July, 2010:

Do as we say, not as we do?

Jul 29th, 2010

I almost fell off my chair laughing when I read yesterday that the Democratic Alliance has warned that politicising the office of the Public Protector undermined the “brilliant” work it has done. The Cape Times reported that the DA’s defence of Adv Thuli Madonsela comes in the wake of an attack on her by the ANC Youth League (ANCYL) and COPE’s reference to her office as a “toothless wonder” after she found Communications Minister Siphiwe Nyanda guilty of breaching the Executive Members’ Code of Ethics by publicly defending axed Transnet Freight Rail boss Siyabonga Gama.

The ANCYL – in its usual hysterical way – lashed out at Madonsela for finding Nyanda guilty of being “truthful” and questioned whether she was protecting the public, or merely “parroting misperceptions of opposition parties”. (This defense of Nyanda is interesting because it suggests that the tenderpreneurs of the ANCYL and the tenderpreneurs in cabinet were watching each others backs.) DA MP and Justice and Constitutional Development spokesperson Natasha Michael said the ANC had “systematically ignored” the role played by the Public Protector. It praised Madonsela for her investigations and warned political parties not to interfere.

The sentiments expressed by Michael are of course laudable and correct. Political parties should not interfere with the work of Chapter 9 institutions (or courts) and they should not try to politicise the decisions of these institutions for short term political gain. This is a principled and constitutionally honourable position to take. But I suspect Michael did not clear this statement with her leader, Helen Zille, who seems to hold a different view.

In the wake of a report by the Human Rights Commission into the Western Cape toilet saga, Zille did exactly what Michael says political parties should not do: she questioned the political motives of a Chapter 9 institution and claimed that the Human Rights Commission was being abused as part of a dark conspiracy to tarnish the good name (if any) of the DA, stating as follows:

Three years ago when the City was locked in a make-or-break battle with the Province over the unconstitutional Erasmus Commission, Professor Pierre de Vos took me to task for saying: “some judges allow themselves to be used and, unfortunately, (Judge) Nathan Erasmus is one of them.” Today, I repeat that in relation to the SA Human Rights Commission: Some Chapter Nine institutions allow themselves to be abused and, unfortunately, the SA Human Rights Commission is one of them.

Instead of sticking to a factual and legal argument about why the SAHRC report might be flawed (something she had every right to do), she attacked the integrity of the Commission to try and deflect attention from the extremely embarrasing saga about open toilets. It is so much easier to attack the messenger than to deal with the substantive issues: the DA equivalent of “pulling the race card”.

Sadly, this is part of a broader pattern in which the DA in general and its leader in particular seem to have one standard for the ANC and other political parties and another standard for itself. It is as if the DA believes that it is exempt from the same standards it holds others to because it believes it is the only party who knows what is best for everyone (a rather patronising view) and that it is therefore the only party who can be trusted without having to be held to the general principles on which a functioning democracy is based. It thus sees itself being exempt from the duty to honour the principles it claims to espouse. “Do as we say, not as we do,” seems to be the DA motto.

Given our history and given the racial profile of the DA, one would be forgiven for concluding that the DA believes only white people can be trusted, that white people therefore do not have to follow general principles of constitutional democracy and good governance, and that white people are therefore allowed to deal with each situation on its own merits without having to stick to the rules it claims to respect and honour. Black people, on the other hand, must be held to a higher standard because they are inherently unprincipled and corrupt enemies of democracy.

When Gwede Mantashe attacked judges of the Constitutional Court as counter-revolutionaries, the DA rightly criticised this because the ANC leader was launching a personal attack on judges of the highest court and was undermining respect for the judiciary. But when The Dear Leader, Helen Zille, attacked the integrity of Judge Nathan Erasmus, a High Court judge, thus undermining respect for the judiciary herself, we were supposed to cheer her on. She argued that, given the facts, she had every reason to question the integrity of a judge. And besides, so Zille argued, the High Court had declared the Erasmus commission unlawful and her attack was therefore justified.

This is, of course, nonsense. The High Court (per Swain J) never found that Erasmus had allowed himself to be used by the ANC (as Zille had implied) and the High Court did not question the integrity or motives of Judge Erasmus. In fact, although Judge Swain found that the then Premier had acted with an ulterior purpose in appointing the Commission, he explicitly exonerated Judge Erasmus stating: “I wish to make it absolutely clear that I do not suggest that Erasmus J was in any way a party to such conduct“.

The High Court - re-interpreting the jurisprudence of the Constitutional Court in a rather “innovative” manner – did find that a judge should not have agreed to chair the commission, but the court made it clear that no ulterior purpose (as alleged by Zille) was present on the part of the judge. This fact was lost in the post judgment spin by Zille and the DA sycophants.

What was also lost was that the DA and Zille had actually not pressed the point before the court at all that Erasmus personally was allowing himself to be used or was biased. In fact, judge Swain explicitly found that he did not have to answer this question. The High Court therefore did not exonerate Zille regarding her personal attack on Erasmus as the matter was not pursued before the court by the DA lawyers (although it was raised initially). Lawyers are not stupid so they probably knew that there was no chance that a court would endorse Zille’s scurrilous attack on a sitting judge.

Of course, courts often find that other judges had erred, but this does not give anyone the right to call into question the integrity of the judge whose decision was found wanting by another court. Down that road lies anarchy and a complete disrespect for the judiciary.

Similarly, after the High Court had found in favour of Zuma in his case to have the search and seizure warrants declared unlawful, the decision was finally overturned by the Constitutional Court. This did not allow either Mantashe or anyone else to call into question the integrity of the High Court judges or the judges of the Constitutional Court. Neither the High Court nor the Constitutional Court had found that any judge involved in the case had acted like counter-revolutionaries, so Mantashe had no right to make that allegation. Like Zille, he was attacking and politicising one of the three branches of our democracy. Unlike Zille, he has not continued to defend the indefensible.

And of course, when serious allegations of wrongdoing or criminal activity by ANC leaders surface, the DA – once again, rightly, in my opinion - demand that the affected leader should be suspended or should step aside until such time as the allegations have been dealt with or the criminal case concluded. But when a DA MP was charged two weeks ago with raping a young woman, the DA blithely stated that it had no reason not to believe the denials of its MP, that the MP is innocent until proven guilty, and therefore that the DA would not suspend that MP.

The same pattern repeats itself over and over again. It tarnishes the name of the DA (to the extent that it has a name) as it opens the party to charges of hypocrisy and, worse, racism. It reflects a kind of arrogance that is often associated with someone who has been the Baas his or her whole life and is used to being the Baas and to tell others what to do and how to behave while not having to follow suit. “We are always right, we are always principled, therefore we do not have to follow the same principles we claim to hold so dear and demand others respect.”

No wonder the vast majority of black people (and most of the sensible white people I know) refuse to vote for the DA – despite the corruption and maladministration of many ANC led municipalities and provinces. Who wants to be lorded over by such a bunch of self-righteous and unprincipled hypocrites?

Who could have made up this stuff?

Jul 27th, 2010

by Pierre De Vos.

38 comments

What on earth is going on at the Brett Kebble murder trial? So far two state witnesses have testified that they were involved in the killing of former mining magnate and ANC Youth League benefactor, Brett Kebble. They claim it was an “assisted suicide” and that they were so bad at the job that they were only successful at killing Kebble on the third attempt. Who could have made up this stuff?

First, boxer turned hit-man, Mikey Schultz, testified that he had actually pulled the trigger (after several bumbling attempts), but that Glen Agliotti had nothing to do with the murder. They then “sped off” (but kept to the speed limit for fear of being caught on a speed camera) and destroyed the murder weapon in a chop-shop before melodramatically dumping the pieces of the gun into the sea.

Then ex Transvaal rugby player turned gangster (what is it with these sportsmen – can we ask some of them to go to work on the All Blacks before the next Tri-Nations game?), Nigel McGurk, told the court of his involvement in several hits – including the Kebble hit – but again stated that Agliotti had nothing to do with the murder of Kebble. (McGurk, like Schultz, may not be a very good witness, as advocate Laurence Hodes, appearing for Agliotti, at one point told him: “You’ve got a memory like red wine, it improves over time”.)

Yet Glen Agliotti is the person standing trial for the murder of Brett Kebble, while the two people who actually now claim to have killed Kebble are state witnesses and may well obtain indemnity from prosecution if the court finds that they testified frankly and honestly about the murder.

(Advocate Gerrie Nel, the guy who secured the corruption conviction against former police chief Jackjie Selebi, was supposed to lead the prosecution in this case but Menzi Simelane decided at the last minute to replace him. Not surprisingly, the new prosecutors appeared unprepared to lead the evidence: the lead prosecutor Advocate Dan Dakana today were constantly told what to ask by his colleague Advocate Kholeka Gcaleka.)

In any event, this arrangement by the NPA to offer possible indemnity to Kebble’s killers in order to prosecute Glen Agliotti, who may or may not have been involved directly with the murder at all, does not – on the available evidence – seem very wise or fair.

Of course, the trial is far from over and it might yet transpire that Agliotti was the mastermind behind the murder of Kebble and that the NPA had every reason to cut a deal with the actual killers to get to the “big fish”. But if it is found that Agliotti was not involved or that his involvement was not central to the killing, many questions will be asked about the decision by the NPA to cut a deal with the very people who claim to have killed Kebble.

Whatever transpires, there was nothing illegal in the deal done by the NPA with Shultz and McGlurk. Section 204 of the Criminal Procedure Act allows the NPA to cut deals like this and if the judge finds that any witness has testified “frankly and honestly”, the judge may indemnify that witness from prosecution – even if the witness had incriminated him or herself in the very crime he or she is testifying about. The discretion to grant indemnity is in the hands of the judge, so if the judge finds that a witness has not been frank and honest, the judge may refuse to grant indemnity to that witness – regardless of any deal done between that witness and the NPA.

Could it be that the NPA is playing a very clever game to try and secure the conviction of all the main players in this drama? Did the NPA offer indemnity to the main killers, knowing that they would be such bad witnesses that they would not testify frankly and honestly, thus making it impossible for the judge to grant them indemnity and opening the way for their own prosecution? Probably not, because section 204(4) states that the self-incriminating evidence of a witness denied indemnity could not be used against him if that witness were to be tried later.

This means that if Schultz or McGurg is not granted indemnity and the NPA decided to prosecute them for the murder of Kebble, the NPA would not be able to rely on the evidence led in court over the past two days in which they had explained in detail how they had killed Kebble.

Unless the NPA has more evidence up its sleeve implicating Agliotti as the mastermind of the Kebble murder, the indemnity granted to all the other main players in this drama makes little sense. Unless, of course, this was done to put pressure on Agliotti to force him to testify against his old friend Jackie Selebi. “If you do not testify truthfully against Selebi and implicate him, we will prosecute you for the murder of Kebble, so you better testify.”

If this was indeed the case – and I stress, it is too early to say for certain that it was – then many questions will be asked about the manner in which the NPA acted in these matters and the wisdom of the deals it cut. Although it is very important for the state to prosecute very powerful people like Selebi on charges of corruption (after all, when the top cop in the country is corrupt, the whole criminal justice system becomes suspect), I am not sure that it would be more important than securing the conviction of the actual murderers in a murder case – even where the case is one of alleged “assisted suicide”.

Personally I will withhold judgment on this until the end of the Kebble trial. Who knows what other evidence will be led by the state to vindicate its decision to cut a deal with the very people who now claim to have pulled the trigger in order for the NPA to go after the man who was found to have bribed the top cop.

Whatever happens though, the case has already provided utterly bizarre and riveting testimony. Surely somebody at ETV (or one day when they have money again, the SABC) must be commissioning a drama series based on these events. It has everything: political intrigue; larger than life characters (some of them marginally known sportsmen), a murder victim who was alleged to have led a triple life, sex and scandal with the alleged involvement of a rent boy, and office politics in the NPA.

NOTE: Some of the details in this post were gleaned from the riveting Twitter feeds posted by the Mail & Guardian amaBhungane reporter following the Kebble trial. Find them at: http://twitter.com/amaBhungane.

Shock and awe at Parliament Street

Jul 26th, 2010

by Pierre De Vos.

170 comments

Reading through the minutes of the public hearings in Parliament on the Protection of Information Bill (see here, here, here and here), is a bit like reading a novel that deals with the Holocaust in a humoristic manner. One is horrified and shocked by the utter lack of decency, logic, humility, intelligence and any sense of respect for ordinary human beings, while at the same time finding some of it darkly funny and ridiculous.

Much of the discussion and questions at the hearings were completely unrelated to the Bill, suggesting that many of the MP’s had no clue about what the Bill intended to do or would in fact achieve. Many other questions and comments displayed a rather Stalinist view of democracy (in other words, it was distinctly anti-democratic). Remember, the Bill would empower heads of government departments and parastatals to classify any document as secret if that document dealt with the “national interest” and would provide for 15 year jail terms for those who leaked or received such classified information.

Some random examples from the minutes would give a taste of the tenor of the “discussion” (I use that word very generously here):

Mr Motitso said that the community where LCDD worked had stated that they did not need the media to protect them, but only the State. Its citizens voted in the government, which had the duty to protect them.

Ms Sunduza asked Ms Moore if she did not think that the Bill would protect the citizens of South Africa.

Ms Mgabadeli noted that there was a need to protect information in order to address issues of poverty.

Ms Sunduza noted that in every democracy there was an obligation on the State to protect its people. She commented that there were many concerns that the South African media was transgressing personal and private rights in trying to secure interviews or comment. She asked that CCR comment on allegations that had been published about public figures.

The Chairperson noted his concerns, but also indicated that legal opinions were only opinions until the case was proven

Ms Sunduza noted that Government had a responsibility to ensure that human dignity was maintained, which was the principle underpinning confidentiality of medical records, banking records and the like. She also pointed out that certain cultural practices must be respected; for instance, it would be considered wrong to discuss information about an older member of a community.

Read these minutes and weep about the quality of representation in our beloved Parliament. A few random questions do come to mind though.

Why are we paying the huge salaries of 400 MP’s if so many of them are completely unprepared for an important meeting like this? Why did many MP’s, who posed questions at the hearings, seem not to have a clue what the Bill was actually about? Did they come to the meeting only for the free food (which, admittedly, is usually quite nice)?

Why did so many committee members not understand that the Bill does not deal with the classification of private medical records, the securing of interviews by journalists, the protection of “cultural practices” like “not discussing information about an older member of the community”, or the criticism of public figures?

Surely one does not need to be a rocket scientist (or even a lawyer) to understand that the classification of documents held by the state would not address the concerns raised by many members during the hearings. One only has to read the Bill – once – to understand that. Did the honourable members of Parliament actually READ the Bill before they asked such stupid and irrelevant questions? The minutes suggests that few of them did.

Second, some members of Parliament have a very scary, paternalistic and anti-democratic view of the world and of our constitutional democracy. The view that the government or the state was the only appropriate body to protect citizens (or that citizens were so frail that we had to be protected from hearing upsetting information – say – about a cabinet Minister awarding tenders to himself) is very reminiscent of a certain kind of oppressive regime where the protection of the elite is equated with the protection of the citizens.

According to this view, ordinary citizens need to be protected from information that could upset us because such information could persuade us to vote for another party. And if that was allowed, well, we would have to ban voting and then it would be a bit more difficult to pretend we live in a democracy.

In a constitutional democracy, a Constitution is put in place exactly to protect us FROM the state and FROM powerful private individuals and institutions who will abuse their power and will infringe on our rights if we give them half a chance. The media is left to do its work to expose the abuses of the politicians and powerful individuals and institutions. Thinking that the state is the only legitimate body that should be “allowed” to protect citizens, is like thinking only Catholic Priests should be allowed to protect young boys and girls from being sexually molested.

Third, the notion that state secrecy is necessary to address poverty and to help ordinary citizens, is paternalistic and arrogant. It is also utter nonsense. In a democracy, ordinary citizens are in charge while politicians have to serve us, the people. We can demand things from the state and if the state fails us we can vote for another party and put them in government in the hope they will do better. But we can only do that if we have as much information about what the government of the day is up to as we can process with the limited time and capacity to our disposal.

Where the government starts thinking that it has to keep secrets to alleviate poverty, it really is saying that it wants to keep secret the extent of the poverty and the extent to which the government has failed to address that poverty. In such a world we will never know whether or how the state is stealing our money, why it has negligently caused the deaths of many babies in hospitals and how it has exacerbated poverty by using the taxpayers money to enrich themselves and their friends. Secrecy would mean that we might never get to know about tender rigging, failures to supply essential medicines to hospitals, arms deal crooks and other cock-ups about service delivery. Secrecy would make us poorer, not better off.

Lastly, every single reputable legal scholar who has commented on this Bill has indicated that at least some of its clauses will be declared unconstitutional by the Constitutional Court. Yet, the chairperson blithely rejected these opinions because they are only opinions. What is the use of a Parliamentary hearing if the opinions of experts (who are unanimous about the unconstitutionality of several parts of the Bill) can be dismissed as mere opinion and hence can be ignored. It suggests the public hearings is no more than a charade – a bit like the show trials in Stalins Russia. (I guess it is also merely opinion that the earth is round, that the earth revolves around the sun and that Father Christmas does not exist.)

To address poverty, to empower citizens, to make our democracy work, we need MORE information and LESS secrecy. Not the other way around. The fact that many of the ANC members on this committee (were they carefully selected for their subservience and lack of insight?) think otherwise suggests that they themselves think that they are not really fit to rule the country and that they are incapable of addressing the many and serious challenges we face as a nation. (These challenges include addressing widespread poverty and unemployment, the vast discrepancies between rich and poor, a failing education system, a health system that only works for the upper middle classes, and racism and discrimination that remains rife.)

One get’s the impression that this Bill is really an admission by the government of the day that it needs to hide as much of the facts about governance as it can in order to retain support of the voters.

Surely there are still decent and level-headed members in the ANC who will put a stop to this anti-democratic and dangerous folly within their midst? Surely some ANC members will realise that the Bill will be bad for the ANC as it will diminish trust in the government it runs (and hence in the ANC), will enhance suspicion about its motives and its honesty amongst ordinary voters, will drive dissent further underground or into illegal activity and will sow the seeds of the complete deligitimisation of the ANC in the long run?

Don’t they see that support for this Bill would be as good as an admission of guilt and failure on the part of the ANC, an admission that the party is incapable of properly running the country and thus needs to hide this fact from the voters in order to remain in power (and to continue drawing the perks of government)? Surely some people have read this Bill and know just how weak and incompetent it makes the ANC look and how bad it will be for the ANC in the long run?

On by-election results

Jul 22nd, 2010

by Pierre De Vos.

91 comments

The most recent local government by-election results (from elections held on 21 July) should at the very least concern political strategists of the governing ANC. A few interesting trends have been confirmed by these results.

First, the ANC’s support amongst colored voters in the Western Cape – even in rural areas – has collapsed dramatically. The ANC has become an African party with very little support amongst members of other race groups. So much for the ANC’s much advertised non-racialism. Whether this has something to do with the embarrassing tantrums and childish rants of a leader like Julius Malema is not clear. What is clear is that the ANC in the Western Cape has completely alienated non-African black voters.

Second, the DA has made modest (but very limited) gains amongst African voters. These gains are more pronounced in small rural towns than in the big cities but remains limited. The DA still has a lot of work to do to convince African voters that it could possibly represent their interests. Even where traditional ANC voters want to cast protest votes they are more likely to cast such votes for independent candidates (or even for Cope) than for the DA candidate.

Speaking of Cope, interestingly, Cope has done surprisingly well in some of the by-elections. This is particularly the case in Cape Town where it gained between 15 and 25% of the vote in constituencies dominated by African voters. This suggests that the voter support for Cope might not have imploded completely despite the dreadful infighting in that party. Maybe something could still be rescued for this sorry bunch of infighters.

Third, some credible independent candidates in certain areas have stolen a large percentage of votes from the ANC while the voter turnout in ANC dominated constituencies where no credible independent candidates were standing, was very low – as low as 25% in some cases. This suggests that the electoral dominance of the ANC – while still very pronounced – is not as solid as it used to be. If credible candidates or parties stood for election, many African voters seem now for the first time prepared to abandon the ANC. This is in line with electoral trends in many other post independent countries, where the party of liberation starts losing its absolute dominance after about 20 years of freedom.

If these patterns are to be repeated in the local government election next year (by no means a forgone conclusion) and if the ANC fails galvanize its traditional supporters to go to the polls, the party will suffer very heavy losses. This will be to the benefit of the DA who might receive almost the same number of votes but a much higher percentage of the votes because of lower turn out.

Lastly, the ANC is continuing to show growth in KwaZulu-Natal at the expense of the hapless IFP. At this rate the IFP would be dead before Mangosuthu Buthelezi is finally disposed of as leader. The IFP is basically dead. The fights about who should succeed Buthelezi as leader is really just a fight about who should oversee the funeral of the IFP.

Of course, these results show clearly why the ANC wants to co-ordinate local government and national elections. In national elections its freedom credentials might still hold sway while elections fought on the failure of local governments (and not on national issues) would make life rather difficult for the ANC – especially where credible alternative candidates come forward.

Sleepwalking through an empty life

Jul 21st, 2010

by Pierre De Vos.

16 comments

Sometimes I wonder whether we would all not have been far happier if we had known absolutely nothing about what was happening in our world and if we were unable to remember – even for one week – how we had been wronged and hurt by others.

What if we had not been able to remember how the apartheid state oppressed and humiliated the majority of South Africans? What if we had no clue that some people in South Africa are fabulously rich while many others are desperately poor? What if we were blissfully unaware that Ministers stayed in the lap of luxury and that unscrupulous businessmen were bribing many of our politicians and parastatal bosses – sometimes by paying them rather insultingly small amounts of money or giving them small discounts on ridiculously luxurious cars?

What if we all had long since forgotten how our erstwhile lovers, spouses or work colleagues had humiliated and hurt us with their prejudice, callousness and selfishness? What if we could not remember the day that Bafana Bafana lost 3-0 to Urugay or the day one of our parents died?

Such thoughts quickly lead me to the rather startling realisation that this kind of world would not be a world worth living in. Such a world would not be inhabited by flesh and blood human beings possessing an inherent human dignity – human beings who feel pain and joy and anger, who form opinions and later change them, who take action about what they perceive to be wrong or acquiese in injustice, who hurt others and are hurt in return, who forgive or continue to hate - but rather by dull semi-automatons with few feelings and little agency.

This insight (in as much as it is an insight at all) lies at the heart of why I believe that the proposed Protection of Information Bill – which I have already written about before - is such a fundamentally flawed and even dangerous concoction. This is also why I profoundly disagree with an article written by one Paul-Michael Keichel and published in today’s Business Day in which he dismisses concerns expressed about this deeply reactionary and oppressive Bill.

Keichel advances several arguments to justify this rather startling endorsement of a Bill that represents such a fundamental attack on the human dignity and freedom of every South African.

First, he argues that no right is absolute and that rights can be limited where ”legitimate state interests are served”, implying that a legitimate state interest would be served by a Bill that allows state officials to prevent the rest of us from ever knowing anything about any document if they believe information in that document may “harm the national interest”. Remember, the national interest is defined so broadly in section 15 of this Bill that it would include such vague and undefinable concepts as “the advancement of the public good”, the “pursuit of justice, democracy, economic growth”, (no mentioning of Miss World and World Peace) ”free trade, a stable monetary system and sound international relations”.

This is of course a ridiculous and legally untenable argument. It fails to take cognisance of the fact that when one decides whether it is justifiable to limit a right, one should do so by asking what is reasonable and justifiable in an OPEN and DEMOCRATIC society based on HUMAN DIGNITY, EQUALITY and FREEDOM. One should also ask whether the law strikes the correct balance between the legitimate state interest and the interest of every individual who is being deprived of the information. One should ask whether the limits placed on that individual’s rights are so severe that it just does not justify the law – even where a legitimate state interest is being served by that law.

Because receiving information – even information that is upsetting, or information that will make us worry or feel fearful about our government – is absolutely essential if we are to live meaningful lives as human beings with an inherent human dignity, limits of the right to receive information should be kept to an absolute minimum. In an open and democratic society based on human dignity, equality and freedom we rather allow more information and more freedom – even if there might be potential harm to the state.

Only where it is absolutely necessary to keep information secret to prevent serious and irreparable damage to the state (not to be confused, of course, with the well-being of the governing party) should secrecy be allowed by the law. Information about troop movements in a time of war, for example, could be kept secret. As would information about arrangements to ensure the personal safety of the President. But information about South Africa’s secret diplomacy in Zimbabwe or information about how the NPA has abused its power in order to protect individuals to further the government’s goal of attracting more foreign investment, would not.

Second, Keichel, accuses those of us who have warned that this Bill presents a fundamental threat to democracy of “quote mining”, referring to sections of the Bill that indicate that the aim of the Bill is benign. The problem is that Keichel fails to understand that these sections are not the operational sections that would do the “legal work” – they are not the sections officials will use to decide whether to classify or not and are therefore pretty useless when one evaluates the possible application and abuse of the provisions of the Bill.

Section 15, which provides an extraordinarily broad definition of “national interests’ and thus allows for the classification of a vast array of documents, is the section that does most of the legal work, while the clauses Keichel refers to are the nice padding added by the drafters to try and pull the wool over our eyes. But apart from Keichel, few people have been fooled by these rhetorical flourishes aimed at hiding the authoritarian tendencies of the Bill.

Lastly, Keichel has no understanding of how government or the media works and does not understand that the Bill – if passed – will necessarily have a chilling effect on freedom of expression. It is true, as Keichel claims, that journalists will only be able to be prosecuted successfully if they can be shown to possess secret documents validly so classified. But he is wrong to say this means that the provisions pose no threat to media freedom and to the protection of our human dignity.

Because the definition of what would constitute secret documents is so broad, officials will be able to classify millions of state documents perfectly legally and journalists in possession of such documents will then be sent to jail for 15-25 years. This is not the kind of law that can be justified in an open and democratic society – unless one considers North Korea, Pakistan or Saudi Arabia open and democratic societies.

But even where documents are classified wrongly, this will not be of much assistance to freedom of the media. What journalist is going to be brave or stupid enough to hold on to the document in the hope that a court will eventually find that the document was wrongly classified as secret? What happens if you are tried before the wrong judge and you then have to spend 25 years in jail – all for having your byline in the newspaper? It is therefore laughable to claim that these provisions would not prevent journalists from doing their jobs.

No, the Bill as its stands is untenable. If passed it would plunge us into a world where we will be oblivious about much that our government does. And while this might take some stress off the experience of reading the newspaper every morning, it will condemn us to half-lives: sleepwalking through a life that we do not fully inhabit and a world we do not belong in or care about.

Nyanda: Maybe immoral AND illegal after all

Jul 20th, 2010

by Pierre De Vos.

38 comments

It is rather difficult to get hold of a copy of the Ministerial Handbook (also known as A Handbook for Members of the Executive and Presiding Officers). I searched the Internet for more than an hour yesterday (which included a search on the government’s own website as well as several legal databases) – all to no avail.

Those Ministers sure do not want us ordinary folk to know what is in this mysterious Handbook of theirs. Finally, after contacting DA MP, Dene Smuts, an efficient DA researcher provided me with a copy of the Handbook (and as any good PR person would, also included DA proposals for changes to the handbook).

After studying the Handbook I understand why its content is being kept half-secret.

This is the thing: It is far from clear that claims by a spokesperson of Communications Minister, Siphiwe Nyanda, that the Ministerial Handbook had entitled the Minister to stay in the most luxurious 5 Star Hotels for 6 months at a cost of more than R500 000 could be squared with the actual provisions of the Handbook.

Why did Nyanda not stay in the house allocated to him after he became the Minister of Communications? Why was the poor man made to suffer for six months by having to stay at the most expensive Hotels in Cape Town? Personally I would not be seen dead at these terrible, inhumane, dumps and would rather sleep in the boot of my car.

Who could possible live in a ”spacious, grand and elegant suit” with “spectacular views of Table Mountain”, have access to “two heated swimming pools”, ”magnificent flood-lit tennis courts”, a yoga centre “complete with feature inspiring music, fresh flowers, candlelight, therapeutic scents and post-yoga refreshments”, an ”on-site golf practice net”, “on-site hair salon” and a ”world class holistic spa experience, where the trilogy of mind, body and spirit is nurtured”?

Sounds awful, doesn’t it? Who would not rather stay in a lovely state owned house in Upper Claremont?

(By the way, it’s a good thing Minister Nyanda was not allocated a house in lower Claremont because he would surely then have been entitled not to occupy a house in such a bad neighbourhood and would have been forced to stay at the Mount Nelson for another few years, poor man.)

Well, the Mail & Guardian reported as follows on the poor Minister’s woes:

A Cabinet colleague of Nyanda told the Mail & Guardian that the reason Nyanda had apparently given for refusing to move into his Hooggelegen residence in sought-after Upper Claremont was because the public works department had not bought him a bed. A senior communications department source confirmed this explanation was also doing the rounds in the department, but added that Nyanda was allegedly also unhappy that his house did not have a view.

Although Nyanda’s spokesperson strongly denied this, the department of public works confirmed on Thursday that Nyanda hadn’t moved in because of a delay with the delivery of furniture “to accommodate him”. Public works spokesperson Thamsanqa Mchunu confirmed that Nyanda’s furniture finally arrived on February 5 and February 26.

So, one explanation for his splurge was that while the house was furnished and he could have stayed in it (sleeping on one of the other beds in the house, one presumes) or could have bought his own bed (I am told one can buy a very nice bed for about R10 000 – a bit less than the R500 000 us tax payers eventually spent on the Hotel Bills), the house needed a bed for the General to sleep on. We all need a good night’s rest, after all, and national security, the national interest and the public good required the Minister to be alert at all times in case he had to deal with yet more reports of the SABC banning an old leader of the party from its airwaves.

Another, unconfirmed, explanation was that he was not happy with the view (even though the house was in upper Claremont). The official version was that new furniture (obviously replacing existing furniture) had to be provided “to accommodate” the General. One assumes this means the General was not happy with the original furniture (which was obviously not up to the standard of the Mount Nelson) and he thus ordered new furniture which would “accommodate” him and would ensure he would stay in the style and comfort that he had become accustomed to.

This kind of thing is covered by the Ministerial Handbook, which states in chapter 2:

If, owing to exceptional circumstances, a State-owned residence is not immediately available for Members upon assumption of duty of office, expenses in connection with alternative accommodation may be debited to the State until an official residence becomes available.

The first question would be whether the absence of one bed or unhappiness with the existing furniture would constitute “exceptional circumstances” as required by the Handbook. The second question would be whether a house is “not available” if some of the furnishings in the house are not to the liking of the new resident.

Now, maybe I am just not used to the millionaire’s lifestyle, but I find it rather difficult to believe that the absence of one bed or unhappiness with the state of the existing furniture could possibly have legally constituted “exceptional circumstances” as required by the Handbook. In a country where many people live in shacks, one could hardly argue with a straight face that unhappiness with the quality of furniture constituted “exceptional circumstances” that mandated an extended stay at tax payers expense in some of South Africa’s most expensive Hotels.

This conclusion seems irresistible if one reads the clause in conjunction with the provisions in Chapter 4 of the Handbook which stipulates what the Department of Public Works is required to provide to an official accommodated in official state housing:

The furnishing of State-owned residences is limited to the provision, and maintenance, of ordinary household furniture, mattresses, pillows, carpets, curtains, beds, stoves, refrigerators, freezers, washing machines, tumble dryers and heaters, micro-wave ovens and dishwashers on request….. If a piece of furniture becomes redundant in a State-owned residence, the Office of the Member concerned should make the necessary arrangements in consultation with the Office of the Minister of Public Works to have the article/s removed and the inventories amended accordingly.

These provisions confirm that the Department would only provide the bare minimum of furniture for a house and would also – as a matter of course - replace “redundant” furniture. Such replacements are not treated as “exceptional circumstances” but are treated as ordinary day-to-day arrangements that should be made between the official and the Department. The sections in chapter 4 do not provide for a Minister to vacate his or her residence while the furniture are being replaced and it is thus not viewed as exceptional circumstances when any piece of state owned furniture is not up to the exacting standards of the relevant Minister.

More damning perhaps is that the residence was obviously “immediately available”. There it was standing – in upper Claremont nogal - a shiny house, shimmering in the morning light, furnished and ready to be used by any good servant of the masses of our people. Although the furniture were not to the Minister’s liking, that did not make the house “not available”. It just made the house not to the taste of the Minister (whom it turned out, had rather more expensive tastes than the previous owners).

All this suggests that the Minister was not allowed by the Ministerial Handbook to stay in 5 Star Hotels for six months at a cost of more than R500 000 and that he is legally required to pay back the money he had wasted. Maybe the Public Protector – who seems to be taking her job rather seriously and is acting without fear, favour or prejudice - should be asked to investigate this matter?

Meanwhile, the President might take up the suggestion of Cosatu’s Zwelenzima Vavi (is he finally regretting the fact that he gunned for the abolition of the Scorpions?) to have the serious allegations of corruption levelled against Minister Nyanda investigated. Just because General Nyanda has displayed a taste for the good life and seems to have flouted the Ministerial Handbook does not, of course, mean that he is a corrupt businessman too. But it does make one wonder.

Immoral, greedy and callous

Jul 19th, 2010

by Pierre De Vos.

143 comments

I really do not want to confuse Paris Hilton – who this weekend was again held for the possession of dagga after she was reportedly found with a small amount of dope in her handbag as she flew into the French island of Corsica on a private jet - but I have to remind everyone (including ANC spokesman, Jackson Mthembu) that sometimes there is a difference between what is legal and what is morally right or defensible.

If one is invited into somebody’s home, for example, and then spits on the floor and insults the host, this would not be illegal but most decent people would frown on such behaviour. If one’s partner informs you that he or she is HIV positive and one then tells that partner that he became HIV positive deliberately to humiliate you and one then drops that partner like a sack of potato’s, this would not be illegal either, but most decent people would find such behaviour at best to be selfish and unkind and at worst morally reprehensible.

Responding to newspaper reports that several cabinet Ministers and Deputy Ministers stayed in the most expensive and grand Hotels in Cape Town and had meals at taxpayers expense that cost more than the average monthly salary of a domestic worker – all because they could not possibly stay in the houses allocated to them by the state because (oh, the horror!) the curtains were stained, some furniture were not up to scratch or the carpets were a bit frayed – ANC spokesperson Jackson Mthembu blew a gasket.

The biggest culprit is of course Communications Minister, Siphiwe Nyanda, who spent more than R500 000 on luxury accommodation at Cape Town’s most expensive and luxurious Hotels after spending almost R1.1 million each on two new official vehicles that included R150 000 of “absolutely essential extras”. Nyanda also just happens to be at the centre of a fight with Cosatu’s Zwelenzima Vavi after Vavi demanded that President Jacob Zuma launch an investigation into the widely reported claims that General Nyanda was a tenderpreneur who had unlawfully enriched himself through crooked government tenders.

The Times reported this morning on Mthembu’s statement as follows:

The ruling party said in a statement issued yesterday that the ”attack” on its ministers confirmed its long-held suspicion that ANC ministers were being ”targeted”. ”There is nothing immoral, illegal or unconstitutional in public representatives staying in hotels, as this is not a breach of the Public Finance Management Act, or the provisions of the Ministerial Handbook,” said the ruling party’s spokesman, Jackson Mthembu.

It reported that since President Jacob Zuma was elected president, government departments and state-owned enterprises had blown more that R1.5-billion on cars, parties, World Cup tickets and other luxuries. But the ANC said yesterday the media was ”failing” in its work to ”properly inform” the public about laws governing accommodation of public representatives. ”In line with the Ministerial Handbook and prescripts governing public representatives, cabinet ministers, MPs MECs and MPLs are entitled to stay in hotels while their permanent accommodation is not yet ready for occupation,” Mthembu said.

Mthembu’s statement is interesting for several reasons. First he blames the media for reporting – accurately, by the way – on the exorbitant cost of these jaunts in the most luxurious and expensive Hotels which caters for millionaires and others who have stolen money from the poor. This is all part of a dark plot, you see.

How dare the media report on the facts! The bloody cheek of it! That is obviously why we need a Media Appeals Tribunal: to stop the media from reporting accurately on proven facts if those facts might embarrass the greedy and immoral Cabinet Ministers. The allegations of a plot are so ridiculous that one fears for Mr Mthembu’s sanity. The kind of paranoia he exhibits have had lesser souls locked up in an insane asylum.

Mr Mthembu actually wants us to believe that members of the media sit in dark rooms and say: “Well, our readers will not really care about this wasteful spending, but because we are all Dr Evils (with our own Mini-Me De Vos as a sidekick!) we will use these completely irrelevant facts of no interest to anyone as part of our dark conspiracy to discredit the ANC. How clever we are!”

Second, Mthembu conflates what is legal with what is moral, revealing that he utterly lacks a moral compass. Because this kind of scandalous expenditure is allowed by the Ministerial handbook, he argues, it cannot be immoral. With respect, this line of reasoning displays a warped and perverted sense of morality. To argue that everything that is legal is also moral, is to show such a breathtaking and scary lack of understanding of morality, that it makes one believe the absolute worst of those who peddle this nonsense.

In South Africa it is not illegal to be a racist in your own home. According to Mthembu’s logic that makes it perfectly moral to be a racist. It is also not illegal to call Nelson Mandela a terrorist. So I guess that would also be a perfectly moral thing to do in Mthembu’s world. It’s not illegal to be cruel to your girlfriend and to call her all kinds of names because she refuses to wash your dirty underpants, so, once again, in Mthembu’s world that behaviour would be considered completely moral.

Let us think about this some more.

Every day, millions of South Africans go hungry because they have no food to eat. Millions do not have houses to sleep in and are cold and wet. Every day thousands of South Africans do not receive the medical care they need and some of them die. Many children do not receive even the basic education that could help them to succeed in life. Although not every single person who suffers like this could be assisted immediately, the state could do much to alleviate the plight of those who are suffering by wisely and effectively using our tax money to address problems of poverty and lack of service delivery.

Yet, Ministers stay in the most luxurious Hotels (while perfectly habitable accommodation is available elsewhere at no or little cost), eat Oysters and Caviar and drink the most expensive wines, drive around in cars that cost more than most South Africans earn in a lifetime. In my universe, this seems immoral. The fact that general Nyanda and Jackson Mthembu thinks it is not immoral, I would contend, reflects rather badly on their value system and poses questions about their humanity.

Maybe they are lovely people, but on the available evidence in the public domain I would guess they are callous, selfish and greedy and that they lack the basic decency one would expect from a servant of the people voted into office to serve the vulnerable and marginalised “masses of our people” (as President Thabo Mbeki used to say while surfing the Internet). They seem to have a completely perverted sense of morality, but like most people who lack compassion and have an overinflated sense of themselves, they do not have the necessary wisdom to reflect on who they are and how their actions might seem to appear to ordinary, decent, people.

Instead, they blame others for their bad publicity because if you are s-o-o-o-o-o-o-o-o (self)important, you are never to blame yourself for anything you might have done. They should be ashamed of themselves. Pity, on the available evidence, they won’t. One needs a sense of morality to ever feel ashamed about what you have done and as they equate morality with what is legal, they obviously lack this very human trait that one requires to appear decent, caring and – well – moral.

Ten countries…. and counting

Jul 16th, 2010

by Pierre De Vos.

28 comments

Argentina became the tenth country (and the first in South America) to provide full marriage equality (including the right to adopt children) to same-sex couples late on Wednesday night. There are now about 250 million people worldwide living in jurisdictions which provide for marriage equity. Here is the list:

2001 Netherlands
2003 Belgium
2005 Spain
2005 Canada
2006 South Africa
2008 Norway
2009 Sweden
2010 Portugal
2010 Iceland
2010 Argentina

When the South African Parliament, following a judgment of the Constitutional Court, legalized same-sex marriage in 2006, many people argued that it would spell the end of marriage as we know it. Some also argued that it represented a full frontal attack on marriage as an institution and that it would lead to the eventual destruction of marriage.

I never understood this argument. I have never met anyone who has said: “Well, now that gay men and lesbians can get married, I think it is time to divorce my spouse.” Neither have I heard anyone say: “Well, I was going to get married, but now that the homosexuals have spoilt it for the rest of us by organising such fabulous weddings for themselves, I have decided I will rather continue living in sin with my girlfriend.”

The argument that marriage is essentially focused on procreation also makes no sense. As the Constitutional Court pointed out, this argument – if followed to its logical conclusion – would suggest that heterosexual couples who do not plan to have children or cannot have children – either for medical reasons or because they are too old – should then also not be allowed to get married. (And, besides, many same-sex couples do procreate with the assistance of others, so the very premise of the argument is factually incorrect.)

The truth is, of course, that the movement for marriage equality is a conservative one. Its aim is to “normalise” same-sex love and desire and to demonstrate that same-sex couples can basically be just like heterosexual couples. We fall in love, we fight, we have children, we marry, we fight some more, we divorce and sometimes – just sometimes - we live happily ever after. If one is truly conservative and truly revere marriage and monogamy (which, some studies show, is a rather difficult thing to achieve in a long term relationship), one should support same-sex marriage.

But this many conservatives cannot do, because then they will have to let go of their prejudices against gay men and lesbians. And as we know too well, for many people nothing is more precious and more jealously guarded than their own prejudices.

For progressives, the issues are more complex. Obviously, given the fact that marriage still bestows on couples both the full package of legal rights as well as an elevated status in society, marriage should be open to all consenting adults. To hold otherwise would be to discriminate against a group of people for no other reason than because of the moral or religious views of a majority of citizens. It would signal that the state does not believe that the group has the same inherent human dignity than everyone else in society – which is not tenable in a constitutional state.

But marriage is also problematic because it provides special rights for those who have managed to tie the knot. Many people do not want to get married (seeing that it is still associated with patriarchy and the oppression of women) and many others cannot marry because they are the financially and/or emotionally weaker person in the relationship and their partner refuses to marry them.

This refusal is often based on emotional callousness, fear of commitment, or financial considerations. But regardless the reasons, the fact remains that the less empowered partner has no say in the decision at all. Such couples do not enjoy the same status or the same legal protection as married couples do – despite living in relationships that look very much like traditional marriages – and the vulnerable party in such a relationship is therefore not fully protected by the law.

Last year the government tabled a draft domestic partnership Bill to try and address this problem, but nothing has come of it. Perhaps with that serial divorcee and ex-body-builder, Ray McCauley, cozying up with one of the greatest believers in marriage (if not monogamy), President Jacob Zuma, it is not surprising that this Bill has not been taken forward.

The Bill, if it is ever passed, would be bad news for all those men who have girlfriends and do not marry them (either because they are already married or because they do not want to commit themselves emotionally and financially to one person) as it would create some legal rights and duties for people involved in such relationships. Men who have many girlfriends would fear such a law as they would have to start paying up. And it is not every man who wants to be the boyfriend of Khanyi Mbau (or can afford to be).

Christine, give them hell!

Jul 14th, 2010

by Pierre De Vos.

24 comments

Multinational steel retailer, Bohler Uddeholm Africa, is probably going to regret the fact that it ever employed Chris(tine) Ehlers. Hopefully the company will also, at some point, begin to regret that its management is filled with people who act like bigots. Christine Ehlers, who was fired as a sales assistant after her employers discovered that she had begun a series of sex change procedures in 2008, is taking her case to the Labout Court.

Christine is a transgendered person because she was born into the body of a man but realized that she was really a woman and is now altering her body to bring her body in line with her own deeply held view of her sexual status. She claims in court papers that she was fired as a sales representative for the company “on the grounds of her sexual status”. In the papers, she quotes from the findings of a disciplinary inquiry which justified her firing as follows:

It was also determined in discussion with management that the position is distinctly for a male employee and the applicant (Ehlers) [has] already got distinct female features that create a difficult situation…. In the end, the employer has to protect its business and may demand a certain standard of acceptability from its representatives in relation to its customers. I find myself in a difficult situation in that the employee argues that she can still function in the exact same manner as she would have as a man. The employer argues, on the contrary, that it is an international concern that has to protect its image in the market in the metal industry, which is predominantly male-orientated.

Well, this argument is not constitutionally tenable. Section 9(3) of the South African Constitution prohibits unfair discrimination on the grounds of sex, gender and sexual orientation. In the case of National Coalition for Gay and Lesbian Equality v Minister of Justice the Constitutional Court stated that the concept of “sexual orientation” as used in section 9(3) of the 1996 Constitution “must be given a generous interpretation” and thus applies equally to the orientation of persons who are “transsexual” (another, less politically correct, term for transgendered). Christine was thus obviously discriminated against on the basis of her sexual orientation.

But she was also discriminated against on the basis of her sex and/or gender as the job she was doing – as a sales representative – was explicitly reserved by the company for men only. This was not done on the basis that only men could possible do the job (as would have been the case, say, if the job entailed playing for the Springbok Rugby team), but rather on the basis that its customers would not like it if women tried to sell them the company’s products. Her employment as a sales assistant had “compromised the image” of the company in the industry.

Boy what a bigoted industry that must be!

Of course women can also sell stuff – including heavy machinery and other products usually associated with the male world (my car was sold to me by a fantastic woman called Heather) – but the company felt that the customers would not want to buy heavy machinery from a woman, especially (so it seems) not from a woman who used to be a man.

South African Airways used a similar argument after a man who had been accepted for employment as a cabin attendant by SAA, challenged a decision by SAA not to employ him when they discovered that he was HIV positive. In a beautifully written judgment by our present Chief Justice, Sandile Ngcobo, the Constitutional Court rejected this argument by SAA, stating that:

Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected….

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

If Bohler Uddeholm Africa had been aware of these precedents, it would not have justified the firing of Christine on the basis that its customers wanted to deal with “real men” – which precluded them from employing women as salespersons (whether those women used to be men or not). Given that it has done so, it is almost certain to lose its case in the Labour Court.

Here, being a man was not really an inherent requirement of the job as any woman with the requisite skills could also sell the company’s products to customers. The fact that customers would prefer not to deal with a certain salesperson because that salesperson is a woman (or black, or gay or a Muslim, for that matter) was therefore always legally irrelevant and could not be used to justify the discrimination. As Justice Ngcobo said: prejudice – even the prejudice of one’s customers – cannot ever justify discrimination. “Finish and klaar,” as Jackie Selebi might or might not have said if confronted with this case.

Incidentally, South Africa has one of the most progressive pieces of legislation dealing with transgendered citizens. The Alteration of Sex Description and Sex Status Act of 2003 allows anyone whose “sexual characteristics” have been altered by surgical or other medical means (or anyone who is intersexed) to apply for a change of their sex status with the Department of Home Affairs.

The definition of sexual characteristics in the Act is extremely broad and one needs not have concluded the surgical process of altering one’s body completely from male to female or from female to male to qualify in terms of the Act to have one’s sex status hanged. As long as one has started the process of transferring from a man to a woman or from a woman to a man (and as long as the technical requirements prescribed in the Act are met), the Department of Home Affairs must issue you with a new ID book and passport recording your newly acquired sex.

This Act was necessary to protect the human dignity of transgendered and intersected individuals who previously had to endure terrible trauma when, for example, traveling to another country on a passport that still reflected your previous sexual status. By passing this law our Parliament did a great and progressive thing – not waiting for our Courts to force them to do the right thing.

Good for them. Now, Christine, give those men hell!

How to mock a racist

Jul 13th, 2010

by Pierre De Vos.

17 comments

The premise of this satirical piece from Jon Stewart’s Daily Show is of course not entirely correct – as anyone who reads the letters pages of South African newspapers (or the comments section of this Blog!) would attest, but the way in which it mocks that arch-racist Dan Roodt is brilliant. By mocking Roodt (seemingly without him realizing), the interviewer is not giving him the power to make his racist views potent and hurtful. Roodt merely becomes a buffoon and a laughing stock – and hence powerless.

A lesson for South Africans, perhaps?

The Daily Show With Jon Stewart

Mon – Thurs 11p / 10c

Oliver – World Cup 2010: Into Africa – The Amazing Racists

www.thedailyshow.com

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