touching the man’s arm. He throws his head back and laughs. The man pours wine, fries two pieces of steak in the kitchen while B perches on the marble counter top, his colourful socks peeking from beneath his skinny black jeans. The man pours himself another glass of wine. He only half listens to the story B is telling him. In his head he is rehearsing his speech. The man lights the candles. The blood oozes from the pink meat onto their white plates. He dishes up the salad and smiles vaguely while B starts telling a complicated story about how he went to watch the Oscar awards ceremony at a friend’s house and spilt red wine on the white sofa. The man is too preoccupied to wonder who the hell is stupid enough to serve red wine to a half drunk friend sitting on a white sofa. When B is finally silent, chewing on a piece of steak, the man takes the gap. Stuttering, his sweaty hands clutching the cutlery, he tells B that he is HIV positive. Before he can talk about ARV’s and how it saved his life, B shakes his head. Is he crying? No he is just shaking his head from side to side as if to shake off the words just spoken. “I cannot deal with this,” B says. “How can you do this to me?”

In another story, a story not more or less committed to the facts, in other words a supposedly less legal kind of narrative, he would have flicked the glass of wine (and it would have been red wine) into B’s face. Or he would have taken his plate of food and turned it over on B’s lap, B’s white pants stained bloody red by the juices from the steak. Or he would have plunged the steak knife into B’s right hand, pinning the hand to the table, blood spurting over the white tablecloth while B squeals in pain.

But in THIS story, in the narrative of what actually happened, he smiles at B and says. “I understand.” He comforts B with more empty words, careful that their hands or knees do not touch. He smiles encouragingly and nods and nods like an interviewer on a current affairs TV programme signalling interest in what her guest is saying. Eventually he drives B home. In front of B’s flat, he waits in silence as B clutches his leather bag in the hand that remains whole, unstabbed, before fleeing up the stairs of the Art Deco block of flats. Even when he drives home he is not angry with B. He dumps the half eaten bloody steaks into the rubbish bin, pours the glasses of half drunk wine into the sink, and packs away the candles. Later, after brushing his teeth, he sends B a text message. “Hope you are ok?” It is more than a year later before he sees B again.

I am not sure what the common script is for the kind of story I wish to tell. I am used to writing legal articles in which you have to spell things out, in which there must be a clear beginning, middle and an end. In my world the things I write about are supposed to be logical and to make sense. I again turn to Cover. Maybe there is help there.

The various genres of narrative – history, fiction, tragedy, comedy – are alike in their being the account of states of affairs affected by a normative force field. To live in a legal world requires that one know not only the precepts, but also their connections to possible and plausible states of affairs. It requires that one integrate not only the “is” and the “ought,” but the “is,” the “ought,” and the “what might be.” Narrative so integrates these domains. Narratives are models through which we study and experience transformations that result when a given simplified state of affairs is made to pass through the force field of a similarly simplified set of norms. The intelligibility of normative behavior inheres in the communal character of the narratives that provide the context of that behavior. Any person who lived an entirely idiosyncratic normative life would be quite mad. The part that you or I choose to play may be singular, but the fact that we can locate it in a common “script” renders it “sane” – a warrant that we share a nomos.”

It’s a year after the man last spoke to B. The man joins his friends to watch Ms Vanilla Von Teese performing her drag show at Bubbles Bar in Green Point. At the crowded bar, waiting to buy drinks for his friends from the beautiful barman whose bare lean torso is covered in glitter, B taps the man on the shoulder. “Hi,” says B, smiling sheepishly. He is wearing new glasses with modern lightweight frames. B is dressed smartly, a thin black tie matches his black jacket with thin lapels. The man nods stiffly towards B, but does not smile. Or if he smiles, so he imagines, it is not a warm and inviting smile. Then he turns back to the barman and orders drinks. To B he says nothing.

It is more than a week later that he receives a Facebook message from B. It contains only three words. “I am sorry.” If this was another story, not one hewing close to the truth, or at least close to the facts, the man would have deleted the messages without responding. Or it would have ended with the man replying with an eloquent message lecturing B about his prejudice and the ability of prejudice to devastate others. But the man knows how this story ends. It ends with him replying to the Facebook message with a one word message of his own. “Thanks!” It is only several weeks after sending that message that the man wonders for the first time why he attached a friendly exclamation mark and – for gods sake – a smiley face, to the end of that “Thanks!”