Constitutional Hill

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Our own Olivia Pope won’t end corruption

Last week the Constitutional Court confirmed that Parliament had failed to comply with its previous judgment on the unconstitutionality of the legislation that created the Hawks. But the court also reminded us that no amount of legal tinkering could guarantee the unit’s effectiveness in combatting corruption. Institutions do not (on their own) stop corruption. People do.

When Parliament abolished the Scorpions because it was foolhardy enough to pursue corruption charges against President Jacob Zuma and other high profile politicians and replaced it with the Hawks, the move was met with shock and outrage by many of the same people who watch and enjoy the questionable actions of Olivia Pope in the television series The Fixer (Scandal in the US) and the depraved behaviour of Frank Underwood in the House of Cards.

It is as if people believed that an institution like the Scorpions could single-handedly end the culture of patronage that has become entrenched in our political system. The recent judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others reminds us that a corruption fighting body (as well as the courts) – while playing an important role – can only do so much to stop corruption.

The most telling aspect of the judgment can be found in an “End Note”, penned by Justice Johan van der Westhuizen in his partly concurring judgment.

Justice Van der Westhuizen acknowledges that corruption “threatens the very existence of our constitutional democracy” and that effective laws and institutions are needed to combat corruption. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible”.

But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions.  Much dedication is required on the part of those handling the tools.

As Justice Van der Westhuizen points out:

[E]ven the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of – and trust in – the office-bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.

These words should not come as a shock to those who have watched Olivia Pope strut around in her beautiful white dresses “fixing” other people’s problems by delivering stirring speeches, drinking many large glasses of red wine, her bottom lip occasionally quivering with emotion, while her murderous daddy goes around subverting the rule of law in between lecturing Olivia about how political power actually works.

If I understand Justice Van der Westhuizen correctly, he is saying that while institutions like the Scorpions or the Hawks could help to fight corruption if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the democratic process itself.

But that depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the municipal office, the power cuts, the rubbish that remains uncollected in the streets.

This does not mean that an “adequately independent” corruption fighting body could not help to expose corruption. For this reason the Constitutional Court (in a majority judgment authored by Chief Justice Mogoeng Mogoeng) confirmed the unconstitutionality of several sections of the legislation relating to the establishment of the Hawks.

This legislation was amended by Parliament in a failed attempt to give effect to the Constitutional Court’s previous decision declaring aspects of the legislation unconstitutional for not creating and adequately independent corruption fighting body.

When a Bill purporting to give effect to the first Constitutional Court judgment was initially tabled in Parliament, it displayed little enthusiasm for the creation of an independent corruption fighting body.

It was not only that the “quality of the drafting could use some improvement” – as Justice Mogoeng wryly remarked – but also that the original draft did everything to ensure that the politicians remained in control of the Hawks and that the body would not be able to act independently from some of those it may have to investigate.

To its credit the Portfolio Committee fixed many of the clearly unconstitutional aspects of the draft Bill after several experts (full disclosure, I was one of those so called “experts”) pointed out that the draft legislation would never pass constitutional muster.

But, sadly, the Portfolio Committee ignored some of the important points raised during the deliberations, which has now led the Constitutional Court declaring invalid several sections of the legislation dealing with the establishment of the Hawks.

The Court examined each of the impugned provisions to determine whether they militate for or against a corruption-fighting agency, which, though not absolutely independent, should nevertheless be adequately independent in terms of both its structure and operations.  It used the following test to do so:

We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

The majority of the Court declined to declare invalid the section of the law dealing with the appointment of the National Head of the Hawks by the Minister of Police after approval by the Cabinet (Cameron J in a dissenting opinion argued that the section was indeed unconstitutional). However, Chief Justice Mogoeng did provide an interpretation of the section that limits the discretion of the Minister and the cabinet to appoint the Head of the Hawks. The Court emphasised that only a “fit and proper” person could be appointed which means:

that the candidate must have the capacity to do the job well and the character to match the importance of the office.  Experience, integrity and conscientiousness are all intended to help determine a possible appointee’s suitability ‘to be entrusted with the responsibilities of the office concerned’. Similarly, laziness, dishonesty and general disorderliness must of necessity disqualify a candidate…. Since inconsequential experience and character flaws could not have enhanced the prospects of her appointment to that office, if she was nevertheless appointed, then a successful legal challenge may be mounted against that appointment.

The Court did invalidate the provision that allowed the Minister to renew the term of office of the National Head of the Hawks as this would clearly have compromised the independence of the unit. It also declared invalid sections of the law that would have empowered the Minister to suspend and eventually remove the National Head of the Hawks without any involvement of Parliament.

Other provisions of the Act, which gave far too much power to the Minister to decide which crimes could and could not be investigated by the Hawks and how it had to operate, were also declared invalid. The involvement of the Minister, said the Court, would have rendered:

the anti-corruption character of the [Hawks] dependant on whatever the Minister, in the exercise of her discretion, wants it to be.

This would not have been in accordance with the requirement to create an adequately independent corruption fighting body.

The judgment represents delicate balancing act. It is careful to respect, as far as possible, the policy choices made by Parliament, while protecting the “adequate independence” of the Hawks.

Whether this judgment will ultimately bolster the independence of the Hawks will depend to a significant degree on whether the National Head of the Hawks and those working for the unit are prepared to act in a fearless manner to fight corruption no matter where it might be found.

Even the most honest and diligent person would find this difficult to do – unless he or she can depend on support of those in power and, ultimately on that of ordinary voters; the very people who will be directly affected by corruption.

This suggests that until such time as an overwhelming majority of voters reject all forms of corruption – even when this is committed by a politician belonging to the political party they support or by a business leader they respect – the Hawks will not be able to turn the tide against a phenomenon that “threatens the very existence of our constitutional democracy”.

Deal between Ramaphosa and opposition was unenforceable

The collapse of the “deal” between opposition parties and Deputy President Cyril Ramaphosa is not surprising. From a principled constitutional perspective the collapse of the deal must be welcomed. This is because the Deputy President did not have the constitutional authority to make the deal, which remained unenforceable. To enforce the deal would flout the Rule of Law.

It is sometimes difficult to insist on the scrupulous enforcement of legal rules and principles. Many people are tempted to look the other way when the political party or functionary they admire or are loyal to flout the legal rules and constitutional principles. Conversely, many people only insist on a strict adherence to legal rules or constitutional principles when a political party or functionary they dislike flouts the rules or principles.

Because of the fairly widespread lack of respect for Speaker Baleka Mbete among the members of the chattering classes (and because of the increasing chaos in the National Assembly), there were not many people who questioned the “deal” concluded between the Deputy President and opposition parties. For reasons not known to me, it appears that members of the ANC caucus – correctly – did question the appropriateness of the deal.

There are two reasons why the “deal” (which has since collapsed) was a constitutional non-starter.

First, the Deputy President (while a member of the National Assembly) is a member of the executive and as such represents the executive when he engages with members of the National Assembly in his official capacity.

In terms of section 91(4) the Deputy President has been chosen to act as the leader of government business in the National Assembly. Although the rules of the National Assembly require that he be consulted on several issues and although he serves as a member of the Programming Committee of the National Assembly, neither the Constitution nor the rules of the National Assembly accords the Deputy President (as leader of government business) any leadership role in the National Assembly.

The Speaker heads the National Assembly. Constitutionally only the Speaker can make decisions about the affairs of the National Assembly and then only when this is authorised by the Constitution and the rules of the National Assembly. If a deal was going to be struck about the affairs of Parliament, the Speaker was the appropriate person to do so.

This does not mean that the Deputy President may not meet with the leaders of opposition parties. Neither does it mean that he may not – on behalf of the governing party – make political deals with opposition parties. What he is not authorised to do is to make deals with opposition parties regarding the affairs of Parliament. The “deal” reached last week was therefore (for this reason alone) unenforceable and constitutionally invalid.

But, second, even if the Speaker had led the negotiations with opposition parties and had concluded the “deal”, she would not (in a formal sense) have been legally authorised to do so.

Rule 2(1) of the National Assembly states that the “Speaker may give a ruling or frame a Rule in respect of any eventuality for which these Rules do not provide”.

But the problem is that the rules and legislation already regulate the two most important aspects on which the governing party and the opposition differed. It does so in great detail.

These issues are the disciplining of EFF members in terms of the provisions of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 2004 for insisting that the President “pay back the money” and the need for the President to answer questions in the Assembly four times a year.

It may very well be that the disciplinary action taken against EFF members were not “in accordance with a procedure that is reasonable and procedurally fair” as required by section 12(3)(a) of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act.

The EFF members have a more than even chance of persuading a judge that the procedure (prescribed by the rules of the National Assembly) that led to their conviction was neither reasonable or procedurally fair. The judge could then set aside the findings. But neither the Speaker (nor the Deputy President) formally has the legal authority to do so.

But this is not a particularly difficult problem to solve. While the Deputy President and the Speaker does not have the formal legal power to suspend or scrap the findings of the disciplinary committee against EFF members, the members of the National Assembly does have that power. All that is required is support from the majority of Members of the National Assembly.

This is because the National Assembly has the power to either endorse or reject the findings of the disciplinary committee established in terms of the legislation. This means that had the President and the Chief Whip of the ANC been able to sell this aspect of the “deal” to their party, its members could have declined to support the findings of the disciplinary committee against the EFF members. The disciplinary action against the EFF would then have fallen by the wayside.

This is somewhat of a technicality, which means that in practice either the Deputy President or the Speaker would have been able indirectly to deliver on a promise to halt disciplinary action against the EFF if the members of their party had backed them up.

But this is not the case with the requirement that the President must appear in Parliament to answer questions. This is, first, because section 55(2) of the Constitution states that the “National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it”. These executive organs of state include the President.

This obligation is given practical effect to by National Assembly rule 111 which states that:

Questions to the President must be (a) scheduled for a question day at least once per term in accordance with the annual Parliamentary programme; and (b) limited to matters of national and international importance.

The rule is peremptory, which means the President does not have a discretion in the matter. The Speaker must ensure that he is scheduled to answer questions once every term.

Here the rule at first appears to be confusing. A “term” is defined in the rules as “the period for which the Assembly is elected in terms of section 49(1) of the Constitution”. Section 49(1) states that the National Assembly is elected for a term of five years. If “term” is given this meaning every time the word “term” is actually used in the rules, it would render many of the rules incomprehensible and absurd. This is so because the rules often refer to a “term” when it means one of the four periods a year when the Parliament is in sitting.

It would also mean a President would have to answer oral questions in the National Assembly only once every five years. This would clearly be in conflict with section 55(2) of the Constitution, which means the rule must be read differently. This is exactly what has happened up to now.

As I noted, the word “term” is also used elsewhere in the rules to refer the distinct periods in which the Parliament is in session each year. Given the context of rule 111, “term” clearly refers to these distinct periods. Usually there are four “terms” for Parliament every year.

However, this year there was an election, which means when establishing whether the President has complied with his legal obligation set out by rule 111, one has to establish how many terms Parliament was in session this year after the May election.

The Parliamentary Programme for the fifth Parliament elected after the May election states that Parliament sat for three distinct terms after the election. This means that the rules of the National Assembly require that the President answer oral questions in the National Assembly at least three times from June to November this year.

This did not happen.

The President has only answered oral questions in the National Assembly once since the election. He is therefore legally required to answer questions in the National Assembly two more times before the third term of Parliament ends on Friday. This is not going to happen, which means the President (and the Speaker who ought to arrange for this) are therefore in breach of their legal obligations in terms of section 55(2) of the Constitution read with rule 111 of the National Assembly.

Neither the Deputy President (as leader of government business) nor the Speaker has the legal authority to waive these rules. A basic tenet of the Rule of Law is that all peremptory, pre-announced and clear legal rules have to be complied with. In the absence of a court ruling to authorise a non-enforcement of a legal rule, it would constitute a breach of the Rule of Law to ignore such a rule in order to facilitate a political agreement.

This is the thing with peremptory legal rules: they cannot be suspended merely because a few politicians decide that the legal rules are inconvenient or – if applied – would embarrass the President or disadvantage the opposition parties.

What is clear is that there has been a breakdown of trust between political parties in the National Assembly. Without a modicum of trust, the system cannot work properly. Instead of a lively and robust platform for democratic contestation, it becomes a mini-war zone. And in a war, brute force – and not the strength of argument – is the only thing that counts. But politics is not (only) about brute force – at least not in any system with democratic pretensions. If the system does not work, its legitimacy will be compromised. Eventually the legitimacy of the both the governing party and opposition parties would also suffer.

This means that, despite the legal difficulties, some kind of solution need to be found to ensure that the rules are impartially applied and the members more or less obey the impartially applied rules. A starting point would be to ensure the implementation of rule 111 and to arrange for the President to answer questions as required by the Constitution and the rules of the National Assembly.

Why report of Nkandla ad hoc committee is of no legal relevance

Last week the ANC members of Parliament adopted a “report” that “exonerates” President Jacob Zuma of all wrongdoing in the R250 million Nkandla scandal. This is not unexpected. ANC MP’s need to protect the President in order to retain their jobs and to have any chance of promotion in future. It is politically required of them. But Nkandla is not (only) about politics. It is also about facts and the law. And legally the adoption of the “report” by ANC MP’s is of little significance.

The only surprising thing about the fact that the ANC MP’s in the National Assembly “exonerated” President Jacob Zuma of all wrongdoing for “accidentally” being enriched through government funded renovations of his private home near Nkandla, is that anyone was surprised.

President Zuma heads the ANC and is arguably (bar the Secretary General of the ANC perhaps) the most powerful person in the governing party. He has a decisive say in who is appointed as Cabinet Ministers and as Premiers. He has direct or indirect influence on who appears on ANC election lists.

He has extensive knowledge – through control of the intelligence services – of the shenanigans of those MP’s whose private lives or financial affairs may not be above board. And like the members of most political parties, ANC MP’s act as a collective in terms of decisions taken by the leadership, headed by President Zuma.

It would therefore have been political madness for ANC MP’s to endorse the findings of the Public Protector’s Report on Nkandla which found that President Zuma’s:

failure 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.

Section 96 of the Constitution states that Members of the Cabinet – including the President – have a constitutional duty to act in accordance with a code of ethics and may not “use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”. In other words the Public Protector found that by failing to act when he had a constitutional and legal duty to do so, the President breached the Constitution and the Code of Ethics.

The Public Protector’s Report continued to direct President Jacob Zuma to do the following to rectify the unethical and unconstitutional omission:

  • Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW 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.
  • Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
  • Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.
  • Report to the National Assembly on his comments and actions on this report within 14 days. (This needed to be done because the Executive Members Ethics Act required it.)

These steps were not directed at Parliament but at the President. Because of the separation of powers doctrine, which holds that the legislature and the executive exercise different powers and functions, the central duties and powers of the head of the executive (the President) cannot be delegated to Parliament.

To do so would be to breach the separation of powers. Similarly the central duties and powers of the legislature cannot be delegated to the President. This was made clear by the constitutional Court in their judgment in Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others.

The renovations at the Nkandla home were done by members of the executive, headed by the President. Parliament did not renovate President Zuma’s house. This is because Parliament does not and may not fulfil an executive function. It cannot direct a building project or make decisions on whether to build a swimming pool or landscaped garden for the President to protect him from the danger of not having a swimming pool to cool down in and the danger of getting depressed by having to look at an ugly garden. Only members of the executive can do that.

It is for that reason that the Public Protector directed the President, the Minister of Police and the Director General of the Department of Public Works, and other members of the executive to take remedial action to rectify the wrongdoing committed during the Nkandla renovations.

The remedial action was not directed at the legislature. In fact the Public Protector, correctly, did not instruct the National Assembly to do anything – although she left open the possibility that it could hold the executive politically accountable for the unjustified enrichment of the President. This is because the members of the executive cannot delegate its powers to correct mistakes and to deal with unlawful expenditure to the legislature, as that would be impermissible in terms of the separation of powers doctrine.

Just as the President cannot delegate a decision on whether to declare war or whether to join BRICS to members of Parliament, he cannot delegate a decision of what to do with the Nkandla Report to Parliament.

This does not mean that the National Assembly has no power to deal with a breach of the Executive Members Ethics Act, as it has the power to hold the members of the executive accountable for such breaches as part of the system of checks and balances that is built into our Constitution.

In terms of the Executive Members Ethics Act the President must report a finding of any breach of the Ethics Code to the National Assembly. In theory this means that the National Assembly can follow up on any findings made by the Public Protector against a member of the executive and, in an extreme case, can pass a vote of no confidence in the Cabinet or in the President to have them removed.

But as the Cape High Court recently found in the judgment in which it clarified the powers of the Public Protector, Parliament would seldom be an effective mechanism through which the findings and remedial action of the Public Protector would be enforced.

In that judgment, dealing with the failure of the Minister of Communications and the SABC Board to deal rationally with the findings and remedial action imposed by the Public Protector, the Minister had argued that the best way to deal with any non-compliance of the Public Protector’s Report would be to refer the matter to the National Assembly.

The Minister argued that a request for intervention to the National Assembly or a relevant Portfolio Committee would have been an adequate remedy to deal with any alleged failure of the executive and the SABC Board to implement the remedial action imposed by the Public Protector.

The High Court dismissed this argument and found that the Minister was “mistaken”.

The facts of this very case show that the constitutional and statutory provisions upon which they rely are inadequate to ensure that the Public Protector is not undermined. Furthermore, a request for intervention to the National Assembly or its Portfolio Committee is not a legal remedy which grants similar protection as an interdict.

In other words, the High Court found that it would not be effective to rely on the National Assembly to deal with the implementation of the remedial action imposed by the Public Protector. This is obviously correct, because in the National Assembly political (and not legal) considerations will almost always determine the manner in which the National Assembly deals with the matter.

It is highly unlikely that the members of a majority party in any legislature will act in a manner that embarrasses their leader. It is even more unlikely that they will censure the leader or remove him or her from office by passing a motion of no confidence in him or her.

This is not a comment on (or criticism of) a specific political party, but an observation about the political reality within which the various legislatures operate in South Africa.

It is just as unlikely that the ANC members in the National Assembly will pass a vote of no confidence in President Jacob Zuma than it is that the DA members in the Western Cape Provincial Legislature would pass a vote of no confidence in Premier Helen Zille. It ain’t gonna happen – no matter how disgruntled some ANC MPs may be about President Zuma’s spendthrift ways or how upset some DA MPs may be about Premier Zille’s bullying and haughtiness.

This means that the National Assembly “Report” that “exonerates” President Zuma is of little legal relevance. In terms of the High Court judgment, it is the President who has a legal duty to consider the remedial action imposed on him by the Public Protector, to decide whether to implement the remedial action or not and if he decides not to implement any of the remedial action imposed on him to provide “cogent reasons” for not doing so.

When the President makes his decision, he must act rationally, having regard to his constitutional duty to assist and protect the independence and effectiveness of the Public Protector. He cannot ignore the remedial action and he cannot refuse to implement it merely because he has a different view from that of the Public Protector.

Being implicated in the matter means that the President is placed in an unappealing position: If he refuses to implement remedial steps it will be to his own financial and political benefit and it would thus be more difficult to convince a court that such a refusal was rational. The obvious conflict of interest that arises in the case, thus makes it very difficult for the President to be seen to act rationally – unless he implements all the remedial steps as imposed by the Public Protector.

Merely stating that the National Assembly has exonerated him, would also not be sufficient to convince a court that the President has acted rationally, because he is not constitutionally empowered to delegate the decision on whether to implement or not implement the remedial action to the National Assembly. If the President purports to do so he will be in breach of the separation of powers doctrine and the court will nullify his decision.

Of course, if the President provides “cogent reasons” for not implementing remedial steps imposed by the Public Protector and does so in a rational manner – given his constitutional duty to assist and protect the independence and effectiveness of the Public Protector – an eventual court challenge will exonerate him.

If not, the court will find that he had acted irrationally and thus unconstitutionally and will order him to implement the remedial action imposed by the Public Protector – as the High Court ordered the SABC to do in the recent judgment.

What is certain is that when the matter eventually reaches the court – as it almost certainly will – the decision by ANC members in the National Assembly to “exonerate” the President is not going to be of legal relevance.

Why everything you think you know about free expression is false

Steve Hofmeyr and his supporters claim that a puppet called Chester Missing has infringed on his right to freedom of expression by challenging his racist statements and by challenging his sponsors for supporting his racism. They do not seem to understand that your right to freedom of expression does not always give you a right to freedom from the consequences of your expression.

The protection of freedom of expression is a prerequisite for the proper functioning of a democracy. When the state or individuals use the law to supress the free flow of ideas and information needed to make informed political choices, the quality of the democracy is diminished. We are then forced to make partially informed or uninformed decisions about whether to vote and if we vote for whom to vote.

A world in which books, movies or songs are banned; comedians are censored; prophets, artists, writers or poets jailed; academics gagged; critical voices silenced; or cultural conformity imposed through court orders or threats of violence is a world in which the human dignity of every person is not respected. This is so because our agency as human beings is diminished when we do not have at least the possibility of being exposed to life changing forms of artistic, religious or intellectual expression.

The problem with these lofty sounding principles is that not all forms of expression have equal value. But it is difficult to distinguish between forms of expression that enhance democratic debate and enrich our lives, and forms of expression that have little or no value or harm people and sabotage democratic debate.

For this reason people who are strong supporters of freedom of expression often claim to endorse the view (attributed to Voltaire) that “I may disapprove of what you say, but I will defend to the death your right to say it”.

Underlying this view is the assumption that we cannot trust anyone or any institution to decide impartially and fairly what types of expression are worthy, enriching and democracy-enhancing and what types of expression have little or no value. We therefore need to protect all types of speech in the hope that democratic deliberation in the so-called “free marketplace of ideas” will help us to establish the “truth” about a matter.

But if you scratch below the surface you soon realize that this view of freedom of expression is false. The degree of support we offer for the right to free expression of others depends partly on whether we believe the expression has value or not; whether we believe it forms part of a legitimate debate or whether the speech is so objectionable that it extends beyond what we are prepared to defend. This is not easy to admit because it robs the right to freedom of expression of some of its moral clarity.

We accord different value to different types of expression and grant different levels of protection to the expression depending on the value we attach to it. We value some forms of expression so much that we actively promote it and jealously guard the space within which it can be expressed. We attach little or no value to other forms of expression and do not mind if these ideas are not given wide publicity. Other forms of expression – inciting people to commit mass murder, or child pornography, for example – are so objectionable that we have no problem in having these ideas suppressed.

We may claim to be prepared to defend all views to the death, but we lie when we do so. We all tolerate different kinds of expression to different degrees depending on our political and ethical commitments. While we may defend some views vigorously, we will defend other views more tentatively while we will be prepared to have other views censored entirely.

Let us look at a few examples to illustrate this point.

Very few South Africans will vigorously defend and actively seek to provide a platform for the views of paedophiles who argue for the legalization of sex with young children. This is so because as a society we have decided that adults who force children to have sex with them harm those children – we do not need further debate on the issue to decide whether this is true or not.

While some of us might, at a push, defend the right of paedophiles to state their views without being arrested or censored, few of us will not object if we discover Pick & Pay or Landrover is sponsoring the paedophile’s activities. Those who claim that the right to free speech of the paedophile is being infringed by those who ask sharp questions of Pick & Pay and Landrover for sponsoring the paedophile, will reveal that they believe reasoned debate about the value of paedophilia is possible and desirable.

Similarly, in a democratic society based on the value of human dignity and equality the views of a racist, sexist or homophobe might similarly be legally tolerated while also not actively being promoted or accepted. This is because most of us do not believe that there are two valid sides to the argument. If you are a bigot who believes that black people are inferior to white people most of us think your belief has no value in a democracy – arguing about it would only give credence to the bigotry.

This means that those who object to targeting Pick & Pay and Landrover for sponsoring Hofmeyr are saying that while they might not agree entirely with Hofmeyr they are relatively tolerant of racism and bigotry and believe that there is a valid argument to be made in support of the contention that black people are inferior to white people. This is a political and ethical choice (in my view a despicable choice, it must be said) which implicates Hofmeyr’s defenders in tolerance of bigotry.

Defending some forms of free speech is not always value neutral.

The same principle applies to those who deny the Holocaust or argue that the Nazi’s did a great job by exterminating 6 million Jews. As a society we have decided that there is no value in debating whether the Holocaust occurred or whether the mass murder of the Jews was a good idea. Why debate something that is so obviously evil – it will just give credence to the disproved and harmful views of a few lunatics? We may or may not criminalise Holocaust denial, but few of us are going to champion the rights of denialists to make money out of their hatred and bigotry from sponsorships by private companies.

Some forms of expression – expression that is defamatory or contains hate speech, for example – are also regulated by law. Few if any of those who say they will defend to death your right to have your say have ever defended to the death the right of everyone to defame others or to incite violence against them.

These examples illustrate that we tolerate or protect different types of expression to different degrees. Our Constitution protects speech (apart from narrowly defined forms of hate speech), which means it would seldom be constitutionally valid to use the law to censor or suppress expression. That is why no one has used the law to censor Hofmeyr’s racism.

But there is a huge difference between using the law (with the full might of the state behind it) to silence someone and for private individuals to challenge the speaker and those who support him or her financially or otherwise about their views.

When the speech is of a kind that has little or no value for the democracy (and I contend that racism and bigotry has little value for a democracy), it may be tolerated without being accepted and promoted. When a large company accepts and promotes such bigotry and racism, that company should therefore not be surprised if it is called out about it and pressurized to stop its support for speech that is both bigoted and racist.

There is another reason why those who claim to be prepared to defend to death the right of everyone to say what he or she wishes, are talking nonsense. This is because the “free marketplace of ideas” – on which this notion depends – is of course a ridiculous fiction. Not all views are treated equally in any society or by anyone and none of us give all views a fair and equal chance to be heard.

The free marketplace of ideas is not only a fiction because as a society we have already judged some types of expression as worthless or positively harmful and therefore not worthy of protection or worthy of only minimal protection. It is also a fiction because there cannot be free and fair competition of ideas in a capitalist society.

Ideas can only compete freely with each other if people are exposed equitably to these ideas and are given a fair opportunity to consider them. But many worthy (and many not so worthy) ideas are not given a fair opportunity to be heard because these ideas threaten the status quo or is considered harmful to society.

How often have you heard the views of a paedophile arguing in favour of sex with small children broadcast on television? Not that often, I would guess, because the “market” has decided to censor those ideas because they are viewed as harmful to society.

Moreover, where those who distribute information (via radio, television, in the print media, or on internet websites) have a vested interest in retaining the status quo they will seldom promote ideas that challenge the status quo. And for commercial reasons, the media often tone down criticism of their advertisers or of the politicians and political parties their customers support. Financial considerations play an important role in determining what ideas we are exposed to and in what way we are exposed to these ideas.

Think about this: Pick & Pay is not going to allow you to take up position in one of its stores to tell customers that Pick & Pay must be boycotted because it supports an Afrikaans music festival where a racist “artist” (I use the word expansively) will be performing. And will the local shopping centre in Sandton allow the Economic Freedom Fighters to hold a rally in its food court to drum up support for the next election? I suspect not.

Those who defend Hofmeyr on the basis that by targeting his sponsors we are censoring him, are really saying we are distorting the free marketplace of ideas. We are exploiting the fact that big companies want to make a profit in order to limit the extent to which bigoted and racist views are given a platform in the marketplace.

This is a nonsense argument as there is no free marketplace of ideas to start with. A company supports an “artist” because it believes the sponsorship will enhance its brand. It will never support ideas – say the ideas in support of paedophilia – that it knows will harm its brand. By alerting the company to the damage caused to its brand by its support for bigotry, we are helping it to make the kinds of choices it makes every day. Besides, no one has a right to make a profit out of his or her bigotry and racism. I have checked the Constitution and can confirm that no such right is contained in it.

So, tough luck Mr Hofmeyr. The more racist nonsense you talk, the less likely it is that you will retain any sponsors and the more likely it is that you will not be invited to appear at festivals. If you want to make money out of your bigotry you might have to record another karaoke CD. I am sure there are still some sad people out there who support you and will buy your records.

Death penalty: It’s not even the beginning of a solution

The murder of Bafana Bafana captain Senzo Meyiwa predictably led to angry calls for the re-introduction of the death penalty in South Africa. For both principled and practical reasons I do not believe the state should have the power to put to death those found guilty of serious crimes. Here is why.

South Africans who campaign for a re-introduction of the death penalty usually advance one of two arguments. First, they argue that reintroducing the death penalty would deter criminals from committing murder. Second, they support the death penalty to satisfy the need of society to take revenge on violent killers.

There are many valid reasons to punish those found guilty of crime. Revenge (or retribution) is indeed one such reason. As Justice Chaskalson remarked in S v Makwanyane, “the righteous anger of family and friends of the murder victim, reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance”.

But it seems to me society as a whole is demeaned where we allow the state itself to become a killer in order to give effect to the understandable urge of society to take revenge on the perpetrators of heinous crimes.

Executing a prisoner is a brutal and violent act. Whether a man or woman is hanged, beheaded, injected with poison or shot, this violence and brutality will be perpetrated by the state in our name and on our behalf. To endorse the death penalty is to endorse state violence and the brutality that necessarily forms part of premeditating killing. The death penalty thus brutalises the whole of society and implicates us all in the kind of violence that we wish perpetrators to be punished for.

Besides, as Justice Chaskalson remarked in S v Makwanyane:

[C]apital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the Biblical injunction of ‘an eye for an eye, and a tooth for a tooth’… The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.

The argument against revenge as an appropriate justification for imposing the death penalty, is an ethical one. I understand that individuals with different ethical commitments than myself may not, in principle, be opposed to brutality and violence if it is meted out by the state and if they believe those on the receiving end of the violence and brutality deserve it.

But it would be more honest for those who support the death penalty because they have no ethical problem with state-sanctioned brutality and violence in pursuit of vengeance, to say so, and not to claim their support for the death penalty is based on its supposed deterrent effect. This is so because there is absolutely no evidence to support the argument that the imposition of the death penalty deters violent criminals from committing murder.

I have yet to see any evidence of a violent criminal modifying his or her behavior because of the remote possibility that he or she would be convicted and executed by the state. To assume otherwise would be to assume that violent criminals always make perfectly rational choices. It would also assume that violent criminals actually believe that they will be caught, tried and convicted for the crimes they commit.

But in South Africa only a small minority of violent criminals are actually caught, convicted and punished for their crimes. To the extent that such criminals make rational decisions about their actions at all, they might well look at the criminal justice system and assume they will never be caught. As Justice Chaskalson pointed out in Makwanyane:

The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the state must seek to combat lawlessness.

To address the causes of violent crime and to improve the effectiveness of the criminal justice system is a long-term project. It requires resources, political commitment and more than a bit of wisdom. It requires the de-politicisation of the SAPS and the improvement of Police management; it requires the retraining of police officers and prosecutors; it requires the appointment of competent detectives; it requires the police to take steps to gain the trust of the society whose co-operation they need and whom they are tasked to protect.

Re-introducing the death penalty will not address these systemic problems: it will give the appearance of doing something about violent crime while not doing anything about it (much like the talk of “shoot to kill” did).

In the South African context there is, of course, another profoundly important reason why the imposition of the death penalty is unconscionable. Because race and class play a role in the quality of the legal representation that an accused person receives, it is likely that a disproportionate number of poor black people will be sentenced to death. In South Africa (as in the USA) the death penalty is therefore inherently racist.

People of all races commit violent crime – only racists like Sunette Bridges and Steve Hofmeyr believe otherwise – but not all violent criminals receive the same quality of justice.

The outcome of a case may dependent upon factors such as the way the case is investigated by the police (the richer and more famous the victim, the better the investigation is likely to be), the way the case is presented by the prosecutor, how effectively the accused is defended and the personality and particular attitude to capital punishment of the trial judge.

As Chaskalson pointed out in Makwanyane:

Most accused facing a possible death sentence are unable to afford legal assistance, and are defended under the pro deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and if this is the case, usually has to consult through an interpreter. Pro deo counsel are paid only a nominal fee for the defence, and generally lack the financial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence. Accused persons who have the money to do so, are able to retain experienced attorneys and counsel, who are paid to undertake the necessary investigations and research, and as a result they are less likely to be sentenced to death than persons similarly placed who are unable to pay for such services.

There is one kind of justice for the rich and another for the poor. This means that the imposition of the death penalty will at least partly be influenced by factors that have nothing to do with the relative blameworthiness of the criminal.

To allow for the imposition of the death penalty where a person’s race or class, or the race or class of his or her victim, will potentially play a role in whether the murderer lives or dies, flies in the face of the most basic values enshrined in our Constitution.

Of course, it is not only when the death penalty is imposed that the criminal justice system does not treat all people the same. It is imperative that the state and the judiciary begin to grapple with this grave injustice and start addressing the inherent inequalities in the system.

But the injustice is more severe when the death penalty is imposed and where a person is executed. The death penalty is final and if a mistake is discovered after a person has been executed there is no way of even beginning to rectify the mistake.

Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable.

Campaigns to reintroduce the death penalty are counter-productive. They detract attention from the true causes of violent crime – including unconscionable inequality and deprivation, and ineffective policing – and create the false impression that there is a magic bullet to deal with violent crime in our society. Instead of clamouring for the return of state-sanctioned killing, citizens should demand that the state speed up the eradication of inequality and improve the manner in which crime is investigated and prosecuted.

Pity so many citizens are blinded by their desire for revenge and cannot see that their talk of reintroducing the death penalty give our politicians a free pass.

What the High Court really said about the powers of the Public Protector

The Western Cape High Court this week provided the first authoritative interpretation of the nature of the powers of the Public Protector. Although the Constitutional Court will ultimately have to decide whether to endorse the approach taken by the High Court, I believe the High Court judgment got it more or less right. Here is why.

Because of the highly charged nature of the standoff between the Public Protector and the President about the latter’s failure adequately to consider and implement the remedial action imposed by her office regarding the state-funded renovations of President Jacob Zuma’s private home near Nkandla, a court judgment clarifying the powers of the Public Protector was always going to elicit much partisan comment and “spin” from those with a vested interest in the matter.

Those truly interested in the legal consequences of the judgment would do well to ignore the spin from members of the governing party and from the opposition about what the judgment actually means. Instead, it may be helpful to analyse the judgment in detail to ascertain what the court actually found. As is often the case with complex legal matters, the devil is in the detail.

In Democratic Alliance v SABC and Others Schippers J in the Western Cape High Court confirmed that the Public Protector is not a court of law and that the findings of her office and the remedial actions imposed by that office are hence not directly binding and enforceable.

The court found that because the office of the Public Protector is modelled on the institution of the Ombudsman (which is widely found in European democracies), the power of the office lies in its ability to investigate and make findings in a cost-effective manner and to ensure a change of behaviour of government officials and members of the executive through reasoned engagement.

Where government officials and members of the executive are persuaded through such reasoned engagement to change their behaviour, it will change the way they think and behave and this will have a lasting beneficial effect on the standard of governance in a country. (The court is silent on what may happen if – for political or personal financial reasons – organs of state refuse to engage in a reasoned manner with the findings and remedial action imposed by the Public Protector.)

The High Court did not consider the fact that South Africa – unlike most European democracies with an Ombudsman – is a constitutional democracy in which the Constitution (and not Parliament) is supreme. It also did not engage in detail in the wording of section 182 or the Public Protector Act to augment its detailed reasons why it held that the Public Protector’s findings are not binding.

It is of course possible (but it is far from certain) that the Constitutional Court will agree with the Public Protector that her office differs from that of the Ombudsman in the European countries referred to. I suspect it is for this reason that the Public Protector has indicated that she would like to have the decision of the High Court reviewed.

But I am not convinced that such a review will be successful and that the Constitutional Court will ultimately agree with the Public Protector. The reason for this is that the High Court judgment does provide for the effective implementation of the findings and remedial action imposed by the Public Protector, without giving her office the status of a court of law – which would be constitutionally problematic.

I say this because after finding that the remedial action imposed by the Public Protector does not have the status of a court order, the High Court proceeded to warn that:

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

Consequently the findings of the Public Protector can never be ignored. Where an organ of state ignores the findings and remedial action by the Public Protector it would fail to comply with the constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

Disregarding the findings and remedial action subverts the Public Protectors powers under s 182 of the Constitution.

It would not always be sufficient, stated the court, to rely on Parliament and its committees to ensure that the findings and remedial action of the Public Protector are not ignored and that they are implemented. Because Parliament is a political body, it does not provide an effective legal remedy to ensure that the findings and remedial action of the Public Protector are properly dealt with.

Ultimately, the Public Protector or one of the complainants in a case may approach a court to ensure that the findings and remedial action are not ignored and, in appropriate cases, a court may order the relevant organ of state to implement the findings and the remedial action imposed by the Public Protector.

This is exactly what the High Court did in the case under discussion, ordering the SABC to institute disciplinary proceedings against the newly appointed COO of the SABC, Mr Hlaudi Motsoeneng, as was directed by the Public Protector, and further ordering his suspension while the disciplinary process takes its course.

To ensure that the office of the Public Protector “is not undermined”, the organ of state against whom findings are made or who is directed to take remedial action, must carefully consider the findings and remedial action imposed by the Public Protector.

If the organ of state decides to reject any of the findings and remedial action of the Public Protector, this will only be legally valid if the organ of state can produce “cogent reasons” for doing so. If it fails to provide such cogent reasons, its refusal to implement remedial action would be irrational and unconstitutional.

Here is the crux of the matter: the organ of state would not be acting rationally if it rejected the findings and the remedial action imposed by the Public Protector merely because it prefers its own view of the relevant facts or the remedial action above those findings and remedial action imposed by the Public Protector.

Even when the organ of state reached its own view (that differs from that of the Public Protector) on rational grounds, this would not make the rejection rational and lawful. This is so because if an organ of state could refuse to accept and implement the findings and remedial action of the Public Protector merely because it happened to hold a different view of the matter, it would subvert the powers of the Public Protector and would fail to act in a manner that ensured the effectiveness of that office.

What the organ of state would have to show is that (irrespective of whether it agreed with the findings and remedial action or not) there were other “cogent reasons” for rejecting the findings of the Public Protector, given the constitutional duty on the organ of state to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

The facts of the case under discussion illustrate this point and explain the “bite” hidden in the judgment regarding the obligations of those directed to take remedial action by the Public Protector. The Minister argued in her papers before the court that after the Public Protector made a finding that Mr Motsoeneng lied about his qualifications, the Minister looked at the evidence on which the Public Protector based her finding and came to a different conclusion.

Not only did the Minister not provide any reasons for coming to this decision, she also did not state that she had consider the other findings made against Mr Motsoeneng by the Public Protector. Neither did the SABC Board. The Minister and the Board in effect preferred their own view on Mr Motsoeneng above that of the view expressed by the Public Protector and did not bother to provide detailed reasons to show why this would be rational.

In the light of this failure to provide any reasons, let alone cogent reasons, for rejecting the findings and remedial actions imposed by the Public Protector regarding Mr Motsoeneng, the court found that the Minister’s and the SABC Board’s actions were “arbitrary and irrational and, consequently, constitutionally unlawful”.

The judgment mean that neither the President (nor Parliament) would be acting rationally if it decided that it preferred its own view of the facts and the appropriate remedial action regarding the Nkandla scandal above those imposed by the Public Protector and then rejected her findings and remedial action. Merely referring to the findings of the Ministerial Task Team would also not suffice.

This does not mean (in terms of the High Court judgment) the President could under no circumstances reject some of the findings and remedial action imposed by the Public Protector regarding the Nkandla matter. For example, where it would be impossible to implement the remedial action, it would be entirely rational for the President to refuse to implement the remedial action imposed by the Public Protector.

But given the fact that the President has a constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness, it would not be sufficient for the President to say he had a different view from the Public Protector regarding her findings and remedial action about the Nkandla matter. If the President ignores some or all of the findings and remedial action by the Public Protector and does not provide cogent legal reasons for this (apart from having formed a different view about the matter), he would be acting irrationally and would be in breach of the Constitution.

I would think that it is therefore in the interest of President Zuma to respond in more detail to the findings and remedial action imposed by the Public Protector, to indicate whether he accepts or rejects each and every one of the findings and remedial action and, if he rejects a finding or a remedial action, to provide cogent legal reasons for doing so. If he fails to do so he would be in breach of his constitutional obligations – at least as understood by the judgment discussed here.

When some rights are more equal than others

Over the weekend, in a speech lauding the right to freedom of expression, President Jacob Zuma reportedly cautioned that rights — such as freedom of expression — should be balanced with responsibilities and that no one should assert their rights while trampling on the rights of others. The idea that you cannot (or should not) exercise your rights when this infringes on the rights of others is widely held. But the idea is wrong. Here is why.

Human rights are not always the best prism through which to view our responsibilities in the world we live in. This is so because what you have a right to do and what is right to do is not always the same thing. In other words, a Bill of Rights does not contain a complete set of ethical rules that can guide us on how to live a virtuous or ethically responsible life.

In political arguments the right to do something is often conflated with whether it is right to do it.

So, when an artist produces a controversial work of art, some of the defenders of the artists will argue that the artist has a right to artistic freedom and that any criticism of the artists therefore amounts to an attempt to censor the artist. Conversely, some of those who believe the work of art reflects racist, sexist or homophobic sentiments will argue that the artist had no right to produce the work of art and that the work of art should thus be destroyed or the artist should be prohibited from exhibiting it.

Instead of engaging in a discussion about the merits of the work of art, of its political intent or effect, or of whether it was ethically defensible for a museum to exhibit it at all, some people will invoke artistic freedom to defend the artist and his or her work while others will invoke the rights of those wounded by the work of art to argue in favour of censoring the work of art.

A political or ethical disagreement becomes a fight about rights and an opportunity is lost to engage meaningfully with each other about the disagreement at hand.

But this juridification of political and ethical disagreements is not the main reason why it is wrong categorically to state that no one should assert their rights while trampling on the rights of others.

Instead, the heart of the problem is that rights often clash with one another and it is therefore not always possible to respect all rights equally at the same time. Sometimes the very essence of your right will encompass the “right” to trample on the rights of others. Depending on the rights involved and the context in which they are being exercised, one right must give way to another.

For example, the right to freedom of religion will often clash with the right to equality. When the Catholic Church asserts its right to appoint only heterosexual, male priests, it asserts the right to discriminate against women, gay men and lesbians. Either the right to freedom of religion must give way to the right to equality, or the Catholic Church must be permitted to trample on the rights of a majority of citizens.

Similarly, the right to freedom of association will often clash with the right to equality. When the owner of a Bed and Breakfast or a holiday resort asserts her right not to open the doors of the establishment to black people or to gay men or lesbians, this will trample on the rights of black people or gays and lesbians. In such a case, it is impossible to respect the right to equality and the right to freedom of association at the same time. One right must trump the other. There is no other way out.

Moreover, the right to freedom of expression will often clash with the right to dignity. If you call somebody dishonest, or question his or her intellect, or claim that he or she is a pervert, it may well infringe on the dignity of the person you have insulted in this manner. Either your right to free expression must give way and you must be prohibited from making such a statement (even if possibly true and even if making the statement may be in the public interest) or the other person’s right to dignity must give way to your superior right to freedom of expression.

These examples illustrate that in some cases you will have no choice but to trample on the rights of others in order to assert your own rights. In such cases a claim that somebody should not trample on your rights when he or she asserts his or her own rights is no more than a claim that your rights should trump theirs. When a politician makes such a claim it will often sound suspiciously like he or she believes his or her rights should trump the rights of ordinary citizens.

Sometimes the text of a Bill of Rights would give an indication which of the clashing rights should be upheld. But when it does not, difficult questions arise.

Why should the right of religious organisations to discriminate trump the rights of citizens not to be discriminated against? Why should the right to equality trump the right of racists, sexists and homophobes to associate with whom they wish? Why should the right of citizens to be kept informed about the nefarious doings of politicians or powerful businessmen and women trump the right of the politician or businessman or woman to have his or her dignity respected?

The court sometimes answers these questions in favour of one group because the views of that group is widely accepted or because of the overwhelming political power and influence of the group. As Justice Sachs pointed out the Prince v Law Society of South Africa when explaining why the religious practices of dominant religious groups are often upheld even when it infringes on the rights of others:

all over the world religiously motivated circumcision of infant boys has survived even the most stringent of child protection laws. Powerful religious organisations support it and it has become an everyday and accepted part of the social scene. This suggests that what matters is not the intrinsic nature of the act, but the degree of official acceptance of the actors.

Sometimes the court answers the question by looking at the aim to be achieved by the right and by asking how important this aim is for society as a whole. For example, in open and democratic societies the dignity of politicians will almost always yield before the right of citizens accurately to be kept informed about matters in the public interest. Freedom of expression is pivotal for the safeguarding of democracy and where politicians are allowed to invoke their right to dignity to protect them against criticism and against the exposure of wrongdoing, the quality of the democracy will be fatally compromised.

Lastly, the court sometimes answers to question with reference to the particular history of a country and political context in which rights are asserted. For example, given South Africa’s colonial and Apartheid past, its history of gender discrimination and its past vilification and marginalisation of sexual minorities, the right to equality will usually trump the right to freedom of association. This means that the court will almost always reject the claim by the owner of a Bed and Breakfast that his or her right to freedom of association should trump the rights of citizens not to be discriminated against based on race, sex or sexual orientation.

Of course, it is important to note that in some cases the claim that you are trampling on the rights of an elected politician by asserting your own rights is itself spurious. When you criticise a an elected representative (especially one holding high office) for not doing his or her job; when you ask difficult questions about that person’s conduct; when you demand that the person obeys the law, you are not infringing on his or her rights. What you are doing is engaging in democratic debate and contestation.

In such cases, the argument that no one should assert their rights while trampling on the rights of others becomes a plea to be excused from being held accountable by the voters who elected you.

Why is Afriforum threatening to censor a work of art?

Afriforum, an organisation that fights for the preservation of white privilege, is threatening to go to court to have the song of a Cape Town based hip-hop collective called Dookoom declared hate speech. The song (deploying Afrikaans in all its exquisite richness) is entitled “Larney, jou poes”. The threat by Afriforum raises several interesting questions – only some of a legal nature.

It is trite to say that racism remains deeply entrenched and widely practiced in South Africa. Some forms of racism are structural in nature, but sadly many “white” South Africans who perpetuate it and benefit from it often deny its existence. (By “white” I mean to refer to those of us who benefit from being perceived by ourselves or by others to be members of the constructed category of “white”)

This denial is probably based on a genuine belief that structural racism does not exist. After all, not everyone understands the direct link between power and racism.

Having no theory (or an impoverished theory) of power and little understanding of how history, social and economic factors and cultural context influence how we experience the world and how we are seared by the words and actions of others, such individuals do not have the intellectual tools to identify injustice in its complex multiplicity.

They do not understand that questions of power – who has it and why; who are able deploy it and to what effect; what is the context in which it is being deployed and to what end; is it being deployed to challenge or to reinforce deeply entrenched patterns of privilege and advantage – loom large when we try to understand what racism is and why some forms of denigration can be racist while other forms can be anti-racist.

For many (but not all) “white” South Africans their racial privilege thus remains comfortingly invisible – much like the air they breathe. When somebody claims “not to see race” I try to give that person the benefit of the doubt and to assume he or she does not have the intellectual tools to realise that such a denial helps many of us “white” South Africans to remain soothingly blind to the structural racism from which we benefit – whether we choose to do so or not.

This does not mean that we are not mired in a cesspool of more crass forms of racist hatred. You only have to visit the comments section of most news websites or the Facebook page of alleged singer Sunette Bridges (the page optimistically refers to her as an “artist”) to know that some “white” South Africans, using their economic and social power (if not always their intellect), regularly indulge in the most hateful forms of racist speech.

If Afriforum were truly concerned about racist hate speech it would, of course, long since have threaten people like Sunette Bridges and some of her ardent followers with court action for alleged hate speech published on her site.

But Afriforum has not done so because it is not concerned about the words or actions of “white” racists. Instead it is concerned about the words and actions of those who criticise “white” racists; of those who challenge “white” privilege; of those who threaten the social status and economic dominance of “white” people who identify themselves as “Afrikaners” (a political term for a certain group of Afrikaans speaking “whites” who strongly identify with a romanticised version of the history of “white” Afrikaans-speakers).

Because of the self-serving hypocrisy inherent in the threat issued by Afriforum against Dookoom, it is tempting to dismiss Afriforum’s threat out of hand. But that would be making the mistake (so commonly made by those who engage in political “debate” in South Africa) of conflating motive with the merits of an argument. Just because Afriforum usually takes up the cudgels in defence of white privilege does not necessarily mean that in this particular case it may not have a legally valid (if possibly an ethically tenuous) point.

To explore whether this is the case, it is important to say a bit more about the song that caused all the trouble. “Larney jou poes” is a hip-hop track, a genre of music that is steeped in anger against the status quo; in aggression; in feelings of alienation and torment. In this case the song’s intent is signalled by the banging beat and industrial-strength synths over which the angry lyrics are rhymed.

Invoking a biblical imagery the song starts as follows: “Farmer Abrahams has many farms / Many farms has farmer Abrahams / I work one of them / And so do you / So let’s go burn them down.” In another verse the political context of the song is made more explicit:

Bra, remember you came here in 1652 / You a skollie too / You were fokken sentenced with a convict crew / You robbed and screwed the natives / Now who’s the savage?

The chorus underlines the anger of the song by repeatedly exclaiming, “Jou poes, my larney”.

I can imagine that this form of artistic expression – displaying a level of originality and talent lacking in many other South African “artists” – would upset many privileged South Africans, especially “white” South Africans who own farms or have family members who own farms.

I might be wrong, but I suspect most people in South Africa won’t like being called a “poes” (and not only because the term is sexist), and won’t like to be told that they are “skollies” and thieves. Nor, I imagine, would many farm owners – whether a “larney” like Deputy President Cyril Ramaphosa, a larney” like Transvaal Agricultural Union President Louis Meintjes, or a “larney” like Julius Malema (before he lost his farm to SARS) – appreciate lyrics of a song that talks about the burning down of farms.

But does it constitute hate speech?

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) states that no person “may publish, propagate, advocate or communicate words” based on any prohibited ground like race, sex, gender, sexual orientation, language or culture “against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.

Afriforum will only be successful in getting a court to censor the song if it could convince a court that the song targeted a group of people based on their “race”. (Ironically, those who claim to believe that race as a lived reality does not exist and that they do not see it, will therefore not be able to rely on this section). In addition, it will have to show that a reasonable person (a person who has an understanding of racism and how power works, is not too thin-skinned and self-righteous and thus not your average member of Afriforum) would believe that the song was intended to hurt or harm a group of people based on their race.

The High Court has not interpreted this section contextually as it was supposed to do. Neither has it interpreted the section with reference to the link between racism and power. It was for this reason (much criticised by legal academics) that it found against Julius Malema in the Dubul’ ibhunu judgment. As the case was never appealed, we do not have the benefit of a more informed and nuanced analysis of the hate speech provisions of PEPUDA by the Constitutional Court.

Given the narrow and a-contextual interpretation of section 10 provided by the High Court, I would have to assume for the moment that Afriforum would be able to convince a court that the relevant factors existed and that in terms of section 10 of PEPUDA the song constitutes hate speech.

But because these are not the words of a politician shouted at a political rally, but words contained in a work of art, that would not be the end of the matter This is so because section 12 of PEPUDA excludes “bona fide engagement in artistic creativity” from the hate speech prohibition in section 10.

Anyone who watches the video and listens to the (very angry but very clever) lyrics of “Larney, jou poes” would agree that this song is indeed a bona fide engagement in artistic creativity. This means that it is difficult to see how a court could find that this song constitutes hate speech. Just because a work of art is upsetting to a section of the population (as art often is) does not mean that it can be censored on the basis that it constitute hate speech.

Of course, some of the same people who shouted “freedom of speech!” when people complained about the implicit racism in the painting of Brett Murray’s “The Spear”, would now demand that the song be banned. Similarly, some of the same people who demanded that “The Spear” be banned will now champion this song and vehemently oppose it being censored.

But, sadly, not many South Africans seem to have the ability to be consistent or to take positions not based on the person involved in a case but rather based on the applicable principle or legal rule. This inability to be principled is sad, but also so tediously predictable that nothing else need to be said about it.

Far more interesting would be to engage in a debate about the merits of the song.

Is it a brilliantly angry and clever hip-hop track or mediocre at best? Does it express a profound truth about the injustice of capitalism and white privilege or is it a cheap and uninteresting form of sloganeering? Will it help to conscientise farmworkers about their exploitation at the hands of many (but not all) black and white farm owners or will its bristling anger and anarchic spirit alienate the very people it aims to politicise? Does it express a political truth that too many people are afraid to verbalise or is its artistic merit diminished by prejudiced generalisations? What’s up with the misogyny of certain hip-hop artists?

Works of art are meant to trouble, provoke, disturb, anger, inspire or move those who are exposed to them.

It is therefore a pity that members of Afriforum either do not have the intellectual tools to engage in such a vigorous debate, or are too scared that they will lose the debate if they do, to engage in it. Instead they are threatening to approach a court to help it censor a work of art because the work of art troubles and disturbs them.

Spy tapes: Still no reason to drop charges

Extracts from the so-called “spy tapes” (for some inexplicable reason the complete version has not yet been made available) reveal that former Scorpions head Leonard McCarthy is both an inveterate gossip and a staunch Thabo Mbeki supporter. What the tapes do not provide are credible legal reasons for dropping more than 700 criminal charges against President Jacob Zuma. Here is why.

The practice of appointing politicians or politically connected individuals to leadership positions in the National Prosecuting Authority (NPA) has seriously dented the credibility of the NPA. This politicisation of the NPA (as the spy tapes demonstrate, this process started long before the election of Jacob Zuma as president) has thus eroded its independence, its credibility and its effectiveness.

It is now inevitable that the National Director of Public Prosecutions (NDPP) (or the relevant Director of Public Prosecutions) who decides to charge or to drop charges against a politician or a politically connected businessman or woman will be accused of political motives.

When a politician is charged with any crime, I almost always suspect – rightly or wrongly – that said politician must have fallen out with the faction aligned to the president. (In the case of Julius Malema, he fell out with the faction aligned to the president and was subsequently kicked out of the party.) When serious accusations of criminality are made against a politician or businessman or woman and he or she is not charged or charges against him or her are dropped, I almost always suspect – again, rightly or wrongly – that this must be because of political interference in the NPA.

This does not mean that all allegations of corruption or fraud levelled at a politician or a politically connected businessman or woman holds water. Neither does it mean that those politicians and politically connected individuals who are charged have not acted in contravention of the law and that they should not be convicted and imprisoned for corruption. But sadly, this is not how the public discourse operates. Partly because of the politicisation of the NPA, some unscrupulous (but guilty) individuals use accusations of political conspiracy to avoid both criminal accountability and public censure.

In paranoid South Africa, the first thing a politician or controversial businessman or woman accused of a crime will do will be to allege that the allegations or criminal charges brought against him or her were due to a “political conspiracy”. Interestingly enough, few people fingered for corruption or other crimes ever claim that the evidence procured against them were fabricated. The logic seems to be that if political motives animated an investigation or a prosecution, it matters not that the accused committed the crimes. A political motive magically erases the corruption and the bribery and renders the accused innocent of all wrongdoing.

As the Supreme Court of Appeal (SCA) pointed out in 2009 in National Director of Public Prosecutions v Zuma when it overturned the judgment of Nicholson J (which itself was used as a pretext to remove then President Thabo Mbeki from office) “it is generally accepted that any prosecution authority ought to be free from executive or political control”, but “this was and is not necessarily the norm in Anglo-American countries”. In many countries the Attorney-General (called the NDPP in South Africa) is a political appointee – often at ministerial level – but is nevertheless required to act without any interference from the executive.

In South Africa, the position is not much different. The NPA is headed by a NDPP who is a political appointee (appointed by the president for a fixed term) and although section 179 of the Constitution states that national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice, it also states that the Minister of Justice must exercise final responsibility over the NPA. The NDPP must also determine a prosecution policy (in terms of which decisions to charge or to drop charges against suspects should be made) with the concurrence of the Minister of Justice. As the SCA stated in the Zuma judgment:

These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held… that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

This means that members of the prosecuting authority (including the politically appointed NDPP) must serve “impartially” and must exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” subject only to the Constitution and the law. At the same time the NDPP has a duty when so requested to keep the Minister of Justice informed about his or her work. However, the Minister has no power to interfere in prosecutorial decisions of the NDPP or any other member of the NPA.

Moreover, the NPA Act prohibits anyone (including the minister or the president) from interfering “improperly” with the NPA in the performance of its duties and functions. If the minister or anyone else were to interfere in prosecutorial decisions they would be committing a criminal offence.

As the SCA pointed out, the Constitution prohibits members of the NPA (including the NDPP) from taking account of political considerations when making prosecutorial decisions and also prohibits the Minister of Justice or any other member of the executive from interfering with a decision to prosecute or not to prosecute a suspect.

Where politicians or politically aligned individuals like Leonard McCarthy, Bulelani Ngcuka or Menzi Simelane are appointed to the leadership of the NPA, the temptation will be great to blur these lines and to take account of political considerations when making prosecutorial decisions. After Vusi Pikoli was fired for not taking into account political considerations when charging Jackie Selebi, NPA bosses (even those without strong political loyalties) must be acutely aware that their careers may be terminated if they stick to their principles and follow the Constitution. More worryingly, even where the lines between the political considerations and prosecutorial considerations are not blurred, the perception will inevitably arise that political interference occurred when a controversial prosecutorial decision is made.

But what happens if – as was the case with the prosecution of Jacob Zuma – some members of the NPA who may or may not have been involved in any decisions about his prosecution displayed a clear bias against him?

Recall that Mr Zuma (as he then was) and his lawyers never argued that there were no legal grounds to prosecute Zuma. Nor did they argue that all the evidence against him were fabricated or invented as part of a political conspiracy to frame him for corruption. Although they argued that they would try and block the admissibility of certain evidence (including the “encrypted fax” which demonstrated that a bribe was solicited on behalf of Zuma), Mr Zuma never argued that he had not received any money and that he had not done any favours for those from whom he received money. Instead he argued on procedural grounds that despite the evidence he could not receive a fair trial.

The SCA in its Zuma judgment was pretty clear that such arguments would seldom be of any legal relevance. The SCA pointed out that a prosecution could never be used solely to achieve an “ulterior purpose”. For example, prosecuting a person without any prospect of securing a conviction with the sole purpose of putting him out of business would be unacceptable. But where credible evidence existed that might secure a conviction and where the purpose of the prosecution was at least in part to secure such a conviction, this would not taint the prosecution.

A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.

In the Zuma judgment (written before the so called spy tapes came to light) the SCA stated that there was no “ulterior purpose” in prosecuting Zuma and the prosecution could thus not be tainted. The spy tapes did not change this because as the SCA stated in rejecting Zuma’s argument that the prosecution must be set aside because it was tainted by a political motive:

In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.

No one has ever argued that Zuma was prosecuted without the intention of securing a conviction. This means that the reasons offered by the then acting NDPP for dropping charges against Jacob Zuma do not seem to be in line with the law and may well be irrational. This conclusion is strengthened by the fact that, in terms of the Constitution, the prosecution policy must be observed in the prosecution process. When deciding to prosecute or not to prosecute or to drop charges against a suspect, the decision-maker must do so in compliance with the prosecution policy.

The prosecution policy lists a range of factors prosecutors should take into account when deciding whether or not to institute a prosecution: the strength of the state’s case, the admissibility of the state’s evidence, the credibility of the state’s witness, the strength of the defence’s case, and the extent to which the prosecution would be in the public interest. Curiously, the acting NDPP did not refer to this prosecution policy when he announced the dropping of the charges against Jacob Zuma. This means that the policy that – constitutionally – ought to have guided the decision to drop charges against President Zuma was not considered at all.

This means that it will be difficult for the NPA to convince a court that the dropping of charges against President Zuma was legally valid. Of course, whether too much time has now elapsed since the commission of the alleged crimes to allow for a fair trial is another question. But that would be a question for a court (and not the NPA) to decide.