Constitutional Hill

June, 2010:

What have Tweedledum and Tweedledee been up to?

Jun 29th, 2010
by Pierre De Vos.
70 comments

Maybe all this goodwill, peace, love and happiness generated by the World Cup in South Africa have finally turned my brian into a mushy pulp. (Miss World contestants must be horrified by the World Cup: with all this love and peace going around they must have nothing left to do but look pretty and sniff listlessly at the salad leaves on their lunch plates.) How else to explain the sudden thought, which popped into my head this morning, that I am missing Judge President John Hlophe and his ethically challenged sidekick, Paul Ngobeni?

It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.

Oh, how I miss our very own Tweedledum and Tweedledee!

Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.

Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.

The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.

The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?

I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.

In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.

Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.

In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.

One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.

So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.

When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.

But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.

When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.

Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.

Time for rethink on traditional leaders

Jun 28th, 2010
by Pierre De Vos.
11 comments

Millions of South Africans live much of their lives according to customary law (instead of having their lives regulated via the common law). During the apartheid era, customary law was viewed as second class law. We were told that the law that counted was statute law and, more importantly (for most – white – lawyers and legal academics), the “magisterial”, so called “conceptually refined” and “fundamentally fair” system of common law. When I studied law at Stellenbosch University, we did not study a single aspect of customary law. It was as if customary law (and the millions of people who lived in terms of it) did not exist.

Later I discovered that some of the ideological underpinnings of the Roman Dutch common law were rather suspect, what with its radical assumptions about freedom of contract and a predisposition to favour the powerful and the propertied classes above all others. At the same time it dawned on many that, for better or worse, millions of South Africans lived much of their lives in terms of customary law.

The official view on customary law has thankfully now changed, as the status of customary law in South Africa is constitutionally entrenched. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. As the Constitutional Court has made clear in the case of Alexkor v Richtersveld Community, customary law must now be regarded as equal with the common law and as an “integral part of our law” and “an independent source of norms within the legal system.” Like any other source of law, customary law has a status that requires respect. Customary law must also not be judged through the lens of the common law.

But what happens if traditional customary law rules – interpreted and applied in its proper context and not with reference to the common law – conflicts with other provisions in the Bill of Rights? This question came to mind when I read about claims by Princess NomaXhosa Sigcawu from the East Cape that she had been overlooked to lead the AmaGcaleka Kingdom and that this was unconstitutional. 

NomaXhosa said her mother, Queen Nozizwe, had been her father (King Zwelidumile Sigcawu’s) senior wife.  Because she had been a baby when he died, King Xolilizwe, her older brother from another mother, had been made king.  When King Xolilizwe died in 2006, one of his sons, Mpendulo, took the throne. The Princess claims that this move – based on the customary law rule in that community that only the oldest male heir could become King or Chief – discriminated against her on the basis of her sex or gender.

This case differs from the case of Shilubane and Others v Mwamitwa, where the Constitutional Court recognised the fact that a traditional community itself could change the rules to allow the female children of chiefs to take up the reigns, despite a previous custom that only the oldest male child could do so. This is because in the case of Princess Sigcawu, the community had not changed the custom and is resisting her attempts to become the Queen.

Commenting on the case, Chief Patekile Holomisa, Congress of Traditional Leaders of South Africa (CONTRALESA) president, said custom dictated who should be a royal leader. “Legitimacy of ubukhosi is derived from custom, not from the Constitution and the Bill of Rights,” he said, referring to kingship. “It is not automatic that a woman as the first-born is a successor. If a traditional council decides to go against the custom, the court can allow that, but we do not accept it.”

As the Constitutional Court makes clear, this view by the President of CONTRALESA is not sustainable. Several provisions in the Constitution affirm that – like common law – customary law is now subject to the Constitution and cannot contravene the Constitution. Moreover, although Courts should try and respect the right of communities that observe systems of customary law and should try and respect their right to develop their law as they wish, where a custom discriminates against women or infringes on the rights of individuals, a court had a duty to declare that custom unconstitutional and to amend it.

There is a serious debate raging in academic circles and also amongst judges on how to deal with this issue. On the one hand, courts – especially the Constitutional Court – is acutely aware that customary law has been disregarded and disrespected in the past and that courts should now recognise the fact that customary law is a living law that can change over time. It is not the rigid and inflexible system of fossilised rules, written down by white colonialists and enforced by white judges during the apartheid era, and courts should be sensitive to this and, where possible, should allow the customary law to be develop by the relevant community themselves.

On the other hand, the courts have a duty to develop customary law rules to bring them in line with the spirit, purport and object of the Bill of Rights. Where customary law rules discriminate against women, they must be developed or declared unconstitutional. As the Court said in Shilubana:

courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.

Whether a court will show deference to customary law and wait for it to develop organically, or whether it will intervene will depend on several factors.  These factors would include:

the nature of the law in question, in particular the implications of change for constitutional and other legal rights; the process by which the alleged change has occurred or is occurring; and the vulnerability of parties affected by the law.

It is clear that a customary law rule that prohibits women from becoming traditional leaders like chiefs or queens, unfairly discriminates against women. It is based on patriarchal notions about the “proper” roles of men and women in society and is often justified on the basis that a chief or a king can only become one if he was fathered by a chief or a king. As women cannot father any children, they cannot and should not become chiefs or kings.

This view perpetuates the notion that men – because they father children – have a higher status in society than women. Although very few women will therefore directly be affected by this customary law rule (as very few women are actually the daughters of chiefs or kings), the rule would have far-reaching consequences for many women living in traditional communities exactly because it is based on patriarchal assumptions about the general subordination of women to men and because it reinforces and perpetuates this subordination.

I would therefore argue that in this case, the court should not wait for the community to develop the customary law rule to bring it in line with the requirements of gender equality, but should intervene (if asked to do so) to declare this customary law rule unconstitutional.

This is a pressing problem for another reason. There is a dirty little secret at the heart of traditional leadership which is never spoken about or acknowledged by Contralesa. The fact is that many traditional communities are controlled by Chiefs who were appointed as proxies of the apartheid government to exercise control on behalf of the apartheid state and they will not want to diminish their power and prestige by amending customary law rules to recognise gender equality. The very system of traditional leadership has been completely subverted by colonialism and apartheid and is far removed from the kind of benign system which made King Moshoeshoe such a revered leader more than hundred years ago.

Maybe it is time to recognise that our whole system of traditional leadership as it has evolved, is deeply problematic and not really compatable with a system of democratic governance. On the one hand one is acutely aware of the need to respect the traditional beliefs and cultural practices of millions of South Africans whose way of live was so fundamentally circumscribed and for ever changed by colonialism and apartheid.

On the other hand the system of customary law and of traditional leadership has been fundamentally subverted and corrupted by the colonial authorities and the apartheid state – often (but not always) with the collusion of traditional leaders. Some Chiefs or other traditional leaders do not always act in the best interest of the community and according to rules of customary law that protect everyone in the community as a member of the community.

Such unscrupolous and unelected leaders often borrow from customary law those parts that suit them and then also rely on common law or statute law rules based on a more individualistic view of the world in order to subvert the very system of rules which organised communal living, which (it could be argued) used to operate for the benefit of all. Instead many traditional leaders now act to cement their own hold on communities and to enforce completely unacceptable and bastardised forms of customary laws on their subjects. This leads to much hardship and suffering on the part of their “subjects” and seems to be in conflict with principles of democracy and the demand for respect of the inherent human dignity of all.

Maybe it is time for the government to return to the original policies regarding traditional leadership adopted by the ANC when they were still in exile and to do away with the undemocratic and often oppressive system of traditional leadership. I suspect this will not happen, but I also suspect customary law will only be able to take its rightful place as an equal and important body of law alongside the common law – as required by the Constitution – when traditional leadership structures are fundamentally reformed and democratised. The current system is undemocratic and (often) oppressive and has no place in a Constitutional democracy. 

Discrimination is indivisible

Jun 24th, 2010
by Pierre De Vos.
87 comments

Back in the heady days after the 1994 election South Africa professed to base its foreign policy on human rights principles. When the Nigerian government executed activist and environmental journalist, Ken Saro-Wiwa, Nelson Mandela called it a “heinous act”. But Thabo Mbeki soon put a stop to such folly, aligning South Africa instead with the Africa block and with its fair share of tyrants and dictators – regardless of any human rights considerations.

It was therefore not surprising when South Africa abstained from endorsing the first ever statement on Human Rights, Sexual Orientation and Gender Identity (which was backed by 66 states including six African countries) read at the United Nations General Assembly at the end of 2008.

The latest outrage came this week when the South African representative to the United Nations Human Rights Council (UNHRC), Jerry Matjila, refused to support efforts at the UN to protect gay men and lesbians against discrimination. The council was discussing a report of the Special Rapporteur on Racism, Githu Muigai, of Kenya, which said that “the identity of each individual is made up of a multitude of components, such as gender, age, nationality, profession, sexual orientation, political opinion, religious affiliation and social origin”. Replying later in the debate, Matjila said the rapporteur’s inclusion of sexual orientation “demeans the legitimate plight of the victims of racism”.

To its credit, the Democratic Alliance – via a statement issued by Kenneth Mubu, a DA MP – deplored this cowardly and reactionary position taken by the South African government and made the following telling point:

In the wake of the recent events in Malawi and Uganda, South Africa’s rejection of the inclusion of sexual orientation as a means of discrimination seems like an act of appeasement to certain African countries with poor human rights records, rather than taking the principled position, and setting an example on human rights which other African states could look to.

Mr. Matjila’s objection and the reasons given for it, display a rather shocking lack of respect for human rights and the values enshrined in our Constitution. His view also endorses a rather formalistic and very limited understanding of discrimination that cannot be squared with the expansive view regarding discrimination endorsed by our Constitution as interpreted by South African courts or by international human rights bodies and experts.

If Mr Matjila really believes that linking sexual orientation discrimination with racial discrimination demeans the victims of racial discrimination, he is obviously a bigot and a homophobe. His view can only be sustained if one believes that there is something inherently shameful or disgusting about being gay or lesbian and that the victims of racial discrimination would therefore be somehow tainted by being associated with the plight of a small and vulnerable minority persecuted in many parts of the world.

If this view is shared by the South African government and of our President, then our government has been highjacked by a group of reactionary, hateful, bigots. If it is not a view shared by our government, it has a duty to clarify its position. As it stands, it is very difficult not to conclude that the government has turned its back on gay and lesbians in South Africa and elsewhere in the world, and that it has endorsed the views espoused by religious hate-mongers and fanatics – the Sarah Palins of the USA and the Yoweri Museveni’s from Uganda, amongst them.

Do we really want our government to become bedfellows of such unsavory characters?

The stance of the South African government is also in conflict with the accepted principle – endorsed by our constitutional text as well as international human rights bodies – that discrimination on different grounds often intersect and that it can only be rooted out if this intersectionality is recognized and addressed.

Individuals are often discriminated against for more than one reason, which makes the discrimination suffered by the victim so much more egregious. A black woman, say, will often experience discrimination both because she is a women and because she is black. It is now widely accepted that a failure to recognize this fact can lead to a masking of some kinds of discrimination and can lead to the endorsement of certain types of discrimination against a vulnerable group.

This is why section 9(3) of the South African Constitution prohibits anyone from discriminating against somebody “on one or more grounds”. One can therefore allege that one has been discriminated against on several grounds, which prevents a court from turning around and saying, well, you claim to have been discriminated against because you are a woman, but you were really discriminated against because you are black, so you lose your case.

It is impossible to compartmentalize the kinds of discrimination suffered by victims (as the South African representative was trying to do) because the degree of the harm suffered by victims often depend on a multiplicity of factors. The cumulative effect of such overlapping discrimination can often be harsh or even deadly – as the family of Banyana Banyana player, Eudy Simelane – who was raped and murdered because she happened to be a black lesbian – can all too tragically attest.

The Report by the Special Rapporteur on Racism was obviously recognising this problem, but the South African representative was either too reactionary or utterly lacking in understanding of the real life nature of discrimination, to recognize or accept this. It is bitterly ironic that a representative from South Africa, a country with a long and sickening history of treating some people as second class citizens because of one or more attributes or characteristics, has displayed such ignorance about the way in which discrimination operates in real life.

It might be that Mr Matjila is a lovely and caring person with love in his heart and that he was merely saying such reactionary and ignorant things because of instructions from Pretoria. It might also be that those who sent the instructions from Pretoria are deeply committed to equality and abhor discrimination of any kind, but have decided to act in this unprincipled and immoral manner, denying the human dignity of a section of the worlds population, in order to gain some diplomatic advantage with tyrants and dictators elsewhere in Africa.

That, however, would not excuse the impugned behavior. It would be up there with the actions of Ronald Reagan and Margaret Thatcher who supported the apartheid government because of strategic reasons. The ANC rightly lambasted those leaders at the time and pointed out that history would judge those leaders harshly for their cowardice and immorality. History, similarly will judge the South African government – who used to support the rights of gay men and lesbians – harshly for trowing a vulnerable and marginalized group to the wolves. Whether it was done because of bigotry or because of pragmatic considerations, it remains shocking and unacceptable.

On one magic moment of the World Cup

Jun 23rd, 2010
by Pierre De Vos.
49 comments

It started last week on the day of Bafana Bafana’s second game against Uruguay when I was filling up my car at the petrol station. A white woman – silver haired, well groomed, about 70 years old – was busy having her shiny new Mercedes (some class or the other) filled up as well. She was wearing a yellow and green Bafana Bafana shirt. Her car was adorned with the ridiculous South African flag mirror socks and two South African flags attached to the back windows.

The petrol attendant – distinguished grey beard, high cheekbones, yellow Makarapa of the petrol company on his head – bantered with her about Bafana’s chances. Attending to her car, he started singing the national anthem in a loud but beautiful voice. The old women joined in, her thin but solid voice harmonizing with his deep baritone. They sang the whole anthem, including those bits about “die blou van onse hemel” and “let us live and strive for freedom in South Africa our land”.

Everybody stared and smiled and nodded to each other. Some clapped and whistled. I wiped away the tears and had one of those incredibly naive and romantic but rather trite thoughts: Why can’t we live like this all the time?

Since then, Bafana had lost disastrously and won proudly and had crashed out of the World Cup. But I am still wondering about that moment and what to make of all this emotion around the World Cup. Does Zackie Achmat have a point when he says he refuses to wave the South African (or any other country’s) flag because it is inherently nationalistic and problematic? On the Writing Rights Blog he writes:

Racism, chauvinism and nationalism have always been part of the seedy underbelly of sport. I have flown flags in the past. They were flags that expressed my political views: the ANC flag symbolising the Freedom Charter when the party was banned; the red flag of socialism and the rainbow flag to signify equality for all. Today, World Cup nationalism in South Africa hides our xenophobia and it pretends that racial and class tensions do not exist.

Zackie is, of course, correct when he warns that the World Cup nationalism won’t erase the tensions, contradictions and injustices in our society. Nationalism, even the relatively benign nationalism associated with hosting the World Cup, may well be used to paper over the cracks and may allow some people to pretend that racism, sexism, poverty, corruption, greed and the arrogance of the rich do not exist in our country.

Holding hands and singing Kumbaja (or the national anthem) while cheering on 22 players on a pitch chasing a round ball will not end the deeply ingrained distrust, the pockets of arrogance and prejudice, the deep divisions based on class, race and ethnicity that exist in our land.

And yet…. and yet… I want to hang on to the magic of that moment at the petrol station.

This does not mean I wish to give the crooks at Fifa a free ride. It does not mean I want to stop being critical about what is wrong in our society and that I do not believe one must continue to look for ways to address those wrongs. Neither does it mean that I want to forget the past or that I believe that it is really possible to engage in constructive dialogue with people whose unacknowledged racism and colonial attitudes I find very difficult not to name – even when I am accused of “labeling” people.

I want to hang on to that magic moment because it suggests to me that apart from the political mobilization, the resistance and the day to day struggle of individuals and organisations, something else can also make a difference (no matter how small) and can also contribute to the creation of a better and more just society.

The World Cup nationalism, so it seems to me, has produced that “something else”. It has allowed some people from different races and classes and ideological persuasions to see each other as human beings and to connect with each other as human beings – not as representatives of their race or class. We are all people who eat and sleep, who love and hate and even have sex, who laugh and cry, who want to be accepted and want to be loved. Yes, we are not all the same. Our material interests and cultural assumptions often differ. But we have much in common, too, merely because we are human beings.

It’s probably naive to think that moments like this will change racists into non-racial social justice campaigners, that it will change greedy and corrupt politicians into upright citizens who care about the vulnerable and the marginalized. But maybe a few people will remember moments like the one I experienced last week at the petrol station the next time they want to make sweeping generalizations about people because they happen to be white or black, rich or poor (I am an optimist, after all, as well as an incorrigible romantic).

Hey, it’s not much, but its enough for me.

Human Rights Commission pro-poor stance must be applauded

Jun 21st, 2010
by Pierre De Vos.
399 comments

The South African Human Rights Commission (SAHRC) were lambasted by DA leader Helen Zille for finding that the City of Cape Town had violated the dignity of residents of Makhaza by not enclosing the toilets it had provided to them and for not adequately consulting with the community about the issue. Zille said in an interview that the City of Cape Town was being “selectively targeted” by the Human Rights Commission.

Her informal side-kick, Rhoda Kadalie, went further, saying that the finding of the SAHRC demonstrated that the the body was singing the ANC’s tune.

Such attacks on the integrity of the SAHRC are rather startling, as the body is an independent watchdog created by the Constitution. The Constitution states that “other organs of state, through legislative and other measures, must assist and protect” the SAHRC to ensure its “independence, impartiality, dignity and effectiveness”. The Constitution also states that “[n]o person or organ of state may interfere with the functioning of these institutions”.

Like any court judgment, a decision of the SAHRC is, of course, not beyond criticism. Anyone – including the leader of a political party – is entitled to analyse the reasons given for a decision by the SAHRC and to criticize that decision on the basis that the legal principles set out by our courts were not applied correctly. But in the absence of conclusive proof that the decision by the SAHRC was biased and hence tainted by political considerations, a personal attack on the integrity of the Commission undermines one of the constitutional institutions and hence undermines respect for the Constitution itself.

Are there good legal reasons to argue – as Zille and Kadalie in effect did – that the decision of the SAHRC can be dismissed because the SAHRC was selectively targeting the DA? This view can be sustained if similar complaints lodged with the SAHRC regarding the failure of ANC-run municipalities to provide access to adequate housing, health care and sufficient food and water were never investigated, or investigated and dealt with differently than the complaint against the DA municipality.

I have been unable to find any proof that the DA or anyone else had indeed lodged such complaints against ANC run municipalities in the past, let alone that such complaints were dealt with differently than this one against the Cape Town City Council. Maybe the DA can provide proof of such complaints being lodged and can demonstrate that the SAHRC dealt differently with these complaints, but they have not yet done so. If they are unable to do so, the statement by its leader seems deeply troubling and disrespectful of the Constitution.

But are there nevertheless, despite a apparent lack of proof that the SAHRC has not dealt with similar complaints against the ANC in the same manner, good reasons to find fault with the SAHRC finding? Can one argue, without fear of being accused of undermining a constitutional institution, that the body was overzealous in its finding because the DA city council was involved?

After studying the SAHRC Report, it is difficult for me to come to that conclusion. The Report correctly points out that the rights in the Bill of Rights place both a negative obligation on the state NOT to interfere with the existing enjoyment of rights and a positive obligation on the state to take steps to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures toward the full realisation of the rights.

The SAHRC report also correctly points out that in the Grootboom judgment the Constitutional Court held that “the Constitution required the state to put in place a comprehensive and workable plan in order to meet its socio-economic rights obligations…the program must,…, be balanced and flexible and must make appropriate provision for attention to short, medium and long term needs” and that the Court held further that the “programme must be reasonable both in conception and implementation…”

In Grootboom, the Court argued that where a programme failed to take account of the needs of the most vulnerable and marginalized, either in the manner it was devised or implemented, it might well be unreasonable and hence unconstitutional. The following conclusion by the SAHRC is therefore entirely plausible (although not the only conclusion that could possibly have been drawn):

while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years….No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project.

One might argue that the SAHRC – like some High Court judgments dealing with cases regarding access to water and electricity – went slightly further than the Constitutional Court jurisprudence (strictly applied) would allow. Its reliance on human dignity – instead of the social and economic rights provisions – to find that the Cape Town City Council had failed to meet its constitutional obligations, is not particularly plausible. And like the South Gauteng High Court in the water meters case, it seemed to imply that the state had a duty to provide a minimum core of services – something that the Constitutional Court had rejected.

However, to my mind the SAHRC should be applauded for this pro-poor approach – not derided for being a lackey of the ANC. In cases where the High Court made innovative use of the social and economic rights jurisprudence, I have applauded the relevant judge for advancing a pro-poor agenda, so it would be hypocritical of me not to applaud this decision of the SAHRC for doing exactly the same thing.

Certainly, if the ANC had derided the various High Court judges who had found against ANC controlled municipalities in social and economic rights cases and if an ANC leader had labelled the judge involved in such a case a lackey of the DA merely for using an innovative approach to social and economic rights enforcement, few right thinking people would not have been outraged by this attack on the integrity of the courts and the disregard for the Constitution.

A political party (or anyone else, for that matter) who is truly concerned about the plight of the poor and about a lack of service delivery would have applauded this finding of the SAHRC and would have relied on it in future to try and expose the possible unreasonable and unconstitutional failure of other municipalities. A pro-poor political party would not have acted in the paranoid and defensive manner of the DA leader and would not have alluded to alleged conspiracies to excuse their own actions which the SAHRC found wanting.

The SAHRC finding is of course not binding, but that body has a constitutional mandate to monitor the enforcement of social and economic rights. In the past the SAHRC has not always fulfilled this mandate with sufficient vigor. This is partly because it has not received many complaints about the failure of municipalities to fulfill their social and economic rights obligations. But with this finding the SAHRC has shown that it would be willing to push municipalities and to call them out where they fail to implement service delivery programs in a reasonable manner.

This willingness on the part of the SAHRC to fight for the interests of the poor and marginalized is something to be celebrated. The fact that the DA leader saw it differently, will reinforce the perception that the DA is more interested at scoring cheap political points and defending its own political brand in a paranoid and defensive manner than in advancing the rights and interests of the poor. No wonder the DA has been unable to capitalize electorally on the infighting, nepotism and disarray in the ANC.

What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?

On “unfair discrimination” and Afrikaans

Jun 18th, 2010
by Pierre De Vos.
52 comments

A reader of this Blog posed an interesting question today about language discrimination by Pretoria Bars during the World Cup. He wants to know whether it would be unconstitutional for:

the bars in Hatfield, Pretoria/Tshwane, who during the world cup are selling drinks to Afrikaans speakers for R18 and to other persons for R55, however with the option for non-Afrikaans speaking South Africans to buy a loyalty card for R50 and get the same benefit. Would this not be in contravention of section 9 (4), cf. (3), of the Constitution according to which “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)” Subsection (3) mentions language.

Well, when an individual or private concern like a Bar is alleged to have discriminated against anyone else, then the easiest and most direct way to deal with the matter is to apply the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) – the same Act that prohibits hate speech.

Section 6 of that Act prohibits the state or any person (including a Bar) from unfairly discriminating against anyone on the basis of any prohibited ground, including race, sex, gender, disability, sexual orientation, language, social origin or culture. Any discrimination inquiry in terms of PEPUDA has two steps. First, one must determine whether there was discrimination on a prohibited (or related) ground, then, second, one must determine whether the discrimination was fair or unfair. Only unfair discrimination is unlawful.

The Act makes clear that if a non-Afrikaans speaking patron at the Bar in question can show that the Bar had imposed  any rule or practice which resulted in the withholding of a “benefit, opportunity or advantage” from any person on the basis of his or her language, that Bar would indeed have discriminated against those who were not given the benefit.

Here it is pretty obvious that the Bar charges different prices based on the language spoken by a patron. Even though non-Afrikaans speakers can buy a membership card to get the same benefits, they are still treated differently and the Bar is thus withholding some benefits or advantages from them based on their language. Given the fact that most black South Africans are not Afrikaans speakers and the rule would therefore disproportionately affect black people, the discrimination may also be found to have occurred on the basis of race. Such a Bar is thus clearly discriminating against non-Afrikaans speakers.

But not all kinds of discrimination are unfair and hence unlawful. A standard example of “fair” discrimination would be the rule that blind South Africans or South Africans younger than 18 cannot obtain a drivers license. They are clearly being discriminated against on the basis of age or disability as the law withholds the benefit of driving a car from them, but because there is a legitimate and rather important reason (namely road safety) for this discrimination, it is not considered unfair and hence is not unlawful.

Once one has shown that one has been discriminated against by the Bar – as was clearly the case here – then the Bar has the onus of proving that its discrimination was fair. Factors that can be taken into account to prove the fairness of the discrimination are:

(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to address the disadvantage which arises from or is related to one or more of the prohibited grounds; or accommodate diversity.

The heart of the matter is an inquiry into whether the discrimination has a legitimate and important purpose and if it has, whether this can justify the unfair discrimination, given the seriousness of the discrimination and the impact it has on those discriminated against. Is the discrimination perpetuating past patterns of discrimination or addressing such patterns of discrimination? In this case, there can be no legitimate purpose for discriminating against non-Afrikaans speakers for the following reasons.

The Bar is open to the public. It is not a cultural club where speaking Afrikaans would be a prerequisite for membership. Afrikaners is not a group that has previously been discriminated against and Afrikaners would be hard pressed to argue that because of the overwhelming animosity and hatred towards Afrikaners in Hatfield they have a right to a safe space where they will not be vilified and intimidated by a prejudiced and hateful majority.

The only reason for the rule would be to provide a benefit to one group because of either prejudice or a desire to exclude others based on their language or race (as it is rather probable that the “others” the Bar wishes to exclude would be black South Africans). The purpose of the discrimination is therefore to discriminate, and that can never be a legitimate purpose to justify discrimination.

The position might be different in a gay Bar as gays and lesbians have been previously discriminated against, form a small and vulnerable minority and have a legitimate interest to congregate in a safe space where they will feel protected from the homophobia and hatred of the majority.

So, if this is indeed happening, I am pretty sure that the Bars are unfairly discriminating against non-Afrikaners on the basis of language (and perhaps race). If one were to take any of these Bars to the equality court one will easily win one’s case. In my opinion this is not a close call at all. The discrimination is so obvious and blatant that it is clearly unlawful.

Give them hell.

On the Fifa World Cup by-laws

Jun 17th, 2010
by Pierre De Vos.
37 comments

Two recent events highlight the rather draconian nature of the municipal by-laws adopted by all host cities in order to safeguard the profits that Fifa hopes to make from the Football World Cup in South Africa.

First, news reached me of a women being detained for distributing political pamphlets at the Durban Fifa Fan Fest. Then all hell broke loose when the South African authorities charged two Dutch women with “ambush marketing” over a stunt featuring dozens of fans wearing orange mini-dresses at the Netherlands game. The Dutch women were part of a group who were all wearing bright orange dresses which were sold with packs of Bavaria beer in the Netherlands, allegedly in defiance of FIFA commercial regulations.

Said Dutch Foreign Minister Maxime Verhagen:

It is absurd that the two women have a jail term hanging over their heads for wearing orange dresses in a football stadium. If South Africa or FIFA want to take a company to task for an illegal marketing action, they should start judicial procedures against the company and not against ordinary citizens walking around in orange dresses.

These events highlight the fact that for the duration of the World Cup,  the Municipality of each host city has in effect become the enforcement arm of a private company – Fifa – to protect that private company’s image and profits. The by-laws make clear that “any notices, directives, instructions, regulations, policies or procedures issued by FIFA or the Local Organising Committee (LOC) will be administered and enforced by the Municipality”.

The by-laws prohibit any person from distributing any pamphlets near or in stadiums or fan parks without the prior written approval of the Municipality. A person who nevertheless distributes any pamphlets could be convicted and fined up to R10 000 or six months imprisonment.

This provision seems to impose quite a drastic limit on the freedom of expression of everyone in South Africa. It in effect bans both commercial advertising and any form of political expression in and around the stadiums as well as the fan parks – which are situated on public property. The ban is so broad and all encompassing that I am not sure it will pass constitutional muster.

While limits on freedom of expression may legitimately be imposed to achieve an important purpose like hosting a successful World Cup, I would argue that the ban on all political expression in and around fan parks can only tangentially be connected to this purpose. Because it does not make a clear exception for political expression, it also seems overbroad and hence probably unconstitutional.

Politics should not and does not stop just because 22 men are chasing a ball around a green field in a vast marketing and money making exercise. In fact, as the eyes of the world are on South Africa, social movements and other political players have a unique opportunity to make their voices heard. What better way to do this than to distribute political pamphlets at fan parks?

The by-laws also prohibit any kind of “ambush marketing”. The aim is clearly to protect the commercial interests of Fifa and its sponsors in order to maximize their profits. In the delightful legalise of the by-law, “ambush marketing” is defined as follows:

Ambush Marketing” means marketing, promotional, advertising or public relations activity in words, sound or any other form, directly or indirectly relating to the Competition, and which claims or implies an association with the Competition and/or capitalises or is intended to capitalise on an association with, or gains or is intended to gain a promotional benefit from it to the prejudice of any sponsor of, the Competition, but which is undertaken by a person which has not been granted the right to promote an association with the Competition by FIFA and whose aforesaid activity has not been authorised by FIFA Competition.

This definition is obviously intentionally broad, as it includes any activity aimed at gaining a promotional benefit from the Wold Cup to the prejudice of any sponsor. Whether this broad definition will lead a court to convict the two Dutch women of “ambush marketing” is not so clear though.

The state will have to prove beyond reasonable doubt that the women wore the orange dresses – handed to them for free by the competing beer company – to gain some promotional benefit for the beer company.

If I was the lawyer for the two Dutch women, I would point out that Dutch soccer team plays in orange shirts and that many Dutch soccer fans attend games wearing orange. Surely it would be absurd if the “ambush marketing” ban were interpreted to mean that all Dutch fan were now banned from wearing the colours of the national team at games during he World Cup because a rival beer company is also associated with the colour orange.

The women (and I am sure the rival beer company) will claim that they were merely expressing their patriotic support for their own team and that the dresses were distributed and worn as a sign of support for the national team – not as an attempt to engage in ambush marketing.

In any event, this high handed arrest of the two women has really done exactly the opposite of what was intended as it has given the rival beer company oodles of free publicity. If I was a Dutch soccer fan I would be sure never, ever, again to drink Budweiser Beer. I would make sure to drink Bavaria Beer just to show Fifa and its sponsors what I think of their high-handed tactics.

Hopefully sanity will prevail and the two Dutch women will not be prosecuted. If South African authorities show an eagerness to proceed with the case, it could damage South Africa’s image and would create the impression that we are not the free and democratic country envisaged by our Constitution.

On Vuvuzela’s and cultural imperialism

Jun 15th, 2010
by Pierre De Vos.
141 comments

United Kingdom websites are abuzz with comments from irate football fans who complain about the blowing of the Vuvuzela during matches of the Fifa World Cup in South Africa. The vast majority of these comments call for the banning of the instrument from stadiums. Sensitive British football fans (if that is not a contradiction in terms) complain about the noise, which they claim is so loud and irritating that it becomes impossible to watch a game with the sound on the television turned up.

Africans are known for their singing and dancing, some claim, but this is now all drowned out by the incessant noise from Vuvuzela’s. The background noise to the world cup has become the sound of  a huge swarm of bees. This spoils the atmosphere of the football game as one can hardly hear the fans cheering and singing.

In any case, this would never have been allowed at any Football World Cup organized in Europe, so why allow it in South Africa? It is just plain rude to make such a racket when the whole world is watching. This is just not how things are done in Europe, where TV viewers are used to the atmosphere provided by the singing, chanting and shouting of the spectators. The Vuvuzela is spoiling the whole world cup for Europeans!

Now, I am not sure if I am watching the same television feed as the British, but the claim that the noise made by Vuvuzela’s at football games is so loud that it makes it impossible to watch the game on television with the sound turned on seems just plain ridiculous. At most it provides a background noise which might be monotonous but surely is not ear-splitting. So, why are so many people so upset?

Of course, the critics are entitled to express their dislike of the soundtrack to the 2010 World Cup. Let’s face it, that buzzing noise is not the most musical or attractive sound that human kind is capable of producing, and expressing a dislike for the Vuvuzela is therefore perfectly understandable. Personally I have come to love the whole Vuvuzela thing – especially the vibe it generates when one is there at the match oneself  - but I understand that, like olives or blue cheese, this is an acquired taste not shared by all.

But something about the tenor of all these complaints have gotten up my nose. Maybe I am overtly sensitive or maybe I am intellectualizing something that is no more than a personal preference, but I smell more than a whiff of cultural imperialism in much of the criticism of our beloved Vuvuzela.

It seems to me what underlies much of the criticism, is a set of rather problematic assumptions.

First, much of the criticism seems to assume that the norm of what should be acceptable (and therefore permissible), must be based on what happens in Europe. “This is how we do it in Europe. We know best and always have. Therefore you must follow our example like good imperial subjects to demonstrate to us that you are also civilized and up to our standards.”

This rather blinkered and prejudiced lack of respect for difference suggests that many critics of the Vuvuzela labour under a false sense of cultural superiority. They view their cultural and social beliefs and practices as the undisputed norm to which all others must conform, without any understanding of, or respect for, the multitude of ways in which different societies and people might have chosen different ways of being in the world. This is the very essence of cultural imperialism.

Second, all the talk about Africans being such good singers and dancers and complaints that viewers are missing out on this because of the Vuvuzela, plays on a racial stereotype. It is as if, having been exposed to stereotypical images of the happy dancing and singing natives, some of the critics cannot come to grips with a very different narrative of what South Africa is all about. What they want, perhaps, is for all of us to sing and dance and smile – just like the performers in Ipi Tombi and Umoja who have been entertaining the baas in theaters in the West End for many years.

Now we have the cheek not to conform to the stereotypes they have been expecting to have confirmed. Instead, we have taken to this cheap, plastic trumpet (for better or for worse) and have made it the soundtrack to the Soccer World Cup – which is really their Soccer World Cup – and thus have shown an agency and an independence of mind and spirit which we as the erstwhile colonized are not supposed to possess.

In the process, we have taken something away from them – their World Cup experience as they want it! – and made it into something slightly different. We are not playing by the rules, which dictate that we should be grateful for having been selected to host the World Cup and we should consequently make sure that we provide a World Cup experience to Europeans as close as possible to what they are used to and what they expect.

Sadly I suspect it is not much use to point out the cultural imperialism underlying some of the criticism of the Vuvuzela. If one is so deep in denial about one’s own prejudices, and so blind to the fact that one is embedded in (and to some extent a prisoner of) a particular culture, it is difficult to accept that one’s own views and normative commitments are not universal and inherently superior truths handed down by God, but merely one of many ways of making sense of the world.

Maybe it’s better to laugh and shrug one’s shoulders – while putting some extra effort into blowing your Vuvuzela as loud as possible.

Picking your nose with your big toe?

Jun 14th, 2010
by Pierre De Vos.
28 comments

Defence Force Minister Lindiwe Sisulu (otherwise affectionately known as “The Princess”), is obviously not a great fan of section 23 of the Constitution. This section states, amongst other things, that: “everyone has the right to fair labour practices”; every worker has a right “to form and join a trade union” and “to participate in the activities and programmes of a trade union”. Section 23(5) also states that every trade union organization has the right to engage in collective bargaining.

After the chaotic march by members of the South African National Defence Union (SANDU) to the Union Buildings last year, the Minister hinted to a committee of Parliament that trade unions in the Defence Force will be scrapped, stating that: “We envisaged that within the Defence Force itself, we will have professional bodies where the military will be able to come together lobby for better conditions but certainly it will not be like trade unions.” Last month she again attacked SANDU, accusing it of spreading lies, being irresponsible reactionaries and being a danger to national security.

The Princess obviously was not well informed about the Constitution when she hinted at the scrapping of trade unions last year. One suspects she was unaware then that in 1999 in the case of South African National Defence Union v Minister of Defence and Another the Constitutional Court declared invalid provisions of the Defence Act which prohibited members of the defence force from becoming a member of a trade union.

One is also not sure that she was aware of the  2007 Constitutional Court judgment in SANDU v Minister of Defence and Another in which Justice O’Reagan confirmed that members of the defence force had a right to join trade unions and to take part in public protests as long as they were not in uniform and as long as the protest would not cause “actual or potential prejudice to good order and military discipline”.

That judgment also confirmed that the right of members of the defence force who belong to trade unions were otherwise severely limited. They are not allowed to strike. They are not allowed to participate in the activities of a trade union while taking part in a military operation, military exercises or in training. Their trade unions are also not allowed to affiliate to any political party or labour organisation.

But importantly, in this latter case, the Department of Defence was severely embarrassed after it unilaterally withdrew from the Military Bargaining Council - which it was legally obliged to take part in – and refused to negotiate with or even consult the defence union unless unilaterally imposed conditions for its participation were met. But the military regulations themselves prohibited the Defence Department from doing this and the Constitutional Court declared the actions of the defence department in this regard invalid.

The recently tabled Defence Amendment Bill must be seen as a belated attempt to circumvent these Constitutional Court judgments. Given these two judgments, it is clear that the amendments – as they currently read – will not pass constitutional muster. The Bill – if passed – will create an elaborate smokescreen to hide the fact that unions in the Defence Force are to be banned in everything but name. If passed, the Bill would make Unions in the Defence Force irrelevant and powerless.

The Bill will essentially scrap Military Bargaining Councils where salaries and benefits are currently negotiated between Unions and the Department of Defence. Instead the Bill will create a Defence Force Service Commission which will make recommendations on salaries and benefits to the Minister. However, the creation of this Commission seems like a sham, as section 62B(4) of the Bill states that the Minister determines the conditions of service of members of the Defence Force, in consultation with the Minister of Finance, after receiving the recommendations of the Commission. She can therefore ignore the Commission (and as a Princess, she would probably not want to take advice from a lowly Commission – even one hand-picked by herself).

In a rather lame attempt at circumventing the Constitutional Court jurisprudence on the right of soldiers to join trade unions and bargain collectively, the Bill provides for a rather elaborate but completely fake mechanism that pretends to imbue the Commission with independence and the power to bargain with military trade unions about salaries and benefits for soldiers. In the end, what the Bill will do, is to give the Minister the final say on what the salaries and benefits of soldiers will be – regardless of anything that happens at the Commission.

The Bill is a mish-mash of contradictory and unnecessary provisions all trying to hide the simple fact that this Bill is aimed at ending the existence of trade unions in the military and thus at subverting the judgments of the Constitutional Court. It provides for a completely unnecessary and elaborate (but ultimately fake) mechanism for the appointment of members of the Commission to try and hide the fact that the members of the Commission are really selected and appointed by the Minister and have absolutely no power.

In terms of the Bill, the Minister will select the members of the “nominations committee” that will nominate people to the Commission. She will also be able to select the members of the Commission from a list of names nominated by this “nominations committee”, who was in any case selected by her. In effect, she will therefore be able to nominate the members of this Commission herself. And in any case, even if she does not ensure the selection of trusted lackeys and yes-men to the Commission (as the Bill invites her to), she has final control over its members as she can fire them all at any time for very vague reasons.

The Bill states that the Minister can remove any member of the Commission, inter alia, if she decides that the member has failed to fulfill a function in an effective and efficient manner. She can also direct the Commission to take any action specified by the Minister if the Commission has failed (according to whom?) to fulfill a function in an effective and efficient manner. One can imagine a Princess easily finding fault with the work done by the Commissioners, so they will be serving at her pleasure and will either obey her wishes or be fired.

Given these draconian powers handed to the Minister by the Bill, and given its complete lack of power, it is quite laughable that the Bill pretends to create an independent body by stating that the Commission must act without fear, favor or prejudice. But just in case Commissioners get the wrong idea, the Bill also states that the Commission is accountable to the Minister. One can imagine a poor Commissioner trying to account to Minister Sisulu while acting at all times without fear, favor or prejudice. This is about as possible as picking your nose with your big toe.

In any case, this is all irrelevant, because the Commission has no power as the Minister may ignore any recommendations it makes and may implement her own views. The Bill creates the Commission in a completely transparent attempt to involve Unions in utterly irrelevant bargaining and consultation with it, while reserving all the power for the Minister to decide for herself how her fiefdom should be run. If passed, there will be no use in belonging to a Defence Force Union and, in effect, Unions would no longer be able to attract members and to function effectively in the Defence Force. The Bill thus places severe restrictions on the rights of soldiers to join trade unions and the rights of such unions to engage in collective bargaining. It would not pass constitutional muster.

Now, there are plausible arguments to be made on either side about the wisdom of our Constitution allowing soldiers to form and join trade unions and for those trade unions to engage in collective bargaining. Personally I am agnostic about this issue. But our Constitution does guarantee these rights and unless the Constitution is amended, the Minister should abide by the Constitution. This Bill is scandalous, not because it gives the Minister enormous power (although it does), but because it represents such a transparent and ham-handed attempt to subvert the Constitution and the judgments of the Constitutional Court.

Once again, I am forced to ask: who is advising the Minister on these constitutional issues? It cannot be anyone with integrity or any respect for the Constitution, that’s for sure.

Not a day for an argument

Jun 11th, 2010
by Pierre De Vos.
17 comments

I was woken up this morning at 5:30 by the blaring of Vuvuzela’s. I got up and was going to write something for this Blog about the judgment of the High Court which found that the Mail & Guardian had the right to access all the information regarding tenders given out by the Local Organising Committee of the Soccer World Cup.  A great day for the principle of freedom of information and openness and transparency and all that important stuff.

But I put on my Bafana Bafana shirt and practiced my Vuvuzela blowing instead.

Then I thought of writing about the Human Rights Commission Report criticising the City of Cape Town for not providing proper toilets to the poor and destitute of our City, but discovered Gavin Silber had already said what I wanted to say on the Writing Rights Blog.

Soon the fever will pass, sanity will return and with it my critical faculties. Meanwhile – sorry dear readers – no attempt at insightful and critical analysis of the legal and constitutional issues of the day seems possible. Once the World Cup gets started I promise to return.

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