August, 2010:

Time for a rethink on marriage, my China

Aug 31st, 2010

Ordinary South Africans, as well as our courts, seem to have a schizophrenic attitude towards marriage. On the one hand many people – as well as our courts – seem to revere the traditional institution of marriage. From a young age boys and girls are told that getting married would be one of the ultimate milestones in their lives and when the day finally arrives (for some) their families often spend vast amounts of money on wedding dresses, catering and the other bells and whistles that would hopefully make the day a memorable, if rather an expensive, one.

Many fundamentalists Christians argue that marriage between one man and one woman to the exclusion of all others for life (or at least for as long as it lasts – ask Ray McCauley) is something sacred and God-given and rail against the Constitutional Court and Parliament for extended marriage to same-sex couples.

Despite the fact that section 9(3) of the Constitution states that no one may be unfairly discriminated against on the basis of marital status, our courts have also endorsed marriage as one of the prime organising features of our society (thus indirectly endorsing discrimination against couples who have not tied the knot). As Justice Albie Sachs wrote in his judgment in Minister of Home Affairs v Fourie dealing with discrimination experienced by same-sex couples excluded from the right to marry:

It should be noted that the intangible damage to same-sex couples is as severe as the material deprivation. To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture. It may be that, as the literature suggests, many same-sex couples would abjure mimicking or subordinating themselves to heterosexual norms. Others might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice as whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way.

On the other hand, statistics show that more and more South Africans enter emotional and sexual relationships and live together without getting married or without planning to get married. The “choice” not to get married is often dictated by the skewed power relations between the parties in a relationship. Often men decline to marry their partner because they do not want to encumber themselves with future financial and other obligations, leaving the women in their lives vulnerable and – at the dissolution of the relationship – potentially in dire straits.

Parliament has adopted legislation that recognises polygamous customary marriages and attempts to regulate such marriages and protect the vulnerable partners in such unions – usually the wives – from the harsh consequences that might flow when such unions come to an end. Many other pieces of legislation have also extended legal rights usually associated with marriage to permanent life partners who are not married.

Section 7 of the Recognition of Customary Marriages Act emphasises the fact that all spouses in a customary marriage have equal status and capacity. This section is aimed at protecting both the existing spouse or spouses and the new spouses in a custmoray polygamous union by requiring that the husband must obtain the court’s consent to enter any further customary marriages. The court must also approve the proprietary arrangements of the polygamous marriage to protect all the spouses. Recently the North Gauteng High Court found in the case of Mayelane v Ngwenyama and Another that a failure to register such a polygamous marriage and obtain the court’s consent would make the subsequent polygamous marriage invalid in the eyes of the law.

After details of this judgment became known, newspaper reports speculated on whether President Jacob Zuma had complied with the mandatory provisions of section 7 of the Act. If he had not, the protections afforded by the Recognition of Customary Marriages Act to his subsequent polygamous marriage partners would not apply. President Zuma or any of his spokespeople have not yet commented on these speculations so its impossible to know whether he is complying with the law and whether his other wives are protected by the law or not.

Incidentally, it is rather peculiar that fundamentalist Christians who attacked the passing of the Civil Union Act because it extends full marriage rights to same-sex couples and is seen as a frontal attack on the traditional (Western) definition of marriage as being between one man and one woman, do not object to the provisions of the Recognition of Customary Marriages Act which extend the definition of marriage to include a union between one man and more than one woman. Maybe black people living under customary law are invisible to them and therefore do not count? Or is it just that American fundamentalist Christian groups who inspire and fund our own home grown activists are unfamiliar with these laws?

A report in City Press on Sunday that Gloria Bongi Ngema, President Jacob Zuma’s fiancée, accompanied him on the state visit to China, neatly illustrates the schizophrenic attitude many South Africans have towards marriage. It also casts doubt on the ability of the Recognition of Customary Marriages Act to protect subsequent spouses in a customary marriage and may pose questions about our President’s commitment to gender equality. But that is a topic for another day.

The presidency explained that full payment of lobola and the traditional ceremonies that accompany the payment had been made and that Ngema was thus viewed as his “fiancée and life partner”. She was thus entitled to the same privileges as Zuma’s other wives – Sizakele Khumalo, Thobeka Mabija and Nompumelelo Ntuli – as the government’s spousal policy now gave her the same status as his life partner and fiancée.

Although the legal requirements of section 7 of the Recognition of Customary Marriages Act had therefore not been complied with, Ms Ngema nevertheless had an official status as life partner of the President. If we leave aside for the moment that the law does not yet protect Ms Ngema and that there might therefore be serious problems with the ability of the law to protect vulnerable spouses in polygamous unions (just as there are serious problems with the law protecting vulnerable partners in non-marital life unions), one must concede that the official policy of the Executive regarding life partners is rather progressive.

Unlike the judges of the Constitutional Court (and – when it suits them – Christian fundamentalists) who have often claimed a special place and status for couples who have formally tied the knot, this policy recognises that practically many permanent relationships fulfil the role of what our law recognises (rather narrowly and unrealistically) as legal marriage.

It suggests that maybe it is time to rethink the way in which our law privileges those intimate relationships which have been formalised in law above other, just as worthy and important, relationships which have not been formalised by marriage – either in terms of the Marriage Act, the Civil Union Act or the Recognition of Customary Marriages Act.

Is it not time that we find a way to bring the law in line with the lived reality of millions of South Africans who are in permanent life partnerships but who are, for various reasons, not legally married? Should Parliament not urgently adopt legislation that extends the rights and privileges as well as duties associated with marriage to permanent life partners and do away with the anachronistic legal rules that punish some couples who do not have a piece of paper called a marriage license while rewarding and protecting others who do?

Should marriage not really be a private affair of little concern to the state, to be entered into at churches, mosques, synagogues, on wine estates or at other venues of choice, but without any legal significance? Should the law not, in a functional manner, recognise and regulate important intimate relationships with one or more life partners in order to protect the more vulnerable partner or partners – regardless of whether they had entered into a valid marriage or not? In this, our President seems to be leading the way. Should we not applaud him, rather than complain that he has taken his girlfriend on an official trip to China?

Champagne socialism at its best

Aug 30th, 2010

by Pierre De Vos.

171 comments

I was not sure exactly how to react when I read that Higher Education Minister Blade Nzimande (who also moonlights as the Secretary General of the South African Communist Party) yesterday expressed his support for striking public servant workers and said the government must deal with the huge salary gap between low-earning public servants and the government’s “highest paid echelons”.

The central committee [of the SACP] calls on the government to set an example by ensuring that there is a collective moratorium on salary increases in the upper echelons of the government…. We note that [the] wage gap in the public sector between the highest-paid echelons and the lowest is 91 to one.

Should one applaud what appears to be a fine sentiment, or should one point out a few inconsistencies in Comrade Blade’s position? Oh well, let’s opt for the second option.

First, it seems perhaps just a tad hypocritical of Nzimande to bemoan this huge gap in salaries when he has been feeding at the through himself without complaining at all – at least not in public. Was he not the guy who last year purchased a R1.1 million BMW 7501 with tax payers money as one of his official vehicles (of course, all in line with that Bible of Ministers called the Ministerial Handbook)?

He was also criticised when it was revealed that he had stayed at the Mount Nelson Hotel (Cape Towns’ most prestigious address) for fifteen days. A room at the Mount Nelson costs between R6000 and R13 000 a night but Minister Nzimande got a government discount so it “only” cost tax payers about R40 000 for his hotel bill.

As a Minister, Nzimande owns R1.7 million a year, which obviously excludes the perks such as free stays at the Mount Nelson, driving in R1.1 million BMW and having access to round the clock bodyguards to protect you from attacks by bullies called “Bees”, “Vleis” or “Klippies”. The President earns R2.254 million and ordinary MP about R760 000.

Nzimande and his fellow MP’s sure are lucky. 99% of South Africans earn less than these “servants of the people”. The median salary in South Africa (in the private sector) for a financial manager, for example, is around R367 000, while a construction project manager earns slightly less. The median salary for a personal assistant is about R110 000. The minimum wage for a domestic worker has been pegged at R1400 a month, which is R16800 a year. (For the price of Nzimande’s stay at the Mount Nelson almost three domestic workers could have been paid an annual minimum wage.)

Minister Nzimande’s statement might have had more credibility and might not have reeked of hypocrisy if he had also announced that he was trading in his BMW for a Toyota or a Small Volvo and that he was donating the money to a job creation scheme. It might also have helped if he at the same time had launched a bitter attack against the Ministerial Handbook and the excesses allowed by it and had decried the habit of cabinet Ministers who stay in the poshest Hotels on tax payers money while they are being paid a salary that is more than 100 times that of the minimum wage of a domestic worker.

Maybe a proposal by him for a 50% salary cut for all Ministers and other members of the Cabinet would also have gone a long way to give his otherwise hollow statement at least a tinge of credibility. I thought that I was a bit of champagne socialist, but Minister Nzimande really takes the cake.

I have nothing against hard working people earning a decent salary and can understand that Ministers must be paid more than a domestic worker. However, when one complains about the gap between the salaries in government paid to those in the top eschelons and those at the bottom one should at least signal that one was prepared to put one’s money where one’s mouth was. The statement by Nzimande looks suspiciously like: one rule for others and another for myself.

Second, Nzimande’s expression of support for striking workers – while commendable in the abstract – seems to break every convention of collective cabinet responsibility as enshrined in section 92(2) of the Constitution. When a government has adopted a particular position after a discussion of the matter in the cabinet (which one assumes is what happened when Cabinet decided on offering no more than its 7% increase to workers), all cabinet ministers have an obligation to support that position and not to criticize it in public.

So, either the government is dysfunctional and never discussed this matter of vital importance for the governance of the country – which means we have no Cabinet government in South Africa and that policy decisions are made on a completely random and ad hoc basis – or Nzimande is in flagrant breach of his constitutional duty to observe collective cabinet responsibility.

Usually when a cabinet Minister disagrees with a government policy, that Minister can forcefully argue his or her case in Cabinet but once Cabinet has rejected the view of the Minister and adopted a policy (say a policy to offer only a 7% increase to striking workers), that Minister must either shut up or resign from the Cabinet. He or she would then be free to criticise the cabinet decision as a backbencher in Parliament (although he or she would then face the danger of being redeployed as South Africa’s ambassador to Outer Mongolia).

But a Cabinet Minister cannot have it both ways, enjoying the perks of Cabinet office and the power that goes with it, but criticising Cabinet decisions when it is expedient to do so. This is unfortunately not a demonstration of high principle, but rather hints at political opportunism. It also completely undermines the notion of collective cabinet responsibility enshrined in section 92 of our Constitution.

But it seems that Nzimande has decided that the R1.7 million salary of a Minister and the R1.1 million BMW will make resigning from Cabinet on a matter of principle far too painful. Ordinary MP’s don’t get to stay at the Mount Nelson and in outer Mongolia the Hotels are just not up to standard. No wonder he seems to be ignoring the Constitution. This allows him to take a position that diverges from that of the Cabinet while holding on to his fat cat salary and all the perks that go with the position of a Minister.

Some would say this is opportunism and hypocrisy masquerading as principle. I would be one of them. Wonder when the workers will also notice that the Secretary General of the SACP is wearing no clothes.

The Windows of Heaven (and your wallets) are open!

Aug 27th, 2010

by Pierre De Vos.

144 comments

One of the (many) reasons why I am not a fascist or a Stalinist is because I am rather worried that people might begin to think that I am a repressed and self-hating homosexual who is trying to hide his true self by embracing rightwing Christian fundamentalism. If I ever wavered in my commitment to remain a constitutional democrat and if I ever feared that I would fall into the arms of dangerous spin merchants, there will always be people like Mr Errol Naidoo (who is the director of an outfit called the “Family Policy Unit”) to keep me on the straight and narrow (no pun intended).

Errol2

Mr Naidoo (see picture on the left), who has the suave charm of a Verimark infomercial presenter and the fading good looks of a celebrity contestant on Fear Factor, is a busy man. (I must confess, if we were both a bit younger and if he had been a bit more careful about his diet, I might have lusted after his body – if not his mind.)

In an email addressed to his fans entitled, “The Windows of Heaven are Open!, he informs all who wish to listen of his latest exciting escapades and thoughts (I use the latter term rather generously, of course). He informs us that he had spent an “exhilarating” two days in the Kruger National Park with his wife, Arlene (whom he refers to with suspicious regularity). “Being up close and personal with God’s awesome creation – in their natural habitat – is an experience Arlene and I will long remember,” he enthuses.

(Why he had to go to the Kruger Park – instead, say, of going to the local Shoprite in Brackenfell or to an HIV clinic in Khayelitsha – to get close to God’s awesome creation is unclear. I guess the folks who demonstrate their sincere commitment to God by donating buckets full of money to his outfit do not begrudge him this little extravagance. After all, people are dirty, troublesome, sinners who have a tendency to make fun of you, while wild animals never talk back and live in the Kruger Park – which is rather more glamorous than Brackenfell.)

But I digress. In the email, Mr Naidoo (I make no comment about the fact that his surname sounds rather similar to an Afrikaans word often used at Stag parties) has the following to say about his wheelings and dealings with politicians and about our sacred constitutional democracy:

There appears to be a growing sense amongst Christians across the country that God is giving the Body of Christ in South Africa a “window of opportunity” to rise up & impact the nation. Despite all the negative reports in the media, many Christians believe God is supernaturally removing barriers to areas of power & authority to provide access for the influence of the Church.

I noticed this shift in attitude towards the Church since the Zuma administration came to power. My submission on gambling law reform to parliament, my partnership with the Dep Minister of Home Affairs, Malusi Gigaba to ban internet pornography, and my work to inform government about the dangers of legalised prostitution, all bear witness to a more family-friendly environment.

The liberal media also appear to recognise this shift in attitude toward family values and are openly attacking government for granting access to the “rightwing Christian fundamentalists”. Several hysterical articles appeared in the media recently criticising government for talking to “shady” Christian organisations like Family Policy Institute. Apparently, groups that disagree with homosexuality and oppose abortion, pornography etc, have no right to engage government.

Read this article by so-called constitutional expert and homosexual activist, Pierre de Vos. ‘The return of fake morality’. A similar article by Tony Weaver was published in the Cape Times. When the Mbeki administration suspended South Africa’s democratic principles in 2006, to railroad same-sex “marriage” legislation through Parliament – despite massive public opposition – people like Pierre de Vos and the pro-homosexual media were conspicuously silent! Ironically, this attitude – promoted in the media – is a violation of core constitutional freedoms…..

P.S. Please forward this to a friend

As I do not like sending spam emails, but at the same time do not want people to think that I have anything against poor Mr Naidoo, I decided to reprint the sizable section of his email above. Hey, Errol, you know what they say: “All publicity is good publicity.” (Or was that rather: “All publicity brings in the bucks?”)

However, it saddens me to note (and I do hope Mr Naidoo and his followers do not take this in the wrong way) that all that time with Gods creatures in the Kruger Park seemed to have affected Mr Naidoo’s ability to construct a rational argument. Mr Naidoo also sadly seems to have lost his memory and has forgotten that we now live in a constitutional democracy (and not in the Christian Nationalist state of the apartheid era).

He seems blissfully unaware that we now have a justiciable Bill of Rights in which the power of the state to oppress people and to discriminate against them based on their personal attributes and characteristics (like their race, sex, disability and sexual orientation) is severely limited.

In a constitutional democracy the religious views of some – and I have no reason to believe that Mr Naidoo and his lovely wife Arlene do not hold their religious views deeply and sincerely – cannot be imposed on society as a whole as this would be in fundamental breach of the rights of those who do not share these views. Sincerity and deeply held convictions do not justify unfair discrimination in a constitutional democracy.

While every person is entitled to believe what he or she wishes (one can believe, for example, that Simba the Lion King is the God Almighty, or that all homosexuals will burn in hell or, even, if one wants to stretch the point, that 300 000 believers will be whisked away to Heaven on the day of the Rapture) a person cannot get the state to force his or her beliefs down the throats of others as this would constitute a fundamental breach of our human rights. (For example, a religious group – even if it had the support of the majority – could not legitimately demand that the state ban all driving on a Sunday because the group happens to believe the Rapture would occur on a Sunday and that driving on that day would therefore cause too many accidents.)

Mr Naidoo is therefore entitled to believe that same-sex marriage is just as evil as child abuse or woman’s liberation – as the leadership of the Catholic Church seem to do, at least about woman’s liberation – but he cannot require the state to enforce that belief by banning same-sex marriage. If he wanted the state to ban same-sex marriage or to force woman to stay barefoot and pregnant in the kitchen, he is of course free to emigrate to Saudi Arabia. (I hear Iran also has lovely game parks and rather strict laws on homosexuality – although I am not sure whether they will embrace emigration by right wing Christians.)

He is free to believe what he wants, to preach what he wants and to even practice what he preaches (the latter being a rare occurrence in the overtly pious – at least in my experience). And in the unlikely event that, like many Evangelists in the USA, his animosity towards homosexuals is fueled by a secret desire to have sexual relations with members of the same sex, he is even free to divorce his wife and marry another man – although he will have to go on a diet, radically revise his beliefs, and read a few satyrical novels before I would seriously consider his marriage proposal.

The claim by Mr Naidoo that the “core constitutional freedoms” have been breached by the adoption of same-sex marriage laws can only be sustained if one believed that freedom had nothing to do with freedom at all, and hence that freedom was completely divorced from the notion that people had a right to live their lives free from hatred and discrimination. His view of “constitutional freedoms” would require one to endorse the idea that the state had a right to enforce the views of some on society as a whole.

Such a society would not be free, of course, and neither would it be a substantive democracy. In such a society the only people who would have “core constitutional freedoms” would be those who wielded power and could therefore ensure that their beliefs were enforced through the barrel of a gun and through torture (perhaps by forcing people to listen to Gospel music played backwards), imprisonment or campaigns of social vilification. Such a society would be one in which the human dignity of almost all people would be flagrantly disrespected and would be decidedly undemocratic (a bit like Texas without the big hats, the funny accents, the Hummers and the occasional election).

PS: This post must be read in the same spirit in which Umberto Eco wrote his novel, The Name of the Rose. In this novel a Fransciscan Friar discovers that Monks are being poisoned in a monastery when they read humorous books because some members of the church hierarchy believe that laughter is the antidote to fear and that if one stopped fearing one might also stop believing in God. As Wikipedia explains: “As the plot unfolds, several other people mysteriously die. The protagonists explore a labyrinthine medieval library, the subversive power of laughter, and come face to face with the Inquisition. It is left primarily to [the main protagonist] William’s enormous powers of logic and deduction to solve the mysteries of the abbey.”

Why Steven Friedman is wrong

Aug 26th, 2010

by Pierre De Vos.

61 comments

Steven Friedman, writing in Business Day yesterday, argued that journalists do not have much to fear from the proposed Protection of Information Bill. In the process of making an excellent point, namely that those that will be the hardest hit if the Bill is passed will be ordinary citizens who wish to engage in grassroots activism, Friedman wrongly interprets the punitive provisions of the Bill and completely underestimates the possible chilling effect of the Bill on the work of journalists.

Friedman points to section 17 of the Bill to justify his argument. However, perhaps because he is not a journalist or a lawyer, he completely misreads the Bill and naively but dangerously underestimates its potential effect on the media – and perhaps on ordinary citizens. Referring to section 17 of the Bill he writes:

It stipulates that information may not be classified if the purpose is to conceal illegal acts, or “incompetence, inefficiency or administrative error” by the government. Nor can it be used to “restrict access to information in order to limit scrutiny and thereby avoid criticism” or to “prevent embarrassment to a person, organisation, organ of state or agency” or to “unlawfully restrain or lessen competition”. These qualifications will not get officials to respect the rights of citizens, particularly the poor. But they should ensure that journalists, particularly those in the commercial media, will be protected…

The protections in the bill may be ignored by officials who classify information, but they will shape the findings of the courts. And so, those with the means to challenge, in court, classifications designed to prevent media reporting on misdeeds or disadvantage private businesses will ensure that the law does nothing to them, while those who lack those means will be prevented from knowing what the government is doing. And since hiring lawyers requires money, the bill would disadvantage the poor rather than the affluent — and is more likely to make grassroots activism harder than it is to make journalism difficult.

Section 17 of the Bill states that classification decisions must be guided by the considerations stated by Friedman (along with the Orwelian consideration that “secrecy exists to protect the national interest”). This means that if a document is wrongly classified and this is challenged in court, a court can rule that the relevant official had wrongly classified the document because he or she was motivated by one of the factors mentioned by Friedman. A court will be able to do so if it found that the classification was motivated by one of the factors mentioned by Friedman and was not motivated by the need to protect the “national interest” – Also taking into account the other factors mentioned in section 17 of the Bill.

But the Bill does not merely impose criminal sanctions on those who had distributed, received or published the content of documents that have been correctly classified. Section 18, read with section 39 and 39, makes it a criminal offence for any person to possess or distribute any classified document or to publish its content – even if these were incorrectly classified.

These sections do not provide for a defence that the documents were wrongly classified. Some of the other criminal provisions prohibit only the “unlawful” possession or distribution of classified documents knowing that it could harm the state’s interest. These sections could arguably be read to include a defence that the documents were wrongly classified and that the possession, distribution or publication was therefore not “unlawful” as required by the Bill.

But the criminal offences created by sections 18, 38 and 39 prohibits any person from being in possession of a “classified record” and from disclosing the information in that record and provide for a minimum three year sentence for those who contravene this prohibition. As I read it, even the best lawyers in the world will not assist a journalist caught in possession of a classified document – even if it was classified wrongly for the reasons mentioned in section 17.

But even if I am wrong, it would almost always be impossible to prove that documents were classified for one of the invalid reasons stated in section 17 and not for one of the valid reasons stated in section 11. Because section 11 of the Bill states that any document can be classified to protect the “national interest”, which includes “all matters relating to the advancement of the public good”, the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations”, there will almost always be a valid purpose for classifying documents – alongside the ulterior purpose set out in section 17.

For example, if a document reveals massive corruption in the arms deal and is classified by an official, it could be that this was done to avoid criticism or cover up corruption. But it could just as well have been done in the “national interest” because it would have been necessary to advance the “public good”. Surely to reveal this information would be potentially damaging to the economic growth of the country, could destabilise the monetary system, and could affect free trade with those countries from whom we had bought expensive arms.

If one is charged in terms of the provisions of this proposed Bill, one will have to show that the official classified the documents not for the valid purpose set out in section 11 but for the invalid purpose set out in section 17. To prove this will almost always be impossible to do. How does one prove that official X had an invalid motive for classifying a document when that official maintains that he or she classified the document for the valid purpose mentioned in section 11?

Unless a very brave official comes froward to testify that a fellow official had told him or her that the document was classified for an ulterior purpose, one will have to assume that the document was classified for one of the reasons mentioned in section 11. Section 17 is therefore little more than a paper guarantee that will have little effect.

But even if I was wrong about this too, one will have to ask which journalist would be brave enough (or stupid enough) to risk his or her freedom on the off-chance that he or she would be able to convince a court that the documents were not classified for the valid purpose in section 11 but for the invalid purpose set out in section 17? If the journalist failed to convince the court that the document was wrongly classified (which would be rather difficult to do given the extraordinarily broad discretion given by section 11 to classify documents), that journalists would have to spend three years in jail. (One assumes even a sudden case of life threatening high blood pressure would not allow the journalists to return to the golf course.)

The Bill, if passed, will therefore no doubt have a chilling effect on the media and will limit the ability of the media to report on ineficiency, corruption and maladministration.

This is therefore one of those cases where the interests of journalists and the media on the one hand and the interests of grassroots activists (indeed, all 45 million South Africans who are not politicians or government officials) on the other, dovetail completely. Ordinarily, grassroots activists do not run around with classified documents which then help them to hold the politicians to account for the service delivery failures or for corruption. Such activists will therefore seldom be the target of the Bill and will seldom face criminal sanction in terms of this Bill. They will therefore have less to fear from the criminal sanctions of the Bill than journalists.

This does not mean that the Bill is not an utter disaster for active citizenship and for the work done by grassroots activists. The problem is not that grassroots activists will be jailed because they have no access to good lawyers when they are caught in posession of classified documents. Rather the problem is that grassroots activists will not get access to the information they need in the first place because the media won’t publish it.

Such activists mostly rely on the media for information which they can then use to take action and to hold the officials or politicians to account. If the media is intimidated by the Bill and stops investigating matters because of a fear of imprisonment, grassroots activists will have very little chance of getting access to the information needed. Both journalists and ordinary citizens therefore have a lot to worry about if this Bill ever becomes law.

That is why I believe it represents a fundamental attack on our democracy.

On race, transformation and freedom of testation

Aug 24th, 2010

by Pierre De Vos.

137 comments

The South African Constitution contains provisions – including section 8 and section 39 – that allow courts radically to transform the common law and even to reinterpret legislation to bring it in line with the “spirit, purport and object” of the Bill of Rights. One of the concepts in our law that has long been held to be of fundamental importance has been that of freedom of testation. In general our law allowed a person to bequeath his or her assets in any way he or she deemed fit.

If Mrs Brody wanted to give away her fortune to the SPCA or leave her money in trust to support her surviving ten cats until their sad demise - leaving no money to her greedy and unloving children - she had every right to do so. If Mr Walpole wanted to leave his money to a young gentleman “friend” – instead of to his wife of 50 years – he had the freedom to do that too.

Legislation has since modified this position somewhat. However, in Volks v Robinson our Constitutional Court, displaying a rather untransformed belief in the sanctity of the institution of marriage and in the principle of freedom of testation, found that the provisions of this legislation did not extend to unmarried couples.

Mrs Robinson had lived with her (male) partner for many years and had supported him through illness and depression, but they never married (out of respect, so her partner claimed, for his deceased wife) and when he died and left her only a pittance the Constitutional Court found that she was not entitled to maintenance in terms of the relevant legislation (as she would have been had she been married to her partner).

In the light of the above, the decision by judge Nicholson (yes that judge Nicholson) in the Durban High Court in the case of University of Kwazulu-Natal v Makgoba and Others - which for some strange reason has been challenged in the Supreme Court of Appeal (SCA) - is of some significance. The High Court ruled that a trust created by the will of Sir Charles Smith, which made money available for study at the University of KwaZulu-Natal to “poor girls” from ”European”, “British” and “Dutch” descent could be amended.

At present the trust holds that “European girls born of British South African or Dutch South African parents who have been resident in Durban for a period of at least three years immediately preceding the grant”, could benefit from the fund. The fund contains about R27 million and disburses about R4 million a year so we are talking about a sizable amount of scholarships that are being made available exclusively for poor white women.

Section 13 of the Trust Property Control Act 57 of 1988 provides for amendments of a trust in specific circumstances. One has to show that the trust contains a provision “which brings about consequences which in the opinion of the court the founder of a trust did not contemplate or foresee” and, inter alia, was now in conflict with the public interest.

To amend a trust created in a will can obviously fundamentally interfere with the freedom of testation of the (now deceased) person. Sir Charles, for example, might have been a good feminist, creating a trust for “poor girls” and naming the trust after his mother, but who knows whether he might not have been a rabid racist who would turn in his grave if he knew that black women would now also be allowed to benefit from his money.

Judge Nicholson admitted in his judgment that the public interest mentioned in the relevant legislation is tied up very comprehensively with the freedom of testation and the equality debate and stated: “I accept that there is a significant public interest in the fact that a testator’s desire are carried out”.

Nicholson J could rely on a judgment by Griessel J in the Cape High Court in Minister of Education v Syfrets Trust Ltd NO (in a case brought to court by UCT and then Minister of Education Kader Asmal) where the judge found that in cases like this considerations of equality were of more importance than the freedom of testation.

Whether a provision of a trust or a will was in conflict with the public interest now had to be determined largely with reference to the provisions in the Bill of Rights. As the value of equality is one of the founding values in the Constitution and permeates the Bill of Rights, it is difficult to imagine a situation where a trust, created by a will, which unfairly discriminates on the basis of race could ever be found by a court not to be in conflict with the public interest.

The question to be asked is why this case is being appealed to the SCA at all. In the High Court it was agreed by all parties that references to British and Dutch parentage had to be deleted from the trust. However, it was also argued that a certain sum of money (30% of the annual pay-outs) should be reserved for poor white girls. The High Court rejected this notion, applying, one assumes, the principles of substantive equality as developed by our Constitutional Court.

It would be interesting to see whether the SCA agrees with this finding which, so it seems to me, is perfectly in line with the jurisprudence of the Constitutional Court. Personally, I would be surprised if the SCA came to any other conclusion than the High Court but I guess if one litigates with the money of a trust one can afford to go all the way to Bloemfontein to try and defend the indefensible.

The ANC is not the state

Aug 22nd, 2010

by Pierre De Vos.

67 comments

Living in a constitutional democracy can be unsettling and complicated – especially if one has not embraced the values underlying a functioning constitutional democracy. In such a democracy all role players must accept that there are competing views of what constitutes the public good. They also have to accept that it is legitimate for members of different political parties to advance alternative versions of what would constitute the public good or how to achieve it.

Even if one passionately believes that one’s own version of the public good (or the version of the public good espoused by the political party of ones choice) is the correct one, one has to embrace the idea that other, competing and even radically different visions, are legitimate – even if one believes that these alternative versions are dangerously misguided and immoral or that pursuing such alternative versions would be detrimental to the wellbeing of the majority of the citizens (or the majority of citizens who voted for the party of ones choice).

One must also accept that the political party of one’s choice has to compete for votes in free and fair elections and that the party who wins the majority of votes at an election (even if it is the party that one belongs to, supports steadfastly and may have been one of the parties involved in the struggle for a just South Africa), has no divine right to rule and holds power only temporarily and at the mercy of voters.

One must accept (even if one is its leader and the President of the country) that the current ruling party’s continued rule is subject to the continued support of the majority of voters who at any future free and fair election can reject the vision put forward by that party and vote into government another party or parties to rule the country.

What flows from this is the need to accept that there is a fundamental difference between the ruling party and its interests, the government and its interests, and the state. If the ruling party is voted out of office the state will continue functioning; ID books and passports will continue to be issued, social grants will continue to be paid, judges will continue to interpret and enforce the law and the constitution – even if the party of one’s choice is rejected at the ballot box and a new party or parties (temporarily) take over the government.

In a constitutional democracy the health and wellbeing of the ruling party is not to be equated with the wellbeing of the citizens. Taxpayers can therefore not be required to pay for party political activities – except to the extent that all political parties in the legislature are funded in a fair and equitable manner. The party in government cannot utilize government resources to fund its activities. If it did, it would be abusing its powers to gain an unfair electoral advantage and this will make free and fair elections impossible.

Where the party in government abuses public resources to advance its own party political interests it therefore acts in an anti-democratic manner and undermines the basic values underlying the South African Constitution. When the governing party abuses state resources to keep itself in power, it signals the death of democracy.

Where one political party dominates the political landscape (in, what is called a dominant party democracy) and continues in office for a considerable period the distinction between the majority party, the government and the state tends to get blurred. Members of such a governing party have a tendency to begin to believe that the party, the government it leads and the state are the same thing and that the state and the government are there to further the interests of the party (because the party is the embodiment of the aspirations of the people).

Because it is wrongly assumed that such a governing party’s vision of the public good is the only legitimate vision and the only one that could possibly be morally valid (because the majority party has won successive elections with large majorities of the popular vote), members of such a majority party can begin to believe that the interests of the party, the interests of the state and the interests of the citizens of the country are all one and the same thing.

Only the majority party is then seen as being capable of advancing the interests of the majority of citizens and a belief may take hold that the majority party has a right to continue ruling the country in perpetuity. The party and the state becomes difficult to distinguish from one another because it is assumed that the party will continue in government for a very long time (or even for ever – remember Iain Smiths comment that his party would rule “Rhodesia” for a 1000 years) and that it therefore “owns” the state.

This view is deeply problematic because it negates the essence of democracy, namely that a political party does not own the state but only temporarily holds the reigns of state power, serving the people as the governing party until the next election – when it can be returned to government or can be rejected by voters while the state continues to function in its normal fashion.

It is against this background that reported remarks by President Jacob Zuma at the ANC National Executive Committee (NEC) meeting of the ruling ANC last month must be viewed as rather disturbing. President Zuma is reported to have proposed that ANC NEC members should be allowed time off to advance the interests of the ANC:

If it is necessary, for example, to release NEC members in government to do organizational [thus ANC] work for two weeks every quarter, then we should agree to do so. People may be concerned that government work will suffer as a result. But it will suffer far more if there is no viable ANC to drive the process of social change.

These reported remarks illustrate, rather alarmingly, the tendency I have highlighted above. Because the ANC is (righty or wrongly) seen as the only body who can legitimately drive valid social change, the roles of members of the ANC government are equated with the roles of these members as leaders of the majority political party.

If President Zuma was reported correctly, he is clearly not a democrat in the sense that the term is usually used. The remarks suggest that Zuma fails to understand that in a constitutional democracy members of the government are elected by the voters and their salaries are paid by tax payers to do government business and that party business and government business is not the same thing.

Party business relates to activities aimed at mobilizing and promoting the political party to allow it to remain in power. Government business relates to the running of the country and implementing the policies of the governing party. Neither the party or the government “owns” the state.

The suggestion that ANC members in government must be allowed to do party political work for 8 weeks a year, assuming while they are being paid a salary by taxpayers, because the ANC is the only party that can drive social change, is therefore quite outrageous and anti-democratic. It conflates the party and the state and also assumes that the interests of the party and that of the government are the same.

President Zuma’s proposal is clearly not in line with what is allowed by the Constitution. Several provisions in the Constitution recognizes the fact that we live in a multi-party democracy in which free and fair elections forms the basis of the legitimacy of the government of the day. If President Zuma’s reported proposal is adopted it would completely subvert the multi-party nature of our democracy and would bring an end to any semblance of democracy in South Africa.

If President Zuma was reported correctly, he is not a democrat as envisaged by our constitution. In any case, his proposal would be unconstitutional. Someone should whisper in his ear and tell him this. Maybe it is time for the democrats in the ANC (of which there are many, along with the Stalinists and the kleptocratic nationalists), to stand up to our President (as they eventually did with Thabo Mbeki after he had embarked on a catastrophic and murderous questioning of the link between HIV and Aids and refused to roll out life saving ARVs to those who could not pay for it).

The ANC does not own the government or the state. Suggesting, as our President reportedly did, that it is, is just as troubling as the moves by the ruling party to muzzle the press. If he was reported correctly, every true democrat in South Africa would rightfully be outraged and a bit scared by his comments. Maybe its time for someone like Jeremy Cronin to show the same kind of backbone he showed in speaking out against the dictatorial tendencies of Thabo Mbeki.

Why now?

Aug 19th, 2010

by Pierre De Vos.

105 comments

There is no doubt that the media is facing the greatest threat to its freedom since the advent of democracy. The proposed Protection of Information Bill and Media Appeals Tribunal, the proposed Protection from Harassment Bill (which thankfully seems to have been put on hold), the proposed Independent Communications Authority of South Africa Amendment Bill and the proposed Public Broadcasting Service Bill all aim to tighten the control of the government over the free flow of information.

We are far from the dark days of apartheid (see picture below) when the Nationalist government muzzled the press to try and retain its illegitimate power. We live in a constitutional democracy now and our courts will probably play a pivotal role in preventing the muzzling of the media (or will at least limit the effectiveness of such attempts). They will do so, because most judges understand that the free flow of information is, of course, the lifeblood of any democracy.

The question is: why now? Why is the government of the day orchestrating this concerted effort to change the way in which our media report on government activities? It is tempting to find an answer by turning to the personalities involved and arguing that President Zuma and other ANC leaders are upset about how the media has reported on their own activities and actions. But another reason for this attack on the media suggests itself and can be found in the utterances and documents of the ruling party itself.

Perhaps the move against the free media is based on a realistic acknowledgement on the part of the ANC that it is facing a crisis of legitimacy. It seems incapable of addressing this crisis, so some of its leaders might believe that the only way to deal with the problem is to stop the reporting on events that has precipitated this crisis.

I offer a few quotes below to illustrate this point. President Jacob Zuma at a March 2008 National Executive Committee (NEC) Meeting:

When elected leaders at the highest level openly engage in factionalist activity, where is the movement that aims to unite the people of South Africa for the complete liberation of the country from all forms of discrimination and national oppression? When money changes hands in the battle for personal power and aggrandizement, where is the movement that is built around membership that joins without motives of material advantage and personal gain? When the members of the NEC themselves engage in factionalist activity, media leaks and rumour-mongering, how can we ex pect the membership of our movement to carry out their duties toobserve di scipline, behave honestly and carry out loyally the decisions of the majority and the decision of higher bodies?

From the admirably frank document on “Leadership Renewal, discipline and organizational culture” prepared for the ANC National General Council later this year, which highlights the following tenancies in the ANC:

12.1 Leadership in the ANC is seen as stepping-stones to positions of power and material reward in government and business (Organisational report to the 1997 Mafikeng Confe rence).

12.2 The emergence of social distance between ANC cadres in positions of power from the motive forces which the ANC represent, with the potential to render elements in the movement “progressively lethargic to the conditions of the poor.” (Strategy and Tactics, 1997)

12.3 Disturbing trends of “careerism, corruption and opportunism,” alien to a revolutionary movement, taking roots at various levels, eating at our soul and with potential to denude our society of an agent of real change. (Midterm Review, NGC, 2000)

12.4 Divisive leadership battles over access to resources and patronage becoming the norm and allegations about corruption and business interests of leadership and deployed cadres abounding (Organisational report to the Stellenbosch Conference, 2002).

49. Failure to build a New Person (continued the 2000 NGC document), among revolutionaries themselves and, in a more diffuse manner in broader society, will result in a critical mass of the vanguard movement being swallowed in the vortex of the arrogance of power and attendant social distance and corruption, and, ultimately, themselves being transformed by the very system they seek to change. An important challenge, among others, is thus to ensure a systematic intervention by the ideological centres and institutions of society, as well as mothers and fathers and the family as a whole in shaping social values and a new morality.

53. Strategy and Tactics (2007: par. 138) recognizes the challenges and ‘sins’ of incumbency (patronage, bureaucratic indifference, arrogance of power, corruption) and suggests approaches to the management of relations within the organization. Our ability to manage this minefield, it contends, will determine “our future survival as a principled leader of the process of fundamental change, an organization respected and cherished by the mass of people for what it represents and how it conducts itself in actual practice.”

From the various ANC discussion documents it is clear that the problem of legitimacy facing the ANC has long been acknowledged by the movement. As far back as the Stellenbosch conference in 2002 these “tendencies” were identified. But now, eight years later, the problem has become more acute and the movement has been unable to address them in any meaningful way. It is one thing to admit the problem. It is a completely different matter to deal with it effectively.

A culture of forgiveness (or some would call it impunity) starting at the very top of the leadership, makes it very difficult to address the problems and to take decisive action against ANC leaders in government.

Tony Yengeni, due to his admirable role in the struggle, is carried shoulder high to prison. President Jacob Zuma, due to his admirable stance against the dictatorial tendencies of the former President, is elected as leader of the movement despite the fact that he took money from a crook, did favors for that crook and then submitted a fake loan agreement to Parliament to try and justify this. Ebrahim Rasool is accused of handing out brown envelopes to journalists and, because of his good work in the Western Cape, is appointed as ambassador to Washington. MP’s abuse the travel scheme of Parliament, is convicted and remain in their positions.

The list is endless.

The only way the ANC is going to address the problems so frankly and admirably highlighted in the discussion documents is to fundamentally change its prevailing culture which rewards (or at least turns a blind eye) to transgressions, illegality and even criminality.

What is needed is a body (perhaps an improved version of the Scorpions) that will vigorously and impartial investigate corruption, nepotism and the like across the board. Such a body should instill fear in the hearts of every official and politician – whether it is the President or a ward councillor in Lusikisiki. For such a body to have any effect, no one should feel safe from investigation and prosecution. And once a person is investigated and successfully prosecuted he or she should be expelled from the movement – at least for a certain period.

But because the problem seems so widespread (one could say endemic) – as is made clear by the ANC discussion document – it will be very difficult if not impossible for the ANC to take this rout. That is why the Scorpions was abolished and, I would suggest, why the ANC is trying to tighten its grip on the media. Many ANC leaders understand that it has a problem and know that the movement is incapable of dealing with it effectively. The next best thing is therefore to try and hide this fact from the electorate.

But because we live in an open and democratic society this will not be possible. The attempts by the ANC to deal with the firmly entrenched master narrative (a narrative that suggests the ANC has become corrupt and heartless) by muzzling the media is therefore doomed to failure. But I guess some in the ANC believe it is worth a try.

Would Media Appeals Tribunal be constitutional?

Aug 18th, 2010

by Pierre De Vos.

51 comments

Many people have asked me whether the proposed Media Appeals Tribunal (MAP) would pass constitutional muster. We already know that the proposal for a MAP is wrongheaded, self-serving, deeply reactionary and unnecessary. But if Parliament passed a law that further limited the freedom of the printed media to publish what it deems important, and if such a law subjected the printed media to the dictates of a MAP, would this limitation on the freedom of expression be justifiable in terms of our Bill of Rights?

The short and somewhat unsatisfactory answer is that it is far too early to answer this question.

The various ANC proposals for a MAP and the various justifications for this Tribunal have been so confusing and contradictory that it is impossible to say what such a Tribunal would actually be empowered to adjudicate on, how it would be constituted and what its powers might be.

Last week Julius Malema stated that the ANC has already decided on such a Tribunal and that it wants Parliament to appoint it. He seemed to envisage that such a Tribunal would prevent the printed media from publishing certain facts which had been denied by politicians (and those lucky individuals connected to politicians) because such facts would be “mere gossip”.

These people [members of the printed media] are dangerous. They write gossip and present it as facts.

President Jacob Zuma, citing his experiences in Russia (that bastion of freedom of expression, respect for human rights and democracy), indicated last week that such a Tribunal would protect politicians from the publication of facts about their “private lives”. This is a contradiction in terms, as in an open and democratic society only the most intimate aspects of a politicians’ life can be said always to be truly private. (Of course, President Zuma has a vested interest in stopping the media from reporting on his private life, given the fact that his private life is rather adventurous and does not always conform to what he claims to believe when he speaks in public.)

He has also argued that the media tramples on peoples rights (by which I take him to mean the rights of politicians and their friends) to human dignity.

He continued by suggesting that the problem with the media was not only that it sometimes reported badly or even wrongly on events: it was ideological. Because some in the printed media do not agree with everything ANC leaders do and say, they are not in tune with the South African public. As President Zuma wrote:

The media must seriously conduct an introspection (sic) and open a constructive debate about the role of this institution in a post-apartheid South Africa. Is the media a mirror of South African society? Is it in touch with what the majority of South Africans feel and think? Does this institution actually know and understand South Africans? Why was it surprised by the explosion of national pride during the Soccer World Cup tournament? Why did South Africans decide to rise above the daily diet of negativity and defeatism that they are fed daily in the media?

So what is it to be? Will a Tribunal take over the role of the Press Ombudsman – but with enhanced powers? Will it censor journalists to stop them reporting “gossip” or other facts that are routinely denied by the well connected and the powerful? Will it be used to ensure that the media change its ideological stripes so that it becomes more compliant and in touch with what the majority of South Africans (read, members of the ANC) feel and think?

Before we have answers to these questions (on which the various ANC cadres who have commented on the need for a MAP seem to differ) it is not really possible to say whether the MAP has any chance of passing constitutional muster. A few preliminary points may be of interest though.

First, a MAP empowered to adjudicate on and punish members of the printed media will have to be independent. If it is not independent, it will be unconstitutional. A body appointed by Parliament will not be independent as it will in effect be appointed by the majority party.

If the proposed law therefore creates a MAP appointed by Parliament and that law empowers the MAP to punish journalists and newspapers, the law would be dead in the water. The limitation on press freedom would be so egregious that it could never be justifiable in an open and democratic society (although it might be well received in Russia) and would therefore not be found to be justifiable by our Constitutional Court.

Second, a MAP – even an independent one – that is empowered to address the perceived ideological impurity of some sections in the media will also be dead in the water. The very essence of media freedom hinges on the prohibition of state interference with the ideological content of what the media publishes. If the President does not like the attitude or ideological perspective of some in the media he has every right to complain and moan and shout about it. He can also make reasonable arguments about why the media is too cynical, hysterical or negative about South Africa.

But in the end – from a constitutional perspective, at least – he (or the legislature) has no power to interfere with the media to try and change the way it reports on what is happening in South Africa. If a newspaper only wants to report on corruption, crime, and how evil the ANC is, it has a constitutional right to do so (I might not buy that paper, but many others – with money to burn – probably will).

Just as members of the media can complain about the ANC but cannot tell the ANC what to think or do, so the ANC can complain about the media but cannot tell it what to write and what not to write. If the ANC wants to get the media to be more positive and less hysterical it needs to convince the media to do so through persuasion, charm and - just a thought – through good governance.

Third, if the MAP will be empowered to address the possible infringement of the dignity of individuals by the media, this might also be constitutionally problematic. At the moment courts are legally empowered to deal with this through our defamation laws. The Constitutional Court has developed our common law of defamation to bring it in line with the guarantees of media freedom and it is now far more difficult for any person – including any politician – successfully to sue the media for defamation.

If the MAT is required to apply a less onerous standard when it deals with complaints about the infringement of the human dignity of anyone, this would therefore most probably also be unconstitutional. If a court cannot impose a stricter standard to punish the media for defamation, then a MAP – who will always be less indpendent than a court – will never be constitutionally allowed to do so.

These preliminary remarks indicate that there is very little that the proposed MAP could legally and constitutionally do that the existing Press Ombudsman or the courts cannot already do. This suggests that the members of Parliament will waste lots and lots of their time – time perhaps better spent attending to the concerns of constituents about potholes, trigger happy policeman, lack of toilets and running water and dysfunctional schools. The legislature will thus either pass a law creating a MAP that will not change anything, or it will pass a law creating a MAP that would be unconstitutional and therefore would be declared invalid by our courts.

The question to ask (but maybe not of the Chief State Law Advisor) is: why bother?

The return of fake morality?

Aug 16th, 2010

by Pierre De Vos.

184 comments

Because my parents were members of the Dutch Reformed Church, I had to attend the church service and Sunday school every week. What fun! The dominee (minister), speaking in the ridiculously pretentious accent learnt at the kweekskool (seminary), usually warned in apocalyptic terms against the evils of sex before marriage (or sex with an Engelse meisie or a black woman - after marriage), Satanism, masturbation, homosexuality and the twin evils of communism and majority rule.

Sometimes the dominee also warned us that one had to pay at least one tenth of one’s income to the church to demonstrate one’s love for Jesus our Lord. (Loving Jesus was not too difficult for me, as the pictures in my Children’s Bible of a semi-naked Jesus on the cross, his six pack rippling, his long blonde hair styled in the way that was so popular amongst hairdressers in Benoni and Brakpan in the nineteen seventies, was almost as sexy as the adverts for Jockey underpants in Huisgenoot.)

The Dutch Reformed Church, whose dominees almost all belonged to the secret and shadowy Afrikaner Broederbond, was all-powerful – the National Party at prayer – and played a pivotal role in legitimising and defending apartheid. It also ensured that a narrow, bigoted, morality was enforced on society as a whole: there was no movies or sport allowed on a Sunday and even at the Hennenman swimming pool (which was only open from 2-5 pm on a Sunday) one was not allowed to dive from the diving board on a Sunday out of respect for the Church and perhaps even for God.

After 1994, Afrikaans Churches pretty much lost their moral authority as more and more white Afrikaners faced up to the fact that the church had supported an evil and immoral system under the guise of high moral principle. In 1998, staying at the Parktonian Hotel in Braamfontein, I was therefore not surprised when I looked out of my hotel window across the street and spotted the face brick Dutch Reformed Church, now all boarded up with a huge “For Sale” sign in the front.

The church and its particular brand of bigoted and racist moralism had become truly bankrupt and was now completely delegitimised. From now on, I thought, we will look towards the Constitution as a guide for ethical living – not towards any church or the teachings of some odd men in Penguin suits.

But in the moral universe of President Jacob Zuma (in which it is perfectly acceptable to take more than a million Rand from a crook, to do favours for that crook and then to submit a fake loan agreement to Parliament to cover up your tracks) and some (but luckily by far not all) of the members of the ANC, churches and a particular brand of narrow minded and bigoted morality is making a comeback. Hey, in this world, it is ok to steal other people’s money and to be corrupt - as long as one prays to God and hates homosexuals and woman equally.

Recently the shadowy and far-rightwing group called the Family Policy Institute (FPI) teamed up with the Film and Publications Board (the predecessor of the censor board who, under the guidance of the Dutch Reformed Church, “protected” apartheid South Africa from the “immorality” of being shown woman’s naked breasts and the “dangers” of the speeches of Nelson Mandela and Oliver Thambo) to hold a seminar warning against the so called dangers of pornography.

This was not, let’s be kind, an event where scientific or academically plausible research was shared or discussed: it was a progapaganda exercise promoting narrow and very particular religious views.

For some scary entertainment on the laughable and unfounded views of the FPI, one can peruse their website which warns that pornography destroys the human soul (if one can find the soul at all) and morality (as defined by some people who believe that if we only fear a god we cannot see and whose existence we cannot prove we will all live happily ever after in a heaven where we will all love each other, sing Kumbaja while holding hands, before retiring to bed to recite Amore Vittone songs backwards to make us go to sleep). The document also warns that pornography is so strong and evil that it destroys marriages (the heterosexual and non-polygamous kind, of course) and also causes poverty and corruption. (Well I lied about the poverty and corruption, but you get the drift.)

The fact that a state body like the Film and Publication Board, with the assistance and support of the Deputy Minister of Home Affairs, teamed up with a very reactionary, homophobic, anti-abortion, religious group, is truly shocking as it sends a signal that a state institution has chosen sides against the values of openness, respect for difference, freedom of religion and opinion and human dignity ensrined in the Constitution.

It suggests the Department of Home Affairs and the Film and Publication Board have decided to endorse the mad ramblings of a reactionary group who feigns interest in saving our soul while eying our wallets. What do all the many strong and progressive woman and men in the ANC think of this, I wonder?

Another such scary group now gaining in influence amongst members of the new elite in the Eastern Cape is an outfit called the “Godly Governance Network” (lovely name, not such lovely people). In an email advertising its “prayer focus” for the next two months, the Network states:

Repent before the Lord for the sexual immorality and adultery that is filling our Province resulting in unwanted pregnancies (and often abortion), break up of marriages and the rapid spread of HIV/Aids. Repent on behalf of the government’s policies that have encouraged this…..

Pray for the re-education of this generation on family values according to the Word of God, i.e. a man shall be a husband of one wife (Titus 1:6); sex outside of marriage is sin (Hebrews 13:4); homosexuality is sin (1 Cor 6:9); divorce is not God’s will(Mark 10:6-12); husbands should love their wives (Eph 5:25,28); wives should respect and honour their husbands as head of the home (Eph 5:22-23, 1 Pet 3:1); children should honour and obey their parents ( Ex 20:12; Col 3:22)

The Network is also trying to resist the teaching of evolution in schools and argues that evolution is “Satanic”. These people are crackpots of the first order and they make those omies of the Dutch Reformed Church almost look kind and reasonable. In one of their “Concept Documents”, published in 2008, they write:

Hence most organizations and political parties, from the recently liberated countries find themselves controlled and manipulated to implement the secret agenda of the New Age Movement by adopting constitutional models and systems of government that are aimed at installing the fascist Luciferian World Order and Government. South Africa, the African National Congress and other parities are not immune to this global conspiracy. It is not a surprise to discover that most of its social and economic transformation policies and legislative framework are so alien and foreign to the general citizens of the country. The agenda is to control and manipulate people to adopt Illuminati Policy Agenda through a centralized system of government.

Of course, section 15 of the Constitution guarantees for everyone the right to make a fool of him or herself and proudly to display his or her ignorance and bigotry for all to see. Well, that is not exactly what section 15 states: it says that everyone has the right to freedom of conscience, religion, thought, belief and opinion - but you get the drift.

While people have a right to hold religious views, no matter how scary or hateful (just as they have the right to believe that religion is a lot of codswallop), it becomes rather troubling when religious groups like those mentioned above attack the very basis of our democracy: the Constitution. Even more troubling is the fact that they seem to have some official sanction from elements in the government. If these people were journalists they would long since have been arrested. The Constitutional Court has made clear that the right to freedom of religion prohibits the state from enforcing the religious views of some onto society as whole. But that is exactly what the groups mentioned above is agitating for.

Why is it then that in the email I received from the Godly Governance Network, I am told I can contact the Eastern Cape Legislature where the Speaker’s Office will assist me with information about a prayer service conducted in the legislature every Thursday between 4:30 to 6:00 in the Speaker’s Conference Room? Surely, no self-respecting ANC MP would want to be associated with these crackpots?

Or are we seeing a gradual move back to the pre-democracy era where the government of the day, trying to regain some of the legitimacy it has lost through its immoral and greedy actions, endorses censorship of the press and embraces ever more reactionary religious groups in the hope that ordinary people will be blinded by a misguided moral righteousness and will therefore forget that they are suffering because of the actions of incompetent or corrupt government officials?

How long before Ministers (of the church and of the government) starts warning us again the evils of homosexuality, Satanism and masturbation? How long before a woman’s right to choose to have an abortion is taken away and pictures of naked women and men are banned – along with novels like Lolita, Lady Chatterleys Lover and Chinua Achebe’s When Things Fall Apart? Is this not the way that government’s go when they run out of ideas and have to admit that they are incapable of creating a better life for all?

Why the Hawks?

Aug 14th, 2010

by Pierre De Vos.

43 comments

Last week members of the Directorate for Priority Crime Investigation (also known as the Hawks) swooped on the offices of the Sunday Times and arrested Mzilikazi wa Africa. Reports suggest that he was arrested for fraud, uttering and defeating the ends of justice for being in possession of a letter purporting to be a resignation letter from the Premier of Mpumalanga. This was already rather odd and disturbing, as being in possession of a fraudulent letter does not constitute a criminal offense.

But throughout the affair something else has been bothering me. Why would the Hawks investigate a matter of fraud and defeating the ends of justice against anyone? Remember, the Hawks was created after the tenderpreneurs like Brett Kebble, the fraudsters like Jackie Selebi, and the politicians like Jacob Zuma and Ngoako Ramatlhodi (who were both targeted by the Scorpions for allegedly being involved in corruption) got their way to abolish that unit.

According to the South African Police Services Act, the Hawks is empowered to investigate “priority crimes”. The Act defines “priority crimes” as “organised crime, crime that requires national prevention or investigation, or crime which requires specialized skills in the prevention and investigation thereof”. It is far from clear that being in possession of a forged letter (which, as I have noted above, is not a criminal offense in our law) would constitute a priority crime as defined by section 17A of the Act.

If a crime was committed at all, it is clearly not an organised crime to possess a forged letter of resignation or even to be involved in the forging of that letter. This is also not an alleged crime that requires national prevention as it is not part of a larger network of crimes that are so embedded in our society and so endemic that ordinary members of the police cannot deal with it because of the sheer scope of the criminality across the country.

It is also rather difficult to see how one would be able to argue that the alleged crime requires specialised skills to investigate. One surely does not need specialised skills as a police unit to read a fraudulent letter and distil its meaning, to trace the origins of the letter by asking Telkom where the fax machine from which the letter was faxed was situated, to impound the relevant computer equipment, and to get experts to analyse the computer equipment to see if the letter was written on a specific computer.

Unless the ability of ordinary police officers to investigate crime is so catastrophically absent as to make them utterly useless, one would be hard pressed to claim that this was a crime requiring specialised skills to investigate. This case therefore does not seem like a “priority crime” at all.

Does this mean the Hawks illegally got involved in the investigation of this alleged crime and the arrest of Wa Africa? Maybe it did, but then maybe it did not.

Section 17D(1)(a) of the South African Police Services Act states that the Hawks can usually only investigate priority crimes. However, section 17D(1)(b) of the same Act states that the Hawks can also investigate “any other offence or category of offences referred to it from time to time by the National Commissioner”.

Ahhh, I hear you say, so the National Commissioner could have asked the Hawks to investigate this pressing matter of a journalist being in possession of a fraudulent letter. Good on our Police Commissioner for being so on top of his job and being so diligent and eager to address the terrible problem of fraudulent resignation letters that is eating away – like a cancer, I tell you – at the very heart of our democracy!

There is only a small little problem with this kind of analysis. The problem is that the National Commissioner is Bheki Cele, the same Bheki Cele whom Wa Africa had reported on in the previous week’s issue of the Sunday Times for signing some document which might or might not have been a lease for the renting of a building – without the tender for that lease being issued as required by the law. Wa Africa had therefore co-authored a newspaper story which implicated Cele in alleged corrupt activities and a week later the Hawks arrested him. This is a rather surprising coincidence, to say the least.

Does this mean that after the Sunday Times published the story suggesting that Cele was involved in corrupt activity, Bheki Cele (with disturbing images of his predecessor, Jackie Selebi, being sent to prison for 15 years for corruption fresh in his mind) pro-actively decided to teach this journalist a lesson and ordered the Hawks to investigate and arrest Wa Africa for being in possession of a fraudulent letter (which, I repeat, is not normally a criminal offence)?

So, at least two distinct but perhaps interrelated questions arise. First, does it mean that there is more to the Sunday Times story than we know and that the Police Commissioner is a thoroughly corrupt man (following in the proud footsteps of his predecessor) and that he may have received some money or other benefits for signing off on the lease of a new Police Headquarters building? Second, did the Police Commissioner abuse the power bestowed on him by the Act by ordering the Hawks to arrest the journalist who had gotten too close to the truth on his corrupt activities?

Of course, these are questions – not assertions. Although this whole story smells very messy, we do not have enough information to know what really happened here.

Yet, a third question does, of course, also arise. If the Police Commissioner was indeed corrupt (hey, it has happened before, but I am not claiming at this stage that I believe he is) and if he is the one who can order the Hawks to investigate (and one presumes also not to investigate) certain crimes, does this mean that we will never really know about the Police Commissioner’s alleged illegal activities? Who will investigate any credible evidence of corruption against the Police Commissioner now that the Scorpions have been abolished? (The Sunday Times story is not very clear, so it is not possible to say from the available evidence whether credible evidence of corruption by the Commissioner actually exists.)

Testimony at the Glen Agliotti trial suggests that Brett Kebble and other crooks were paying the then Police Commissioner and now convicted fraudster, Jackie Selebi, (and who knows who else in the ANC?) to make sure that the Scorpions would be killed off. They did this because they feared the Scorpions. They feared the Scorpions because it sometimes actually did its work properly and was at arms length from the police, whose commissioner was a crook, could therefore be bought, and could therefore make investigations go away.

Can any reasonable person still argue that abolishing the Scorpions was not done – at least, in part – for an ulterior purpose? I would like to hear from that lone voices (the usual suspects who never fail to take a gallant stab at defending the indefensible) who will be prepared to argue that ulterior motives had nothing to do with the demise of the Scorpions. If anyone can convince me of that, he or she could probably convince any parent to send their ten year old son on a one month camping trip in the wild with a group of Catholic Priests.

August, 2010:

Time for a rethink on marriage, my China

Champagne socialism at its best

The Windows of Heaven (and your wallets) are open!

Why Steven Friedman is wrong

On race, transformation and freedom of testation

The ANC is not the state

Why now?

Would Media Appeals Tribunal be constitutional?

The return of fake morality?

Why the Hawks?

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