Constitutional Hill

February, 2010:

Gareth is very, very cross…

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

The voice on the phone was a bit shrill and whiney. His name - so he informed me – was Gareth and he was phoning from the Democratic Alliance (DA) offices. Oh dear. He was very, very cross. How could I have written that his boss, Helen Zille, was a hypocrite for claiming the allegations of sexual infidelity and sexual harassment against Lennit Max was a private matter while she had insisted Jacob Zuma’s infidelities was a public matter?

Gareth (I assume it was Gareth van Onselen, the Democratic Alliance Executive Director of Communications, but I might be wrong so don’t quote me on that) was particularly perturbed that I had mentioned there were allegations of sexual harassment made against Max. “Your entire article hinges on that point and no-one has made such an allegation!” he seethed.

I pointed out that I had read about the allegations in the newspaper (in Die Burger, I later recalled), had made it clear in my post that these were no more than allegations (at this stage at least), and besides, the article clearly did not hinge on this point – as anyone with basic reading skills and a bit of integrity would have been able to determine without too much effort. Clearly where a party claims that it opposes marital infidelity and it is then alleged that one of its leaders cheated on his wife, it will be a public matter finish en klaar (as Jackie Selebi once said about his relationship with Glen Agliotti).

(Such matters are public because the right to freedom of expression, the right to vote, the right of access to information, read with the requirements for an open, accessible and accountable government, require this kind of openness from public representatives. They cannot hide behind claims of privacy because, thank goodness, we do not live in North Korea.)

Gareth was not convinced. “Show me the proof!” he shouted.

He also argued that Premier Zille had not suggested that marital infidelity was frowned upon by the DA when she said: “This does not imply, in any way, that I or the DA condone marital infidelity.” It could also mean exactly the opposite, Gareth said. In other words, it could just as well mean that the DA does condone marital infidelity. For spin doctors, up is sometimes down and down up, it seems. The rest of us know better.

At this point I became slightly rude and called Gareth a “party hack” and questioned his intelligence. His loyalty was obviously not in question.

Self-righteousness is seldom an attractive quality in people. When a big dose of hypocrisy is also stirred into that pot, it can be toxic. Many irritatingly self-righteous people are so busy being self-righteous, telling everyone else how they ought and ought not to behave, that they are seldom able to reflect on their own actions and to be self-critical. Encounters with the toxically self-righteous are therefore seldom edifying: one feels a bit soiled afterwards.

My encounter with Gareth gave me that soiled feeling.

This morning the Cape Times reported that Max had said he had only been linked to two prior sexual harassment cases, not four as was reported. In both instances, the cases were made after Max had taken disciplinary action against the complainants, Max claimed. He said his former media spokesperson, Julian Jansen, would have to prove, during a legal process, his allegations that Max had made sexual advances to two women in his department.

So, Max himself has now admitted that his former spokesperson had made allegations of sexual harassment. Sexual harassment is usually defined as “unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment”. In the workplace, when one’s boss makes sexual advances that are rebuffed, those advances are usually referred to as “sexual harassment” as they are unwelcome, can create a hostile environment and can lead to the victimisation of the women. (Hint: In a constitutional democracy based on human dignity, this is usually not seen as a good thing.)  

In any case, the larger issue is still one of gender equality and gender politics. Did Max use his position (as boss or as legal representative of Belinda Petersen) to obtain or to try and obtain sexual favours from women? If he did, he is a sexist pig. If he did not, many other people seem to be lying through their teeth. It would be a conspiracy – sort of like the one against President Jacob Zuma. Either way, finding out what happened would be in the public interest and very important for voters who had to decide which party to vote for in the next election.

Personally, I would not vote for a party who considered possible sexism a private matter. (A party housing a few philanderers would not really get me upset though.)

Zille’s argument about this being a private matter can therefore not stand. One can only maintain that view if one thought that possible sexism, gender oppression and discrimination against woman were only relevant when it happened in the public sphere. Feminism 101 teaches us that this distinction between the public and the private sphere is an oppressive one as it is maintained to shield men from exposure and to privatise sexism and discrimination against woman.

Once again, the allegations might be wrong. Lennit Max might be a feminist of note. But allegations that he used his position to obtain sexual favours from not one, not two, but three women cannot be a private matter – ever –  as it goes to the heart of his integrity. He is an important leader of the official opposition and if the DA believes that his treatment of women is a private matter it is shockingly backward in its gender views.

The fact that Zille has announced that the DA government in the Western Cape was reviving its defunct sexual harassment policy tells its own story. Questions one could ask are: why were the policy dormant? Why revive it now if – as Gareth claims – there have been no allegations of sexual harassment against Max? The fact that Zille had appointed an all-male cabinet and had not – until the recent allegations – ensured that a sexual harassment policy was in place in the Western Cape place a serious question mark over the DA’s commitment to gender equality.

I know Gareth will disagree with me – in his inimitable self-righteous manner. C’est la vie.

Privacy for “us”, but not for “them”?

Feb 15th, 2010
by Pierre De Vos.
30 comments

Sometimes a politician says something that seems so out of sync with what people believe and think or is so hypocritical that one wonders whether he or she was not misquoted. Sometimes the politician says something that is both out of sync with public beliefs and spectacularly hypocritical and then one can only laugh derisively.

Helen Zille said just such a thing this weekend. Commenting on the sex scandal engulfing Lennit Max, who is alleged to have had an affair (or at least sex) with police station clerk Belinda Petersen and is further alleged to have used his position to get Petersen to have sex with him, Zille said:

Unless there is evidence to the contrary, this matter has nothing to do with anyone except the Max and Petersen families, their consciences and their respective churches. This does not imply, in any way, that I or the DA condone marital infidelity. We merely believe that private matters that do not have deleterious public consequences are not matters that should be delath with by a political party. Private actions by politicians are a matter of public concern, for example, if a politician does not practice what he preaches.

So, allegations that Max sexually harassed someone who, in effect, works for him is a private matter because Max has never publicly made statements condemning sexual harassment. The DA is a moralistic party who hates marital infidelity but it has nothing to do with them if one of their leaders allegedly cheats on his wife. Come on!

As I said during the Zuma Babygate scandal, I am not a particularly moralistic person and personally I do not think that it is of much consequence when a politician has lots of sex with different men or women – as long as the politician does the job we pay him or her to do and as long as the private actions do not contradict the public utterances of the politician or the policy positions of the party he or she belongs to. 

As with Zuma, we do not have all the facts yet. Maybe Max is an angel and “never had sexual relations with that woman” (to quote Bill Clinton). However, it is clear that the allegations that Max used his position as MEC for Community Safety to secure sex with Petersen, is not a private matter. Nor would it have been a private matter if there was indeed a relationship and it was all consensual. 

If it is true that Max had sexually harassed Petersen, it would display a shocking lack of commitment to gender equality on his part. As far as I know the DA is against sexual harassment of women, so when allegations of such harassment are made against one of its leaders, the party cannot claim that this has nothing to do with it.

If Max merely had consensual sex with someone who was not his wife, while the DA believes this to be a terrible thing (as Zille claimed this weekend), it would also be a public matter as it would show that Max is a hypocrite. It would show that while endorsing the policies of a party which he wants to serve in a leadership position, he was doing things in private that the party really finds rather distasteful – in its prissy, moralistic way. Just like it would be a public matter if an ACDP leader has sex with a member of the same sex because it would show that the leader’s private actions completely contradicted the political party’s public stance on homosexuality, so Max’s alleged infidelity is a public matter.

If Zille had said the DA believed that marital infidelity was no big deal to the DA as it says nothing about the ability of the leader of the party to do his or her job, I would have agreed with her. Who cares about whether Max sleeps with someone who is not his wife? I don’t. But to try and have it both ways, being all moralistic about “marital infidelity” and then claiming – exactly like President Zuma did only two weeks ago! – that this was a private matter, seems so tone deaf and hypocritical that it takes my breath away.

If the DA claims to espouse certain values and one of its members (and someone aspiring to a leadership position in that party) allegedly fails to adhere to those values, it clearly is not a private matter. It goes to the heart of whether the party practices what it preaches.

Furthermore, the way in which men treat women in our society and the attitudes of men towards woman as sex objects in our society is almost always a public matter – even when one is not a politician of the DA, ANC or ACDP. Our Constitution guarantees gender equality and when any of us behave in a sexist manner – even in private – the media would have any right to report on it.

The DA, who says it supports gender equality (but whose track record has not been great on this, what with Zille appointing an all male cabinet and all), cannot now run away and hide behind the old chestnut that Max’s alleged relationship with a woman is a private matter which is of no consequence to the party. Just like President Zuma cannot pretend that having three wives and cheating on these wives with many other women is not a gender issue that should be up for public scrutiny and debate, so Zille or Max cannot pretend this is private.

A better line of reasoning would have been to hide behind the “innocent until proven guilty” mantra so beloved by politicians. It would have been nonsense, but at least it might have bought the DA some time to try and sort out this mess.

On Nelson Mandela

Feb 11th, 2010
by Pierre De Vos.
42 comments

Today twenty years ago exactly Nelson Mandela was finally released from prison after serving 27 years of his sentence for life imprisonment. It was a very hot day in Cape Town and the 100 000 strong crowd was baking in the sun. Most of us either had no money to go and buy water or were too scared of losing our places close to the front if we left, but we were not going to miss this event for anything, so we stuck it out.

I was standing just to the left of the City Hall balcony next to a palm tree. At first, the crowd was friendly and festive, and I amiably chatted to the people around me – white and black, rich and poor – who had come to see Mandela give his first speech after his release. But as the minutes dragged into hours and the rumours spread – the regime had decided not to release Mandela after all; Winnie Mandela was refusing to come out of the prison; there was a right wing plot to assassinate Mandela – the crowd became restless.

BIO-MANDELA-WINNIE-RELEASEAt some stage the pushing and shoving became dangerous and for a while I thought I was going to be crushed to death. Allan Boesak tried to calm the crowd, but it did not help. Ironically it was the looters that brought relief. At the back some hooligans had looted the liquor store and the police fired their guns. We all stopped pushing and ducked, peering carefully to see what the hell the Police were getting up to.

Two white woman – every hair in place, nails varnished, clearly not the usual struggle suspects – who were standing close to me started praying. “Vandag maak hulle ons nog vrek,” one whispered to the other (“Today they will kill us”) It was not clear whether they were referring to the Police or to members of the crowd. 

When Mandela finally appeared on the balcony a huge roar went up. He delivered the speech, but I can remember very little of what he said. Now we were hugging each other and crying and laughing.

It had suddenly dawned on us while listening to this man: We were going to be free after all. It might take a year or five years, but the end of apartheid was inevitable.

Today twenty years later I still get a chill down my spine when I recall that day. I would not have missed it for the world. Today, again, it feels great to be a South African.

Jacob Zuma’s promises come back to haunt him

Feb 10th, 2010
by Pierre De Vos.
92 comments

The overwhelmingly negative reaction of the majority of South Africans to the recent news that President Jacob Zuma had had unprotected sex (and had fathered a child) with the daughter of a friend who was not his wife (shortly before marrying his third wife) took me by surprise.  As Steven Friedman pointed out last week, Zuma is a polygamist and it has been public knowledge that he has had multiple sexual partners and many children, so why the fuss?

Why the sudden rush to judgment? Have we all suddenly turned into moralistic and judgmental prudes?

Eusebius McKaiser suggested – wrongly, I suspect – that the condemnation of the President was something that the “chattering classes” indulged in and (like Steven Friedman) suggested that the latest revelations about the sexual antics of our President will have no effect of his standing among the masses. McKaiser continued:

Zuma has much more important weaknesses that should give us cause for concern. For example, does he have the capacity to speak confidently to important policy questions – foreign policy, climate change, crime, education, health etc.? Does he have the capacity to strike a balance between his famed penchant for listening and showing clear leadership in relation to tensions within the alliance? Can he put a view of his own – and not one that is handed to him by the African National Congress – on any of the sexy issues of the day, like nationalisation of the mines, for example? I very much doubt Zuma’s leadership on these fronts. An assessment of his character in relation to these challenges is much more important than whether or not he is a paragon of moral virtue.

If his bedroom life could shed light on whether he can lead us effectively on these policy fronts, then details about his sexuality would take on more obvious relevance. But they do not. Whether or not Zuma had sex with Sonono Khoza does not tell me whether he has the ability to steer us through a recession. It just tells me that he is a ‘player’ like many of us.

I suspect that McKaiser has it exactly wrong on this score. South Africans of all stripes (not only the chattering classes) can be quite moralistic (at least in public) but we also love an underdog and most of us are relatively quick to forgive. For goodness, sake some people even forgave Andriaan Vlok for being the Minister of Police in apartheid South Africa and for trying to poison Frank Chikane – and all Vlok had to do was wash Chikane’s feet.

While Zuma was embroiled in a titanic battle with Thabo Mbeki and his cohorts, many South Africans rooted for Zuma. He was the underdog taking on Mbeki – the mighty leader of the ANC, the intellectual bully of note, the President of the country. Zuma had convinced many people – from the Cosatu leadership to newspaper columnists to rank and file ANC members – that Mbeki and his allies had conspired against him. He was being persecuted to ensure that he never becomes President.

It was therefore easy to forgive him. It was also easy to gloss over the uncomfortable truth regarding his corrupt relationship with Schabir Shaik and his inappropriate relationship with the daughter of a friend because he was under attack. After all, he was a victim – just like all black South Africans had been victims of apartheid, racism and oppression.

But Zuma has been President for eight months now and he has appointed his confidants as Ministers of Police and State Security, as Commissioner of Police and as National Director of Public Prosecutions. There can be no question anymore of a conspiracy against Zuma as he is in charge of the country.

But his performance as President of the country has at best been lacluster. He has made many flamboyant promises but he has not taken many difficult but necessary decisions that may have alienated any of the factions that came together at Polokwane to unseat Mbeki. He has promised the creation of 500 000 jobs by the end of last year – yet 1 million people had actually lost their jobs instead. He promised to root out corruption in the civil service and in the granting of tenders and to subject his Minister to performance contracts – but corruption has increased and Ministers have not signed such contracts.

Last year, in what was hailed as a welcome break with previous government practice, Zuma made an unannounced visit to the Siyathemba township outside Balfour after service delivery protests and later announced measures that would address the community’s demands. Monitoring and Evaluation Minister Collins Chabane, who visited the area soon after Zuma, promised residents that a boarding school for 85 pupils, and an education and training college, would be established in the area. He said the hours of the local Home Affairs office would be extended. Yet nothing happened: there is no boarding school, no college, no improvement in the work-ethic of home affairs officials, no improvement in the lives of the people of Siyathemba.

I suspect this disconnection between the promises and the actual deeds of the Zuma government lies at the heart of the harsh criticism of Zuma’s promiscuity. Just as we believed the President when he apologised in 2006 for sleeping with the daughter of a friend and said he was sorry, we also believed him last year when he made all the promises of how his government would do things differently and make things better.

We were dreaming, of course: Out would go the failed policies of heartless old Thabo and his cronies. In would come the caring, confident and efficient Zuma administration to fix the education and the health care systems and service delivery problems, the corruption and nepotism. We would all live happily ever after. But these problems are not easily fixed and at the very least require decisive, brave and principled leadership. This kind of leadership has been completely absent from the Zuma government.

So for most people nothing seemed to have changed. Whether one is a member of the chattering classes or an unemployed youth in Siyathemba township, it is difficult not to feel some apprehension about the gap between the wonderful rhetoric of President Zuma and his government (on HIV, on corruption, on service delivery) on the one hand, and the rather dismal and depressing reality of the non-realisation of these promises on the other.

I suspect that when South Africans learnt that Zuma yet again had unprotected sex out of wedlock with a friend’s daughter, many were incensed not only because they were ready to judge the President on moral grounds. Instead many of us saw parallels between this scandal and the President’s performance as head of state. While he had claimed to be a pastor in church and had endorsed the government’s HIV prevention policy in public, he had behaved in a manner in private that fundamentally contradicted this public persona and utterances. This looked eerily similar to the disconnection between the many promises he and his government Ministers have made to us over the past eight months and the reality of broken promises and business as usual politics.

For many South Africans Zuma’s bedroom life could indeed shed light on his ability to lead us effectively, as it seems to demonstrate quite starkly that he is a man who would say anything, promise anything, and do anything when the camera lights are trained on him, but would often do exactly the opposite when no one was looking. 

The President’s sexual indiscretions became a metaphor for the larger indiscretions of his government and underlined the stark fact that we had elected as our President someone whose words could seldom if ever be trusted. Whether this will ultimately mean the end of  Zuma’s political career I cannot say. What I do know is that recent revelations about Zuma’s private life  have fundamentally eroded the President’s credibility, exactly because it mirrored the way in which he runs the government and the party that he is president of.

On precedent and Mr Von Abo

Feb 9th, 2010
by Pierre De Vos.
No comments yet

High Court judges are supposed to have a duty to follow the precedent set by the Constitutional Court and they have to do so in an honest and diligent manner. As readers of this Blog know, I believe South African High Court judges do not always adhere to this injunction. This is either because judges are ignorant of Constitutional Court precedent (as seemed to have been the case in a recent Cape High Court judgment on section 9 of the Constitution involving an exotic dancer from Moldova) or because they do not like the precedent and then “re-interpret” it to fit their own needs (as seemed to have happened in the controversial Von Abo judgment about the expropriation of farms in Zimbabwe).

Where such a re-interpretation of the law is legally credible (in that it is logical and relatively rational and would not undermine the legitimacy of the courts and diminish respect for judges and the judiciary as an institution) and where the outcome achieved is more just than it would otherwise have been if the precedent was strictly adhered to, an argument could be made that one should not be too harsh on a lower court judge.  After all, precedent is not water tight and in my book a judge who seeks justice (if that is ever achievable!), while also attempting to take seriously his or her role as judge and the precedent of higher courts is a good judge.

However, in my opinion the judgment in Von Abo v the Republic of South Africa and Others, handed down on Friday in the North Gauteng High Court by Prinsloo J, went too far, producing a judgment that strayed way beyond Constitutional Court precedent, thus straining credulity in the process. Worse, the judgment contains several sarcastic statements and angry denunciations which display a thinly veiled contempt for the government of the day – not something a credible court judgement should do lightly. In both tone and in effect the judgment fails to respect the principle of separation of powers as annunciate by our highest court.

The judgment ordered the Government and the Minister of International Relations to pay constitutional damages to Mr Von Abo because the government and the Minister had failed to honour a previous court order which declared that they had a Constitutional obligation to provide diplomatic protection to Mr Von Abo – whose farms were confiscated in Zimbabwe. The previous judgment also ordered them to take all necessary steps to have Mr Von Abo violation of his rights by the Government of Zimbabwe remedied and to report to the court within 60 days of the order about what steps they have taken to achieve this.

The Minister had not taken any steps in this regard, relying on junior officials and the South African ambassador in Zimbabwe who met Zimbabwean officials and requested the Zimbabwean officials to assist, something which – surprise! – theZimbabweans did not do. As Prinsloo rather caustically states:

The applicant has received no relief despite the good intentions of the officials…. [The Minister exhibited no interest whatsoever in attempting to comply with the orders of this court. Her conduct borders on contemptuous.

The court found that although the SA government said it would comply with the previous order, they “did nothing of the sort”. No effective measures were taken to try and protect the rights of Mr Von Abo. Thus while the government had taken steps, it did not take steps that actually made any difference to Mr Von Abo which meant they had been in breach of the original court order. 

This approach – just like the original judgment – completely misconstrues the precedent set by the Constitutional Court in Kaunda and Others v The President of the RSA and Others. In that case the Constitutional Court controversially stated that South African citizens had a right to request diplomatic protection and the Government has a corresponding obligation to consider the request and deal with it consistently with the Constitution. But the judgement by Chaskalson J cautioned as follows:

This, however, is a terrain in which courts must exercise discretion and recognise that government is better placed than they are to deal with such matters…. A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity….

But where the government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.

Although the Constitutional Court judgment has been criticised for its rather timid approach (criticism I agree with), the High Court had a duty to try and reconcile his reasoning with that of the higher court – something he did not do in any plausible manner. The judgment of Prinsloo J does not take to heart the warnings of the Constitutional Court about the courts’ unsuitability to make determinations about the correct line of diplomatic intervention. Because the Government intervention was – according to the judge – less than enthusiastic, it did not comply with the original order. The judge failed to deal with the matter in accordance with the rationality test as set out by the Constitutional Court, and thus failed to adequately justify the decision in accordance with binding precedent.

It might well be that the Government could and should have done more for Mr Von Abo and others like him. South Africa’s attitude towards the Mugabe regime in Zimbabwe has been at best perplexing and at worse scandalous. It might well be that a High Court judge could have fashioned a set of reasons to justify the orders handed down without straining credulity. Sadly Prinsloo J did nothing of the sort.

Of course, whether the original judgment adhered to Constitutional Court precedent is itself highly debatable and if the Minister had appealed to the Constitutional Court, that court might well have overturned the decision. The Constitutional Court is rather conservative when it comes to matters like this and they are very timid about interfering with policy decisions such as decisions about how exactly to conduct foreign policy negotiations. The Minister did not appeal – either because her officials were uninformed about the law or because they were, ironically, trying to use the High Court judgment as a bargaining tool with the unimpressed Zimbabweans.

The Von Abo case raises important issues about the limits of the power of the court to interfere with the policy decisions and actions of the government. Let us hope that the second time around the Minister will get off her backside and appeal the decision, in which case the Constitutional Court may well revisit the timid approach set out in Kaunda.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Zapiro on President Jacob Zuma

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

05feb10xzapiro

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But that would not be enough.

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

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

Did the President lie about his “wives”?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Twenty children and counting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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