Constitutional Hill

June, 2010:

World Cup guide to South Africa (part 1)

Jun 10th, 2010
by Pierre De Vos.
14 comments

This is not a Blog about sport (unless you view politics as a kind of robust and sometimes dirty sport), but South Africa only hosts the Soccer World Cup once in a lifetime, so in the spirit of the moment, I thought I would post something fun about this momentous event in our nations history. So, here is the first part of an occasional guide for locals and for foreign visitors to help them come to grips with the World Cup and with the intricacies of our country.

world cup

The Vuvuzela: A cheap plastic trumpet that makes an ungodly noise and can be blown at any occasion. Also called South Africa’s secret weapon in the tournament. Not to be confused with Julius Malema (see below) as the Vuvuzela probably scored higher marks in woodwork.

Do say: I am a Mexican player,  please blow in my ear. Don’t say: Hope this was not made by child labour in China.

Jacob Zuma: The President of South Africa when Fifa is not in town, this affable and very musical politician has a complicated family life that includes several wives and a brood of children that could form its own soccer team. He loves discussing things, but really hates making any kind of decision. When asked a question he will chuckle and say: “Well, why are you asking me that, I am only the President?” Not to be confused with Sepp Blatter who is the President for the next month.

Do say: I believe the ANC will rule until Jesus returns to earth or Schabir Shaik goes back to prison. Don’t say: Whatever happened to that R500 000 from the arms company your friend Schabir scored for you under the table?

Julius Malema: The man white South Africans love to hate, this youngster obtained a G for Woodwork in High School but is nevertheless a sharp businessman who has invented a whole new way of making money: he pretends to build roads and bridges and most South Africans pretend we like him while giving him lots of our tax money so that he would not sing “Kill the Boer”.

Do say: What a lovely revolutionary and militant watch you are wearing. Don’t say: Can you help my son with his woodwork project – it will be good exercise and help you with your weight problem?

Greenpoint stadium: A magnificent football venue which was supposed to be built in Athlone until Sepp Blatter realized that it would look better if it was built in the rich suburb against the backdrop of table mountain, far away from Cape Town’s poor. Everybody was against the building of the stadium in Greenpoint. Now everybody believes it was a brilliant idea.

Do say: It looks like a traditional Xhosa woman’s hat. Don’t say: How many toilets could you have built with the money spent on the stadium?

Helen Zille: The leader of the official opposition in South Africa, this feisty and principled  journalists turned politician is an avid fan of conspiracy theories involving the ANC. No one does hurt and beleaguered the way she can. Just a pity her eyebrows can’t shoot up in alarm anymore, apparently because of a botched operation which was intended to make her look less white.

Do say: By building the stadium in Greenpoint you have brought Cape Town together and shown a principled commitment to the poor and to the Constitution. Don’t say: Do you know where I can have some Botox done (and by the way, where can I find a toilet?)

SABC: The official mouthpiece of the Soccer World Cup (and the ANC government) the South African Broadcasting Corporation pretends to be a public broadcaster by ensuring that its own management drama’s provide South Africans with a never ending soap opera worthy of “Days of our Lives”. They love reporting on events of world importance – like a Cabinet Minister opening the annual Biltong festival in Koekenaap – but are less succesful at paying their bills and reporting even-handedly about politics.

Do say: Feel it, it is here! Don’t say: When am I getting paid? The Minister called and you are in big trouble.

Another twist in Zuma corruption case?

Jun 8th, 2010
by Pierre De Vos.
32 comments

Lawyers for President Jacob Zuma and the NPA are deploying all the technical legal arguments at their disposal to try and prevent the DA from obtaining all the documents on which the Acting Natonal Director of Public Prosecutions (NDPP), Mokothedi Mpshe, relied when he made the decision to drop all charges against President Jacob Zuma. Their strongest technical argument – in-between the grandstanding and the irrelevant political broadsides – is that the DA has no standing in the case because no constitutional right is in issue and the DA has no direct interest in the case.

If one alleges that a right in the Bill of Rights has been infringed, then the very broad provisions of section 38 will kick in and the DA will clearly have standing to challenge the decision. This section allows anyone to approach the court, whether they are acting in their own interest; acting on behalf of another person who cannot act in their own name; acting as a member of, or in the interest of, a group or class of persons;  acting in the public interest; or an association acting in the interest of its members.

That seems to be one of the reasons why the DA is alleging that the decision to drop charges against Zuma was reviewable in terms of the Promotion of Administrative Justice Act (PAJA). Section 33 of the Bill of Rights guarantees for everyone the right to administrative action that is lawful, reasonable and procedurally fair. If the decision to drop charges is reviewable under the PAJA, it would implicate section 33 of the Bill of Rights as PAJA “operationalises” this section. That would mean that the DA would clearly have standing, given the broad parameters of section 38 set out above.

However, if a court finds that the decision is only reviewable on the grounds that the NPA had not acted in terms of the law and the Constitution when it dropped the charges against Zuma (because it failed to adhere to its own prosecuting policy, which it is constitutionally required to do), then the question of whether the DA has standing to challenge the decision becomes legally more interesting.

That is not to say that one could not argue that the DA would have standing – even if this is a Rule of Law issue and not an administrative law issue. Where a supposedly independent institution like the NPA fails to uphold the Rule of Law and drops charges against the leader of the majority party on spurious grounds, one could argue that the official opposition would be directly affected. If such an opposition party, who professes to adore the Constitution (unless the abolition of the death penalty is involved, in which case all bets are off), cannot bring an application to uphold the Constitution, who can?

Besides, so the DA might argue, how could it compete fairly in the political arena if an independent constitutional body like the NPA fails to act without fear, favor or prejudice against members of the governing party? Surely minority parties have a direct interest in upholding the Rule of Law, because without respect for the Rule of Law, they stand very little chance of ever convincing the public that some leaders in the governing party are corrupt and may have abused the Constitution. And if they cannot do that, how will they get the majority of voters to vote for them?

Of course, whether it is in the interest of the DA to have President Zuma prosecuted is another matter. Cynics might argue that it is in that party’s interest to ensure that Zuma remains President for as long as possible – what with his family troubles, his inability to lead, and his apparent inability to impose his authority on the fractious tripartite alliance members.

And given the fact that the DA – like the ANC – contains its fair share of old National Party members and is generally perceived – unlike the ANC – to hold values that are not shared by the majority of South Africa’s voters, the DA is probably not going to convince too many ANC voters to vote for them – even if they can get the NPA to adhere to the Rule of Law, to act independently and to prosecute Zuma.

As yet I have no firm views on whether the President and the NPA will be successful with this technical argument about the right of the DA to bring the review application. There might well be a judge somewhere who finds the arguments of Zuma and the NPA persuasive. What I do know is that the assertion made by President Zuma’s lawyer that he cannot be charged because he is a sitting President, has no basis in law and is obviously not tenable. This assertion will only become true if the Constitution is amended to indemnify a sitting President from prosecution. This is because such an indemnity would constitute a fundamental breach of the principle of the Rule of Law and at present it would thus be unconstitutional.

More interesting for me is the question of whether there is any use in spending all this money in trying to have the original decision of the NDPP set aside. Given the fact that President Zuma has appointed Menzi Simelane as NDPP and Simelane is about as likely to prosecute Zuma as Bafana Bafana is likely to win the World Cup by beating Brazil 6-0 in the final, one may ask whether the DA is not wasting its time and money with this application. Even if it wins the case, it will be a pyrrhic victory as Simelane will almost certainly revisit the decision and will surely decide not to prosecute the President.

He will be able to point to a country like France, where articles 67 and 68 of that Constitution makes clear that the President of the Republic enjoys immunity during his term of office. In France the sitting President cannot be requested to testify before any court and cannot be prosecuted either. However, the statute of limitation is suspended during his term, and enquiries and prosecutions can be restarted, at the latest one month after he left office.

Simelane will be able to point to such provisions and will then be able to argue that it is not in the national interest to charge a sitting President. The President, so the argument might go, will spend all his time in court (or dealing with family trouble) and will have no time to govern the country and that would not be in the “national interest”.

But this does not mean that – from the DA perspective – this application is not worth pursuing. If the party can lay its hands on the report by the prosecutor in the Zuma case which sets out in great detail why he believes there is a winnable case against President Zuma, it will severely embarrass the majority party and its leader. Zuma would be weakened and this might benefit the DA in that many ANC voters will become (more?) disillusioned with the ANC and might stay home come the next election.

Zwelenzima Vavi, who turned a blind eye to the credible allegations of corruption against President Zuma and refused to admit that Zuma had a case to answer, might be forced to rethink his position as well. After all, he berated Zuma last week for not investigating far less credible claims of corruption leveled against some of the Ministers in Zuma’s cabinet. If Mr Vavi was consistent, he would have to insist that the very strong case against Zuma be brought to court so that a court could once and for all decide whether our President is corrupt or not.

I wonder whether that is not the real reason for the President and the NPA’s legal maneuvers. They would surely want to prevent the DA from obtaining documents that would remind the people of South Africa that prosecutors in the NPA believe the President is guilty of corruption. Now that Thabo Mbeki is no longer President (and hence, no longer a handy enemy to rail against to help rally the troops) and the Polokwane alliance is showing signs of disintegrating, this is the last thing that Zuma can afford.

Who knows? One thing is certain though, even if the NPA loses these preliminary skirmishes, they (along with the President’s lawyers) will surely go on fighting tooth and nail to stop the DA from obtaining the relevant documents. After all, as Bill Clinton found out during his second term in office: the truth can be a rather bothersome thing to deal with – even for a President.

Newsflash: sex workers also have dignity

Jun 7th, 2010
by Pierre De Vos.
15 comments

Do sex workers have the same inherent human dignity guaranteed in our Constitution for everyone else living in South Africa – despite the fact that our Parliament in its “wisdom” has declared sex work illegal? In the case of Kylie v Commission for Conciliation, Mediation and Arbitration the Labour Court in effect found that they did not. Now on Appeal Judge Dennis Davis (Zondo JP and Jappie JA concurring), used some nifty legal footwork to find otherwise.

The Labour Court found that Kylie, who worked at a massage parlor and was dismissed without a fair hearing, was not entitled to protection against unfair dismissal as provided in terms of section 185 (a) of the Labour Relations Act (LRA) because it would be contrary to a common law principle that courts “ought not to sanction or encourage illegal activity”.

Cheadle AJ invoked the principle ex turpi causa non oritur actio which “prohibits the enforcement of immoral or illegal contracts” to justify this decision. He argued that if a contract is illegal, courts must regard the contract as void and hence unenforceable. As the Constitutional Court found in the much criticized case of S v Jordan that Parliament had the right (if not the duty) to criminalize sex work, it would be untenable to allow the application of the LRA to sex workers as this would, in effect, undermine the principle of the Rule of Law.

The Labour Appeal Court argued that in dealing with this question one should not start by looking at the law of contract. Instead, one should focus first on the provisions of the Constitution, most notably section 23 of the Constitution which guarantees for “everyone” the right to fair labour practices.

Davis argued that the word “everyone” in section 23(1) of the Constitution refers to all people in the country and is thus “supportive of an extremely broad approach to the scope of the right guaranteed in the Constitution”. This did not mean that sex workers enjoyed exactly the same rights as everyone else. After all, engaging in sex work (and now, making use of the services of sex workers) is a criminal offense and obviously this means that sex workers have fewer rights – even labour rights – than individuals not engaging in unlawful activity to earn a living.

Nevertheless, sex workers may, in certain circumstances, enjoy protection under the LRA. This is because the LRA, read in the context of section 23, is very broad in scope and applies not only to workers who has a legally valid contract with employers but also to workers where an employment relationship (if not a legal contract) exists between the worker and the employer.

Summarising this argument, Judge Davis focused on the inherent human dignity of sex workers and wrote:

As sex workers cannot be stripped of the right to be treated with dignity by their clients, it must follow that, in their other relationship namely with their employers, the same protection should hold. Once it is recognised that they must be treated with dignity not only by their customers but by their employers, section 23 of the Constitution, which, at its core, protects the dignity of those in an employment relationship, should also be of application.

But would somebody like Kylie be entitled to any legal relief – despite the fact that she engaged in unlawful activity? Would a court not be undermining the Rule of Law if it provided a remedy for the unfair dismissal of a worker whose work entailed engagement in illegal activity? Were a court to recognise a claim based on the constitutional right to a fair labour practice, would the court not be sanctioning or encouraging the prohibited activity?

Well, Davis seemed to have managed to skirt this problem (taking this into account when deciding on what remedies might be available to someone like Kylie) by focusing – once again – on the inherent human dignity of sex workers. He noted that the express purpose of the LRA “is to advance economic development, social justice, labour, peace and the democratisation of the work place”.

In itself, this set of principles can be traced to section 23 of the Constitution. In particular, section 23(1), which provides that everyone has the right to fair labour practices, was designed to ensure that the dignity of all workers should be respected and that the workplace should be predicated upon principles of social justice, fairness and respect for all.

The Court found that where a sex worker forms part of a vulnerable class by the nature of the work that she performs (one could add that not all sex workers are female) and the position that she holds and she is subject to potential exploitation, abuse and assaults on her dignity, there is no principled reason why she should not be entitled to some constitutional protection designed to protect her dignity. This protection has been “operationalised” by the provisions of the LRA.

This does not mean that all the remedies of the LRA would be available to a sex worker who has been unfairly dismissed by an employer. For example, it would be against public policy to reinstate a sex worker – even if she could show, on the evidence, that her dismissal was unfair. Compensation for a substantively unfair dismissal may also be inappropriate. It would be against public policy, one assumes, because it would undermine the Rule of Law by “endorsing” illegal activity.

But a court could award monetary compensation for a procedurally unfair dismissal because this kind of compensation is independent of the loss of illegal employment. In other words, so argues Davis, a court will not be enforcing the unlawful contract and would not be undermining the Rule of Law if it provided compensation for the procedurally unfair dismissal. Where a sex worker has been dismissed and this dismissal was procedurally unfair her dignity would be exploited or abused. Public policy based on the foundational values of the Constitution does not deem it necessary that these rights to a procedurally fair dismissal be taken away from a sex worker for the purposes of the Act to be properly implemented.

This is a clever argument, but is it convincing? I suppose it depends on one’s view of the reach of the rights in the Bill of Rights as well as on whether one sees sex workers as a vulnerable and exploited group or as a social menace. Perhaps because I believe sex work should not be criminalized and because I endorse the implicit assumption of the Davis judgment that everyone – regardless of who they are or what work they do – has an inherent human dignity that cannot be taken away, I find the argument plausible.

Some judges and lawyers fail to understand that the principle that every human being has an inherent human dignity, which forms the basis of the rights in the Bill of Rights, does not refer to a subjective dignity that one can “lose” because of what one did for a living or who one is. Whether one is a sex worker or a politician (some would say these activities are rather similar in nature), one retains an inherent human dignity.

Just because a moralistic legislature (influenced by the prevalent Christian nationalist ethos) purports not to like the work one does or because one is forced by circumstances to do a job that is frowned upon by some, one does not lose one’s inherent dignity and hence one does not lose the protection of the Bill of Right. If one is treated unfairly the law should therefore protect you – if it is at all possible.

The larger question remains though: why do we criminalize sex work? Some argue that sex work is inherently demeaning to women while others argue that it is immoral. The latter argument is obviously not sustainable in a constitutional democracy as the criminal law should not be used to impose the morality of some on society as a whole. The former argument seems to me fundamentally hypocritical. We allow men and women to do work that some would find just as (or more) degrading than sex work. We do this because we are too lazy or high-minded to do these jobs ourselves.

Thus, the law does not prohibit anyone from cleaning a toilet, removing other people’s rubbish, becoming a criminal lawyer defending rapists and murderers or becoming a politician – despite the fact that many in society might see these jobs as degrading or immoral. Why single out sex workers for criminal sanction? I suspect we single out sex workers because of the deeply conservative and moralistic views about sex that our society pretends to endorse.

By condemning sex workers we can feel good about ourselves and can feel morally pure – even if our own sexual attitudes and behavior does not comply with the prescriptions imposed by religious teachings and by societal attitudes. The ban on sex work therefore seems rather hypocritical and self-serving.

The Law Reform Commission is currently investigating the regulation of sex work, but no matter what proposals it may make, I fear that our legislature will not agree with Davis’s judgment which reminds us that sex workers have an inherent human dignity that should be respected. Parliament may well do so not because its representatives themselves live lives of chastity, but because they need to condemn others in order to deal with their own internalized prejudices about sex and sexual morality.

Fifa World Cup: Feel it, it is here (then shut up)

Jun 4th, 2010
by Pierre De Vos.
26 comments

Great confusion reigns about directives issued by someone in the South African Police Services (as the Constitution refers to it) or the Police Force (as the militarists and other enemies of freedom refer to it) to a number of municipalities not to allow marches for the duration of the 2010 World Cup. According to Professor Jane Duncan:

A snap survey conducted at the end of last week of other municipalities hosting World Cup matches revealed that a blanket ban on gatherings is in operation. According to the Rustenberg municipality, ‘gatherings are closed for the World Cup’. The Mbombela municipality was told by the SAPS that they were not going to allow gatherings during the World Cup. The Cape Town City Council claimed that it continues to accept applications for marches, but indicated that it ‘may be a problem’ during the World Cup period. According to the Nelson Mandela Bay and Ethekwini municipalities, the police will not allow gatherings over the World Cup period.

If this is true, it would mean that parts of South Africa are now effectively functioning under a state of emergency in which the right to freedom of assembly and protest have been suspended. This would be both illegal and unconstitutional. Other reports have suggested that such orders were indeed given, but that the police are now backtracking – probably because the police have realised that they are breaking the law and that the order, in fact, constitutes a grave breach of the law and the Constitution.

It is a sad day indeed when the police itself become a threat to our democracy and our rights because Fifa and the government want us all to behave and shut up for the next month and to forget about our democratic rights.

The starting point of the Regulation of Gatherings Act, which was passed in 1993, is that anyone who complies with the requirements set out in the Act is entitled to assemble, to march and to hand over petitions. It is our democratic right and a fundamental aspect of a democracy that we should be able to express our views and grievances in this collective manner. If we want to protest the manner in which Fifa has taken over our country and is stealing our money and robbing us of our dignity, we have every right to do so.

The Act requires organisers of a gathering or march to give notice of the gathering or march at least 7 days before it is to take place. A responsible officer appointed by the Police Commissioner is then required to engage with the organisers in good faith and to consult with them to ensure that a march or a gathering is conducted in a peaceful and orderly fashion.

If the police officer cannot reach an agreement about the way in which the march or gathering should take place, he or she may -  if there are reasonable grounds to do so – impose conditions with regard to the holding of the gathering to ensure the free flow of traffic and to prevent any damage to property or harm to anyone. The Act therefore makes it clear that in ordinary circumstances when one wants to march, demonstrate or gather, permission for the event MUST be given – although reasonable conditions could be imposed in order to protect the interest of the public (the interests of the government of the day or of Fifa would be utterly irrelevant).

There is no provision in the Regulation of Gatherings Act that allows the Police Commissioner or anyone else to issue a blanket ban on the holding of gatherings. There is no provision that states that gatherings can be banned because the police are busy ferrying around Sepp Blatter in a blue light convoy and do not have time to deal with marches and demonstrations. There is no provision in the Act that states gatherings can be banned because the international media is looking and the gathering will give our government or Fifa a bad name or embarrass them.

I have re-read the Act and can confirm that it does not even allow our proxy-government – also known as Fifa – the right to issue such a ban or to request the Police to do so. There are good reasons for this. A blanket ban would constitute a fundamental and unjustifiable infringement on the right  guaranteed in section 17 of the Constitution. This section guarantees for everyone the right “peacefully and unarmed to assemble, to demonstrate, to picket and present petitions”.

It will probably come as a surprise to Sepp Blatter and other leaders of Fifa (who, I read to my utter surprise and shock, has been called a quasi-Mafia for the way in which they run their “business” and take over host countries), that the South African Constitution does not contain any exception for Fifa and hence does not allows it or anyone acting on Fifa’s behalf to issue orders imposing a blanket ban on gatherings and marches. This can only happen if the life of the nation is threatened and Parliament enacts a State of Emergency and even then the emergency can usually only last for 21 days.

It is true that section 5 of the Regulation of Gatherings Act does allow for the prohibition of gatherings and marches but only in very limited circumstances. It can only be done if ”credible information on oath is brought to the attention” of the responsible police officer that:

there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.

But even then, the police officer must first consult with the organisers to find a way of dealing with such concerns. Only where the police officer on reasonable grounds is convinced that no amendment of the conditions for the march would prevent any of the dangers set out above, can a march be banned.

The eyes of the world will be on South Africa over the next month and for those citizens who feel aggrieved about any matter (whether it is about the shocking harassment of Abahlali baseMjondolo members by police and ANC aligned thugs, the destruction of fynbos by golf estate developers, the attack on the Peace Flotilla by the Israeli navy, or the fact that Julius Malema allegedly has R53 million in the bank and allegedly often drinks tea with Minister Simphiwe Nyanda) it is a golden opportunity to have their voices heard in the full glare of the international media spotlight.

The police service – who is supposed to serve the interests of all South Africans – has a duty to facilitate all such peaceful protests. It is thus the duty of police officers to serve the interests of a democratic state – not the interests of the government of the day (who may be led by either the ANC or by Fifa – we are not sure at the moment which one). It may well be that limited policing resources will allow the imposition of more restrictions on marches and demonstrations during the world cup period, but it would not – I repeat NOT – allow any police officer to ban any march that is going to be peaceful and is not going to present a huge disruption to traffic.

So if you have a gripe and you want to demonstrate or march, get those applications in as soon as possible. If the police refuse to grant permission for the march, well, we can make sommer a very big stink.

“I told you so”

Jun 2nd, 2010
by Pierre De Vos.
37 comments

Time will say nothing but I told you so,
Time only knows the price we have to pay;
If I could tell you I would let you know.

If we should weep when clowns put on their show,
If we should stumble when musicians play,
Time will say nothing but I told you so.

I don’t often say I told you so, although I would lie if I denied that I am often tempted to do so. But in the wake of reports that the ANC National Working Committee (NWC) on Monday discussed the possibility of charging Cosatu leader, Zwelenzima Vavi, (or may have already decided to charge him), for insulting ANC leaders in public, I have to say: “Well I told you so”.

The Times reports that the ANC wants to charge Vavi as he is a card carrying member of the ANC. They argue that ANC Youth League president Julius Malema was also charged as an ANC member. They are very, very, cross with Vavi because last Thursday, he accused President Jacob Zuma of not taking action against corrupt ministers, specifically mentioning Minister of Cooperative Governance Sicelo Shiceka and Communications Minister Siphiwe Nyanda. Vavi said reports that Shiceka had lied in his CV and the conduct of Nyanda, who spent R500 000 on hotels in Cape Town, should be probed.

The tenderpreneurs in the ANC obviously did not like this talk of probing Ministers for corruption. What will be next? Charging President Zuma for taking money(“taking a bribe”, our courts called it) from a crook and then doing favours for that crook? Exposing the various business dealings of ANC leaders making a fast buck while service delivery flounders? I mean really, who does Vavi think he is? How can one effectively loot rule a country when one’s allies want to have corruption probed and exposed? Have you ever heard of such an absurd idea?

There are no fortunes to be told, although,
Because I love you more than I can say,
If I could tell you I would let you know.

The winds must come from somewhere when they blow,
There must be reasons why the leaves decay;
Time will say nothing but I told you so.

Vavi is, of course, an ANC member and according to the ANC Constitution he is subject to the discipline of the ANC like any other member. It would therefore be perfectly legal to charge Vavi. I am sure if the right disciplinary committee is selected Vavi could also be found guilty of contravening section 25.5 of the ANC Constitution which prohibits any member from, inter alia: 

  • Behaviour which brings the organisation into disrepute or which manifests a flagrant violation of the moral integrity expected of members and public representatives or conduct unbecoming that of a member or public representative;
  • Behaving in such a way as to provoke serious divisions or a break-down of unity in the organisation;
  • Undermining the respect for or impeding the functioning of the structures of the organisation;
  • Prejudicing the integrity or repute of the organisation, its personnel or its operational capacity by: Impeding the activities of the organisation; Creating division within its ranks or membership; Doing any other act, which undermines its effectiveness as an organisation; or Acting on behalf of or in collaboration with: Counter-revolutionary forces.

    • That is exactly why I warned after the conviction of Julius Malema that it was a bad idea to find him guilty of criticising the President of the ANC. At the time I wrote:

    Surely, if this approach were to be strictly applied, it would stifle democratic debate within the ANC and would severely limit the freedom of expression enjoyed by ANC members. If an ANC member criticized one of his comrades because that comrade had been found guilty of corruption, say, disciplinary charges could be instituted against him or her for sowing division within the ANC. This would leave good members in the ANC who spoke out against the wrongdoing of comrades vulnerable and would make it rather difficult to raise questions about the conduct of fellow ANC members – even if this criticism is based on proven facts.

    And that is exactly what Vavi is now facing. Those who want to stop Vavi from speaking out about corruption in the ANC (so much the better to loot govern the country) are even using the Malema saga as an excuse to do so. This is the problem with curtailing freedom of expression and endorsing censorship: today it is being used against your enemies, but tomorrow it is being used against yourself – even when you speak the truth and are one of the good guys.

    The fact that the NWC even discussed the possibility of charging Vavi clearly means that the tenderpreneurs in the ANC are more stupid and vengeful than they are greedy (and that takes some doing). Charging Vavi would be a calamity for President Zuma and the ANC. Unlike Malema, who has no real power base, is being manipulated by a few rich benefactors to do their bidding, and could easily be dropped when he passes his sell-by date, Vavi is the leader of Cosatu. Without the organisational skills of Cosatu and the active support of its members, the ANC will find it difficult to get more than 50% of the vote at the next election.

    One assumes President Zuma and Mr Gwede Mantashe will outflank the tenderpreneurs on the NWC and will make sure that charges against Vavi never see the light of day. If they do not, the ANC would probably be done for as the governing party.  But what President Zuma will not do is to order an investigation into the credible allegations of corruption against Siphiwe Nyanda. If one lives in a glass house one is surely not going to throw the first stone.

    Meanwhile, all I can say to Zwelenzima Vavi is: “I told you so”. When Vavi supported President Zuma as the alternative to Thabo Mbeki and said Zuma was an unstoppable tsunami I warned that President Zuma was an African traditionalist and deeply conservative man who did not share the values held so dearly by Cosatu. Now Vavi is realising that this is indeed the case and that he had helped to elect a man that is ethically weak and holds reactionary views.

    Perhaps the roses really want to grow,
    The vision seriously intends to stay;
    If I could tell you I would let you know.

    Suppose all the lions get up and go,
    And all the brooks and soldiers run away;
    Will Time say nothing but I told you so?
    If I could tell you I would let you know. – - WH Auden “If I could Tell you”

    On lies, self-defense and Israeli impunity

    Jun 1st, 2010
    by Pierre De Vos.
    112 comments

    During the apartheid era all South Africans – even white South Africans – who possessed even an iota of scepticism and common sense, became all too familiar with the lies and propaganda of the apartheid state. When an anti-apartheid activist died after being tortured and then murdered by security police members, we were told in a solemn voice by by Cliff Saunders – the National Party propagandist who pretended to be an SABC journalist – that the victim had “slipped on a banana peel” or had been killed after slipping on soap in the shower or had mysteriously managed to jump through a small window from the eighteenth floor of John Vorster Square.

    This, Cliff Saunders would assure us, was done by the now dead “terrorist” as part of a devious plot to try and embarrass the National Party government by trying to implicate “our security forces” when all they did was to invite the terrorist for cake and tea and to ask him or her a few questions.

    Nelson Mandela was described as “a self-confessed communist and terrorist”, white opposition leaders like Frederik Van Zyl Slabbert who wanted to talk to the ANC were described as Stalin’s  ”useful idiots” doing the bidding of “terrorists agitators” and reports that South Africa had invaded Angola (which were all true) were dismissed as the lies of the terrorist propaganda machine and disinformation fabricated in Moscow.

    And when South African army commando’s attacked safe houses in neighbouring states (killing scores of women and children) we were told of this “great victory” for the security forces (as if killing of ten women and children in cold blood could be described as a victory by anyone except the most deranged person) and assured that the “security operation” had been legal in terms of international law because of the (non-existent) international law principle of “pre-emptive hot pursuit”. This term is as well known and well-regarded in international law as that of “enemy combatants” – in other words it is a creation of a rogue state trying to justify its illegal criminal actions.

    So, I was not surprised when I read this morning that Israel is justifying its assault on a flotilla of relief boats in international waters on the basis that this was necessary to protect the sovereignty of that state and to protect its citizens from attack. Armed commandos boarded the vessel, which were carrying supplies for a besieged civilian population in Gaza, and killed more than 10 peace activists on board after some activists reportedly resisted the unprovoked attack. They then illegally arrested all the activists and detained the ships.

    Israel immediately imposed a communications blackout on the detained activists – some were taken by bus to Beersheva prison in the south of Israel – while simultaneously launching a sophisticated public relations operation to ensure its version of events was dominant. In this version put out by various Israeli spokespersons, the Israeli soldiers who had illegally stormed the ships and were armed with machine guns were the victims of a vicious attack by violent terrorists armed with sticks and even knives.

    This ludicrous assertion beggars belief, but because the media needs to be”fair and even handed”, many media outlets are treating this version as credible and morally defensible. It would be equivalent to the media reporting as perfectly credible and morally defensible a claim by Al-Qaeda that their fighters who hijacked flight 253 on September 11 and were intending to crash the plane into the White House were the innocent victims of a group of vicious infidels who had stormed the cockpit of flight 253 with all kinds of weapons, including baseball bats.

    In terms of the Convention on the Laws of the Sea a state is never ever allowed to interfere with a ship in international waters.

    Section 87 of that Convention states that ”the high seas are open to all States, whether coastal or land-locked” and comprises, inter alia, freedom of navigation. To emphasise how clear this right is, article 95 states that “warships on the high seas have complete immunity from the jurisdiction of any State other than the State” to whom the ship belongs. Section 97(3) of the Convention states that “no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities” other than those authorities under whose flag the ship is sailing.

    Article 110 of the Convention is even more clear and states that ”except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship”  is not justified in boarding it “unless there is reasonable ground for suspecting that: the ship is engaged in piracy; the ship is engaged in the slave trade; the ship is engaged in unauthorized broadcasting: the ship is without nationality; or though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.”

    Not even the Israeli’s are claiming that the flotilla ships involved in a humanitarian mission were engaged in the slave trade or were engaged in any of the other activities that would trigger the provisions of section 110 of the Convention.

    In other words the actions by heavily armed Israeli forces who boarded the flotilla ships in international waters and then killed at least ten of the passengers was nothing less than an act of state sponsored terrorism in contravention of every rule of international law. The ships were on a humanitarian mission to deliver aid to the people of Gaza in order to alleviate the hardships in that territory which had been caused by the illegal blockade of Gaza by Israel.

    To justify this outrageously unlawful action on the basis that the unlawful aggressors were attacked by passengers armed with sticks and knifes is beyond the pale and shows a complete disregard for international law. But as Justice Goldstone had long since discovered, the Israeli government believes it is above the law – much like the apartheid government who justified its unlawful invasion of neighbouring countries on the ground of its right to engage in “pre-emptive hot pursuit”.

    Of course, defenders of Israel’s action (because as is the case with the DA and the ANC, some supporters of Israel will defend that government no matter what it does) will pretend this egregious breach of international law never occured or that it could be justified. But the murder of the 10 passengers cannot be legally justified – no matter how you spin it. The event is a human tragedy as wel as a public relations disaster for Israel. But it is more than that: it is a wake up call to remind us all that the government of Israel, who is presently dominated by far-right wing parties, is a deeply immoral one.

    The South African government should expell the Israeli ambassador in protest and should recall the South African ambassador from Jerusalem. But I am, once again, not holding my breath because South Africa’s foreign policy has long since stopped pretending to be based on principles of human rights, respect for the rule of law or any other principle except cowardliness and naked self-interest. If the Israeli government were clever it would donate a few million Rand to the ANC (or to President Zuma’s private bank account) to ensure it remains that way.

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