Constitutional Hill

The Speaker’s dilemma

The raucous, often childish and rude, and somewhat chaotic debate on the motion of no confidence introduced by some opposition parties against the current speaker of parliament failed to engage in any meaningful manner with principled questions about the proper role of a speaker in a Constitutional democracy like our own. Leaving aside the question of whether Baleka Mbete is a good speaker or not, it may be helpful to ask what the appropriate role is a speaker ought to play in the South African parliament.

Should the speaker of the South African parliament be impartial? Should he or she ceremoniously distance him or herself from the party he or she belongs to after election as speaker in order to avoid a perception of bias and unfairness? Should the speaker resign as a member of the party’s caucus and escape its discipline?

Or should the speaker serve in a partisan capacity to advance the interests and political agenda of the majority party in parliament in order to promote the interests of the majority of voters? Should the speaker use his or her power to shield the members of the executive from the partisan attacks and questions from the opposition?

The text of the South African Constitution does not give an explicit answer these questions. But, as I point out below, the Constitutional Court has strongly suggested our Constitution requires adherence to the former rather than the latter model for the speaker.

The tradition in Westminster style parliaments is that a speaker cuts all ties with the party he or she belongs to after elevation to speaker and serves in a non-partisan and absolutely impartial manner to serve the interest of all the members of parliament (so serving the interests of all voters – not only those who voted for the governing party).

However, speakers in other systems serve in a more partisan capacity. For example, the speaker of the US House of Representatives is actively involved in advancing the interests and legislative agenda of the majority party (although he or she seldom preside over debates).

In terms of section 52(1) of the South African Constitution (read with Schedule 3) the members of the national assembly (NA) must elect a speaker in a secret ballot from among its members. Section 52(4) also allows the members of the NA to remove a speaker from office by adoption of a motion to that effect.

Only a member of the NA can serve as speaker. Given the electoral system through which members of the NA are elected, this means that the speaker must belong to one of the political parties represented in the NA.

In terms of the rules of the NA the speaker has considerable powers. He or she is the administrative head of parliament and either the speaker or another presiding officer preside over debates in the NA. The speaker has final authority over the interpretation and application of the rules of the NA (subject to control by the judiciary). He or she is also allowed to give a ruling or frame a rule in respect of any eventuality for which these rules do not provide.

In terms of section 90 the speaker may also (in very exceptional circumstances) serve as acting president of the country until a new president is elected.

As the Constitutional Court pointed out in Oriani-Ambrosini v Sisulu our Constitution requires MPs to make decisions (usually through majority vote) to pass legislation; adopt resolution; determine the time and duration of the sittings of the Assembly; elect a speaker and a deputy speaker; elect officers to assist the speaker; remove a speaker; and determine its processes through the making of rules.

In a democratic system of government, the members of the majority party therefore have the power to decide whether any of these decisions are passed or not (unless super majorities are required for a decision in which case the support of several parties may be required). It is the essence of majority rule that the majority party has a conclusive say in the decisions taken by parliament.

This does not necessarily mean that the South African Constitution envisages a system in which only the members of the majority party receive a fair chance to state their views and to influence decisions. There is a difference between the principle that the majority party rule when important decisions are taken and the principle that the majority party rule during deliberations that may eventually lead to a majority decision.

As Sachs J stated in Democratic Alliance v Masondo: “

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered…

Because the South African Constitution establishes an “open and deliberative” form of democracy it emphasises the need for dignified and meaningful participation by all MPs in the activities of parliament. As Sachs explained our form of democracy:

is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, ‘South Africa belongs to all who live in it…’

There are good reasons why the Constitution does not (in theory) allow the majority party to use its majority or its control over decisions such as who should be elected speaker, to silence the voices of those MPs who represent the millions of voters who have not voted for the majority party.

As Chief Justice Mogoeng pointed out in the Oriani-Ambrosini judgment:

South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.

The Constitution is (at least partly) aimed at preventing a recurrence of the horrors of the apartheid past. Having learnt from this past, the drafters of the Constitution also sought to prevent any recurrence of the undemocratic practices that were embedded in the apartheid state and helped to sustain it for so long. That is why the Constitution prohibits the suppression of dissent, criticism or protest against those in government.

What these Constitutional Court judgments emphasise is that ours is a democracy that values fair and equal participation in debate and in the processes that lead to the decisions that are ultimately taken by parliament. While the majority ultimately decides what the decision is, the minority must have a fair opportunity to take part in the deliberations that lead to a decision.

The judgments suggest that the rules of parliament should be formulated clearly and with sufficient precision and in in enough detail to prevent the rules from being abused by the presiding officer. The rules must be aimed at ensuring fair and meaningful participation of all MPs in the debates in parliament and in the other activities of parliament.

I suspect the rules as currently employed by presiding officers are far too vague and open to abuse to fulfil this basic Constitutional requirement. For example, the practice of ruling that statements must be withdrawn because they are “unparliamentary” has led in the past to the silencing of dissent and the asking of difficult questions. Anything can in theory be ruled to be “unparliamentary”, which means it is a term that can be abused to silent dissent.

The Constitutional Court judgments also suggest that our Constitution requires the speaker or any other presiding officer to act fairly and impartially at all times – also when he or she presides over a debate in parliament. Not only must the speaker be impartial and unbiased, he or she must act in a manner that would avoid the apprehension of bias or partisanship on his or her part.

If a speaker or other presiding officers are not impartial and are not manifestly seen to be impartial, parliament will not be able to function in a manner that promotes pluralistic democracy (the kind of democracy in which dissenting voices are heard loud and clear). This would be in conflict with the jurisprudence of the Constitutional Court.

However, this leaves the speaker of the South African parliament in a difficult position. As the speaker is elected to the NA on a party list and can easily be removed from the NA by his or her party, there will be strong pressure on him or her to serve the party and the executive and not the parliament as an institution.

In our system it is therefore very difficult for a speaker to be truly impartial and unbiased. For a speaker who is a member of the governing party this pressure will be even more severe as section 5.4 of the Constitution of ANC states that:

ANC members who hold elective office in any sphere of governance at national, provincial or local level are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the Constitutional structures of the ANC.

Whether this section of the ANC Constitution is compatible with the Constitutional Court judgments mentioned above (as well as theRamakatsa judgment) is open to debate. But as long as the Constitutional Court does not declare the section unconstitutional, it places any speaker from the governing party in the impossible position of having to serve the Constitution and to act impartially while also enforcing the decisions of the party.

I therefore have sympathy with the speaker. She has to serve two conflicting masters – something that is currently impossible to do.

For this reasons I believe the rules of the NA (and if needs be the provisions of the Constitution) should be reviewed to allow for the speaker to become a non-partisan and impartial officer of parliament as a whole, serving to protect and promote the pluralistic democracy in a manner that will ultimately be to the benefit of all South Africans.

The rules should prohibit a speaker from being a member of his or her party’s caucus and from serving in any position in his or her party. The rules should also protect the speaker by prohibiting his or her party from removing him or her from parliament for the duration of the parliament.

If the rules are not amended to secure the impartiality and independence of the speaker, parliament will continue to provide us with strident but ultimately vacuous entertainment – to the detriment of our democracy.

The President’s reply to the Public Protector: why it won’t hold water

In response to a letter written to him by Public Protector Thuli Madonsela about his failure to respond appropriately to her findings regarding the renovations at state expense of his private home at Nkandla, President Jacob Zuma questioned the Public Protector’s interpretation of the scope of her powers. Although no South African court has given a definitive answer to the exact scope of the powers of the Public Protector, some of the President’s claims are at best debatable. Here is why.

President Jacob Zuma says he disagrees with the Public Protector that findings of her office are by law not subject to any review or second-guessing by a Minister and/or Cabinet. He also challenges the view that only a court of law can review and set aside findings made and remedial actions taken by the Public Protector.

He states that the Public Protector’s role “is akin to that of an Ombud and quite distinct from that of a judge”. Her findings, argues the president, are useful tools to assist the government but they have no binding effect on the president. Because her findings do not emanate from an adversarial process, they cannot be binding. The president claims that he would be acting irrationally if he only considered responding to her findings in two ways: either to review her findings or to rubber-stamp them.

The Public Protector is a constitutional body exercising public power in terms of the Constitution and the Public Protector Act. She is empowered by section 182(1) to investigate alleged improper conduct in state affairs or the public administration and to make appropriate findings about the alleged improper conduct.

As the Supreme Court of Appeal (SCA) pointed out in 2011 in its judgment of The Public Protector v Mail & Guardian the Public Protector is not a mere Ombud, as the president alleged in his letter to her. This is because the Public Protector Act:

makes it clear that while the functions of the Public Protector include those that are ordinarily associated with an ombudsman they also go much beyond that. The Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances.

The powers of the Public Protector are indeed wide-ranging; far exceeding those normally associated with an Ombud. As the SCA further pointed out, the Act confers “sweeping powers” on the Public Protector’s office to enable her to conduct her investigations. The Act empowers the Public Protector to:

call for explanations, on oath or otherwise, from any person, he or she may require any person to appear for examination, he or she may call for the production of documents by any person, and premises may be searched and material seized upon a warrant issued by a judicial officer… He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.

Because the findings and remedial action taken by the Public Protector are made in terms of the Constitution and the relevant legislation, it cannot be correct to argue – as the president does – that the president, a Minister or the Cabinet can review or set aside her findings.

Just as the president or the Cabinet cannot set aside a decision of the CCMA, the Electoral Commission or the Pension Fund Adjudicator (or any other body authorised by law to investigate and make findings on matters in an independent and impartial manner) it cannot do so with findings of the Public Protector.

To hold otherwise would be completely to negate the independence of the Public Protector, which section 181(2) states is “subject only to the Constitution and the law”. It would also be in conflict with the duty imposed by section 181(3) of the Constitution on organs of state to “assist and protect” the Public Protector and to ensure its “independence, impartiality, dignity and effectiveness”.

Surely, were the very politicians implicated in wrongdoing by the Public Protector empowered to review and set aside her findings and remedial action, it would strike a fatal blow against the “effectiveness” of the institution of the Public Protector. To understand why this is so, consider an extreme example: imagine it was legally possible for a convicted murderer to review and set aside his or her conviction or the sentence imposed. That court of law’s effectiveness would be fatally undermined if this were to be allowed.

If the president or the Cabinet could review and set aside the decisions of the Public Protector, the legal powers bestowed on her office would thus become illusory.

The principle of nemo iudex in sua causa (no one may be a judge in his or her own cause) must surely also apply here. If the independence and impartiality of the Public Protector means anything, it must mean that her findings should not and may not be extinguished by the say-so of those against whom she has made findings of maladministration or misconduct.

I am therefore pretty sure only a court of law can review and set aside her findings and then only on the basis that she overstepped her powers, misconstrued the law or otherwise acted irrationally.

But if this is correct, does this mean that the president and his cabinet is bound by her decisions and that they are legally obliged to comply with the remedial action imposed by her office?

Our courts have not finally answered this question, but the wording of the relevant sections of the Constitution and the Public Protector Act suggest that her findings and remedial action may be binding. If this is correct, the Public Protector’s position would differ markedly from the position of most Ombudsman in other democracies – something the SCA has already confirmed.

The president is correct that the Public Protector is not a court of law. The argument could therefore be made that holding that the findings and remedial actions of the Public Protector are binding would be troubling as it would create confusion about the separation of powers between the judiciary and other constitutional bodies.

However, the Constitutional Court has said that South Africa has a unique system of separation of powers and that our understanding of it will develop over time. The starting point to understand our system will always remain the text of the Constitution. In this regard it may be significant that section 182(1)(c) of the Constitution states that the Public Protector has the power “to take remedial action” as regulated by national legislation.

This phrase suggests that the Public Protector does have the power to take binding steps to rectify wrongs committed by those in power, but that the power must be further elaborated upon in the Public Protector Act.

This seems to have been done in section 6(4)(b) of the Public Protector Act. This section provides some textual support for the argument that her findings and remedial action are indeed binding on the executive and on those directed to correct mistakes.

First, the heading of section 6 of the Act states that section 6 deals with the “additional powers of the Public Protector” and thus clearly deals with granting of powers to her as envisaged by the Constitution. Second, section 6(4) states that the Public Protector shall be competent:

to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by (i) mediation, conciliation or negotiation; [...] (iii) any other means that may be expedient in the circumstances.

This section is quite extraordinary in its scope. It empowers the Public Protector to take any steps she believes to be expedient in the circumstances to rectify the wrongdoing. “Any steps” must surely include ordering remedial steps. If the Public Protector is empowered to take any steps to rectify wrongdoing it must therefore include, say, ordering the president to repay a reasonable amount of the money with which he and his family were enriched by the renovations at Nkandla.

However, section 8 of the Act troubles the waters slightly as it states that the Public Protector may “in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her”.

Does this mean her factual findings are binding but that when she directs that remedial action be taken these are only recommendations?

A court of law will have to decide on this, but I suggest that there are two ways of reading the provisions of the Act.

First, it could be read as saying that the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary and is binding on the executive.

However, as the Public Protector is not a court of law, whenever a person directed by the Public Protector to take remedial action fails to do so, it would be necessary to approach a court of law for an order finding that the Public Protector’s directions were not complied with and asking the court to direct the president or other responsible person or body to implement the findings and remedial action imposed by the Public Protector.

Alternatively, the Constitution and the Act could be read as saying that while the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary, these findings and remedial action are not strictly binding (in the same way a court order is binding) on the president or other responsible persons or bodies who have been required to implement the findings and remedial action.

According to this second view, what would be required would be for the president or other responsible person to respond in a rational manner to the findings and remedial action imposed by the Public Protector in a manner that would assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of her office as required by the Constitution.

Whether it could ever be rational to ignore the remedial action imposed by the Public Protector (given that such a move would almost certainly undermine the independence and effectiveness of the Public Protector) is a good question to ask.

What would certainly be true is that ignoring the remedial action required by the Public Protector or failing to consider all the relevant findings when formulating a response to a report of the Public Protector would not be rational.

If I am correct, no matter whether a court ultimately prefers the first or second view set out above, the president runs the risk of being told by a court of law that he has acted irrationally in responding to the Public Protector’s report and that his response was therefore unlawful and invalid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How to have a meaningful discussion on affirmative action

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lastly section 11 of the Act states that:

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

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

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

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

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

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

Thuli Madonsela: Wrecking Ball

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

Nkandla: Zuma’s convoluted series of Houdini moves

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two important conclusions flow from this.

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

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

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

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

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

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

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

Money, power and the everyday oppression of gender roles

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

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

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

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

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

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

It was only later that I understood her anger.

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

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

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

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

No wonder my mother was sometimes angry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The freedom to be fabulous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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