Constitutional Hill

March, 2010:

Why the hate speech provisions may be unconstitutional

Mar 31st, 2010
by Pierre De Vos.
95 comments

One should be careful not to endorse legislation merely because it is being used in one case against one person whom one may not like very much. It is always better to look in a principled manner at legislation and to ask whether the legislation is good or bad for our democracy and whether the legislation passes constitutional muster. This is why I believe it is important to look critically at the hate speech provision in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Such a critical evaluation will reveal that there are serious questions about the constitutionality of the hate speech provision. In fact, I suspect that the provision is unconstitutional and hope that it will be challenged by someone (Julius are you there?), so that it can be declared invalid by the Constitutional Court. Here are the reasons for this view.

The hate speech provision in PEPUDA has to be tested against section 16(1) of the Constitution. This section guarantees the right to freedom of expression for everyone and includes (but is not restricted to) the freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.

This freedom is qualified in section 16(2) of the Constitution which states that freedom of expression “does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

This means that if Parliament passed a law that prohibits criticism of the President or sets up an elaborate system for the registration of newspapers to try and prevent the flourishing of a free press or prohibits artists from displaying works of art of women embracing, this will contravene the guarantee of freedom of expression and will almost certainly not be justifiable in terms of the limitation clause.

It also means that if Parliament passed a law prohibiting hate speech in accordance with section 16(2), such a provision will not be protected by the Constitution and will thus be constitutionally valid. But what happens if Parliament prohibits hate speech in a manner that is far broader than that envisaged by section 16(2)? That provision will then infringe on the right to freedom of expression set out in section 16(1) and the legal question would be whether the provision was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as set out in the limitations clause in section 36 of the Constitution.

It is clear that section 10 of PEPUDA prohibits hate speech in terms far broader than that envisaged by section 16(2) and it thus infringes on the right to freedom of expression set out in section 16(1). This is because section 10 – read with section 12 of PEPUDA – states that:

no one may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, 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…. Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

This section is far broader than the section 16(2) exception because it includes speech based on any prohibited ground – not only the grounds of race ethnicity, gender or religion as stipulated in section 16(2). Speech targeting a person based on his or her sexual orientation, pregnancy, marital status, age, disability, conscience, belief, culture, language and birth may therefore also constitute hate speech in terms of the PEPUDA definition.

Secondly, the section does not only prohibit speech that “advocates hatred… and that constitutes incitement to cause harm”. Instead, any speech that can “reasonably be construed to have a clear intention to be hurtful” to any person because that person belongs to one of the listed groups will constitute hate speech.

This means, depending on the context, it may potentially be unlawful to refer to homosexuals as “moffies” (as Fred Kumalo did last weekend in the Sunday Times) or to tell a person that he or she is a pervert and will burn in hell because he or she is gay. Calling someone a “kaffir” or a “Boer” could constitute hate speech as well. When a religious person tells an atheist that he or she has been condemned by God to burn in hell this could also potentially constitute hate speech. If an atheist tells a religious person that he or she is a fool for believing in God or that the God he or she believes in is a cruel and heartless one, or that God is in any case dead, this could constitute hate speech.

Telling a 10 year old that he or she is wet behind the ears and still needs to grow up could constitute hate speech. Telling someone that their home language is ugly or was the language of the oppressor could constitute hate speech. Telling a polygamist that polygamy was a backward and oppressive cultural practice and that he was an oppressor of woman for indulging in polygamy could constitute hate speech. Telling someone that members from his or her ethnic group are lazy, cunning, dishonest or greedy could constitute hate speech.

The list is endless.

As long as one could show on reasonable grounds that there was an intention to be hurtful to a person because he or she belonged to one of the listed groups, the speech would be prohibited. This would depend on the context, but one can imagine that in millions of conversations across South Africa every year people say things about one another based on their attributes or characteristics with the intention to hurt their feelings. Section 10 potentially prohibits all such statements. The definition is therefore so broad that it severely infringes on our rights to freedom of religion and conscience. It also has the potential to severely limit  the expression of political and deeply held personal views.

This is so absurdly broad that it is difficult to see how the Constitutional Court would find that the hate speech provision is nevertheless justifiable in terms of the limitation clause. The limit placed on personal freedom and on the vigorous exchange of ideas so far outweigh the harm that would be caused by the “hurtful” speech, that it could not be said to be justifiable.

This does not mean that PEPUDA could not include a hate speech provision along the lines of section 16(2)(c). It does mean that the current provision is far too broad and is probably unconstitutional.

The current provision is also bad on policy grounds. In a vibrant democracy which respects difference and diversity – also diversity of opinion – it would be dangerous to ban all speech that could be construed as intending to be hurtful to another person merely because of that person’s race, sex, sexual orientation, religion, language, ethnicity, culture or age. Some of us remember all too well how the apartheid government tried to censor our thoughts and our speech. Do we really want to go back to a situation where we are so scared to express our deeply and sincerely held and honest opinions that we shut up because we fear we might be found guilty of hate speech?

I, for one, would not want that.

So, anyone who happens to know Julius Malema, please tell him he should not try to defend himself before the Equality Court regarding his “Kill the Boer” statement. Instead he should challenge the constitutionality of section 10 of PEPUDA and argue that the section is so broad that it could not possibly pass constitutional muster. That way something good might still come out of this mad distraction.

Is everyone going completely mad?

Mar 31st, 2010
by Pierre De Vos.
32 comments

A  majority of South Africans (including academics, politicians and perhaps even a judge or two) seem to have lost their heads - all because of one phrase uttered by a rather greedy and foolish young man. (Am I allowed to mention what that phrase is, seeing that the High Court has declared it “unconstitutional and unlawful”? Let’s just say it involves “Boers” and maybe an Umshini Wami or a knife.)

Little Julius has gotten people so worked up about that phrase – just as he had intended to do – that people’s fears, prejudices, ignorance and hatred is overshadowing their logic and reason. The result is that many people have embarrassed themselves by making statements that are ignorant, uninformed and – in some cases – rather laughable.

Thus, in a radio debate this morning, a respected retired academic argued with me by insisting – wrongly - that the Constitution did indeed ban hate speech. And yesterday Gwede Mantashe – who usually speaks more sense - announced that the ANC will file an application in the Equality Court to complain about the Freedom Front Plus’s (FF+) “prosecute Malema” campaign.

Calm down people! Let us look at the facts and the law.

In The Islamic Unity Convention v IBA judgment, then Deputy Chief Justice Pius Langa reminded us of the importance of freedom of expression as guaranteed in section 16 of the Bill of Rights and stated:

we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively circumscribed by various legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be incompatible with South Africa’s present commitment to a society based on a “constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours”

We should not forget to what extent the apartheid state censored us and what disasterous effects this had on our ability to take part in democratic dialogue and contestation. We should also not forget how this censorship undermined our personal freedom and to what extent our ability to decide for ourselves who we were and how we wanted to live were curtailed by the authoritarian state.

However, the Court went on to explain the relationship between section 16(1) of the Constitution, which guarantees freedom of expression and section 16(2), which lists the grounds of unprotected speech – including hate speech. In effect the court reminded us what kinds of speech would not be protected by the freedom of expression clause and why this speech would not be protected and said:

The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself… Thus, open and democratic societies permit reasonable proscription of activity and expression that pose a real and substantial threat to such values and to the constitutional order itself.

Section 16 is in two parts. Subsection (1) is concerned with expression that is protected under the Constitution. It is clear that any limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection (2) deals with expression that is specifically excluded from the protection of the right.

How is section 16(2) to be interpreted? The words “[t]he right in subsection (1) does not extend to . . .” imply that the categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm….

There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right in section 16.

That is why a statement by a judge or an academic that any speech is unconstitutional is, to be polite, utter nonsense. What the above passage makes clear is that the common law or legislation can regulate speech that constitutes hate speech without falling foul of the guarantee of freedom of expression in section 16 of the Constitution. And this is done – thank you very much – by section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

But as I have said many times before, section 10 focuses on speech that is intended to cause harm or be hurtful not to one person – even if that person is a cry-baby like Julius Malema – but rather if it is intended to hurt or harm a group based on their race, sex, sexual orientation or religion.

The FF+ “prosecute Malema” campaign is therefore never, not in a million years, ever, by any magistrate or judge, ever, going to be found to constitute hate speech. This is because Malema is targeted and not a racial group and because the campaign is not intended to harm or hurt Malema’s feelings or to have him killed, merely to have him prosecuted in a court of law. It could never, ever, constitute hate speech to campaign for justice and to campaign for the prosecution of an individual. One would then have to ban any campaign to uphold the Rule of Law and the Constitution, a notion so absurd that I do not know whether I should laugh or cry that this idea was raised by a senior leader of the governing party. Let’s face it, Mantashe made a right real twit of himself by suggesting otherwise.

Really, don’t these people think before they talk? Don’t they at least speak to lawyers? Are they not at least a little bit worried about making fools of themselves before they say such silly things in public?

So calm down. Take a deep breath. Smile. Then start digging to find out how Julius became so rich so fast. Expose details of his lavish lifestyle. Remind everyone every day that Julius has given many different and contradicrtory explanations about his wealth and about his involvement in tenders (in other words he has lied repeatedly to us).

Show how crooked tenders, corruption and influence peddling harm the poor and vulnerable people who have voted for the very party to which Julius belongs. Make use of your freedom of expression guaranteed in section 16 of the Constitution to mock Julius because of his double standards and hypocrisy, and (if you really feel like it) to mock his really bad marks for woodwork and his ostentatious and nouvea riche taste in drink and clothes.

But please, before you talk about hate speech, get your facts and your law straight first.

R.I.P. National Prosecuting Authority?

Mar 30th, 2010
by Pierre De Vos.
57 comments

Ordinarily it is unwise to jump to conclusions based on unconfirmed news reports. At the same time, when those reports seem to confirm one’s worst fears and dovetail neatly with everything one knows about the person reported about, it is difficult not to assume the worst. I fear, I assume the worst about my old friend Menzi Simelane.

That is why The Mercury report that as many as five top prosecutors have been demoted, does not come as a shock at all. Reading the news report, my first reaction was: “Well, duhh, I told you so.” After all, when Menzi Simelane was purportedly appointed as the National Director of Public Prosecutions (NDPP), I pointed out the blindingly obvious fact that he is a craven and unprincipled bootlicker of the powerful and wealthy. We know – because he had shown this himself – that he would do almost anything to please his masters.

Although the NDPP is constitutionally required to act without fear, favour or prejudice, Simelane has demonstrated a canny ability to act WITH fear, favour and prejudice when required to do so by the powerful wielders of political power. He was unfit for office when he was appointed as NDPP and he has proven himself unfit for that office over and over again after his appointment. (Only the President seemed to think differently at the time, but let’s face it, our President is not a very good judge of character and ability – after all, he befriended crook and fraudster Schabir Shaik!) President Zuma’s cynical and Machiavellian move to appoint Simelane as NDPP demonstrates that underneath the smiling and bumbling exterior, there is a rather unprincipled and ruthless man who is out to protect himself at any cost.

We all know that Simelane is a deeply flawed man whose ethical compass seemed to have gotten lost long ago – perhaps shortly after he first assumed a powerful position and started obeying orders from his party bosses. Many of us also feared that it would only be a matter of time before he destroyed any integrity the NPA might have had left. After all, he wrote a letter containing a criminal instruction to stop the arrest of the erstwhile police commissioner and disgraced himself before the Ginwala Inquiry by trying to hide evidence and by trying to mislead the Inquiry – only to be ruthlessly exposed as a liar under cross-examination by Advocate Wim Trengove.

He also decided to drop the case of the Asset Forfeiture Unit (AFU) against Fana Hlongwane, a well-connected businessman, who received millions from the arms deal and is a generous financial supporter of the ANC, despite the fact that the lawyers of the AFU believed they had a strong case against Hlongwana. The reasons given by Simelane for the dropping of the case are so absurd that they read like a Groucho Marx routine.

So, that is why I was not surprised to read that Simelane had purportedly demoted five senior prosecutors, an act that is expected to lead to major delays in court and may lead to legal action being taken. As The Mercury reports:

One of the men in the prosecution team in the rape trial of President Jacob Zuma has effectively been given the responsibilities of a clerk, says the report. Another chief prosecutor, Andre Lamprecht, with 33 years of experience, has been demoted to an ordinary prosecutor. Lamprecht, who was in charge of five courts in Soweto and the West Rand, was demoted after he refused to obey an instruction from Simelane not to oppose bail for hip-hop musician Molemo Jub Jub Maarohanye. Lamprecht, who is due to be replaced by Xoli Khanyile, is considering taking legal action against his ‘deployment’. Khanyile is currently a Deputy Director of Public Prosecutions in Gauteng.

If this is true, it is spine chilling stuff. If a prosecutor involved in the rape trial of President Zuma had really been demoted, it would suggest that Simelane is taking revenge on behalf of his political boss by demoting a prosecutor who merely did her work. It would make Simelane a thoroughly dangerous man. One assumes Simelane would present some half-baked reason for such moves. Some might even believe him. Given the fact that he has been economical with the truth before, I will be a bit more sceptical.

Then there is news from the Free State that three of the most senior Deputy Directors of Public Prosecutions in that province are heading back to the lower courts. Retha Meintjes SC, George Baloyi and Connie Erasmus have all been informed about their new duties in the Soshanguve, Mamelodi and Pretoria Magistrate’s Courts respectively. Meintjes is recognised internationally for her role in prosecuting cases of violence against children and women.

Baloyi is the provincial spokesperson of the NPA due to his seniority and Erasmus was involved in several disciplinary proceedings in the office of NPA head Menzi Simelane. The report says 11 of the most senior prosecutors will soon hear that they, too, are heading for the lower courts. NPA spokesperson Bulelwa Makeke said the ‘moves’ are in line with the NPA’s policy to better the quality of prosecutions in the lower courts. Baloyi said he would comment ‘when the time is right’.

Sadly, I don’t believe a word of the explanation proferred by the NPA spokesperson. Sending the most senior prosecutors back to court is like sending the Vice Chancellor back to the class room or sending the Police Commissioner out on the beat. One usually only does this kind of thing if one wants to get rid of the person involved. My suspicion is that these people have been moved because they are either too competent or too ready to act without fear, favour or prejudice for the liking of the NDPP.

Given what we know of Simelane, and given his recorded statements about the role of the NPA and its relationship with the executive, it is difficult not to conclude that he is deliberately and ruthlessly destroying any independent capability in the NPA to ensure that the NPA remains politically pliant in order to protect powerful ANC politicians from prosecution. And then he wants us to trust him. Fat chance.

Wonder if Simelane ever has a cup of Motata tea with one Paul Ngobeni? Maybe they can get together to have a chat on integirty and ethics.

On the curious case of “shooting the boer”

Mar 29th, 2010
by Pierre De Vos.
96 comments

News that the South Gautenteng High Court Acting Judge Leon Halgryn ruled on Friday that use of the words “dubula ibhunu (shoot the boer)” was unconstitutional and unlawful is odd, to say the least. Unfortunately this was an urgent application so the judge did not seem to have given reasons for his judgment. Nevertheless, if the media reports are correct, the judgment does not seem to make much sense.

I am not sure on what basis the  “publication” and the “utterance” of the words can be declared unconstitutional. It is true that section 16  of the Bill of Rights states that the right to freedom of expression does not extend to incitement of immenent violence or advocacy of hatred that is based on race, ethinity, gender or religion and that constitutes incitement to cause harm. However, section 16 itself does not ban such words, but merely states that the utterance of such words are not protected speech.

This would mean such speech could be regulated or banned by the legislature and such a ban could not be challenged on the basis that it infiringed on the section 16 protection of freedom of expression. It decidedly does not mean that in the absence of such regulation by the legislature the words are “unconstitutional”. How a particular phrase could ever be declared unconstitutional is beside me. There is no provision in the Bill of Rights that prohibits any particular phrase. If the judge was quoted correctly, he was obviously talking nonsense.

Another question is whether a particular phrase could be declared unlawful by a court. I suspect not. The utterance or publication of some words in certain context could amount to defamation or it could fall foul of section 10 of the Equality Act but that could only be done with reference to the specific context and the facts of a particular case.

Maybe the Acting Judge was relying on the criminal law principle in common law and in terms of the Riotous Assemblies Act which prohibits the incitement of a crime. But then it would have to be shown that an accused “sought to influence the mind of another person towards the commission of a crime” and that would depend on the facts of a particular case and could not be decided in the abstract.

It seems to me bizarre that a court could decide in the abstract in an urgent application that a particular phrase was unconstitutional and unlawful. Surely one will have to decide on a case by case basis whether the utterances of words defamed someone or falls foul of the Equality Act or constitutes incitement to commit a crime.

To hold otherwise would be dangerous, nonsensical and would lead to absurd consequences. What would happen if I write a short story and one of the characters sings “Shoot the Boer”. Would this mean my story when published would be declared “unconstitutional” and “unlawful”?

At the very least it would be good for the judge to present written reasons for this judgment. Based on the available evidence it makes absolutely no sense.

So who are the perverts?

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

During the same-sex marriage court case and at public hearings preceding the adoption of the Civil Union Act, the South African Catholic Church was one of the groups that vehemently opposed the extension of full marriage rights to same-sex couples. The Church in effect argued that the law should not recognise the equal dignity of gay men and lesbians as we are sinners who, if we act on our emotional and sexual desire, are nothing more than perverts.

Now the Pope, the very head of the Catholic Church, has been directly implicated in mishandling the case of a paedophile priest in his former archdiocese of Munich. According to the New York Times, the then Cardinal Joseph Ratzinger was copied in on a memo from his deputy in which the priest was transferred to parish duties in Bavaria that brought him into contact with children. As a result of that decision by the then vicar-general, Father Gerhard Gruber, the priest was able to continue abusing boys, for which he was later tried and convicted.

One suspect the authority of the Catholic Church to confidently condemn others who have not abused or exploited anyone but have merely decided to stop living a lie and to follow their hearts, have been fatally compromised. As is often the case, Zapiro captures the hypocrisy of the Pope in a stark visual image.

26mar10xzapiro-344

On “hate speech” as a diversionary tactic

Mar 25th, 2010
by Pierre De Vos.
101 comments

The wonderful thing about democracy is that it gives us all the right to make utter fools of ourselves and to say and do things that expose us as rabid, hypocritical, bigots. Julius Malema is a young man who has made good use of this freedom. Most decent and sane people now know that he is an idiot who says one thing and then does exactly the opposite. They also know that when he is caught lying or exposed as a hypocrite he blusters and bullies to detract attention from his own lack of honesty and integrity.

There are different ways to deal with the Malema problem. One can pretend that Julius is a genius leader in the making who only needs a bit of guidance from his party to become the next Nelson Mandela. That is President Jacob Zuma’s strategy – but we all know Zuma is following this strategy because he is weak and he needs Julius to cover his back.

One can also shout hysterically and jump up and down and lodge complaints about Malema’s hate speech – like Steve Hofmeyer is doing – and say racist things about black South Africans and whine and complain. This seems the preferred option for many white South Africans, perhaps because they have gold medals in whining and complaining already and it makes them feel better to hit Julius with his own bigoted medicine.

Ag nee wat.

Surely the best option is to ignore the things Julius says and to stick to the issues, to focus on the gap between who Julius says he is and what he actually does, to expose the way he got rich very fast and to ask hard questions about his tenders and his lies.  Why focus on his alleged hate speech when there are so much more important issues we need to be concerned about.

Who cares if Julius sings: “kill the boer”? Surely, the fact that he has a large stake in a company who received millions in tenders from municipalities and then did shoddy work is far more important. While the singing of an old struggle song calling for farmers to be permanently removed from society is irritating and maybe even hurtful to some, it is not going to make much difference to the quality of our democracy. Neither is it going to improve the lives of ordinary South Africans who feel deserted and angry because the governing party has deployed incompetent and sometimes corrupt friends and relatives to ensure the delivery of basic services needed for everyday survival.

People who make such a song and dance about the alleged hate speech uttered by Julius Malema play right into his hands. Instead of focusing on things that unite us (anger at shoddy service delivery, at the potholes and the blue light cars, at the corruption and the laziness, at the bigotry and hatred), the focus on hate speech forces us to talk only about that which divides us namely race, race and, yes, race.

I do not mean to say that there is no room for a law that prohibits extreme form of speech that dehumanises entire groups based on their race, sex, religion or sexual orientation. Although I suspect in a democracy it is almost always better to laugh at and ridicule those who say things that expose them as bigots and hate-mongers, it may well be necessary to safeguard the democratic space by regulating extreme forms of speech which is clearly intended to incite hatred against targeted groups.

But where an idiot like Malema launches silly and bigoted attacks against “boers” in order to change the topic so that we will stop talking about his R53 million in the bank, his tenders and his lies, then I suspect lodging “hate speech” complaints becomes a distraction that forces us to take our eye of the ball.

Next thing we will all be singing “Die Blou Bull eet nie van die Vloer af nie” while chanting Steve Hofmeyer’s name – all while Julius continues to rake in the millions and ordinary people suffer.

PS: I see Steve Hofmeyer is talking about recording a song called “Skiet die k.@#rs hulle is verkragters” This is as idiotic as one can get. Instead of demonstrating an ability to act in a decent and humane manner, Hofmeyer is really saying that he is no better than Malema. Sadly, many people follow and support Hofmeyer (and they are not all Blue Bulls supporters – some even support The Stormers like I do.)

Hofmeyer and his ilk does not understand that a racialist fight in which racist insults are hurled is bad for Afrikaners and bad for the country. It gives Julius what he wants on terms that he wants in a fight that only Julius can win. It is also unethical and wrong. But will I take Hofmeyer to the Equality Court for hate speech? Of course not. Let the idiots fight among themselves while decent people try and find ways to hold the lazy and corrupt to account and improve things for all South Africans.

What we talk about when we talk about accountability

Mar 24th, 2010
by Pierre De Vos.
44 comments

Accountability lies at the heart of our constitutional order. Yet, many South Africans and the overwhelming majority of politicians (and their apologists and enablers in academia) do not seem to believe in the muscular form of accountability envisaged by our Constitution. Despite some encouraging signs that some Parliamentary committees are grappling with ways of holding the executive and public officials to account, a culture of unaccountability still prevails.

Thus we had the ANC chief whip Mathole Motshekga recently stating that ministers should not have to appear before Scopa because “they have a country to run”. Motshekga was previously forced to clarify his statements to an ANC study group at which he told MPs he believed Scopa wanted to “parade and embarrass” ministers. This was an absurd statement demonstrating a shocking ignorance of the Constitution and displaying the kind of arrogance that is the enemy of accountability.

No wonder the Minister of Defence failed to appear before Scopa yesterday and excused herself in a letter dated last week but only delivered to Scopa before its meeting was about to start. No wonder also that Scopa chairperson, Themba Godi, yesterday lambasted Collins Chabane, Minister in the Presidency, for poor internal controls in the Presidency stating that there was:

serious concern about the level and quality of leadership in the Presidency. People get away with murder. Big and small financial offences are written off, as was the case with the National Youth Commission. These are people without any sense of responsibility, but they only get more money. There must be consequences for negligence.

No wonder also people like Julius Malema and their apologists and enablers in academia attack and smear anyone who point out the shortcomings of officials and politicians and mock their self-important and arrogant ways. Instead of applauding the diligent and patriotic manner in which some among us try and hold officials and politicians to account, such apologists and enablers cry racism and plead for “sensitivity” in handling the abuses of power, undermining of the Constitution, corruption, incompetence and laziness by politicians and state officials.

This happens because some among us do not subscribe to the model of accountability envisaged by the Constitution and wish to excuse the abuse of power and the undermining of the Constitution because of personal or ideological loyalties, personal identity hang-ups or because they stand to gain financially from defending the indefensible.

When one mocks a Minister because he or she failed to adhere to the provisions of the Constitution or the law one suddenly is branded a racist liberal. When one points out that the President should not have taken R4 million from a crook, should not have done favors for that crook and should not have lied about it, one becomes a “hater of the ANC”. When one lambast officials for dishing out tenders on the basis of connection or for looting state coffers one is branded as an opponent of transformation.

What such apologists and enablers fail to see, is that they are being profoundly unpatriotic and short-sighted and are undermining the very essence of our democratic order. In a sense, they are the true counter-revolutionaries as their actions or their silence undermine our constitutional system of democracy and accountability which, in turn, sell out the poor and destitute voters who rely on the state to provide effective and efficient services and to create conditions in which every individual will be able to reach their full potential as human beings.

Section 1 of the Constitution states that ours is a democracy based on “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The constitution thus explicitly links democracy to accountability and underlines the importance of the latter for the flourishing of the former. Where attacks are launched against the media or whistle blowers who work to keep politicians and state officials accountable, such attacks are nothing less than an attack on democracy itself.

Section 195 of the Constitution – probably the most ignored section of the document – underscores this point. Once again it links accountability to democracy and states that:

Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles

  1. A high standard of professional ethics must be promoted and maintained.
  2. Efficient, economic and effective use of resources must be promoted.
  3. Public administration must be development-oriented.
  4. Services must be provided impartially, fairly, equitably and without bias.
  5. People’s needs must be responded to, and the public must be encouraged to participate in policy-making.
  6. Public administration must be accountable.
  7. Transparency must be fostered by providing the public with timely, accessible and accurate information

The fundamental problem is that accountability becomes meaningless and the democracy is undermined when wrongdoing is covered up or, if it is exposed, those guilty of wrongdoing face no adverse consequences. A culture in which excuses are made for those who break the law, waste our money or fail to fulfill their constitutional and legal obligations (whether this is Jeff Radebe, Julius Malema or the President himself), is a profoundly anti-democratic culture. This is a culture in which no one is ever held responsible. In such a culture the belief will take root that: “because everyone else is doing it, I can also do it and get away with it.”

Of course the ultimate form of accountability is at the ballot box. But because we have a one-party dominant political system and because, for various reasons, most voters still do not believe that it is feasible to vote for anyone but the ANC, the ultimate form of accountability is not operative in our democracy. Opposition parties are either weak or lack credibility and apologists and enablers of the corrupt and the lazy do everything in their power to keep things that way.

Meanwhile ordinary citizens suffer while a few well-connected tenderpreneurs and hangers-on loot the state coffers and undermine the Constitution. Something has got to give at some point. But how and when? That is the big question to which I do not have a ready answer.

Simelane comes through for the ANC

Mar 23rd, 2010
by Pierre De Vos.
23 comments

News that the purported National Director for Public Prosecutions (NDPP), Menzi Simelane, has decided to intervene and to stop attempts by the Asset Forfeiture Unit (AFU) to attach some of the assets of Mr Fana Hlongwane because of suspicions that Hlongwane received his money through corrupt arms deal practices, comes as no surprise. Providing reasons for the decision, Simelane argues that there is not sufficient evidence that Hlongwane indeed broke the law.

Simelane’s view differs from that of his own staff intimately involved in the case. Staff at the AFU maintain that there is good reason to suspect that the R200 million received from successful arms deal bidders was paid as bribes and they have pressed for the case against Hlongwane to go ahead.

Simelane points out correctly that:

if forfeiture process were to be instituted by the NPA, it would require a good basis for doing so as opposed to a simple suspicion. The test though remains lesser than the criminal test of proof beyond a reasonable doubt. It is a civil test of balance of probabilities.

But curiously, he then applies this test in a rather eccentric manner, arguing that because the test is one of probabilities Hlongwane needed:

to show on a balance of probabilities that the money was not obtained from criminal activities. Put another way, they needed to rebut the suspicion of criminal activity. They did not have to prove beyond a reasonable doubt that the money was obtained legally. For this purpose they were advised to submit a formal memorandum supported by annexures, if any.

Simelane seems to argue that the submissions made by Hlongwane’s lawyers cast doubt on the suspicion of criminality and hence necessitated the dropping of the case. Because the source of the money was known, it was for the AFU to provide other evidence to prove that the money was not received as part of an attempt to corrupt the arms deal. This seems strange as the test is one of probabilities and one must ask, what is more probable: the version presented by Hlonwagne’s lawyers or the version presented by the AFU.

Just because Hlongwane provided a story that casts doubt on the version presented by the AFU does not mean that on a balance of probabilities Hlongwane was not involved in corruption. On balance, one has to decide which version is more plausible, not whether the AFU has a watertight case.

AFU lawyers are adamant that on the balance of probabilities there was criminal conduct and thus maintain their version is more plausible and one would have thought that a conscientious and honest NDPP would place sufficient trust in his lawyers to go with their version.

Nevertheless Simelane chose rather to believe Hlongwane. This is strange as BAE who paid the money has entered into a plea bargain on some of the bribery allegations against it while other charges against them were dropped, partly because anti-corruption legislation in the UK is deficient – unlike South Africa who has much stronger anti-corruption legislation.

The crux of the matter is this: there is strong suspicions, based on the available evidence, that BAE paid bribes via Hlongwane to secure arms deal contracts from South Africa. Hlongwane’s lawyers provided a different story. One had to choose either to believe this story of Hlongwane or to believe the mountains of circumstantial evidence pointing the other way. Simelane chose to believe the former and not the latter.

That was a choice his own investigators with intimate knowledge of the details of the case would not have made. The question then arises: why did Simelane believe Hlongwane rather than the lawyers in the AFU? To answer this question one has to remember that the AFU lawyers are not well-connected ANC funders and supporters while Hlongwane is. One also has to remember that Hlongwane is alleged to have paid bribes of millions of Rand to various ANC connected people and recall that Simelane was deployed to the NDPP by the ANC.

If one has strong political loyalties and one is presented with two versions of events, one is likely to believe the version that will be most beneficial to one’s political masters.

Maybe all those lawyers at the AFU are wrong and Simelane – with his limited knowledge of the facts – is right. But given Simelane’s track record as a loyal servant of the rich and politically powerful, reasonable people will suspect that Simelane chose to believe one rather than the other side because he was politically required to do so. Was his choice thus a political rather than a legal choice?

A choice for the other version presented by the AFU may have had adverse consequences for many people in the ANC who is alleged to have taken bribes. I for one suspects that this may well have tilted the scales against the AFU in favor of Hlongwane. If Simelane was an honest man and if he had not been exposed at the Ginwala Inquiry as someone who was prepared to act in ways that are both dishonest and perhaps even criminal, I would have given Simelane the benefit of the doubt.

However, given the grave doubts about Simelane’s honesty and integrity, it is impossible to give him the benefit of the doubt. To this observer a reasonable suspicion thus exist that Simelane made a political decision to save the ANC further embarrassment from the arms deal bribery. The AFU lawyers who actually worked on the case agree with me and not with Simelane.

Would Vusi Pikoli have made the same decision as Simelane? I suspect not. No wonder he was fired.

Minister Sisulu and the US judicial system

Mar 19th, 2010
by Pierre De Vos.
46 comments

Maybe one’s view of the US criminal justice system is wrong. Having lived in the US for a while, I have always had the idea that US authorities take crime rather seriously and are rather ruthless and persistent in trying to prosecute criminal suspects. While they are not nearly as efficient in running the country as star-struck pro-Americans might think, the judiciary and the criminal justice system always struck me as being pretty efficient (and sometimes nasty). (Maybe this is necessary, what with all the right wing nut cases running around with guns and blowing up tax offices.)

When I drove from Kansas City to Memphis I was terrified of being caught speeding or breaking the law in any other way because I was warned that I would be ticketed or prosecuted.

But according to Minister Lindiwe Sisulu, the information provided by the relevant authorities in the US regarding fugitives from justice cannot be trusted – at least not in the state of Connecticut. At a briefing yesterday she was asked about her special advisor Paul Ngobeni who is alleged to be a fugitive from US justice. She replied that:

Special advisor Dr. Paul Ngobeni is not a fugitive from law. I have received a letter from the leader of official opposition Mr Trollip who has enquired about what we are doing. I have asked him to furnish me with further information about his allegation Mr Paul Ngobeni is free to travel as and when he pleases. Should you furnish me – yourselves or Mr Trollip – with the necessary information I will act on it. The information we have at our disposal is information we have tested and we also base a lot of our assessment on the outcome of the investigation at the University of Cape Town (UCT) and the statement made by the vice counsellor of UCT. Should you have any information we are available but he is free to work in my office.

Having had some differences of opinion with Mr Ngobeni, just for a larkand because I had nothing better to do I went to the website of the judicial branch of the state of Connecticut and searched for information on the status of Mr Ngobeni’s various legal run-ins with that State. This is what I found:

NgobeniReArrestOrderedResizedNote, the website claims that Mr Ngobeni’s re-arrest has been ordered. If this is true, it would make him a fugitive from justice. It would also make the Minister’s statement untrue. But then again, we know the US system is notoriously corrupt and inefficient so maybe the website information is just plane wrong. At first glance the information does seem rather convincing. I wonder whether this information will suffice for the Minister to Act. I suspect it probably would not. Those Americans have invaded Iraq so who knows what other nonsense they will conjure up to smear the good name of the Minister’s personal advisor.

PS: For details of the various cases allegedly pending against Mr Ngobeni click here and type in his name in the search section.

Why the silence from good ANC members?

Mar 19th, 2010
by Pierre De Vos.
57 comments

One of the gravest threats to a constitutional democracy in a one party-dominant system, is the conflation of the governing party with the state. Where this happens, the dominant political party begins to act as if it is the state and its officials begin to believe that they are above the law or that they can make up the laws as they go along without having to revert to Parliament. Leaders of the party and officials with close ties to the party begin to act according to the apocryphal (but probably wrong) statement attributed to King Louis XIV of France who is reported to have said  L’État, c’est moi” (“I am the State”).

Several events over the past week suggest that a worrying and deeply authoritarian belief is taking root amongst some ANC officials and among some members of the police that they ARE the state and thus have a right to do as they please – regardless of what the law actually empowers them to do. News that the Presidency issued an instruction banning all demonstrations around the Union Buildings without having the legal authority to do so is a case in point. The actions of President Jacob Zuma’s body guards, who intimidated photographers who had the temerity to take pictures of his car and of his house, while the bodyguards had no legal authority to do so, is another.

Then there is the scandalous story of Floyd Shivambu, who moonlights as spokesperson for the ANC Youth League when he is not acting as a mafia-style thug, trying to intimidate journalists to stop asking questions about Julius Malema’s various business interests, his tenderpreneurial wealth and his alleged failure to pay taxes. Shivambu has been distributing a document containing private details of journalists who have been investigating Malema in an attempt to intimidate them – much like a mafia boss would break a few fingers of a suspected informer to shut him up.

Given the fact that President Zuma’s rise to power was accompanied by serious (and credible) allegations that state institutions were misused by his predecessor to score political points against him, one would have thought that Zuma would be extra vigilant about the misuse of state institutions for private financial and political gain and about respect for the Rule of Law. Sadly, it has become apparent that complaints about the misuse of state institutions and the breaking of the law during the Mbeki era had little to do with principle and everything to do with the fact that the law was being misused by the other side.

Now we have Shivambu peddling private information about the bank account numbers and salaries of journalists – all because they dared to report honestly on the shady dealings of Malema. Where did Shivambu obtain this information? Did buddies in the police or intelligence services provide this information to him? If not, who broke the law to gather this private information on journalists? What about their right to privacy and dignity?

If the ANC had any principles it would immediately repudiate the ANC Youth League and Shivambu for peddling private information about South African citizens and take disciplinary action against Shivambu. After all, when the Sunday Times published the medical records of then Minister Manto Tshabalala-Msimang, the ANC was scandalized and shouted blue murder about the infringement of Tshabalala-Msimang’s right to privacy. If the ANC fails to take action, it would show at the very least, that it has one standard for its own leaders and another for the rest of us: THEY have rights, WE don’t.

I would be surprised if the ANC acts in a principled manner and takes action against the thugs employed as President Zuma’s bodyguards or against the mafia-style bullies in the ANC Youth League. Because some in the ANC conflate the party and the state, there is an inability to see what a serious threat these actions pose for our democracy. Once bodyguards, Youth League officials and members of the intelligence services and the police start acting as if they are above the law, we might as well abolish Parliament. Why have a Parliament, tasked with passing legislation, when that legislation is only applied to some and not to others?

Legislation strictly control the role of intelligence services in gathering and disseminating information on private citizens. Legislation also limit the power of police officers and bodyguards. There is a good reason for that. Once the intelligence services and the police become a law onto themselves, they will be used by powerful politicians to harass journalists and to investigate political opponents and media critics in order to undermine democracy and entrench their own power by subverting the willow the people.

When that happens, a population starts living in fear of its leaders and criticism of leaders becomes dangerous or even fatal. Leaders are then free to do what they want, to get as many crooked tenders and to steal as much money form the poor as the taxpayers can provide. The result is an end of democracy and the start of an authoritarian kleptocracy.

We are not there yet, but that is no reason for complacency. The thuggish behavior fundamentally undermines the authority of the democratic elected Parliament and the principle of the separation of powers which states that Parliament makes the laws and the executive implement the laws. We have not voted for the ANC Youth League. Neither have we voted for President Zuma’s bodyguards. We have voted for the 400 members of Parliament who must make the laws, laws which must be obeyed by everyone, whether one is the President, a presidential bodyguard or a member of the ANC Youth League.

What bothers me is that the good people in the ANC do not speak out about these tendencies. Only Cosatu makes noises about this, while Ministers and other ANC leaders remain silent. Everybody is too scared of Malema and the security services to say anything. When will the good people in the ANC speak out? How do they go to bed at night when they know that there are members in their organization who are undermining the very democracy for which we have fought?

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