Constitutional Hill

January, 2010:

Urgently wanted: judicial training

Jan 11th, 2010
by Pierre De Vos.
104 comments

Many South African judges are notoriously prickly about the need to undergo further judicial education. Despite the fact that Parliament passed the South African Judicial Education Institute Act in 2008, the Institute has not yet trained any judges or aspirant judges and it is unclear when it will start its work in earnest. Yet most judges received their legal training before the advent of the new Constitution and there clearly is a need for further training of judicial officers to bring them up to speed with constitutional jurisprudence.

The recent High Court judgment of Hlophe JP in the case of Malachi v Cape Dance Academy and Others demonstrates the urgent need for further judicial training. Although the case was probably decided correctly, the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.

In the case, the High Court declared invalid section 30(1) of the Magistrates Court Act and the common law rule it codified, which allows a judicial officer to order the arrest of a person when it is suspected that the person will flee in order to evade the payment of a debt. In this case Ms Tatania Malachi, an “exotic dancer” (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him.

Given the fact that the Constitutional Court declared invalid section 65A-65M of the Magistrates Court Act which provided for the imprisonment of judgment debtors in certain circumstances, the order of invalidity will probably be confirmed by our highest court. It will be surprising, however, if the Constitutional Court endorses some of the unconvincing and badly reasoned “arguments” put forward by the High Court.

First, the High Court found that the rule violated the right to equality because the rule treats poor debtors who are unable to furnish adequate security differently from those who can furnish such security, as the former could be incarcerated while the latter will avoid incarceration. Unfortunately, the judgment inexplicably fails to refer to any Constitutional Court jurisprudence on the right to equality and fails to articulate and apply the tests set out by the Constitutional Court to determine whether an infringement of either section 9(1) or section 9(3) had occurred.

If section 30 is invalid because it infringed on section 9(1), a rationality test had to be applied – something the court did not do. If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred and why different treatment based on one’s financial position or some other unnamed characteristic would constitute discrimination for the purposes of section 9(3).

The implications of this argument – as far as one can tell – is that any law that distinguishes between rich and poor will constitute discrimination on an analogous ground. If this argument were to be sustained it would call into question the very existence of the capitalist system in South Africa. Maybe this is not a bad thing, but then one would expect the judge at least to make a cogent argument in favor of his position.

If one of my students had written the section in the judgment on the infringement of section 9, he or she would probably be awarded a mark of about 25% for the question as it shows a complete lack of knowledge of the Constitutional Court equality jurisprudence or any appreciation for the consequences of the argument presented.

The High Court also found that the rule infringed on the right to dignity as it allows for an arbitrary deprivation of liberty and allows a defendant to be subjected to cruel and degrading treatment. The High Court unfortunately seems unaware that the Constitutional Court has stated that where another right gives effect to the demand for the respect of human dignity (in this case, section 12(1)((e), which prohibits cruel inhuman and degrading treatment) one should rely on that right and not on the right to human dignity.

In dealing with the application of the limitation clause, the High Court seems unaware that it had to apply a proportionality test, having to weigh up all the factors set out in section 36 of the Constitution to determine whether the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Instead the High Court discussed each of the factors mentioned in section 36 separately and failed to weigh the factors up against each other as required by the Constitutional Court jurisprudence. This completely misses the point of section 36 analysis and demonstrates a rather weird lack of insight into a fundamental aspect of Bill of Rights adjudication.

The discussion on the limitation clause is also sloppy and repetitive: at some point the same point, using exactly the same phrase, is made in subsequent paragraphs of the judgment, suggesting that the judgment was not properly edited before it was handed down.

In this case, the lack of engagement with Constitutional Court jurisprudence and the lack of understanding about constitutional principles, did not affect the outcome of the case, as the High Court reached a more or less just outcome that will prevent poor people from facing arrest when they owe money and the person to whom money is owed fears that the debtor will flee the country. It could therefore be argued that no harm came of the ignorance of the particular judge and that justice was served.

But in a constitutional state based on the Rule of Law, the legitimacy of the judiciary and the respect for the legal precedent as annunciated by higher courts suffers when lower court judges ignore or completely misconstrue the law. In the long term this could undermine the independence of the judiciary and respect for the legal system. In more difficult cases such a disregard for the law could also adversely affect litigants who may turn away from the law to rely on arbitration or self-help, which would erode respect for the rule of law.

Given the fact that many judges feel insulted when one points out that none of us are perfect and that – like the rest of us – judges are never too old to learn something new about the law, it seems to me the newly established Judicial Training Institute has its work cut out for it. If it functions effectively, it will enhance the quality of judicial decisions and with it respect for and trust in the law and our courts. This, in turn, will enhance the prestige and respect enjoyed by judges themselves. Judges therefore have a vested interest in judicial training and should embrace the new institute and its work, rather than resist it.

Of course, in the long run this will also be good for especially poor and vulnerable South Africans who may rely on the law to ensure that they are not treated unfairly by the rich and powerful in our society.

Why all the fear, paranoia and distrust?

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

Why do South Africans generally seem so distrustful, fearful, and paranoid of one another? When ANC leaders or supporters do something Helen Zille does not like, she is quick to claim that it is all part of an ANC plot. When someone criticises the appointment of the CEO of the SABC, the MK War veterans claim the CEO is the victim of a plot to undermine both Minister Siphiwe Nyanda and President Jacob Zuma. We also had the “plot” against Schabir Shaik and President Zuma and the many “plots” against then President Thabo Mbeki, not to mention the “plot” by the TAC to poison South Africans with anti-retroviral drugs.

Many South Africans seem to live in constant fear of fellow citizens and believe that fellow citizens are continuously plotting to do them harm. Even legitimate academic curiosity (like asking whether polygamy would be constitutional or not) are turned into a paranoid and defensive fight as it is seen as part of a “plot” to attack or undermine a specific culture or the beliefs of a specific race group.

What’s going on?

Of course, as Alan Arkin once remarked (or was it William Burroughs?) “Just because you’re paranoid doesn’t mean they aren’t after you”.  Nevertheless, the South African obsession with plots and the tendency to see a conspiracy under every bush (just like the National Party saw a communist under every bush or under every bed) seems a bit extreme.

One way to explain this paranoid obsession with plots and conspiracies is to argue that those who allude to them do not really believe that there are plots and conspiracies against them and their group, but merely make use of a device to try and shut up criticism to avoid having to justify their crooked or unethical behaviour. By claiming that one is being persecuted, one never has to answer legitimate questions about the criticism or charges levelled against you.

Hence, Hillary Clinton spoke of a “vast right-wing conspiracy” against her husband during the Monica Lewinski scandal. This allowed her and her husband to portray themselves as victims and helped to confuse things so that the public would not remember that Bill Clinton really did have sexual relations with that woman (or to forgive him for it).

Similarly, President Jacob Zuma’s claim that there was a conspiracy against him allowed him never to have to answer a few basic questions regarding the charges brought against him. In President Zuma’s case, this tactic was particularly successful because it seemed rather likely that while evidence about his corrupt relationship with Schabir Shaik was clearly very real, he might well have been singled out for prosecution while others more friendly to then President Thabo Mbeki were never prosecuted.

A second explanation is that many people really have a fundamental misconception of the way in which the right to freedom of expression, the Rule of Law and accountable government are supposed to protect everyone in society from lies, corruption and dishonesty. Leaders are placed on a pedestal (Helen Zille just as much by her supporters as Jacob Zuma by his) and any questions about the wisdom, integrity or ethics of a leader are seen as treasonous attacks on the collective identity of the supporters.

Leaders are often seen (and then begin to see themselves) as not being subject to the same rules and degree of scrutiny as ordinary workers. Because leaders are “important”, “special” or “exulted”, they must be treated in a special manner and should be shown special respect and should be deferred to – no matter what they do or say.

This view flies in the face of what is expected from leaders in a constitutional democracy where leaders are servants of the people (and therefore are not viewed as especially “important” or “special”). In such a democracy leaders should expect to face more (not less) scrutiny, criticism and even ridicule than ordinary citizens who are not servants of the people.

Third, I suspect South Africa’s long history of racial oppression and the struggle for freedom that resulted from it have also warped views and made many of us far more paranoid than we should be. Many white South Africans were scared into supporting the National Party with “Swart Gevaar”, Rooi Gevaar” and sommer any other kind of “Gevaar” tactics, which played into the underlying racism in the white community and made many whites fearful and deeply distrustful of black people in general and black political leaders in particular.

Most if not all black South Africans experienced first hand the racial arrogance, disdain and hatred by many white South Africans and suspect that despite the changes brought about by the transition to democracy, the vast majority of white people harbour an irrational, racist animosity towards them – even if this is now sometimes disguised by politically correct platitudes.

No wonder people do not trust each other and are often prepared to believe the worst of those who criticise them or the leaders they feel emotionally close to. Such feelings are of course exploited by politicians for their own nefarious ends and are exacerbated by the cynical or racist actions of supporters across the political divide.

The important question is of course: how can we get past this paranoia, fear and distrust and arrive at a place where it would become possible to have a relatively reasoned discussion about the merits of leader X or Y without anyone ranting and raving about “plots”, conspiracies” or racism.

Maybe in 2010 we should start a discussion on this important question, because if we fail to answer it, unscrupulous politicians will exploit our fears and hatreds to escape responsibility for their own failings – and all South Africans, but especially poor and marginalised one’s relying on the state to create the conditions for a better life for them and their children, will continue to suffer.

Can the abaThembu secede from South Africa?

Jan 7th, 2010
by Pierre De Vos.
40 comments

Can those sad folks living in the Afrikaner quasi-homeland of Orania (where they even have a monument to the Koeksister!) secede from South Africa if they decide they do not like to be governed by the ANC government anymore and would rather do Volkspele and play Jukskei (a game so tedious that it makes bowls look as exciting as Formula 1 racing) in their own country with their own Constitution? For that matter, can any other group living within the borders of South Africa who disagree with the policies of the ANC government decide to break away and form their own country?

I ask, because I see the Daily Dispatch is reporting that the AbaThembu nation may or may not want to secede from South Africa, pending a discussion by the nation. After a meeting held by traditional leaders close to King Buyelekhaya Dalindyebo on Tuesday it was apparently decided not to secede – yet. 

Dalindyebo last year was convicted of crimes including, arson, assault, kidnapping and defeating the ends of justice. He was sentenced to an effective 15 years in jail by the Mthatha High Court, which later granted him leave to appeal against both conviction and sentence but he really does not believe that he is subject to the Rule of Law and is rather cross that the court had the cheek to find him guilty and brand him as a criminal merely for burning down a few houses, torturing a few people and causing the death of a young man.

Well, both the folks in Orania and King Dalindyebo and his cronies will not have much luck if they wish to secede from South Africa as the Constitution does not allow for it. Section 1 of the Constitution establishes South Africa as one, sovereign, democratic state, while section 3 states that there will be a common South African citizenship and that national legislation must regulate the acquisition and loss of citizenship.

As a sop to right-wing Afrikaners the Constitution also includes a provision on self-determination but this will be of little help to the folks of Orania or to the King and his cronies. Section 235 states:

The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.

This section therefore provides for some form of self-determination, but only within the existing borders of South Africa and only as provided for by national legislation. Unless Parliament passes a law to provide some form of self-rule for the folks of Orania or for the abaThembu, they have no legal way of breaking away from South Africa.

This is in line with international law which generally endorses the view that the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally from the nation in terms of international law.

In any case, its a good thing that King Dalindyebo has decided not to take any steps yet to try and secede from South Africa as he might well get into even more trouble if he does so. This is because unlawful action (that is, action outside the mechanisms provided for in the Constitution) taken by a person owing allegiance to a state with the intent to threaten or endanger the security of the state or to change the constitutional structure of the state would constitute the crime of treason.

The King, his advisors and his lawyer should therefore be careful not to do anything that could be perceived to undermine the territorial integrity of the South African state. They would be free to petition the President or launch a campaign to try and convince the legislature to grant them some form of self-determination as such actions would be lawful, but if they act in a manner not provided for by the Constitution in a purported attempt to secede from South Africa they would be guilty of a very serious crime of treason.

Of course, the King is already guilty of another very serious crime, namely making a complete fool of himself. Maybe all the stress will get to him and he could then be released on medical parole because he was in the last stages of a terminal illness to die a dignified death. After all, that story seemed to have worked for Schabir Shaik.

Further thoughts on polygamy

Jan 6th, 2010
by Pierre De Vos.
18 comments

An alert reader of this Blog emailed to ask whether clauses 3(2) and 10(1) of The Recognition of Customary Marriages Act (Act no 120 of 1998) may not be unconstitutional because these provisions only allow men who marry in terms of customary law to marry more than one spouse.

It seems to me contradictory in nature, applying double standards and finally discriminating against persons amongst others on “ethnic … origin”, “marital status”, “sexual orientation” (taking “sexual orientation”  in the widest possible interpretation of the words) and “religion, conscience, belief” – this is thus unconstitutional in terms of Clause 9(3) of the Constitution.   By denying people married in terms of The Marriage Act, 1961, the right to conclude a legally binding traditional marriages with other women, it seems to also interfere with the right of freedom of association….

The prohibition of polygyny in practice denies a significant number of women the right to enter into a legally binding marriage with a man. Fact is that there are more women than men.  The unbalanced numbers become worse the older people become, as women generally live longer than men.  Even if it is only a possibility rather than the reality the prohibition of polygyny in the Marriage Act, 1961, denies possible surplus women the right of entering into a legally binding marriage with a man, de facto forcing such women to either live celibate or enter into an extramarital relationship with a married man with very little legal protection.

Is it the task of the state to prescribe to its citizens how many women may be legally married to one man or is it the task of the state to protect the rights of all persons equally who enter into a marriage relationship, irrespective of the number people involved?

Other readers have also defended the practice of polygamy and the provisions of the law which legally recognizes the practice, on the ground that women who enter into polygamous marriages choose to do so. The state has no right to interfere with the choices made by individuals regarding whom they wish to marry and whom not, so the argument goes, as this interferes with their right to freedom of association and their right to marry (which the Constitutional Court found in the Dawood case was implicitly protected by the right to human dignity).

First, the legal recognition of polygamous marriages is limited by the Ac to marriages concluded in terms of “customary law” which is defined in the Act as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. A white man raised in Sandton or Bellville will therefore not be able to enter into a legally valid polygamous marriage. As South African customary law generally does not recognize the right of women to take more than one husband (Modjadji the Rain Queen is said by some to be an exception), women – even those living in terms of African custom – will usually not be allowed to conclude polyandrous marriages.

Second, personally I tend to be a libertarian regarding the legal recognition of various forms of intimate relationships and if I was a member of the legislature I would argue for the expansion of the legal recognition of multi-partner marriages to include all South Africans – including marriages between more than two men or women and marriages between one women and many men, regardless of the customary law or common law traditions which might be applicable to the individuals involved.

As long as the law protects the rights of all the parties and ensures – as far as the law is capable of ensuring – that one or more of the parties to such an arrangement are not subjugated or discriminated against, there seems to be no inherent logical reason for the legislature not to extend the legal recognition of multi-partner marriages to all individuals who choose to enter into them.

Third, the question of choice is a complex one. Research has shown that the “choice” of a woman to enter into a marriage or not to enter into a marriage (or to enter into a polygamous marriage) is often circumscribed by the  differences in economic power between the woman and the man and by culture and tradition which accords men more power than woman in intimate relationship choices. Many woman who wish to marry their partners do not marry because their male partners do not wish to marry because they fear the legal obligations that would flow from such a marriage.

The Volks v Robinson case in which Miss Robinson looked after her partner for 15 years but was denied any claim to be maintained by his deceased estate because he chose not to marry her when he was alive, is a good example of how a woman can be denied some financial and legal benefits because of her relative weak position vis-a-vis her partner.

The law should therefore protect such individuals who “choose” not to marry or who “choose” to enter into a polygamous marriage because without such protection they might well suffer sex and gender discrimination. The Recognition of Customary Marriages Act (as well as other legislation dealing with the financial consequences of marriage and its dissolution) attempts to provide such protection to women – even when such marriages are polygamous.

Fourth, the argument that section 3(2) and 10(1) of the Act discriminates against (i) woman who wish to marry more than one partner; (ii) individuals in same-sex relationships who wish to marry more than one partner; or (iii) individuals who do not live in accordance with African customary law but wishes to marry more than one partner is an intriguing one, but (I suspect) is an argument that will be rejected by the Constitutional Court.

Section 9(3) of the Constitution prohibits unfair discrimination and the Constitutional Court has argued that discrimination would be unfair if the different treatment has the effect of undermining the human dignity of those excluded. A court will weigh up all relevant factors and will look, in particular, at whether the group complaining of discrimination has suffered past discrimination in the context of the complaint and whether this “discrimination” may not be justified because it achieves an important governmental purpose.

I suspect the Court will argue the law as it stands achieves two important goals: it recognizes the traditions and customs of a particular section of the community whose traditions and customs have been disrespected by the apartheid state while also recognizing the general societal goal of limiting marriage to two individuals. At the same time, the law does not send a signal that those who are prohibited from entering multi-partner marriages are less worthy of concern and respect and does not fundamentally affect their human dignity.

Whether this is a good argument is debatable. However, judicial politics, which demands that courts should be slow to interfere in social arrangements and should try and defer to the legislative branch of government if the infringement of rights occasioned by social norms is not fundamental (as it clearly was in the case of the prohibition on same-sex marriage), mitigates against a judicial finding that would extend marriage to all who wish to enter into multi-partner marriages.

Is polygamy unconstitutional?

Jan 4th, 2010
by Pierre De Vos.
105 comments

The media reports that President Jacob Zuma will tie the knot for the fifth time today. Although his first wife died and he was divorced from his second wife, he is still married to two other wives and the new wedding will confirm President’ Zuma’s polygamous status.

It is often said that polygamous marriages are unconstitutional. The equality clause trumps the right to culture in the South African Bill of Rights and polygamy discriminates against women – so the argument goes – because it allows a man to marry many wives but not a woman to marry many husbands and because the emotional and financial position of the existing wives is said to be weakened when their husband takes another wife.

In practice this is probably true  for many polygamous marriages as many men has both financial and physical power over their wives and act like tyrants and expect their wives to serve and obey them. But the law does mitigate against the harsh consequences of some marriages.

The Recognition of Customary Marriages Act no 120 of 1998 extends the state’s recognition and regulation of marriage to both monogamous and polygamous customary marriages. Where someone enters into a customary marriage they have a legal duty in terms of the Act within three months of entering into the marriage to have that marriage registered.

The financial position of the wife in a customary marriage is also safeguarded to some degree as section 6 of the Act states that:

A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.

While some traditional patriarchs (and some other men who are not necessarily considered traditional patriarchs) will be rather surprised to hear that their wife or wives enjoy equal status with them after marriage in terms of the law and might not always adhere to this provision of the law, the Act clearly aims to limit the harsh discriminatory effect of traditional patriarchal practices on married women.

Section 7 of the Act also attempts to mitigate the negative effects of a polygamous marriage on existing wives and states that a husband in a customary marriage who wishes to enter into a further customary marriage with another woman must make an application to the court to approve a written contract which will regulate the future financial arrangements of the marriages. 

When this happens the husband’s existing spouse or spouses and his prospective spouse must be joined in the proceedings and must in effect give permission for the further marriage. The court can amend any agreement to ensure that the existing wives are not prejudiced financially – even where such wives purports to consent to the terms of the new marriage.

Where the husband and his wives respect one another and get along and where the husband does not act like a tyrannical patriarch, this would mean that the wives would enjoy considerable protection from discrimination. The Act therefore goes a long way – on paper at least- in mitigating the discriminatory effect of polygamy.

It seems to me the real discrimination will be felt by one or more of the wives where the husband is not a kind man and where he does not respect the provisions of section 6 set out above or where the judicial officer shares the patriarchal views of the husband and fails to protect the financial and other interests of the existing wives. This happens – both in customary and civil marriages – and has just as much to do with culture than with the provisions of the law.

It seems to me that while one could make an argument that many women - of all races and whether they are in a polygamous marriage or not – are discriminated against when they enter into a marriage, the marriage per se could not be said to constitute unfair discrimination.     

It is the cultural practices and assumptions and the view that many men (of all races and whether they are polygamous or not) have of women and their role in a marriage that is the true cause of much of the hardship of married woman.

Although South Africa’s Constitutional Court has not yet been asked to pronounce on the constitutionality of polygamous marriages, I suspect the court will take a nuanced approach to this issue and will try to accommodate the cultural practice while also requiring protection of women.

If the letter and the spirit of the Recognition of Customary Marriages Act are adhered to by all parties concerned – something that is not always happening at the moment and will only change as our culture changes – I am not sure a court will declare polygamy unconstitutional.

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