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Mpshe’s appointment: scandalous attack on independence of the judiciary

Feb 8th, 2010
by Pierre De Vos.
17 comments

Maybe we are all suffering from abuse-of-power-fatigue? What with the probably unlawful dropping of charges against President Jacob Zuma, the probably unlawful firing of Vusi Pikoli as National Director of Public Prosecutions (NDPP), the clearly unlawful granting of “medical parole” to Schabir Shaik – that “terminally ill” (ha!) friend of President Zuma’s - (the same friend who was convicted of bribing the President), the appointment of a clearly unfit Menzi Simelane as the head of the NDPP, and the alleged appointment of world class homophobe and lover of Motata tea, John Qwelane, as ambassador to Uganda, we have become used to actions that undermine our Constitution and the law.

Still, I do not understand why there has not been more outrage about the Mail & Guardian report that Justice Minister Jeff Radebe has been working hard to secure a new job for Mokotedi Mpshe, who was responsible for the dropping of charges against President Jacob Zuma. Radebe has now finalised Mpshe’s appointment as acting judge in the North West Provincial Division after first trying to get him a post in the Western Cape. This sets him on a path towards a more permanent position on the Bench.

There are three reasons why this appointment is scandalous and perhaps unlawful.

First, while section 175(2) of the Constitution states that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve”, this provision must be read in the light of the separation of powers doctrine and the constitutional guarantee of judicial independence. The present convention that gives effect to these principles is that the Judge President identifies candidates for appointment as acting judges and that the Minister then appoints them. The Minister is not supposed to canvass for a particular candidate. 

This convention finds strong constitutional support in section 165(2) and (3) of the Constitution and the power of the Minister is in effect qualified by these provisions which states:

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

Judges need to be both impartial and independent. Even when they will be impartial it does not mean they will be independent. Because judges – even acting judges – might be called upon to hear cases in which the government of the day has an interest or is a party to, the separation of powers doctrine and the guarantees of an independent and impartial judiciary require the Minister not to take an active role in the appointment of acting judges.

If the Minister took an active role in such appointments and if that judge then later has to hear a case in which the government of the day has an interest, it would be akin to the Minister having chosen a judge to hear the government’s case and this would fundamentally erode the independence of the judiciary. This is because there would be a reasonable apprehension that the judge, who was only appointed because the Minister put pressure on the Judge President to appoint him, would not act without fear, favour or prejudice. 

Second, in this case the problem is compounded by the fact that Mpshe was the acting head of the NDPP who controversially did the President and the governing party a HUGE favour by dropping all charges against its candidate for President shortly before the election. What is worse, he justified his decision by plagiarising an overturned Hong Kong Court decision and without referring at all to the prosecution policy to which he is constitutionally bound and which should have guided him in the decision.  One would have to be very gullible not to have serious doubts (in law we would call it “a reasonable apprehension”) about the independence and impartiality of Mpshe and of his ability to resist political pressure.

Lastly, Mpshe I am told is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!

In the case of Law Society of Lesotho v The Prime Minister and Another the Lesotho Appeal Court nullified the appointment of an Adv Peete, a member of the Attorney General’s Office, as an acting judge, affirming the principle that justice should not only be done but should be seen to be done. “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”, the court said and continued:

Peete AJ’s official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors!

The independence of judges does not only rely on the question of whether an appointee will indeed be impartial in his judgments and capable of acting independently, argued the court. The public’s right to feel confidence in the independence of judges is in itself part of the concept of independence. Where a current member of the NPA is appointed as acting judge the public would have no such confidence. Where that man is also the man who took a highly controversial decision to let the most powerful citizen off the hook and save his political bacon, the situation could not be clearer.

It may be that Mpshe will act in an exemplary fashion as acting judge. He may display the kind of impartiality we can only dream of. After all, as an apartheid Minister of Justice once remarked: “The problem with these judges are that once they are appointed they think they are there on merit and they start thinking for themselves”.

This is not the point though. The point is that the appointment of Mpshe and the involvement of the Minister undermines respect for the independence of the judiciary (which is distinct from the impartiality of a particular candidate) and creates a reasonable suspicion that Mpshe is being rewarded for unlawfully dropping charges against the President. Whether this is true or not, it creates a reasonable apprehension of bias on the part of the particular acting judge and undermines the independence of the judiciary.

This appointment is an unseemly and probably unlawful one. The Bar Council, surely, has a duty to take up this matter and challenge the appointment in court if need be? The integrity of our legal system is surely at stake.

Posted in: Constitution, Governance, Jacob Zuma, Judiciary, NPA, Uncategorized.

Zapiro on President Jacob Zuma

Feb 5th, 2010
by Pierre De Vos.
16 comments

05feb10xzapiro

Posted in: Jacob Zuma, Zapiro.

Let’s stand up against the racists and the Kebbilists!

Feb 5th, 2010
by Pierre De Vos.
33 comments

Two reports on very distinct issue caught my eye this morning. Could this be the wake-up call we need – after an embarrassing week in which we all had to come to grips with the irresponsible and seemingly insatiable appetites of our President? First, the Daily Dispatch – that feisty newspaper in the Eastern Cape who fearlessly exposes the nepotism and corruption of the government in that province - reported that the Eastern Cape provincial Health Department has gone bust with debts of R1.8 billion, and cannot pay creditors or nursing staff their special payments until the new financial year. 

As part of a dramatic clean-up of its finances the province will also disband its existing bid evaluation committees, Health Department spokesperson Sizwe Kupelo confirmed.  According to the Daily Dispatch the shock announcement is a forerunner to further drastic action when heads may roll and resignations are expected. About time, some would say.

Then I read in a Business Day report that Deputy President Kgalema Motlanthe said yesterday (standing in for the rather fatigued President Zuma) that the government could no longer tolerate the current status of Black Economic Empowerment (BEE), which in the past 15 years had benefited a handful of individuals.

 “Only a few benefited again and again from the bounty of black economic empowerment,” he said. The “truly marginalised” — women, the rural poor, workers and the unemployed — were left on the sidelines. It was important to look at BBBEE beyond business deals and shareholding in companies, to include equipping people to run their own businesses. “More must be enrolled in skills training and more should have access to arable land.”

Juxtaposing these reports seems to go to the heart of many of the problems faced by South Africa and by the government of the day. Let’s face it: the government seems to be caught between a rock and a hard place.

On the one hand, there is an ethical, political and constitutional imperative to speed up the racial transformation of all sectors of the economy and society (the state having been thoroughly transformed already). This transformation has not happened in the manner one would have wished. A few well-connected individuals have made billions from government contracts and BEE deals and some others have landed cushy government jobs.

But the vast majority of South Africans have not benefited from so called Broad Based Black Economic Empowerment (BBBEE) or from affirmative action policies – both because of resistance to racial transformation by certain members of the white community and because of greed and nepotism on the part of members of the new, politically well-connected, elite.

On the other hand, there are grave dangers inherent in speeding up this process of transformation – as the lack of service delivery in the state sector clearly shows. Because we are still struggling with the corrosive consequences of apartheid and the Bantu education system, because our post-apartheid education system is not working properly and are not producing enough highly skilled black graduates and technicians, and because a culture of nepotism, corruption, laziness and greed has taken hold among many who see their friends and family unjustifiably benefiting from BEE deals and government contracts without having had to do any work, the speeding up of transformation often has disastrous consequences.

People who are incompetent, lack the necessary experience and skills or the necessary commitment to service delivery, are often appointed to “affirmative action” posts in the civil service because they happen to have family connections or are close to politicians or senior officials.  This leads the kind of mess we now see in the Eastern Cape health department.

Make no mistake (as President Barack Obama likes to say) poor and vulnerable people – like many of the long-suffering citizens of the Eastern Cape who depend on the state health system – suffer most when transformation fails to produce a better life for all. The acknowledgement of our Deputy President that part of the solution is more education and skills training, is therefore a good sign.

At least some in the government (those who have not bought into the tenderpreneurial culture, and the Kebbilism, spouting fake populist slogans while driving around in million Rand cars) understand that given our history and the present state of our education system, there is a tension between the very real need to speed up transformation and the need for effective and efficient service delivery.

The only way to deal with this is to invest financial and human resources into education and training in both the public and the private sector. Teachers who are unable to teach properly should be retrained and those who do well should be rewarded (but for that to happen the government will have to stand up to the South African Democratic Teachers Union, something it is probably too scared to do). Businesses must be forced to invest in training and skills development and ways should be found to punish – rather than reward – the kind of window dressing affirmative action and fronting that some of them engage in.

What we as a society need to do is to agree on some kind of social pact. Some white people who still resist transformation and cannot see that their own interests – along with the interests of their fellow South Africans – depend on the implementation of successful transformation measures, should stop their nonsense and come to the party. We should all confront the explicit or implicit racism that informs the views of such people who often believe deep down that black people are not as capable as whites merely because of the colour of their skins.

But that would not be enough.

Some black people who pretend that there are no skills shortage and that there are no problems with the way in which BEE and affirmative action are sometimes implemented, should face up to these facts and should acknowledge the problems. (Luckily some in the government are already doing so, but they are in a life and death struggle with the tenderpreneurs and Kebbilists who chooses short term personal gain for themselves over long term prosperity for all.)

So why do we not call a truce on this silly debate on affirmative action and BEE and all agree that it is not only an ethical necessity but also an absolute requirement for the long term success of our country? Then we can start to devise ways in which we can implement these policies in a way that will not favour the few greedy Kebbilists, but the majority of us – black and white – who wish to see a prosperous and growing country in which no one goes hungry, everyone has a house and all children (even all the known and unknown children of our President) get a good education that will allow them to reach their full potential.

Posted in: ANC, Kgalema Motlanthe, corruption, discrimination.

Did the President lie about his “wives”?

Feb 3rd, 2010
by Pierre De Vos.
97 comments

Did President Jacob Zuma lie about his marital status in an official government document, or did he lie to the nation about the number of wives he is married to? And what is the legal status of President Zuma’s various formal and less formal liaisons with women who happens to be his sexual partners?

The Times reports this morning that a document purporting to be a copy of the application for a birth certificate for the latest Zuma baby has the answer “yes” in reply to the question: “Are the parents of the child married to each other.” The document is date stamped January 19 – two weeks after Zuma married Tobeka Madiba, who he then claimed to be his fifth wife.

At first blush it would appear that if The Times story is correct, Zuma either lied when he completed and signed the application for the birth certificate or that he lied when he stated that Tobeka Madiba was his third consecutive wife. It might of course be that some dark forces out to destroy Zuma fabricated the application for the birth certificate and forged Zuma’s signature on it. Stranger things have happened in this country. But this would only be the case if those forces are rather close to Zuma because the application contains the personal phone numbers of both Zuma and the mother of his child as this information was provided on the application.

However, there is also another manner in which to explain away the apparent lie. It might also be that Zuma had married the mother of his most recent child (as far as we know) in a private ceremony in terms of traditional Zulu custom but had not registered the marriage as required by the Recognition of Customary Marriages Act.

Mr Zuma would then be married in terms of Zulu custom, but not in terms of the law as set out by the Recognition of Customary Marriages Act. This would mean that he would be able to claim that, strictly speaking, he did not lie because he was legally married to only three women but married in terms of Zulu custom to four women. This would allow Zuma to claim that both the statements during his most recent wedding and the statements on the birth certificate application were true.

This last defence would be a good one as far as semantic gymnastics are concerned, but it would place a serious question mark over Mr Zuma’s assurances at Davos last week that he believed in the equality of women. It would also place a serious question mark over his respect for the law. This is because a spouse who enters into a customary marriage has a legal duty in terms of the Act to register that marriage within a period of three months.

More pertinently, where the husband is already married to one or more other wives, the Act places a duty on him to make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.  The existing wives and prospective wife must be joined in such an application and they can make any input to the court. The court can then amend the contract in such a way that it would ensure an equitable distribution of the property between the spouses.

If the President (or anyone else, for that matter) entered into a customary marriage it would be extremely important for them to register the customary union and to make the necessary application to court to ensure that a contract providing for an equitable distribution of property is approved by the court. Failure to fulfil these legal obligations would fundamentally undermine the legal position of one or more of the wives and would display an utter lack of respect for women’s equality and would potentially subject one or more of the wives to humiliation and deprive them of their dignity.

As the Constitutional Court stated recently in the Gumede judgement, before the advent of the new Act  there was “a stubborn persistence of patriarchy and conversely, [this resulted in] the vulnerability of many women during and upon termination of a customary marriage”. The Act represents:

a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country… The legislation … seeks to jettison gendered inequality within marriage and the marital power of the husband by providing for the equal status and capacity of spouses….

The legislation not only confers formal recognition on the marriages but also entrenches the equal status and capacity of spouses and sets itself the task of regulating the proprietary consequences of these marriages. In doing so, the Recognition Act abolishes the marital power of the husband over the wife and pronounces them to have equal dignity and capacity in the marriage enterprise.

In order to establish whether President Zuma is a sexist patriarch or whether he really respects gender equality, it would be helpful if he told the nation whether he had indeed registered all his customary marriages as required by the Act and whether he has made an application to court to ensure an equitable distribution of property between the spouses. Obviously if he has not adhered to the law he would not only be showing a complete contempt for the law but also an inherent contempt for women.

On the other hand, if the President provided evidence of the fact that he had registered all his customary marriages and that he had been granted an order by the court confirming a fair arrangement regarding the distribution of property between the spouses, he would probably gain some new respect and his assurances at Davos about his support for gender equality might carry a little more weight.

As matters stand now, responsible citizens have far too little information to make informed decisions about the conduct of the President and what it says about his character (or lack of character). This is not our fault, but rather the fault of the President and his advisors who insist that this is a private matter.

Although the Presidency is now trying to avoid accountability by changing the subject to one of his alleged right to privacy, this is not a private matter – no matter what the Presidency and the ANC claims. If the President does not provide us with the necessary information people will jump to conclusions – whether those conclusions are correct or not – and the image and standing of our President will suffer as a result.

Posted in: ANC, Dignity, Jacob Zuma, discrimination.

Twenty children and counting

Feb 2nd, 2010
by Pierre De Vos.
100 comments

The ANC wants us to believe news that President Jacob Zuma has fathered yet another child out of wedlock (and hence that he has had sex with yet another woman who is not one if his wives without using a condom) is a private matter. Presidency spokesperson Vincent Magwenya is quoted as saying that Zuma’s right to privacy: “had clearly been violated…. Does the public’s right to know reign supreme over the individual citizen’s  constitutional rights regardless of who they are,” Mgwenya fumed.

Mgwenya’s statement is shockingly anti-democratic and ill-informed. The fact is that President Zuma is not a private citizen like everyone else. He is the leader of the largest party in South Africa and President of the country. As the Constitutional Court has made clear, the right to privacy – like all other rights – are not absolute and not everyone can claim an absolute right to keep their private lives secret, regardless of who they are.

The more public a figure, the less privacy he or she enjoys. If private actions could have public consequences, a public figure enjoys very little privacy regarding those particular actions as this would impoverish our democracy as it would deprive us of information needed to form opinions about our political leaders.

The President is not an ordinary citizen. We pay his salary and we have a constitutional right to know whether his behavior is such that we would want to vote for the party he leads. To argue that this is a private matter is to argue that citizens do not have the right to know what their leaders get up to and what kind of characters they have. It is also to argue that our right to vote for the party of our choice in an informed manner should be trumped by the right to privacy of a man who has chosen to take up the position of president of the country – thereby forfeiting some of his privacy rights.

The view expressed by the ANC is reactionary and disrespectful of voters and if adhered to will potentially hold severe negative consequences for the quality of our democracy. Because Zuma is a public figure and a main player in our politics, he has forfeited some of his privacy. If the ANC does not believe this, they clearly have contempt for the dignity of voters and for the right of voters to make informed choices. The view espoused by Mgwenya thus poses a danger to our democracy and must be rejected with contempt.

The same can of course not be said for the baby President Zuma fathered. That baby did not choose to be fathered by the President and has a right to privacy. It would also be in the best interest of the child to keep his or her identity secret. The Sunday Times was therefore wrong to publish the full names of the baby.

The second – and distinct – question is whether the news that Zuma has fathered another child out of wedlock should be relevant for us when we make choices about whom to vote for. I am not a particularly moralistic person, so personally I would ordinarily say that the sexual adventures of a politician should have little or no bearing on his or her political standing. Normally the fact that a politician had an affair or fathered a child out of wedlock would say very little about his or her ability to govern the country and should not really be of great interest to us voters.

But this changes where the private actions of the politician directly contradict his or her public utterances and the policy positions of the party he or she belongs to or – in the case of President Zuma – leads. When that happens, a politician shows that he or she is a hypocrite and that we cannot trust a word he or she says and, hence, that he or she lacks the necessary character to be a political leader who should enjoy our trust. For example, if the leader of a Reborn Christian party who rails against homosexuality has a gay affair, we should condemn that politician – not because of the gay affair but because of the sheer hypocrisy of the man. Why would we ever believe anything that politician says ever again?

This is why the news of President Zuma’s love child is a big deal.

Our President has made many statements which directly contradicts his private behavior. Talking to religious leaders before the election he said that: “we need to teach our people to fear God… There are many other examples, which illustrate that the historical association of the ANC and the Church cannot be doubted. The ANC practically derived its moral vision from the church amongst other sources”.

As far as I know, very few people believe in a God that condones promiscuity and extra marital affairs, and the moral vision of the church is surely not one that condones extra-marital affairs and fathering children out of wedlock. This creates the impression that our President is a hypocrite who says one thing to church leaders (and pretends that the ANC  he leads has a vision in line with church teachings) when he personally does not adhere to that vision. This is usually called lying. I wonder what Ray McCauley (who is just about the divorce his second wife!) thinks about this behavior?

Last year President Zuma also made a brilliant speech on World Aids Day and many of us praised him and commended the ANC for this fresh approach to the disease. The ANC Youth League even launched a “one girlfriend, one boyfriend” campaign as part of this fresh approach to HIV prevention. Zuma himself said:

Our message is simple. We have to stop the spread of HIV. We must reduce the rate of new infections. Prevention is our most powerful weapon against the epidemic… All South Africans should take steps to ensure that they do not become infected, that they do not infect others and that they know their status. Each individual must take responsibility for protection against HIV. To the youth, the future belongs to you.

It does not mean that we should be irresponsible in our sexual practices. It does not mean that people do not have to practice safer sex. It does not mean that people should not use condoms consistently and correctly during every sexual encounter. We can eliminate the scourge of HIV if all South Africans take responsibility for their actions.

After the recent revelations it is far from clear whether President Zuma actually meant what he said. Perhaps President Zuma and the mother of his child both had an HIV test before they started having unprotected sex, but if that is the case we have a right to know. In the absence of such knowledge we will surely be forgiven for believing that the President is an unprincipled hypocrite who says one thing in public and commits the ANC to one policy and then does exactly the opposite in private.

At the very least President Zuma must tell us whether he was irresponsible in his sexual practices and whether he has taken steps to protect himself and his sexual partners from HIV infection. He should tell us whether he has had any other extra-marital sexual relations and whether he has fathered any other children out of wedlock. If he does not, the voters will be well within their rights to judge the President harshly and to conclude that he is a man who cannot be trusted, a man who would say anything to get elected – even if what he says is exactly the opposite of what he does.

This goes to the heart of the character of our President. Either he can be trusted and we can believe what he says, or he cannot be trusted and we should assume that he is a pathological liar. When his private actions suggest that he cannot be trusted, voters have a right to know about those actions. Moreover, they also have a right not to vote for him at the next election – not because he is less “moral” than Mother Theresa, but rather because he is not honest.

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

Cwele should step aside

Feb 1st, 2010
by Pierre De Vos.
22 comments

The arrest of Sheryl Cwele, wife of the Minister of State Security Siyabonga Cwele, on drug trafficking charges is in many ways a remarkable event. Cwele and co-accused  Frank Nabolis (who, playing into  prevalent xenophobic attitudes, have consistently been identified by the media as a Nigerian) face three charges: dealing or conspiring to deal in drugs; procuring a woman to collect drugs in Turkey and arranging for another woman to smuggle cocaine.

Given the (probably unlawful) manner in which charges against President Jacob Zuma was dropped, and the unceremonious manner in which Parliament got rid of the Scorpions who had the cheek to go after ANC bigwigs, many South Africans would have formed the firm impression that politically well-connected individuals are above the law.

The arrest of Cwele, whose husband is South Africa’s spy chief and thus a very powerful member of the cabinet, signals that the criminal justice system is not nearly as corrupted by political nepotism as one might have suspected. Regardless of whether Cwele is eventually convicted or not (a matter for our courts to decide on), it bodes well for the system that such a high-powered and well-connected individual could be arrested on suspicion of drug trafficking. Somewhere, somehow, some people are doing their jobs, which comes as a great relief after the trauma of the Zuma stitch-up.

Sadly, the government has not dealt with this potential scandal in the most effective and wise manner. I happen not to agree with national Police Commissioner Bheki Cele, who recently lambasted e.tv for broadcasting claims by alleged criminals (who, like Cwele, must be presumed innocent until proven guilty in a court of law) that they will target tourists during the world cup. ”A friend of a criminal is a criminal – e.tv clearly is a crime kisser. They’ve exposed themselves as such,” Cwele said at the time.

If one follows Commisioner Cwele’s “logic” (I use the term rather loosely here), our Minister of State Security is a criminal as he is actually married to someone who is alleged to have committed a crime. That is of course nonsense. Minister Siyabonga Cwele is not a criminal merely because his wife is being charged with drug trafficking.

We simply do not know what transpired in the Cwele household, whether the Minister had any inkling of his wife’s alleged nefarious activities or whether the Minister had been asked by his wife to use his power and influence to try and prevent her arrest. The Police Commissioner obviously thinks differently, but it would be unfair to judge or punish Minister Cwele on the basis of what his wife might or might not have done.

However, this does not mean that the arrest of the Minister’s wife is a private matter. It was therefore rather unwise of the government to avoid all comment on the matter and to pretend that this very embarrassing and politically explosive arrest of the Minister of State Security’s wife never happened. Given the fact that the Ministers are constitutionally accountable to Parliament and indirectly to the public at the very least the Minister had a duty to the public to reassure us and to issue a statement in which he made it clear that – without prejudging the case against his wife in any way – he wanted to state categorically that he personally had absolutely no knowledge of any alleged drug trafficking.

The President also had a duty to meet with the Minister to talk about the possible need for the Minister to temporarily step aside. Section 96(2)(b) and (c) of the Constitution states that Members of the cabinet may not:

act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

This obligation on Ministers regarding conflicts of interest is quite stringent. In this regard the Constitution is quite clear: Regardless of whether there is indeed an actual conflict of interest or not, a Minister has a constitutional duty to avoid any situation where there is a mere RISK of a conflict of interest between his official duties and his private interests.

One assumes the Minister has a private interest in seeing that charges against his wife are dropped or at least that she is acquitted of the charges. But the Minister is also officially the spy chief with access to wide network of spies who – we know from the Zuma saga – can eavesdrop on prosecutors and witnesses and could potentially influence the outcome of the case. The question is not whether the Minister will indeed abuse his power to try and find out more about the case against his wife or to try and undermine the state’s case. The constitutional question is whether there is any risk that this may happen.

Clearly there is such a risk. Saying this does not in any way prejudge the matter as one is not making any comment about the honesty and integrity of the Minister. Instead, one is stating an objective fact, namely that a risk of a conflict of interest exists. This means constitutionally speaking, the Minister has a duty to step aside from his post until the case against his wife has been concluded. If he fails to step aside he will inevitably be embroiled in a situation where there is a risk of a conflict of interest between his official responsibilities and his private interests.

Such a move would in no way signal that the Minister’s wife is guilty or that the Minister himself is somehow to be punished for something that his wife is alleged to have done. It would merely uphold the Constitution which requires a Minister to avoid any risk of a conflict of interest. This might be hard on the Minister – as it is hard on the spouse of any person charged with a crime – but it is required by principles of good governance and by the Constitution.

The fact that the ANC-led government has not reacted officially to the news at all and the fact that the President has not met Minister Cwele to request him to step aside temporarily, suggests a failure by the government to appreciate the importance of avoiding the risks of conflicts of interest. It represents a spectacular failure to display respect for ethical and appropriate behaviour by public officials. It also places a question mark over the government’s willingness to abide by the provisions of the Constitution.

Minister Cwele must step aside. If he does not, the government will be flouting the Constitution.

Posted in: ANC, Constitution, Governance.

Fifa World Cup: bad for human rights?

Jan 29th, 2010
by Pierre De Vos.
22 comments

When South Africa won the right to host the 2010 Fifa World Cup many of us danced in the streets (in a manner of speaking). Finally, we had won the right to host a really major international sporting event (no offence to rugby and cricket, but those World Cups were Micky Mouse compared to the Fifa event.)

We all remembered the Zapiro cartoon published after Cape Town lost the bid to host the 2004 Olympics to eventual host city, Athens: A dejected Capetonian dragging a “Cape Town 2004″ banner behind him is seen saying: “Athens se ma se….” Now it would be our time to shine on the international stage – and make some money too.

How naive we were.

We did not realise that Fifa was a rather shadowy body with authoritarian tendencies. We did not realise then that the Fifa fat-cat executives cared little about South Africa and its people and very much about making obscene profits while placing impossible demands on the host country. 

Fifa demanded that the Cape Town soccer stadium be built in Greenpoint and not where it was needed in Athlone because it would look good on TV – and the city jumped. Fifa demanded that host cities do something about “the homeless problem” – and once again the host cities jumped, embarking on probably illegal action to intimidate the most vulnerable and marginalised in our society and arresting and intimidating the homeless.

Now we learn that Fifa is imposing impossibly draconian conditions on journalists who wish to be accredited with Fifa.

Fifa’s terms and conditions for the accreditation of journalists state that news organisations may not “harm the reputation of the Fifa World Cup” or “engage in conduct which expresses … charity or ideological concern (sic) related views, which could impair the enjoyment of the Fifa World Cup by other spectators, or detract from the sporting focus of the Fifa World Cup”.

Well, I have news for Fifa: these conditions are most probably unconstitutional. Unlike in many other constitutional democracies, our Bill of Rights does not only apply to the state. Because the drafters of the South African Constitution understood very well how individuals and powerful organisations like Fifa could infringe on the rights of ordinary citizens, it ensured that the Bill of Rights applied not only vertically (protecting us from abuse of power by the state) but also – in certain circumstances – horizontally (protecting us from the abuse of power by private individuals and institutions).

This does not mean that I cannot chase someone from my house if he or she makes a racist statement on the grounds that I would be infringing on that person’s right to freedom of expression. After all, limiting a person’s freedom of expression to say what he or she likes in my private home will have no consequences for our democracy, for the free flow of information and for the public’s right to know what is going on in the country.

It does mean, however, that Fifa is probably constitutionally prohibited from imposing such draconian restrictions on journalists.

The difference between my two examples is that Fifa is an extremely powerful body and holds a near monopoly on providing access to journalists to report effectively on the World Cup. Journalists who do not get accreditation from Fifa would be at a distinct disadvantage when reporting on the World Cup and they are therefore placed in an untenable position: either agree to the Fifa censorship or lose out.

But if journalists cannot report fairly and accurately about Fifa and the World Cup because they are forced by Fifa to censor themselves, the right of the general public to be fully informed about the World Cup and to be told both the good and the bad things about it would be severely limited. I suspect this kind of censorship that Fifa wishes to impose therefore unconstitutionally limits the right to freedom of expression and a free media guaranteed in section 16 of the Constitution.

Lawyers for the big media houses have written to Fifa to point this out to them, so the ball is now in Fifa’s court. One suspects they will play hardball and will try and intimidate the media to enforce their censorship on everyone. After all, Fifa is used to getting its way. Hopefully the media will stand its ground and will go to court on behalf of the nation as a whole to ensure that our news on the World Cup is not censored in the way.

This World Cup is not a private affair. Billions of Rand of public money have been spent on the World Cup in building stadiums and upgrading infrastructure and much more of our money will be spent on security for the event. South Africans therefore have a right to know about both the good and the bad things about the World Cup and about Fifa.

If Fifa demands from the government that it arrest protesters or remove the homeless from the streets, journalists should be free to report on this and should not fear that their accreditation will be revoked if they tell us about it.

Obviously Fifa would not like this – just as governments generally do not like this. But luckily we live in a constitutional democracy where even a bully like Fifa has to play by the rules. Let the games begin.

Posted in: Constitution, Freedom of expression.

Nationalisation of the Reserve Bank?

Jan 28th, 2010
by Pierre De Vos.
21 comments

I was rather intrigued by news reports that Gwede Mantashe, Secretary general of the ANC, has hinted that the ANC-led government should consider nationalising the South African reserve Bank (SARB). Mantashe said that the “South African Reserve Bank is one of less than five central banks in private hands in the world”.

My first thought was a rather naive one: Surely that cannot be right? How can the SARB be privately owned? And if it is privately owned, who owns it and how can I buy some of those shares (that is, assuming I had any money to buy the shares with)? It would be rather nice to say I own part of the South African Reserve Bank and, I imagine, it would be a rather safe investment.

Well, Mantashe was right – sort of. When the SARB was established it was common practice for central banks to have private shareholders and as the Bank explains on its website:

The ownership structure of the SARB, however, has not been amended since its inception. It is a juristic person in terms of its own Act. The SARB has some 600 shareholders and its shares are pre-dominantly traded on an over-the-counter trading and transfer facility. The SARB is one of only nine central banks with shareholders other than the governments of their respective countries.

So, does this mean that getting rid of those private shareholders is a good idea or that it is constitutionally feasible to nationalise the SARB?

Section 224 of the Constitution states that the primary object of the SARB “is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic”. In pursuit of this objective, it “must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters”.

The constitutional position of the SARB is thus quite similar to that of the National Prosecuting Authority (NPA): its independence is constitutionally guaranteed and the government of the day is prohibited from interfering with the day to day running of the Bank or any of its decisions. (Menzi Simelane, the man purportedly appointed by President Zuma to head the NPA, might of course disagree with this blindingly obvious constitutional fact – either because he is very ignorant or very dangerous – but that would not change what the law says.) At the same time the Bank is required to interact with the government to ensure that the broad policy objectives of the Bank and the government are aligned.

Nationalising the SARB will not change this at all – unless the Constitution is amended to abolish the independence of the SARB to allow the Bank to follow the instructions of the government of the day. If Mantashe meant to say that it was perhaps necessary to abolish the independence of the Bank, he was obviously smoking the strong stuff from Swaziland or the former Transkei because we all know what will happen if the Bank started acting in the interest of a strong clique within the governing party.

If that happens the Bank will start to print money to finance the lavish lifestyles of the right kind of party faithful and to buy the loyalty of cadres and before we know it we will all become Rand millionaires and acquire terrific numeracy skills (without any assistance from the Minister of Education), as we will be running around with R10 00000000000 notes in our pockets to pay for a loaf of bread.

It does seem rather strange that the SARB has private shareholders though, but in practice this makes no difference to how the Bank operates. While seven of the fourteen members of the Board are appointed by the President and seven more are appointed by shareholders, the Governor of the Bank has a deciding vote on the Board, giving control of the bank to those appointed by the President. Shareholders cannot remove the governor or the other members of the Board and have very little power over the Bank.

The SARB Act can be amended without any constitutional problem to abolish private shareholding in the Reserve Bank – as long as those shareholders are adequately compensated. But, once again, this will make no difference to how the Bank operates as its independence is constitutionally guaranteed.

The “debate” about the nationalization of the Reserve Bank is therefore a red herring to hide disagreement in the ANC about more fundamental economic questions within the ANC alliance.

The larger economic question (which I am not in a position to address) is whether the Bank’s broad policies on inflation targeting, agreed to by the Bank and the Minister of Finance, is good or bad for the working poor and the unemployed. Those who are calling for the nationalisation of the Bank should rather engage the Minister of Finance (who the last time I checked was a communist) about the broad government policy framework on inflation targeting and interest rates if they wish to change the policies of the Bank.

Nevertheless, if anyone has some Reserve Bank shares they want to give away in the name of transformation I will be happy to accept on the basis of representing the gay and lesbian lobby! Given the overwhelming influence of money on our politics (Tokyo Sexwale gave lots of shares to influential opinion makers – remember Xolela Mangcu? – to buy some good publicity for himself and for Jacob Zuma) one of those Reserve Bank shareholders might believe if they give me some shares I will sing the praises of one politician or another.

I am happy for them to think that giving me shares will help their cause and will gladly take the shares – and then write exactly what I like in any case.

Just a (tongue in cheek) thought.

Posted in: ANC, Constitution, Gwede Mantashe, Jacob Zuma, NPA.

More questions on the AbaThembu King

Jan 26th, 2010
by Pierre De Vos.
8 comments

Very few people – least of all anyone in government – seem to be taking seriously the claim by Votani Majola, lawyer for King Buyelekhaya Dalindyebo, that the AbaThembu tribe had seceded from South Africa. This is curious, given the fact that Dalindyebo was confirmed as the only King of the AbaThembu in 2008 by a Commission set up in terms of the Traditional Leadership and Governance Framework Act.

Dalindyebo’s actions might seem laughable, but he has quite an impressive family history and one would suspect the reason why the authorities are not making a big noise about this is that they do not want to inflame the passions of some of the Kings subjects. Dalindyebo is a descendent of Paramount Chief Sabata Dalindyebo who resisted efforts by Kaizer Matanzima to co-op him into supporting “independence” for the Transkei. Matanzima did everything in his power to depose Sabata as paramount chief.

Ironically Mantanzima succeeded only in 1980 when a Transkei court found Sabata guilty of violating and injuring the dignity of the state president. Sabata had told a gathering of more than 1 000 people at his Sithebe Great Place that he had refused an offer from Matanzima to become the first president of Transkei because homelands were “pigsties and dummy institutions”. Sabata fled the Transkei and ended up in Zambia, where he threw in his lot with the African National Congress and later died.

Recent events are therefore – to say the least – rather ironic. The media reported last week that Majola, the lawyer for the AbaThembu king, had served a “secession notice” on Parliament and quotes Majola as saying that the “AbaThembu Tribe have seceded from South Africa. The sooner the nation aligns with this reality and start preparing to form the State of Thembuland the better”. Majola said the nation was no longer part of South Africa and that the ANC-led government would have no say in the new independent state, which would be headed by Dalindyebo.

Dalindyebo was sentenced in the Mthatha High Court in December for crimes including culpable homicide, kidnapping, arson and assault with intent to do grievous bodily harm. He is obviously a rather eccentric character because he claimed R80 billion in compensation from the government for the indignity he suffered when he was sentenced to a term of 15 year imprisonment. Some analysts also claim that Dalindyebo is being persecuted because many of his subjects voted for the UDM in previous elections.

Obviously, the statements of the King’s legal representatives and the delivery of a secession note will not have any legal effect and Dalindyebo and all his subjects remain South African citizens. In the absence of specific unlawful acts by Dalindyebo or his subjects to undermine the authority of the South African state, it is thus understandable that the government is pretending this farce is not really happening.

But a few interesting legal questions do arise. The King is being paid almost a million rand a year by the South African government in accordance with the Remuneration of Public Office Bearers Act, which provides for the payment, amongst, others, of Kings and other traditional leaders. What will happen if the South African government stops paying him on the basis of his own claim to secession? I suspect the government could not stop payment as the secession is not legally valid and Dalindyebo thus remains the King – despite all the bluster by his legal representative.

But section 10 of the Traditional Leadership and Governance Framework Act does provide for the removal of a King, in which case he will lose the payment. This can happen where a King has been convicted for an offence and given a sentence of imprisonment for more than 12 months and the Royal family requests the President to remove the King. In such a case the next in line to the throne will be invested as the new King.

One wonders whether the present posturing does not have to do with the internal politics of the Royal family and whether the King is not trying to pre-empt any effort to remove him as King.

Lastly, a larger set of questions comes to mind: why is it that the South African tax payer is paying kings and traditional leaders such exorbitant amounts of money? What value do we get for our tax money from this system? What is it exactly, say, that King Goodwill Zwelethini does that warrants the payment of large amounts of public money to him to furnish a lavish lifestyle? Is the notion of Kings, kingdoms and traditional chiefs to be squared with a constitutional democracy at all or is it not profoundly undemocratic?

I am a Republican at heart and have always thought it was utterly ridiculous that Britain had a Queen who dressed up in funny hats, spoke in a constipated accent and travelled around her country opening factories while smiling benignly and waving to the crowds. Surely in a democracy one should not be considered better than anyone else merely because you were supposedly born to be a King or a Queen? So why do we have this same ridiculous notion in South Africa, given the fact that the traditional leadership system in our country have been thoroughly corrupted by colonialism?

The ANC used to be opposed to these anti-democratic leaders who are part of a system that was bastardised and exploited by the colonial masters and later by the apartheid government to ensure white control over the local population. But in recent years the ANC has decided to embrace the traditional leaders and has forgotten its own critique of the system which is not really in line with the achievement of the National Democratic Revolution.

What happened?

Posted in: ANC, Constitution, democracy.

BLA in need of a PR makeover?

Jan 25th, 2010
by Pierre De Vos.
72 comments

Some people who have not come to grips with the notion of substantive equality and think that equality is about the equal treatment of everyone under all circumstances, get very cross about the existence of organisations like the Black Lawyers Association (BLA). “It’s racist!” they shout. “It’s discriminatory!” “How very dare they!”

I am not one those people.

In a country where, 16 years after the advent of democracy, less than 20% of practicing advocates are black and where work are often dished out on the basis of links to the old boys network (reinforced by old school tie loyalties, language and racial affinities and prejudices and friendships forged on golf courses), it would be impossible to argue that race and sex do not play an exclusionary role in the legal profession.

Many women and many black lawyers do not do as well as they would have done had they been white men. In that context, it seems perfectly acceptable for an organisation like the BLA to look after the interests of its members and to agitate for changes to the legal profession to contribute to the real transformation of the profession and to eliminate the implicit or explicit racism and the sexism which limits the professional opportunities of (especially young) female and black lawyers.

This is a matter of principle as our Constitution prohibits unfair discrimination based on race and (as the Constitutional Court found in the Van Heerden case) places a positive duty on the State to promote the achievement of equality, by adopting legislative and other measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination in the past”.

I therefore have some sympathy with the BLA who this weekend issued a statement threatening to go to court to force the Ministry of Justice to speed up the process of passing a new Legal Practice Bill. BLA general secretary Babalwa Mantame told a newspaper on the weekend that the BLA was considering launching a “class action” to persuade the courts to force the Minister to introduce the Bill. The report say the BLA has issued a newsletter to its members announcing that the BLA and its partner – the National Association for Democratic Lawyers (Nadel) – would a seek class action against the Justice Ministry over the Bill’s slow progress

The reason for the unhappiness of the BLA is that it believes the Bill – if passed – will give black lawyers more government work. Mantame told the media that Justice Minister Jeff Rabebe and his Ministry were sitting on a key piece of legislation on which work began a decade ago. She said the Legal Practice Bill would – among other things – stipulate employment equity and BEE rules for any law firm wanting government work. Mantame said Radebe had promised to speed up the Bill’s path to Parliament, but with no results.

There are two interesting questions that arise.

First, given the Constitutional Court’s articulation of the separation of powers doctrine in the Glennister case and other judgements, will the court really order the Minister to pass this piece of legislation if the BLA follows through on its threat? I suspect the Court will only consider doing so if it finds that the failure to pass the Bill constitutes a fundamental infringement of one of the rights in the Bill of Rights (in this case the right to equality and the positive duty to pass legislation designed to address the effects of past discrimination in education and in the legal profession).

The problem is that in an obscenely unequal society like South Africa in which much of the inequality is race and gender based, much still needs to be done to address the effects of past discrimination and it would be rather difficult for a court to decide that this piece of legislation is more important than, say, the taking of other measures designed to ensure that the children of poor parents get a decent education or that poor people in Khayelitsha get toilets (but this time with walls).

Why should the court prioritise the needs of middle class black lawyers above the needs of working class and poor citizens who might be far worse off than the lawyers who happen to be members of the BLA? Given this obvious problem I suspect a court challenge will not get anywhere.

Which brings us to a second question, namely whether the BLA could not have framed their concerns in a way that appeared more sensitive to the broader context of poverty and deprivation and thus appeared less selfish and blatantly self-interested. Surely most reasonable people can agree that it is important to address racial discrimination and the effects of racial discrimination in order to build a more just society.

But we can also agree that giving black lawyers more government work will be great for the few black lawyers who have made it but will not really address the systemic problems in our legal system which prevent many young black men and women (and some white women too) from becoming the successful lawyers that will eventually reap the benefits of receiving government work which will, in turn, enable them to drink Moët et Chandon and Johnny Walker Black and drive around in Porsche Cayenne’s.

It seems to me the hard work in transforming the legal profession is less about providing access for a few black lawyers to the untold riches associated with government contracts and more about breaking the stranglehold of the old boys network and opening up access to the profession to a far wider pool of young people of all races and sexes.

Not that I begrudge established black lawyers their work and that I do not think providing them with access to more government work is a good thing. But from an ethical and a public relations perspective the BLA might want to think about the ways in which to frame its concerns so it looks less elitist and self-interested and more principled and concerned about the plight of the poor and the marginalised in our society. 

Posted in: Race, discrimination.

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