Constitutional Hill

September, 2010:

On the local government elections

Sep 30th, 2010
by Pierre De Vos.
47 comments

When co-operative Governance Minister Sicelo Shiceka reportedly endorsed a Gauteng African National Congress (ANC) resolution proposing that all three spheres of government hold elections at the same time, he was criticised by many observers who saw this move as a cynical ploy by the ANC to try and prevent electoral losses at the local government level. Due to the disastrous performance of many ANC-controlled municipalities over the past 5 years (more potholes, disintegrating sewerage works, tardy or absent municipal services, lack of housing delivery), it is widely suspected that the ANC will lose considerable support when local government elections are held next year.

If all the elections were held at the same time, so the argument goes, the ANC would not be punished for its poor performance at local government level because the vast majority of voters would focus on national issues (apartheid=bad, transformation=good) and would vote for the ANC, the party with whom they closely identify – regardless of whether their local councillor had been a lazy and corrupt skelm or a wonderful community activist who really made a difference to the community he or she served.

It is said that in the absence of a national election campaign, the ANC would suffer huge losses because even if its disaffected voters could not bring themselves to vote for the DA or another opposition party, the traditional ANC voters would stay at home in disproportionately large numbers. This would boost the electoral fortunes of the DA, whose energised and angry voters (eager to fight b(l)ack(s)”) would stream to the polls to punish the ANC for the failure of ANC controlled local councils (and for the cheek of being black and in charge). More people might not vote for the DA but less would vote for the ANC, giving the DA a much larger percentage of the votes.

Moreover, as Steven Friedman argued at the time, it is feared that holding local government elections at the same time as those for national and provincial government could reduce these elections to a hollow ritual. Because national elections attract far more voter attention than their local equivalents and because voters in South Africa (still) have strong loyalty to national parties (most notably the ANC), local elections held at the same time as the national ballot would do little more than duplicate national results. Local issues will not be discussed and the local link between councillors and the electorate will be further weakened.

In theory, these arguments make a lot of sense. The only problem is that the election campaign and results of the 2006 local government elections suggest that in practice it might make little difference to the outcome of the local government election whether it was held at the same time as national elections or at a different time. It would also not make much difference to what issues get discussed during the campaign.

It is true that during the 2000 local government elections far more traditionally DA voters than ANC voters went to the polls and the DA obtained 22% of the vote versus the 59% for the ANC. The previous year the ANC had won 66% of the vote while the forerunner of the DA only received 9.5% of the vote in the national election.

The DA did not receive substantially more votes in the local government poll in 2000 than in the national election the previous year, but there was a dramatic drop in the amount of voters who voted for the ANC, suggesting that traditional ANC voters disproportionately stayed away from the polls. (This happened after the DA and the New National Party had their shotgun marriage, which must at least partly account for this huge jump in support for the DA in the 2000 local government election.)

But in 2006, this effect was not repeated. In that local government election the ANC won 64% of the vote and the DA 16%. Three years later at elections for national and provincial legislatures the ANC had won 66% and the DA 16.5% of the vote respectively. The overall results for the local government poll in 2006 and the national poll in 2009 was therefore almost identical. Both traditional ANC and traditional DA voters had stayed at home in droves. (The slight increase in ANC support in 2009 could possibly be attributed at least partly to the Zuma effect, which meant that the ANC had increased the percentage of its support amongst voters in KwaZulu-Natal significantly.)

There is therefore little evidence to suggest, as some pundits have done, that during local government elections traditional ANC voters stay away from the polls in disproportionate numbers to punish the ANC governed municipalities for poor or non-existent service delivery. Far fewer voters voted in the last local government elections (only about 50%) than in the last general election (77%) but the traditional voters of the ANC and the DA stayed away in equal proportions.

I suspect there are at least two reasons for this. First, even during local government elections, candidates representing political parties do not fight localised campaigns about the particular issues of concern to the voters of a specific ward. Election campaigns (both for national and for local government elections) are tightly controlled by centralised campaign managers. Each party usually  has a central message that is sold to the voters with very little adjustment to the local circumstances of a particular ward or city council.

Second, because of the extremely close identification of voters with their party of choice (whether it is the ANC or the DA), voters still vote for the party and not for the candidate or the issues during local government elections. The ANC or the DA could nominate a wife-beating, child-molesting, tenderpreneur and he or she will probably get more or less the same amount of votes as any other candidate which the party might have chosen to represent it. This means parties have very little incentive to put up credible community based candidates and so the possibility for local charlatans and money hungry incompetents to be nominated as ward councillors by a party are rather high.

(During by-elections, this effect is less severe as a by-election is really fought more on local than national issues and in the absence of a national election campaign with a national message and strategy the quality of the candidate can therefore make a marginal difference during by-elections. This is why the ANC probably won the Bredasdorp by-election earlier this year – bucking the trend of dramatic increased support for the DA in the Western Cape – because its candidate was a fisherman whom Gwede Mantashe famously said he could not understand but who could be understood by local voters.)

What can one learn from this?

I suspect the ANC and the DA will take different lessons from the tentative insights provided above. For the ANC, it would probably be a good idea next year to fight a national campaign with a strong central message (“give us more time”; “the DA is racist”) – just as if it was fighting a national general election. In the Western Cape, where the ANC is a minority party, it would probably help the ANC to fight very localised campaigns addressing very particular issues that resonate with potential voters (by, say, highlighting the open toilet debacle in Cape Town.)

I suspect the DA would be better off fighting very localised campaigns in which its candidates in each municipality identify the hot button issues for its potential voters (especially issues that would galvanise voters to go to the polls). The DA may want to stay away from campaigning on a national platform (stop Zuma! stop Malema!) and may want its candidates to address local concerns (the water is not being purified; the ANC councillors are stealing our money; the sewerage is not being cleaned).

The problem is that localised campaigns are more expensive and more difficult to run. And with the DA there is always the danger of “rogue” candidates displaying racist tendencies (as Julius Malema might say) or making gaffes if they are not strictly supervised by Helen Zille and her team. This the DA cannot afford because the ANC will exploit such gaffes to rustle up votes and motivate traditional ANC voters to go to the polls to vote against the “racist-apartheid-loving” DA.

It might be that things have changed since 1996. If the percentage of votes cast for the DA shows a significant rise, it might give an indication that ANC voters have finally begun to lose faith in their party, either by staying at home in larger numbers than DA voters or by switching votes. But if the DA receives less than 20% of the vote nationally, it would mean nothing much has changed in the electoral landscape.

In any event, on the available evidence it is far from clear that synchronising the elections for all three spheres of government will assist the ANC and be detrimental to the DA.

Can the police search your car without a warrant?

Sep 28th, 2010
by Pierre De Vos.
55 comments

It is unclear exactly what happened when billionaire businessman and publisher of the newly launched newspaper, The New Age, Atul Kumar Gupta, was stopped at a roadblock in Johannesburg this weekend. What we do know is that Mr Gupta was travelling in his black X5 BMW from his offices in Midrand at about 9pm on Saturday when the police stopped him on the R55 highway. His driver and bodyguard was frisked. Police found a licenced firearm on him. According to The Sowetan:

Sources said when the police officers wanted to search Gupta and his car he refused. He then got on the phone and said he was calling General Bheki Cele, but not before telling them that he knew all the top police commissioners and would get them all fired. “All hell broke loose when Gupta refused to be searched. He also boasted that he was well-connected to Cele, threatening the arresting officers that they would pay for their actions,” one source said.

Mr Gupta was arrested and charged for refusing to have his car searched. Later he denied all the allegations against him and yesterday all charges against him relating to the obstruction of justice were dropped. This is, of course, a rather juicy story because Gupta is said to be close to President Jacob Zuma and his son, Duduzane, and is bankrolling a newspaper with strong ties to the ANC.

Nevertheless, the story also poses another interesting question about the powers of the police to stop and search individuals at roadblocks. As Michael Trapido points out, both the Criminal Procedure Act and the Police Act (amongst others) empower the Police – in certain circumstances – to search an individual’s car without first obtaining a search warrant.

The Criminal Procedure Act allows the police to search any person or any “container or premises” of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonable believed to be evidence that could assist the state in proving that a crime was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

This means that a police officer can search you personally or can search your car or house – even when no search warrant was obtained and even when you did not give permission for such a search – but only when he or she has a reasonable suspicion that you have committed a crime or are hiding evidence that could prove that you (or others) are guilty of a crime. So, if a police officer stops your car and the sweet smell of dagga wafts from the car, that police officer can search your car to try and find any dagga you might be hiding – even without first obtaining a search warrant to do so.

According to the relevant case law, a police officer must in fact have a reasonable suspicion that you have committed a crime or that you are in possession of material used or to be used in the commissioning of a crime. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because your hair is died green or because you are wearing a T-shirt with a picture of the Nigerian flag on it, he or she will not be able merely to argue that there is a reasonable suspicion that you committed a crime or are in possession of material used in the commissioning of a crime and, hence, will not be entitled to search you.

This also means that if members of the police knock on your door and say they want to search your house, you should think twice before giving them permission to do so. It would perhaps be better always to first ask them for a search warrant. If they do not have a search warrant, you should ask them to inform you of the evidence on which they base their reasonable suspicion that you are hiding criminal activity. If they cannot give a good answer, they are not entitled to search your house without obtaining a search warrant first.

But that is not the end of the matter. The Police Act also allows members of the Police to set up roadblocks with the permission of the National or Provincial Police Commissioner. Section 13(8)(f) of that Act allows any police officer to search any car stopped at a roadblock and to seize any object that is reasonably believed to have been used in a crime or can be used as evidence in proving the commissioning of a crime. If one is stopped at a roadblock, one has a right to be shown a copy of the written authorisation given by the National or Provincial Police Commissioner for the setting up of the roadblock.

This section is much broader than the provisions of the Criminal Procedure Act as it allows a police officer to stop you, search your car and then seize any item – even when that officer initially had no reasonable grouds for believing that you were involved in the commissioning of a crime or was in possession of evidence relating to the commissioning of a crime. So, even if you are driving home, listening to classical music on Fine Music Radio, stone cold sober, minding your own business, this section will allow the police to stop you at a roadblock and search your car without a warrant – just in case you might be a classical music loving terrorist ferrying explosives or a notorious (classical music loving) drug dealer.

The constitutionality of these provisions have not yet been challenged and, until they are, the police would be well within their rights to stop you at a roadblock and to search your car (as they did with Mr Gupta). However, it is clear that these provisions infringe on the right to privacy guaranteed in section 14 of the Bill of Rights. The only question would be whether such an infringement would be justifiable in terms of the limitation clause.

The Constitutional Court has stated that the right to privacy is a layered right. This means there is a continuum of privacy rights which may be regarded as starting with a wholly inviolable inner self, moving to a relatively impervious sanctum of the home and personal life and ending in a public realm where privacy would only remotely be implicated. An infringement of privacy rights would be easier to justify where the infringement occurs in the public realm rather than in the inner sanctum of one’s home.

For example, when one is searched before entering a soccer game or when entering the Parliamentary precinct, this infringement would be considered relatively trivial and would easily be justified. On the other hand, a warrantless search of your house or car would be more difficult to justify.

In deciding whether the legal provision that empowers a police officer to infringe your right to privacy is justified, one will have to look at how serious the privacy breach allowed by the law is. The closer the breach to your “inner sanctum” the more difficult it would be to justify the infringement. That will have to be weighed up against the importance of the purpose of the law allowing the breach of your privacy. If the breach is to protect the public from terrorist attacks at a soccer game, I suspect a court will be very reluctant to find the infringement constitutionally problematic. Finally one will have to ask whether there are not less restrictive means that could have been used to achieve the same important purpose. The broader the power given to the police, the more difficult it would be to justify.

I suspect that in the light of the above, the provisions of the Criminal Procedure Act would probably withstand constitutional scrutiny because a police officer can only infringe your right to privacy if he or she has reasonable grounds to suspect that a crime was committed or that you are holding evidence of the commissioning of a crime. Preventing crime is rather important and the limitation of your right to privacy would be justified because the power given to the police is limited to cases where they have a reasonable suspicion that you are a bad apple.

However, I suspect the provisions of the Police Act that allow a police officer to search your car at a roadblock – even when he or she has no reasonable grounds for suspecting you have committed a crime or hold evidence of the commissioning of a crime – would not pass constitutional muster. Because the powers given to the police in the latter instance are so broad that they could easily be abused to intimidate and harass innocent and law abiding road users, the provisions are probably overbroad and hence unconstitutional.

But until the constitutionality of these provisions are challenged, they remain in forces, and one would not be allowed to refuse to have your car searched on the basis that the empowering provisions allowing the police to search your car are unconstitutional just because some upstart law professor said so on his Blog. If Mr Gupta was stopped at a roadblock, he would therefore have had no right to refuse to have his car searched. He would have been obliged to submit to the search, but he would, of course, have been entitled to challenge the constitutionality of the provisions of the Police Act at a later stage.

However, Mr Gupta’s threat that he will sue the police for wrongful arrest will probably come to naught. While one can claim damages for wrongful arrest, the provisions of the Police Act are so broad that it would be difficult to argue that the police acted unlawfully in this case. Even if he was not stopped at a roadblock, the police will probably claim that they had a reasonable suspicion that he was involved in crime and hence that they were entitled to search the car in terms of the Criminal Procedure Act.

Unless, of course, the police had no permission from the Police Commissioner to set up the road block, in which case Mr Gupta might well have a case.

PS: For a good discussion that captures the essence of all the relevant issues relating to searches and seizures, see the LLM thesis of Vinesh Basdeo

Blaming the victim

Sep 27th, 2010
by Pierre De Vos.
129 comments

A few years ago an outfit called ”The Gay and Lesbian Alliance” (GLA) lodged a complaint against two guest houses in the Cape Town City Bowl and Sea Point areas with the Human Rights Commission, arguing that they were discriminating against women and against heterosexuals because they were only allowing gay men to stay at their establishments.

The GLA was, of course, not a real organisation, but the front for a slightly unhinged man called Juan Duval Uys, who had bamboozled a gullible media into publishing many of his outlandish, bizarre and mostly untrue claims. (Uys proved just how lazy and untrustworthy the media could be: because he had a fax machine and made provocative claims which made for good copy, some newspapers printed these claims as fact without ever verifying whether the claims were true or not.)

In any case, the Human Rights Commission referred the matter to the Commission for Gender Equality (CGE) – not an organisation known for its efficiency and for the diligence and hard work of its commissioners – who, for once, miraculously did its job and investigated the issue before publishing a report on the matter. (This must have been one of the few times over the past 15 years that the CGE was in the news for anything other than allegations of corruption, infighting and mismanagement.)

As it turned out, the CGE rejected the complaint and found that the guest houses were “serving a legitimate interest in… that they seek to create a comfortable environment for gay men where they can express themselves freely. … It is the commission’s view that accommodation of this nature is necessary in our democratic society to protect or advance legitimate interests of the aforementioned groups,” it said.

Rather surprisingly – given the complete dysfunctionality of the CGE – this finding was perfectly correct and in line with the jurisprudence of the Constitutional Court. Because section 9(3) of the Constitution only prohibits unfair discrimination, it is perfectly acceptable to treat people differently based on their race, sex, gender or sexual orientation if the group who complained about discrimination is not one who has historically suffered from discrimination, if the purpose of the discrimination was for a worthy cause and if the effects of the discrimination was not serious.

One must balance the various interests and must ask whether the different treament was fair, given the important purpose of the different treatment and given the effect of the different treatment on the group who previously benefited from discrimination. If the effect of the present discrimination is so severe that it may affront the inherent human dignity of the affected group, the discrimination will not be fair.

Because the complaint related to heterosexuals who argued they were excluded by the guest house, and because the purpose of the exclusion was to provide a safe space where gay men would not feel unwelcome or intimidated and would not face ridicule or harassment by heterosexual patrons, the discrimination was found to be fair. Besides there are thousands of guest houses in Cape Town open to heterosexuals so the effect on them of not being allowed at these two establishments was really miniscule.

For the same reasons, I have no sympathy with rather selfrighteous (and self-serving) ex-alumni of the University of Cape Town (UCT) who are writing bitter letters to the local newspaper about the fact that the UCT administration has endorsed the formation of a UCT Black Alumni Association. According to these latter day converts to equality and non-discrimination, such an Association is racist and discriminatory because it fails to treat all human beings as equals regardless of race.

One should, so the argument goes, embrace the notion that race is absolutely irrelevant and superfluous if one ever wants to achieve a society and an institution that truly moves beyond race and treats individuals as humans instead of as people with racial identities that are of any importance to anyone.

This is of course a rather laughable argument as it is premised on the fiction that race is irrelevant in our society. The sad fact is that race – and sexual orientation - are not superfluous and hence not irrelevant exactly because racism – and homophobia  – are still all pervasive in our society.

If one belongs to the race (or sexual orientation) not shared by the dominant group in an institution or in society one experience the exclusionary effects of one’s race or sexual orientation (whether one believes that race or sexual orientation are constructs or not) rather profoundly. If one belongs to the dominant race group or sexual orientation group, chances are that one will be oblivious to the exclusionary effect that race or sexual orientation has on those who are “othered”. Because one is always on the side of the “winners” who are not discriminated against one cannot see the discrimination that an institution visits on those who are not like the dominant group.

By insisting that race is irrelevant and superfluous, one is insisting on endorsing and perpetuating the fiction that the characteristics, cultural beliefs and (often unexamined and silent) norms of the dominant group are universal and neutral. One is not aware of how the institutional culture expects conformity to this norm (which is not seen as a norm at all, but rather as something natural and neutral) as the price for equal treatment.

Because the dominant norm according to which decisions about inclusion and exclusion are made is so part of the world view of the dominant white group, they cannot see the exclusionary effect that it might have on those who happen not to share their world view, their race, their sexual orientation (because they do not see that there is a dominant norm or world view at all).

Those who dominate an institution therefore often claim that race (or sexual orientation) is irrelevant to them. They claim to be completely blind to these categories but this blindness is a fiction that can only be sustained if one remains blind to one’s own situatedness in the world. Those who maintain this fiction of being able to be blind to race or sexual orientation do so because they do not realise that it is only irrelevant for THEM because their racial or sexual orientation assumptions dominate in the institution and thus dictate how one ought to behave and what one ought to do to fit in and to be treated equally with everyone else.

If one happens to be a student at UCT (as at many other institutions) and one is not white or heterosexual, one finds oneself in a situation where an institutional culture – without deliberately wanting to – excludes and marginalises one because one happens not to be part of the dominant group. It then denies that experience of marginalisation and deligitimises one’s experience of marginlaisation on the basis that one is obsessed with race (or sexual orientation) – unlike the dominant group who is supposedly blind to these things. It is called blaming the victim.

When the institutional culture in which one finds oneself is premised on the fiction that every student is a white heterosexual English person and then denies this assumption by saying that there is no institutional culture or that the institutional culture has absolutely nothing to do with race or sexual orientation, that it merely reflects a universal standard that all normal people will find unproblematic, then the effects of the discrimination can be particularly egregious.

Hence one is faced either with conforming to a set of norms that are experienced as normal – as “just how the world is” – in order to be treated equally, or one has to accept that one will be marginalised and excluded.

In such a situation it is perfectly acceptable – according to the jurisprudence of the Constitutional Court – to form a racially exclusive Black Alumni Association (especially, as is the case here, where that association is not racially exclusive but open to all) to address the effects of past exclusion and marginalisation. As those who are supposedly the victims of this discrimination are white and part of the dominant group, a court will be hard pressed to find that it constitutes unfair discrimination unless it can be shown that the purpose of such an organisation is to perpetuate patterns of past discrimination (something which would be impossible to show in this case as the purpose of the organisation is to overcome the effects of  past patterns of discrimination).

It is funny that those who insist that an institution should never allow any race based corrective measures and should never refer to race are almost exclusively the beneficiaries of past race based discrimination. They are also almost exclusively members of the dominant racial group (or at least not members of the most discriminated against group) who can afford to claim that race is irrelevant and does not matter exactly because their race – and all the assumptions that go with it - serves as a universal and neutral placeholder.

In South Africa race will remain important for a very long time to come. Claiming that it is irrelevant is to claim that the past 350 years never happened and that the effects of the past 350 years have been wiped out by the stroke of a pen. This is obviously absurd and dishonest. It is also self-serving: if the dominant culture at an institution happens to promote and preserve the racial assumptions and culture of one’s own group, one would want to claim that race does not matter because then one could ensure that the status quo is never disturbed or troubled.

Of course we all would love to move to an utopian society in which a person’s race really does not matter to anyone. But we cannot do that by pretending race does not matter now, when it so clearly does. Racism is all around us and pretending that race does not matter now and that racism does not exist is, in my view at least, merely a less toxic form of racism. All we  are doing when we do that is to try and preserve the status quo which benefits ourselves and which we want to normalise and universalise – something that is inherently unfair and also unconstitutional.

Zuma the patriarch versus ANC gender equality

Sep 23rd, 2010
by Pierre De Vos.
44 comments

It should not be controversial to state that South Africa remains a deeply sexist and patriarchal society. Despite the fact that our Parliament has the third largest number of women members (just over 44%, the highest number after Rwanda with 56% and Sweden with 46%), most women in South Africa still carry a shockingly unequal burden in caring for children and taking care of the home (usually without remuneration), find it difficult to break through the glass ceiling in the corporate world, and are often subjected to sexism and even harrassment at the hands of men.

It should also not be controversial to point out the obvious fact that our current President (who is also the President of the ANC) is a patriarch and – in his private affairs, at least - a Zulu traditionalist.

During his rape trial President Zuma gave evidence in formal Zulu, which some commentators have argued was aimed at establishing himself as “an authentic Zulu man”. Some commentators (including Shireen Hassim and Mmatshilo Motsei) pointed out that the idiom he used at the trial was deeply patriarchal, referring for example to Khwezi’s private parts as “her father’s kraal”. Zuma claimed that as a Zulu man he had no choice but to have sex with Khwezi because she invited it in her dress; that he had been taught that leaving a woman in a state of arousal “was the worst thing a man could do”.

In the light of the above, the ANC discussion document on gender, tabled at the ANC NGC this week, makes for interesting and, I would argue that given the political context, provocative reading. But the authors of the document did not seem to have the courage of their convictions as the document shies away from the implications of its very persuasive gender analysis when it has to make recommendations about how effectively to deal with the problems.

On one level, the document merely re-affirms the ANC’s long standing commitment to gender equality and its opposition to sexism. If it was not for the ANC policy that 50% of its elected representatives should be women, our Parliament would not have had the high number of women it does have (the DA being rather more male oriented – despite its female leader). 

The ANC was also instrumental in drafting the South African Constitution, which prohibits discrimination on the basis of sex and gender and subjects the right of individuals to enjoy their culture to the equality provision in the Bill of Rights. In terms of our Constitution, no one has the right to engage in cultural practices that in any way discriminate against women. Equality trumps tradition and culture in our Constitution. (That is why those who claim that polygamy is a constitutional right are wrong: if our courts decide that polygamous practices discriminate against women, they will have a duty to declare such practices unconstitutional or to develop the customary law to bring it in line with the Constitution.)

The ANC document on gender provides an admirable definition of what the ANC means by Gender Equality.

It implies a fair distribution of resources between men and women, the redistribution of power and care responsibilities, and freedom from gender-based violence. It entails that the underlying causes of discrimination are systematically identified and removed in order to give men and women equal opportunities. It takes into account women’s existing subordinate position within social relations at aims at the restructuring of society so as to eradicate male domination… Gender inequality and other forms of patriarchy-related social ills are an integral part of what should be the transformation agenda of the ANC. IN effect what this NGC must look at are ways of actually addressing patriarchy within its realms and the realms of society as a whole, as well as look at the concept of “decolonizing the human mind”.

The document points out that the manner in which almost all societies still unfairly allocate social roles, duties and responsibilities to men and women (with women carrying a disproportionate load), reflects the power that men still hold over women in our society. According to the ANC document, patriarchy – “a whole system encompassing ideologies, beliefs, values and practices” – subordinates women in all spheres of life. In this regard, the traditional family remains the most oppressive institution where patriarchy asserts itself most profoundly in order to ensure the continued subjugation of women and the domination of men. 

One of the ways in which this scandalous state of affairs can be dealt with, according to the ANC, is by the fast tracking of a Gender Equity Bill which will help to achieve 50/50 parity in the private sector and the corporate world. The document also suggests that the Electoral Law should be amended to force all political parties to adhere to a 50/50 gender balance in nominating candidates for election to the legislature. The document further recommends that many other steps should be taken to help eradicate gender discrimination and to address the effects of past gender injustice in the public sphere and to help women gain access to social and economic benefits and services.

What is entirely absent from the document is any recommendations on how to deal with two of the most profound problems facing women in South Africa. First, it is silent on the way in which most women who live in rural areas under traditional rule are subjugated and oppressed because of the overwhelming influence of traditional leaders and the iron grip of a traditional culture (a culture which has been fundamentally transformed, and in some respects disfigured, by colonialism and apartheid). Second, the document makes no recommendations about ways of addressing patriarchy in the private sphere - a pervasive problem which results in the oppression of women in the family.

The drafters of our Bill of Rights understood that much of the subjugation of women (and black South Africans as a whole) happened in the private sphere and hence deliberately included provisions to make clear that the equality clause also applied to private relations and institutions. It furthermore included section 9(2) which states that true equality can only be achieved if the state took positive measures to promote the achievement of equality. As the Constitutional Court stated in the case of Minister of Finance v Van Heerden that section 9 of our Constitution:

embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

The state therefore has a duty to take steps to address the oppression of women in the private sphere. This oppression includes the way that men relate to and treat women in intimate relationships inside and outside marriage. This is not a short-term project as one cannot legislate away sexism (just as one cannot legislate away racism). But one can begin to take steps to protect women who suffer under patriarchal husbands and boyfriends. This our government has not shown any appetite to do.

While the ANC document recognises this fact, it contains no suggestions about what positive action should be taken to eradicate patriarchy. One looks in vain for suggestions of what measures could be taken to deal with the cultural assumptions and traditional practices that help to keep many women subjugated. The fact that many women in personal and intimate relationships remain little more than second class citizens who must obey the instructions of the patriarchal boyfriend, husband or father and must serve him and his children without complaint, is also not addressed.

Could this reticence on the part of the discussion document have anything to do with the fact that the leader of the ANC is a patriarch and traditionalist, a man with three wives and – as far as we know – at least two more girlfriends, a man with more than 20 children who seem to believe that women (or at least the women in his personal life) should take care of the home and the children? 

This is of course an awkward point to make. On the one hand, one is acutely aware of the need to respect different cultural traditions and practices and to avoid the snobbish cultural imperialism of someone who assumes their way of doing things and being in the world is the only correct way. Given our history in which traditional African culture and custom have been denigrated and, at times, strategically used and abused by colonial rulers to reinforce the supremacy of their dominant Western culture and their rule, one could easily be accused of cultural imperialism for raising this point.

But as the Constitution makes clear that gender equality trumps culture and tradition and as black women living in rural areas are probably the most vulnerable and most marginalised and oppressed group in our country, it is important that any attenmpt to address gender inequality focuses on the way in which traditional cultural practices – including, possibly, practices such as polygamy – help to keep women subjugated and in their place. The fact that the ANC document is silent on this issue, says much about the inherent contradictions in the ANC, who styles itself as a modern movement who opposes sexism and patriarchy, while at the same time being led by Mr Zuma who has demonstrated in the past that he has not freed himself entirely of patriarchal tendencies. 

Should we throw Helen Zille in jail?

Sep 22nd, 2010
by Pierre De Vos.
28 comments

When should courts use their powers to jail politicians and other individuals who disrespect the judicial system and undermine the legitimacy of our courts? Can they actually do so without infringing on the rights of an individual protected in the Bill of Rights? Should Youth League members (or Helen Zille, for that matter) be jailed for contempt of court when they attack the personal integrity of individual judges? And what should happen when organisations or individuals just flagrantly ignore the orders made by courts?  

These questions are rather more difficult to answer than one might think. The recent case of the shenanigans of some of the leaders of the ANC Youth League is a case in point.

When ANC Youth League secretary-general Vuyiswa Tulelo told a daily newspaper last month that a High Court Judge who had ruled against the Youth League had arrived at a “drunken decision”, Advocates for Transformation rightly took Tulelo to task for insulting Grahamstown High Court Judge Nomathamsanqa Beshe. Judge Beshe had ruled against Julius Malema’s leadership of the league and reversed its decision to disband the league’s Eastern Cape provincial leadership. Should Tulelo not have been summonsed to court and thrown in jail for contempt of court?

This matter was, of course, made worse when ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo then said the following in response to the ruling:

We also want to warn the judiciary to desist from meddling with our internal political issues…. We have always respected the independency of the judiciary. However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.

Last week Chief Justice Sandile Ngcobo rightly called these assaults on the judiciary ”very troubling”  because “this kind of criticism may well undermine public confidence in our courts”. When politicians attack the integrity of individual judges (something Helen Zille and Gwede Mantashe have also made themselves guilty of in the past), instead of focusing on the reasons given for the judgment and engaging with the correctness of such a judgment - based on legal principles and analysis - they go beyond acceptable criticism of the judiciary and they undermine the legitimacy of our courts.

So, are members of the judiciary finally fighting back against this kind of flagrant disrespect shown to our judicial system by “some among us” (to quote that other guy who used to be President - what is his name again?)? News that the Labour Court in Johannesburg had found Gauteng leaders of the SA Democratic Teachers Union (SADTU) guilty of contempt of court, and had ordered that the provincial management and leaders of the central branch (Soweto) be arrested and detained for 15 days for ignoring an interdict that was handed down on Sunday, suggests so.

The SADTU leaders were prohibited by the court order from holding meetings in school time and disrupting the matric preliminary exams in any way but they had allegedly ignored this order.

These examples deal, of course, with two different kinds of contempt of court. The Youth League statements might have been contempt of court because it “scandalised the court”, while the  SADTU refusal to obey a court order might have led to a different kind of contempt of court not related to the “scandalising” of the courts.

Contempt of court is a difficult matter to deal with in a constitutional democracy. It has been argued that the exceptional summary procedure for contempt of court could be interpreted as subverting the fundamental presumption of innocence guaranteed in section 35(3)(h) of the Constitution. The fact that the very judge whose judgment was ignored or who was scandalised by the personal attacks of politicians could make a decision on whether an individual was guilty of contempt of court, could also raise constitutionally difficult issues, given the fact that everyone has a right to be tried by an independent and impartial court.

In 2001 in the case of S v Mamabolo the Constitutional Court dealt with one aspect of contempt of court relating to the “scandalising of the court” (Justice Kriegler writing the judgment) and confirmed that this was indeed a constitutionally valid criminal offense that could be used to protect the judicial process against scurrilous attacks.

It confirmed that “scandalising the court” is a form of contempt of court recognised by our law. This, said Kriegler, was part of “a variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice”. Noting that the definition of contempt of court is rather broad, Kriegler wondered why  there is such an offence as scandalising the court at all “in this day and age of constitutional democracy”.

Why should judges be sacrosanct? Is this not a relic of a bygone era when judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is it not rather a constitutional imperative that public office-bearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them? Indeed, if one takes into account that the judiciary, unlike the other two pillars of the state, are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges pre-eminently be subjected to continuous and searching public scrutiny and criticism?

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

There is of course a tension between the need to protect the judicial process (for the benefit of us all) and the need to safeguard freedom of expression for those who wish to criticise a decision made by a judge.  Because statements concerning judges and the performance of their duties can have a much wider impact than merely hurting the feelings of an individual judge, this crime focuses on acts or statements that reflect on the integrity of courts, as opposed to mere reflections on the competence of judges or the correctness of their decisions.

As the Constitutional Court pointed out, the test for scandalising the court, namely that one has to ask what the likely consequence of the utterance was, will mean that it will be rather difficult to find someone guilty of this offence. Merely criticising a decision – even in harsh terms – would not constitute contempt of court in a constitutional democracy. Launching a personal attack on the integrity of a judge by, say, suggesting that he or she is a drunkard or that he or she is a political lackey of a particular political party would get closer to meeting the requirements for this kind of contempt of court.

Similarly, when contempt of court deals with the intentional and unlawful disobeying of a court order, one will only be convicted if it can be shown beyond reasonable doubt that one indeed had the intention to disobey a court order. The Supreme Court of Appeal confirmed in the case of Fakie v CCII Systems (pty) Ltd that one would only be found guilty of this kind of contempt if one had disobeyed a court order ”deliberately and in bad faith”. If one honestly believed that one was justified in ignoring the court order one could not be found guilty of contempt of court, said the SCA.

It seems to me where any individual or organisation (whether it is a ordinary citizen, a public official, a Minister, a political party or a union) deliberately disobeys a court order – even when it is clear that there was no valid excuse for doing so - the attack on the legitimacy of the judicial system is so severe that there should be little problem with throwing the person in jail. The order of the Labour Court therefore seems appropriate (unless other factors not mentioned in the media might have cast doubt on whether the SADTU leaders had disobeyed the court order in bad faith). If court orders are not obeyed, then the judicial system breaks down and with it the rule of law. Chaos and anarchy is inevitably the result.

But when immature, self-serving, or rather dim-witted politicians attack the integrity of judges (whether they are members of the Youth League, the ANC proper or the DA) one should be rather more careful about using contempt of court proceedings to reign them in. If this procedure is used too quickly, there is a danger that this will stifle debate and dialogue about the work done by courts. Judges are not directly accountable to anyone – which is a good thing – but they are indirectly accountable to the public at large in that their decisions and the reasons given for decisions can be subjected to analysis and criticism.

But what to do in a case like the one mentioned above, where a Youth League leader calls a decision a “drunken judgment”? Should one press for the court to hold her in contempt of court on the basis that she scandalised the court?

Personally, I believe such statements are outragous and that the ANC should take action against the guilty officials, and that their membership of the ANC should be suspended for a number of years. Failure to do so will cast doubt on the ANC’s commitment to an independent and impartial judiciary.

But at the same time, I suspect that it is better to err on the side of free expression and therefore not to throw such oficials in jail on the basis that they are guilty of contempt of court. Besides, if our courts decide to go down that road we might sit with the strange situation where Gwede Mantashe, Helen Zille, and several Youth league leaders are all locked up for contempt of court. Imagine they all find themselves in the same prison for a 15 day period! It would make for an interesting discussion in jail, but would probably not be good for the legitimacy of the judicial system in the long run.

Political cowboy capitalism

Sep 21st, 2010
by Pierre De Vos.
65 comments

As the National General Council (NGC) of the African National Congress (ANC) gets under way in a blaze of publicity – pre-match analysis by all the weekend papers, live radio crossings for the speech of the ANC leader, regular twitter updates, wall-to-wall coverage in this morning’s papers - it struck me again how ubiquitous political parties are in our society and how important they are for the proper functioning of the constitutional democracy in South Africa.

Yet, political parties – unlike almost all other institutions of public importance – remain essentially unregulated by law. It is a free for all, a free market so unbridled that it should make not only communists but even moderate social democrats blush. This is political cowboy capitalism of the worst kind. While mining companies, universities, old age homes and even sporting bodies are all tightly regulated, political parties are not regulated at all – neither by the Constitution or by ordinary legislation. I find this rather problematic. If I was President Jacob Zuma I might have said that this flies in the face of the need to instill “revolutionary discipline” inside political parties and is thus rather counter-revolutionary.

The South African Constitution has remarkably little to say about political parties. Section 1(d) does confirm that a multi-party system of democratic government is one of the founding values of our Constitution and political parties are mentioned elsewhere in the Constitution, but nothing is said about how political parties must operate and whether they should adhere to democratic principles in electing leaders or nominating individuals for election to the various legislatures.

Political parties can receive donations from anyone – whether it is Kim Ill Jung, Muammar Gadaffi, George Bush or Bill Gates - or any organisation – whether it is a company who hopes to score an arms deal contract or a lucrative investment deal or wishes to have the law amended to ensure that the regulatory framework in the country allows it to make bigger profits and exploit ordinary people even more.

Political parties can create investment vehicles, can start up their own businesses – who can bid for government tenders - and can spend the money they make in any way they wish. They can use the money to hand out food parcels before an election, ferry potential voters in flashy cars to lavish parties, pay for the services of Kwaito Stars and for brilliant lawyers to help keep their leaders out of jail.

Furthermore, the Constitution does not make clear exactly what the relationship between the party leadership, the legislature and the executive should be. Can the governing party dictate to members of Parliament what they should think, what questions they should ask, what amendments they must make to draft legislation and what legislation they must approve? Well, there is nothing in the Constitution to help us answer these questions. If delegates at Polokwane said they wanted to get rid of the Scorpions because it had a tendency to prosecute ANC politicians for corruption, well, so be it.

And what about the relationship between the governhing party on the one hand and the President and Cabinet Ministers on the other? Cabinet Members are made individually and collectively accountable to the National Assembly, but they can also be fired by the National Assembly. Because the members of the National Assembly became members of that body because political party leaders agreed that they be placed high enough up on election lists so that they would make it to the National Assembly, MP’s are beholden to party bossses for their jobs and must either do what they say or suffer the consequences.

They can also all be recalled by the party if they do not follow the dictates of the party and if they refuse they can be expelled from the party in which case they automatically lose their seat in the Assembly.

This means that if the party wishes to, it can make the President and the Cabinet mere implementers of policy decided in Luthuli House. While formally the structures of constitutional democracy would then remain in place, this would become a bit of a sham as everything will be decided, at worst, by a few people at Luthuli House and, at best, by 4000 delegates at ANC gatherings. A democratically elected Parliament will facilitate public involvement in the law-making process and will invite civil society members and other members of the public  to give oral testimony about policies and draft legislation – just as required by the Constitution – but they will ignore this and follow the dictates of Luthuli House, bringing an end to the participatory aspect of our democracy and diminishing the power of the people.

Yesterday at the ANC NGC President Jacob Zuma departed from his prepared speech when he tried to justify the indecisiveness about finalising a new “growth path” strategy for the country by saying there were complaints about the previous administration’s style of taking decisions before approval by the ANC. (He might as well have said that Thabo Mbeki was a tyrant who never listened to the ANC rank and file and so had to be booted out, because the delegates liked this rather a lot.) “The ANC will be leading. The government will not be leading the ANC,” he said.

This is of course not entirely correct. When one is in government – either as a member of the legislature or the executive – it is impossible to always act on dictation from the ANC. ANC conferences or even the NEC do not consider every Bill and formulate an opinion on it. Neither do they consider any possible policy decision that a Minister is required to make.

This means we have a strange system in which the leadership of the governing party potentially has enormous power to run the country by remote control,  while we also have a Constitution that invests many formal powers in the executive and the legislature and makes clear that these bodies are the engine room of our democracy. But how should political parties in government relate to their members in the legilsature and the executive? The Constitution is silent on that.

What is needed is a piece of comprehensive legislation – as is in place in Germany – that regulates the organisation and conduct of political parties. Such a piece of legislation should require any political party who receives money from the state to be organised along democratic principles – including requirements for the democratic election of leaders and candidates for elective office.

It should also require all political parties to be transparent about donations from individuals and companies, should cap donations that could be given to a party each year to less than, say, R10 000, and should also require that the financial statements of political parties be audited to determine that the money was not spent to buy votes or influence or to bribe anyone.

What such a law would not be able to do, would be to solve the problem of the relationship between the party and its members in the legislature and the executive. There will always be problems in this regard, as the political party and its members would want to make sure its members in the legislature and the executive follow the party line, but they will be unable to micro manage all legislators and all members of the executive at all times. At the same time legislators and members of the executive would want to have somewhat of a free hand to respond quickly, strategically and coherently to events that might not have been foreseen by the party.

Can one legislate for this? I am not so sure. Meanwhile the ANC will continue asserting its right to circumvent the democratic institutions by telling its members elected by us and serving in these institutions what to do, while finding that it is rather difficult to enforce this principle from day to day.

Advancing the Constitution through social and economic rights

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

A Constitution, it is sometmes said, is no more than a piece of paper. Constitutions can be amended or, in extreme cases, can be ignored by the state and other powerful interest groups in society: by big corporations and fat cat capitalists, by tenderpreneurs with political connections, by police officers or members of the military, by the prosecuting authority or by government Ministers.

But this can only happen if the citizens allow it to happen.

Yet, a progressive Constitution can also become a powerful symbolic and practical document that can play a pivotal role in ensuring the establishment of a more fair society in which the legal rules do not always allow the powerful and well connected to trample on the rights and interest of ordinary citizens, a society that genuinely concerns itself with social and economic justice.

As Chief Justice Sandile Ngcobo reminded us this week when he delivered the first Claude Leon Foundation public lecture on Constitutional Governance, an independent judiciary, trusted by the citizens, has a pivotal role to play in safeguarding a Constitution.

[I]t is important to recognise that the independence and impartiality of the judiciary are not private rights of judges.  They are human rights of citizens. … It follows that the public has a powerful interest in effective and just courts.  In particular, the people have an interest in assessing whether courts operate without fear, favour or prejudice, as our Constitution requires, and whether they do so efficiently given the substantial public and private resources that are invested in the judicial system.

When citizens trust the judiciary and has confidence in it, when that judiciary demonstrates that it has not been captured by politicians and that it does not serve merely to protect the private interests of the rich and powerful, it becomes easier for ordinary citizens to defend that judiciary and to insist that it remains independent and impartial.

If ordinary citizens do not trust and hence are not prepared to defend the judiciary, a Constitution can indeed become merely a piece of paper that can be easily ignored, amended or, in extreme cases, suspended to serve the interests of a small elite.

The launch this past week of the Council for the Advancement of the South African Constitution (CASAC) reminds us that one way of advancing constitutional governance and protecting the Constitution is for civil society to take action through words and deeds to demonstrate to citizens why the Constitution matters to all of us – whether we are white or black, rich or poor, ANC members or die-hard DA supporters (even Blue Bull supporters, come to think of it, but that is pushing it slightly).

In a speech at the launch of CASAC at Liliesleaf farm, Dr Sipho Pityana made this point and indicated that CASAC understands that the Constitution can only remain a living document that is revered and that will be protected by an active citizenry if it can be demonstrated to all that the progressive South African constitution, vigilantly enforced by an independent judiciary, can make a difference to the lives of ordinary South Africans. That is why CASAC has decided to prioritise litigation and other actions that would help to enforce social and economic rights.

In a country like South Africa, in which there are vast discrepancies in wealth and circumstance between rich and poor and in which many people might feel that a Constitution is really a document for the rich and well connected that has very little to do with their own lives, social and economic rights litigation can help both to address the immediate needs of the vast majority of citizens and to demonstrate the importance of safeguarding the Constitution against attacks by powerful rightwing forces.

But this kind of litigation cannot be undertaken by one organisation alone.

Other members of civil society, working with lawyers who have a comprehensive knowledge and a deep understanding of the context within which social and economic rights litigation must occur, has an important role to play. At present there are far too many lawyers in South Africa who do not have a sufficiently firm grasp of the challenges and opportunities presented by the social and economic rights provisions in our Bill of Rights.

This is a complex area of our law that requires lawyers to think somewhat differently about the law and about the way in which litigation can be used strategically to make a real difference in the lives of ordinary South Africans.

But help is at hand. One of the founding members of CASAC (full disclosure: I am also one of the founding members of CASAC), Prof Sandy Liebenberg, recently published a magisterial book entitled Socio-economic Rights: adjudicating under a transformative constitution that will surely become the standard work in this field.

For civil society organisers, social movement leaders, lawyers who wish to come to grips with the complex area of the law (and the socio-legal context within which social and economic rights litigation takes place), or for lawyers who have already litigated constitutional cases and need a reference work to assist in the preparation of cases, this book will become indespensible.

This is not a dry textbook that merely describes the various legal developments in the field of social and economic rights litigation. It also provides a comprehensive analysis of the Constitutional Court’s jurisprudence on social and econmic rights and provides suggestions – at the same time practical and conceptually innovative – about how this jurisprudence can be “worked”, how the boundaries of social and economic rights litigation can be expanded, and how such litigation can be used strategically to advance the rights of ordinary citizens.

The Constitutional Court has been critizised by some of us academics because of what we percieve as its timid conceptualisation of the social and economic rights obligations entrenched in the Bill of Rights. Because the Court focuses so strongly on the question of whether the state has acted reasonably in realising the social and economic rights, some have argued that these rights cannot really make a big difference to the lives of ordinary citizens – something that is needed to help legitimise the Constitution.

Prof Liebenberg argues quite convincingly that the existing reasonableness review standard employed by our courts can be given a substantive content – especially in cases where access to housing, health care, water, electricity and food are denied to individuals and one can show that this denial has a discriminatory effect. If one links the social and economic rights arguments to arguments about equality and non-discrimination, what might have appeared as process rights with little real “bite” suddenly become powerful tools that can be used by lawyers to vindicate the rights of the very people whose trust in the Constitution might help to ensure its survival.

The chapter on social and economic rights in the area of private law will also come as an eye opener to lawyers who specialise in property law or contract law and who believe that their area of law has very little to do with  social and economic rights. When some of us talk about the transformative constitutionalism, we also have in mind that the arguments presented here would be used by lawyers and would find favour with judges to ensure that traditional common law rules which often favour the powerful and rich are transformed to make the law more just and fair (a concept that might by scoffed at by more traditional lawyers who do not always wish to think about the link – or disconnection – between law and justice).

So this is a bit of a plug: Anyone interested in our Constitution and what it can do to make South Africa a more fair and just society – even non-lawyers – and any lawyer who wants to get up to speed with the exciting and important aspect of our Constitution, should go out and buy Prof Liebenberg’s book. It will be money well-spent.

  • “Socio-Economic Rights: adjudicating under a transformative constitution” is published by Juta.

Princess Sisulu = 1 : Nyami Booi = 0

Sep 16th, 2010
by Pierre De Vos.
73 comments

This was all rather predictable. For a while it looked as if Parliament’s Defence Committee would stand its ground against the Minister of Defence, Lindiwe “Princess” Sisulu, who has steadfastly flouted the Constitution by refusing to produce certain documents to the Committee as she is required to do in terms of section 56(a) of the Constitution. It was something of a miracle that Nyami Booi and the other members of the committee had taken on the Minister in the first place. But yesterday they raised the white flag, indicating that they would not insist that the Minister respect our Parliament and adhere to the Constitution.

The move came a day after the African National Congress (ANC) gave its full support to Sisulu and cautioned committee chairperson Nyami Booi that his ultimatum to her to release the report within 30 days bordered on “ill-discipline”. In our system, when an MP has to choose between following the letter and spirit of the Constitution or the dictates of his or her party, the party will almost always win – unless the MP wishes to be redeployed as the town clerk of Putsonderwater or Lusikisiki or was planning to go into business and has lined up some lucrative government tenders.

There are many reasons why Booi and his committee were never destined to win this fight.

We have a closed list electoral system of pure proportional representation for members of the National Assembly. This means we vote for political parties and not for individuals. (Although we make our cross next to the smiling face – Botox optional - of a party leader, we are really not voting for him or her but for everything the party stands for – which should make it rather difficult for anyone with a a social conscience to decide which party to vote for.)

Parties compile lists of candidates and decide where on the list each person will feature – often through a quasi-democratic process  that are tampered with after so called “democratic” input from members of that party. The higher up one is on a party list, the better chance one has of becoming an MP. Obviously, if one is at number 50 on the ANC list, one is guaranteed a seat in the National Assembly. If one is at number 50 on the Azapo list, one should not give up one’s day job.

This electoral system is said to be fair because every party is allocated more or less the same percentage of seats in the legislature than its percentage of the national vote. First-past-the-post systems, where one candidate wins an election and represents a constituency in Parliament and the losing parties get nothing, can lead to distortions and will favour bigger parties and eviscerate smaller one’s who might get up to 20% of the vote but no seats in Parliament.

While the system is fair, it is not working very well in South Africa at the moment – as the defeat of the Defence Committee clearly  illustrates. In this system, the party leadership has enormous power over individual MP’s. If one falls out with the party leadership one can be “redeployed” or – in extreme cases if one refuses to be redeployed - can be expelled from the party, in which case one automatically loses one’s seat in the National Assembly. This power of party bosses is further enhanced by the apartheid era culture of strict party discipline, which our post-apartheid political parties have enthusiastically embraced (in line with political parties in other Westminster-inspired systems in post colonial Africa).

If one reads the ANC Polokwane resolutions on the “Political Management of Governance”, it is clear that the ANC believes that MP’s are accountable first and foremost to the party leadership and not to voters. But other parties also impose strict dicipline on MPs and once a decision has been taken by the party, all MPs have to toe the party line – unless the party has decided to allow its MPs a free vote, which happens very seldom.

Because the President is not democratically elected (but elected by the only democratically elected national representative body, the National Assembly) and because the President can be fired by the members of the National Assembly, our system appears to invest bigger powers in the legislature than the executive. But because parties and their leaders, rather than individual MP’s, are really in charge and because the President and his or her cabinet are also the leaders of the majority party in Parliament, the real power lies either with the President (as was the case under Thabo Mbeki) or with the governing party leadership (as seem to be the case under Jacob Zuma).

A junior MP must either be very brave or very stupid to defy senior leaders of his or her party by trying to hold them to account. I don’t know what came over Mr Booi. He should have known better and should have known that he was never going to win a political fight with Her Royal Highness.

At the moment we also have a one party dominant democracy with one party – the ANC – receiving almost two thirds of the votes. This means party leaders are less likely to worry too much about what particular voters or communities want. As a result we get decisions like the incorporation of Khutsong into the North West and Matatiele into the Eastern Cape.

It also means that there is even less incentive for the top 250 MP’s on the ANC electoral list to listen to demands from voters to hold the executive to account. Because they are more or less assured (or so they think!) of being returned to the National Assembly after the next election (if by then they had not secured any lucrative government tenders or found eager business partners to exploit their proximity to power), it is in their self-interest to obey party bosses and not to listen too much to what the voters want if this contradicts what party leaders demand.

Sometimes this is a good thing. Would our Parliament have passed the Termination of Pregnancy Act, the Civil Union Act and the Domestic Violence Act, if individual MP’s worried too much about what voters really think? Would they not all have clamoured for a re-introduction of the death penalty, the killing of all criminal suspects by the police – preferably in highly publicised shoot outs -and the torture of anyone caught watching pornography (although they recently seemed to have made moves to address that latter two issues).

It is often argued that we should change the electoral system to a mixed system in which half the MP’s are elected in constituencies in a first-past-the-post system and the other half proportionally to ensure that smaller parties are also fairly represented in the legislature. But we have such a system at local government level and it has not really made individual councillors more accountable to the electorate. Friends without qualifications are still appointed as financial managers, money stolen, roads remain untarred, houses unbuilt, potholes unfilled.

There are many reasons for this, including the electoral dominance of the ANC and the manner in which individuals are selected for “deployment” to city councils. We do not have a fully democratic system through which potential candidates have to take part in primaries where members of the party in that constituency can then decide who should stand in the general election against individual candidates of other parties. This means that people are in effect “deployed” to local government level and they are thus more likely to obey the dictates of the party (and act in ways that would advance their interest in the party – given the internal party politics) than actively serving the community by making some decisions that might anger party leaders.

One suggestion is to change the electoral system, but not to stop there. Why not also adopt legislation that would regulate the manner in which candidates for public office are selected by parties? A law that requires that free and open primaries should be held to allow party members freely to select their candidates for each constituency, so the argument goes, will go a long way to make individual councillors and MPs accountable to voters instead of to party bosses. If one has to have one eye on re-election in a party primary, one will take the community’s views far more seriously and will be more accountable to the community. 

But there is a small problem with this argument. As the Republican Party in the USA is finding out, individuals who become members of a political party and actually make the effort to vote in primary elections are often more radical and extreme in their views than the ordinary voting public. For example, on Tuesday a far right wing candidate was elected by Republican voters in Delaware to stand as that party’s Senate candidate in the November election. But because she is so extreme in her views, she is probably not going to get elected in a relatively moderate state.

If one introduces primary elections in South Africa, chances are that the DA will field more pro-death penalty, shoot to kill and bring back the good old days candidates, while the ANC might field more mini-me Malemas. Potential MPs who have technical skills or are thoughtful and progressive are likely to be squeezed out by the lunatic fringe candidates preferred by energised and enthusiastic party activists.

Perhaps the present system is not that bad after all – at least on paper. Once the ANC fails to secure 50% of the vote and is required to govern in coalition with other parties (something far more likely in a proportional representation system than in a first-past-the-post system), Parliament will be in a far stronger position to hold the President and other cabinet members to account. Coalition governments weaken the power of party bosses and strenghten the hand of those legislators who wish to hold the executive to account.

But, of course, for that to happen a credible political party either to the left or the right of the ANC will have to emerge, one for whom large sections of African voters feel they can vote because they believe the party understands them and represents their interest.

Untill that day comes, we are stuck with a system that - on paper – is not bad at all, but in practice does not seem to serve the needs of most voters.

MP’s now protected from whistle blowing

Sep 14th, 2010
by Pierre De Vos.
52 comments

South African Parliamentarians – like other individuals in society – are sadly not free from the temptations of modern life. One MP has already been convicted of fraud and sentenced to a three year prison term after receiving a huge discount on a new car from an arms deal competitor and lying about it to Parliament. Many other MPs were convicted of fraud after they abused the travel benefits of Parliament in a saga that became known as Travelgate.

Harry Charlton, the guy who revealed the existence of the massive fraud perpetrated by some of our elected representatives against every single South African (who has contributed to the taxes that bankrolled this travel fraud), was fired soon after he blew the whistle on these MPs. The poor guy thought he would be protected by the law and that he would not be fired for exposing the criminal activities of some of our elected representatives.

Boy, was he wrong.

After Parliament fired him, he approached the Labour Court on the basis that the disclosures were “protected disclosures” as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”, also known as the whistle blowers act) and that his dismissal was consequently automatically unfair in terms of our labour law. He won his case in the Labour Court, but Parliament appealed the judgment and the Labour Appeal Court (LAC) overturned the judgment on the basis that his disclosures were not protected by the PDA.

The PDA states that a whistle blower is only protected if he or she makes disclosures about criminal or other unlawful acts or some other specified objectionable actions of his or her “employer” or of a fellow “employee”. Parliament argued that Parliamentarians are neither employers nor employees of Parliament and that they are therefore not covered by the PDA.

In other words, it argued that if someone who works for Parliament makes disclosures about corruption, criminal activities or other nefarious activities of MPs, that person will not be protected by the PDA. An employee of Parliament would therefore have to think twice before ratting on crooked MP’s because he or she would not enjoy the same protection as the rest of us who blow the whistle on other kinds of corruption and criminality.

The Act defines an employee as, inter alia, “any person… who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”.

It furthermore defines an employer as any person “… who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business, including any person acting on behalf or on the authority of such employer”.

The LAC decided that these definitions could not (or should not) be given a broad meaning to encompass MP’s. It rejected the argument that MP’s could be viewed as employers of the staff who work in Parliament – at least for the purposes of the PDA. The LAC rejected the argument that Parliament is the sum of its constituent parts, namely the MPs and as well as the parliamentary staff who support the ongoing operation of Parliament as carried out by the MPs. The argument that the staff perform work for the MPs and that the MPs must therefore be regarded as an employer of the staff members – at least for the purposes of the PDA – also found no favour with the LAC.

It also rejected the submission that even if one accepts that Parliament was regarded as a separate legal entity, MPs could fall within the definition of an ‘employer’ because they were all persons “acting on behalf of or on the authority of such employer”. In doing so, it did not take into account the purpose of the PDA. Nor did it interpret the provisions to promote the spirit purport and objects of the Bill of Rights as required by section 39(2) of the Bill of Rights. Instead it gave these terms more or less the same meaning as they would normally have in the labour law context – relying on rather formalistic and technical legal arguments.

It chose the most obvious literal interpretation of these terms which just happened to have the effect that crooked MP’s would largely be protected from the whistle blowing activities by uppity Parliamentary employees. With a bit more effort and intellectual rigour the LAC could have found a way to give these terms a broader meaning so that MP’s could also be subjected to whistle blowing laws. (That is what the lower court did.) This would have exposed crooked MP’s to far greater danger of having their criminal or unlawful activity exposed.

While one can quibble about the technicalities, the reasons why the LAC chose this path are rather more disturbing than the outcome. Writing for the Court, Patel JA argued as follows:

To subject MPs to the PDA may, in practice, run the risk of frustrating the democratic process. An extension of the application of ‘employee’ under the PDA to include MPs might cause statutes to become more complex. MPs ought to be entirely independent. ….Parliament submitted that parliamentary staff are answerable to the Secretary of Parliament and not to MPs. This point is important. Parliamentarians must be allowed to focus on their constitutional duty to make law. A MPs portfolio ought not to be cluttered with the additional and onerous responsibilities of being an ‘employer’ of parliamentary staff. This would hinder the effective performance of their duties and functions. This court accordingly finds that MPs are not included in the PDA.

In other words, MP’s should not have to worry that their crookedness and criminality will be exposed by Parliamentary staff, because then they will not be able to steal our money and to commit criminal offences (in-between passing laws and holding the executive to account, one presumes).

I find this line of reasoning quite startling and anti-democratic. It flies in the face of one of the founding values of our Constitution namely that our system is based on democratic government, to ensure accountability, responsiveness and openness. If anyone should be subjected to the PDA, it should be our public representatives in Parliament, whose activities are funded by tax payers and who are elected to deliver accountable, open and responsive government.

If the PDA must be interpreted to exclude MP’s (a plausible but not inevitable conclusion), then the PDA must surely be unconstitutional. This is because the PDA would then infringe on our right to receive and impart information as well as our right to vote. How can voters meaningfully exercise their right to vote if laws, in effect, make it more difficult for Parliamentary staff to expose the corruption and other criminality of some MP’s? If we do not know whether some of our MP’s are corrupt, we would not be able to make informed choices about which party to vote for and our vote would become far less meaningful.

MP’s obviously should not be required to act as employers of Parliamentary staff for the purposes of labour law or for other practical purposes. But for the purposes of the PDA, these MP’s should be subject to exactly the same threat of exposure than any other employer or employee. How else will wrongdoing by MP’s ever become known and how else will we be able to know how crooked some of our MP’s might be?

Like Caesar’s wife, our MP’s – above all – should be beyond reproach. Public trust in the democratic process and in our constitutional democracy itself is of utmost importance, but how can we trust MP’s if we know that they have passed a law that the LAC now says rightly protects them from whistle blowing? How any person could argue that the democratic process would be frustrated by protecting whistle blowers who wish to expose possible criminality on the part of MP’s, is beyond me.

The judgment of the LAC demonstrates rather vividly what happens when the transformation of our legal system is not at the forefront of judicial appointments. When judges are appointed who are not imbued with the values of our Constitution, they produce this kind of formalistic reasoning which will diminish, rather than enhance, the quality of our democracy.

WWYHD: “What would you have done?”

Sep 13th, 2010
by Pierre De Vos.
79 comments

One of the wonders of living in a democracy is that one soon finds out that there are quite a few idiots about (not all of them politicians) and that it is ok for people to behave like idiots as long as they do not cause too much harm to others. Usually the world as we know it does not come to an end just because some fool somewhere has decided to do something really daft to attract attention or to demonstrate that he (it is always a he is it not?) can be hateful and bigoted in a very special way.

One is free to phone radio talk shows to make cringe worthy statements demonstrating one’s ignorance and superstition or  to say racist, sexist and homophobic things - even if your name is not Julius Malema. One can dress up in horns and a tight blue jersey and paint one’s face blue to show loyalty to that hopeless rugby team called the Blue Bulls. One can appoint an all male cabinet and think no one will notice and one can even – and now I am pushing it – believe that the legal advice provided to the Minister of Defence by her fugitive-from-justice advisor is legally sound.

But when should the courts intervene to stop individuals from making fools of themselves? On what basis should a judge decide that the actions of an individual will cause such harm to others that he or she should be stopped and should be interdicted from going through with his or her planned actions? Should a judge prevent someone from communicating his or her displeasure about a topical issue merely because this would be hurtful to a certain section of the population?

These questions came to mind when I read in the media that Judge Sita Kolbe in the South Gauteng High Court issued an interdict on Friday against a planned Bible burning by businessman and law student Mohammed Vawda.  Vawda said his plan had nothing to do with Christianity; instead, he said he planned the burning because he was angry about Florida pastor Terry Jones’s plan to burn Korans over the weekend.

One could argue that this judgment is not surprising, given the provision of section 16(2)(c) in the Constitution as well as the content of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 16(2)(c) of the Constitution states that freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

This means that the burning of Bibles (or the Koran) would not constitute constitutionally protected speech if it advocated hatred and constituted incitement to cause harm. The Constitutional Court has not yet given a conclusive answer to what this might mean. Canadian case law suggests that the harm should be defined more broadly than physical harm. Acts or words that advocate hatred against a group based on their religion and that constitute incitement to cause serious emotional distress would also qualify as hate speech and would not be constitutionally protected.

Would the burning of Bibles or the Koran constitute incitement to cause serious emotional distress?  Well, it probably would cause serious emotional distress to devout Christians or Muslims if Bibles or Korans are burnt, but I am not so sure that one would be able to argue that the burning of these books would in itself constitute advocacy of hatred of people based on their religious beliefs. Such actions would be mean-spirited and would clearly be intended to hurt the seriously religious. But would one be able to interpret such a pathetic act as advocating hatred against Muslims or Christians? Would it not “merely” be a spiteful attempt to upset Christians (or Muslims)?

If one thought that it could be interpreted as advocating hatred, then one would be entitled to believe that the interdict would have been granted validly. If one thought that it could not, then one might have to conclude that the judge was wrong to grant the interdict.

But even then, this would not be the end of the matter as section 10 of PEPUDA prohibits any person from publishing, advocating or communicating words that could reasonably be construed to demonstrate a clear intention to be hurtful, to be harmful or to incite harm against individuals or groups, inter alia, because of their religion.

Here the definition is far broader than the hate speech provision in the Constitution – except that it seems only to include words and not other kinds of communication such as the burning of Bibles or Korans. One would have to interpret the phrase “advocating or communicating words” so broadly as to include actions - such as the burning of Bibles – where no words are spoken at all but where some communication takes place that signals an intention to hurt others on the basis of their religion.

I am not so sure that the phrase could reasonable be interpreted in such a broad manner. If it could be interpreted so broadly, then it would be clear that the burning of Bibles (or Korans) – a rather spiteful and childish act intended to upset others – would constitute hate speech in terms of PEPUDA and the court would have been correct to grant the interdict. If, however, one interprets words more narrowly to include only words (what a lawyerly phrase that is!) then section 10 would not apply to the burning of Bibles (or Korans) and the granting of the interdict might have been a mistake.

Unless, perhaps, the burning of the Bibles (or the Korans) would have incited people to commit violence. Could a court justifiably have granted an interdict because it was worried that the burning of Bibles or copies of the Koran would have been so provocative that it would have created a serious threat of violence by those offended by the burning of what they consider to be a holy book?

Would this have been a responsible and correct approach or would it have been rather problematic because it would have endorsed the religious intolerance of those who are so easily offended that they would resort to violence every time somebody does something nasty or hurtful relating to their religion? Should religious people not lighten up a bit and chill out and if they do not, should the court take this into account when muzzling free expression?

If we talk about a respect for difference and tolerance of religious diversity, does this not mean that religious believers must also show a tolerance and a respect for diversity towards those who wish to provoke them. I for one, will not rush out to buy a gun or gather my matches and necklaces to go out and kill Christians just because they rock up at my house to protest and to tell me that I am a pervert and that I will burn in hell.

In fact, I will blow them kisses and wave nicely – “one-two-three clutch pearls” – before smiling and getting ready for another wave – “one-two-three clutch pearls”(one can always learn something about how to behave in stressful situations by studying the Queen – of England).

But what is to be done when others are not as tolerant as oneself? Should a court take cognisance of that fact or should the court stand firm against all kinds of intolerance? For once I am not sure what I would have done in this case.  Should a judge prohibit the burning of Korans and Bibles because of the obvious intention behind such a move merely to hurt (rather than to communicate a political or religious message)? Or should a judge allow such a burning on the basis that religious believers should grow up and should learn to embrace the values of democratic tolerance?

WWYHD? (What would you have done?)

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