Constitutional Hill

January, 2013:

The influence of money on politics and the media robs us of our dignity

The spat between Premier Helen Zille and The New Age newspaper about the partial bankrolling of the paper by parastatals like Telkom and Eskom and the partial bankrolling of the DA by a company associated with the owners of The New Age is great fun to watch. It’s a bit like watching WWE SmackDown on television. You know the contestants are performing their allotted roles, but you cannot avert your eyes from the gaudy performances on the screen. Pity they are not addressing the most pressing problems related to the subversive influence of public and private funds on our political process.

We all know that money can buy an election. The recent US Presidential election cost a staggering 2.5 billion dollars. If Barack Obama had not raised over 1 billion dollars for his re-election campaign, he would never have been re-elected President of the United States.

One of the most important reasons why the ANC will remain electorally dominant for some time to come, is that it can raise hundreds of millions of Rand to pay for its lavish election campaigns. With the help of its Chancellor House front company and large donations by big business (who donate money to the ANC with the expectation that it would receive large tenders or policy favours in return) the ANC has become a money-spinning machine. The DA will also continue to improve its electoral performance as its access to patronage and power in the Western Cape and various cities and towns increasingly attracts big business donors who are eager to gain tenders or policy favours from the DA-led government or to avoid harsh criticism by the DA spin machine.

Yet, both the ANC and the DA refuse to reveal who their funders are. Both parties claim to support openness and transparency. But because it is in their immediate interest to avoid openness and transparency, they are not prepared to practice what they preach. There is no way in which we can know to what extent funders influence the policies and governance practices of these parties. Did the police decide to break up the Marikana strike because of the influence of Lonmin and other mining companies who, for all we know, might have donated large sums of money to the ANC? Did it decide to end its discussions on mine nationalisation because it was going to lose an important source of funding if it alienated the mining houses?

Can the muted response of the DA to the police massacre at Marikana be attributed to their need to keep potential mining companies sweet? Are they pushing for changes to our labour laws to reward big companies who would like to fire people without having to worry about the legal protections currently afforded to workers?

We will probably never know.

But money also influences elections in another important way. Money plays a role in determining the range of news and opinion voters are exposed to. That is why it is problematic that government departments and parastatals seem to keep The New Age afloat, despite the fact that this does not make any business sense. The governing party is trying to use its power and influence as governing party to try and buy good publicity through The New Age. This seems like a bad investment, as no one knows whether anybody is actually reading the newspaper. I tried to read it, but was put off by its novel strategy of publishing only the most boring and uncontroversial copy haphazardly thrown on to the page, seemingly without the assistance of a layout artist.

Public funds are also used to subsidise the SABC, which is by far the most important source of news and opinion for the vast majority of South Africans. And as the SABC is ANC aligned, it seldom reports on (or carries opinions about) things that would threaten the hegemonic political consensus on which the ANC’s political success partly depends.

This is not to say that the private media is truly “independent” and free from the corrupting influence of money. The private media mostly make their profits (if any) by selling advertising to businesses deeply invested in the ideology of the free market. The news reports and opinions in the media might be critical of individual companies, but will seldom threaten the hegemonic interests of big business. Moreover, the private media must target the audience whom advertisers would like to sell their products to. These middle class consumers of mainstream media are often steeped in a “safe consensus”, holding self-serving “common sense” opinions about the desirable economic system and about a range of other policy issues (without always knowing that they do so).

This allows private media outlets wanting to make a profit to provide a narrow spectrum of “diverse opinion” that cleaves narrowly to the middle ground. Reporting and complaining about ANC corruption is safe because many of the high-end consumers of news want to know about this, while many business leaders are instinctively suspicious of the ANC. But how often would the media point out that the logic of the free market condemns millions of South Africans to hunger and poverty? The mainstream media will also seldom report extensively on the lives of people living in rural areas, while often depicting the poor and marginalised as dangerous, irrational and violent, welfare scroungers or as pitiful but powerless victims in need of our patronising, LeadSA-inspired sympathy and our handouts.

With some notable exceptions (City Press at its best, the Daily Maverick on the Marikana massacre), the media serves the ANC-DA consensus uncritically, providing the illusion of carrying robust exchanges of opinions and ideas, while ignoring ideas and opinions (and failing to report stuff that many real people experience every day) when this would threaten the elite consensus about what ought to be important and how South Africa should be governed.

Underlying much of the reporting and opinion published in newspapers and broadcast on television is an assumption that important political contestation only happens within and between political parties. Social movements and grassroots organisations are largely ignored. The political elites almost never engage with the leadership of such movements and the media seldom report on grassroots mobilisation by communities in the far-flung corners of South Africa – until so called “service delivery protests” flare up and violence engulf places like Ficksburg or Sasolburg. For a few days after such an event stories about “mobs on the rampage” would appear, but only in exceptional cases do we read about the circumstances (and the political currents) that motivated communities to rise up against the state.

Of course, there is nothing inherently wrong with Business Day pushing its free market agenda or choosing not to publish long interviews with local protest leaders or striking mineworkers. Neither is there anything inherently wrong with The New Age pushing an anti-DA and anti Helen Zille agenda. The problem is that even if we wanted to, we would seldom be able to access news reports and opinions that do not serve the narrow ideological interests of the elites. There is little diversity of opinion in the media in South Africa. Really, if we are presented with a world in which we only have to choose between two options: the DA’s open opportunity society or the ANC’s semi-authoritarian state capitalism, then we have not really been presented with much of a choice at all.

If, as the Constitutional Court argued in several judgments, freedom of expression is important for a democracy, partly because the robust exchange of ideas and opinions help us to seek out and even find the “truth” (or at least our version of the “truth”), and allow us to become active citizens — free to make meaningful choices about who we are, how we want to live our lives and who to vote for — then the corrosive influence of money that produces a narrow band of facts and opinions in both the public and private media in South Africa do not serve the aims of free expression, nor of deliberative democracy.

Yes, it might serve the interests of the two major political parties (albeit unevenly), and it might serve the interests of the elites and of the business community — but that is only a small section of the 50 million people who live in South Africa. This narrow ideological focus of most of the media does not effectively empower citizens to live meaningful lives in which their dignity is promoted and they are provided with the tools to make real and informed choices.

No wonder that, on paper at least, the policy differences between the DA and the ANC are often related to style more than to substance. Both parties have adopted the National Development Plan as its policy Bible. Both believe that the state should play some role in addressing the unfair and unsustainable effects of past discrimination and exclusion. Both cosy up to big business — although for internal political reasons the ANC has to be nice to organised labour while the DA can bash the unions without alienating its donors.

Instead of providing us with more choices and more information, the influence of money on political parties and the media narrows down our choices and robs us of our dignity. This is not going to change soon — no matter how much money parastatals pump into The New Age.

Nkandla: irrational state-sanctioned corruption

The unfolding scandal about the use of more than R205 million of public funds to upgrade President Jacob Zuma’s private homestead serves as a perfect metaphor for what is wrong with the Zuma government, led by an former criminal accused in a fraud and corruption case. The bizarre secrecy and dissembling, the appeal to national security, the self-enrichment and the misappropriation of funds are the hallmarks of Zuma’s presidency. And as often have been the case in recent years, the judiciary may be the only body who is capable of providing an effective avenue for challenging the abuse of public funds in the Nkandla affair.

As I have argued before, it is generally not desirable for the judiciary to get involved in party political squabbles. Nor is it generally a good idea to ask the judiciary to overturn unwise decisions of the government or to try and stop the selfish and degenerate behaviour of politicians. But our courts have a constitutional duty to uphold and enforce the Constitution. When the venality of politicians become so egregious that it threatens the democracy itself, or poses a serious risk to the Rule of Law, the courts – acting as guardians of the constitutional democracy – may have no other option but to intervene when asked to do so.

There are at least two ways in which the courts could intervene to stop the continued looting of public funds. All we need is a man or woman with deep pockets to fund these challenges. Maybe one of the staunch ANC members, feeling guilty about being silent in the face of such abuse of power, could be persuaded to help. I would gladly donate my time and whatever skills I have.

First, if requested to do so, the Constitutional Court will almost certainly declare the apartheid-era National Key Points Act unconstitutional. The Act empowers the relevant Minister to declare any “place or area” a National Key Point if it “is so important that its loss, damage, disruption or immobilization may prejudice the Republic or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. The Act does not require the Minister to inform the public about which places or areas have been declared National Key Points and Police Minister Nathi Mthethwa has refused to list all national key points “for security” reasons. National Key Points are so secret that we are not even allowed to know where they are.

Section 10 of the Act prohibits any person from obstructing the owner of a Key Point from securing the National Key Point. (Incidentally, the owner of the National Key Point is supposed to secure that place or area “at his own expense”.) The Act also prohibits any person from providing any information “relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so”. If you breach this law, you face a prison sentence of up to three years.

The National Key Points Act therefore creates secret crimes and turns us all into potential criminals. In this Kafkaesque world, the law prohibits us from revealing security measures about a National Key Point, while also making it impossible for us to find out which places or areas have been declared National Key Points. For all we know, all open air toilets in Cape Town and elsewhere and all shopping malls in South Africa have been declared National Key Points and anyone who tells her friend where the security guard looking after the toilets or the mall is sitting is facing a three year prison sentence.

The Rule of Law is a founding value in the Constitution and in Dawood v Minister of Home Affairs the Constitutional Court confirmed that this value includes the requirement that legal rules had to be conveyed in a clear and accessible manner. This requirement that legal rules must be clear and accessible is more pressing in criminal cases, in order to avoid a situation where you could be deprived of your freedom and sent to jail on the basis of a secret law that you could not possibly have known about.

Second, the decision to allocate more than R200 million of public funds to upgrade the private house of a politician, may well be challenged on the basis that it is irrational. President Zuma has three different official residences that are well-protected and secure. If he feels scared or paranoid he can always go and stay in one of these three official residences where one assumes security is tight. Moreover, like every other President in our democracy, he will retire, at the most, after two terms in office. He will then live in a compound valued at more than R200 million. Shortly before he became President, the same property was valued at just over R400 000. In other words, it is as if President Zuma instructed the Treasury to write him a R200 million personal cheque, which officials then spent on renovating his house. Even Schabir Shaik did not have that kind of money to bribe President Zuma with. In short, the spending of R200 million of public funds at Nkandla is a form of state-sanctioned (and defended) personal corruption.

The Constitutional Court has said that the Rule of Law requires the President and all other public officials to exercise their powers in a rational manner. In Prinsloo v van der Linde the Court explained that public officials should not act:

in an arbitrary manner or manifest “naked preferences” that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state….. This has been said to promote the need for governmental action to relate to a defensible vision of the public good…

If the official action is not taken to pursue a legitimate government purpose, or if there is no rational relationship between the legitimate government purpose and the official action, the action is in conflict with the Rule of Law and therefore unconstitutional and invalid.

On Sunday Publics Works Minister Thulas Nxesi claimed that “only” R70 million of the more than R200 million was used for security related upgrades at Nkandla. This presumably includes the cost of the underground bunker as well as the cost of bullet proof windows. More than R135 million was used for “operational needs for state departments”, which includes the cost for a private clinic and other “accommodation”. Money was also used for a private lift, a tuck shop, an Astro Turf soccer field, two guard houses, refuse and electrical rooms, electrical supply, sewer treatment plant, relocation of families forcibly removed from their homes to make way for the Nkandla expansion, the upgrade of water supplies, an entrance by-pass, an entrance road and, last but not the least, a cattle culvert.

Upgrading security arrangements to protect the President would almost certainly be considered to be a legitimate government purpose. The government therefore pursued a legitimate government purpose when it authorised the spending of over R70 million at Nkandla. Whether there was a rational relationship between the legitimate government purpose and the astronomical spending of R70 million is another matter. Can one say that there is a rational connection between the aim of protecting the President by building a bunker under his private home, given the fact that we are not at war with any country and given the fact that his official residences must include the kinds of facilities now replicated at his private house – all at state expense? I doubt it, but I am open to be persuaded otherwise.

But it is the spending of R130 million on “operational expenses” that is never going to fly and must clearly be irrational. These expenses had the sole aim of enriching Zuma and providing him with a huge compound of buildings and other facilities (including a clinic, water plant, sewer treatment plant and a tuck shop) – all paid for by the state. This kind of spending cannot possibly be said to “relate to a defensible vision of the public good.” Is it a defensible vision of the public good that the President be treated differently from every other citizen? How does one defend this spending as demonstrating an acceptable vision of the public good in a democracy when the money was used to doll up the private home of the President by adding a tuck shop, an Astro Turf and a cattle culvert; by adding a private lift and electrical rooms; by building a private sewer treatment plant? (I recall that in some municipalities our people still use the bucket system – and unlike the President they do not earn R2.4 million Rand with which they can build their own toilets.)

The answer can only be that there was no legitimate reason to use state funds to effect this improvements of President Zuma’s compound. If President Zuma wants a private lift or a sewer plant at his private home, he is required to pay for it himself – like every other private citizen in South Africa. Being President does not allow him to dip into public funds to enhance his com fort at his private home. He is not our king or queen and neither is he President-For-Life. President Zuma is merely another politician on the take. His term of office will eventually come to an end, after which he is entitled to a state pension. Unless he is impeached for a serious violation of the Constitution or the law or serious misconduct – in which case he will receive none of the benefits that usually accrue to a former President.

There is no legitimate purpose for spending R130 million of public funds on Jacob Zuma’s private home to enhance his comfort at his private home. The spending is therefore irrational and unlawful and a court could declare it so and order the President and/or the Minister to repay the R130 million to the state.

Nkandla: it depends on the definition of “corruption”

At first glance Public Works Minister Thulas Nxesi’s latest explanations on government spending at President Jacob Zuma’s Nkandla home does not make any sense. According to Nxesi a government investigation has allegedly both revealed that the state paid over R206 million for the upgrade of Nkandla “so far” (R71 million of that for “security upgrades”), and found “no evidence that public money was spent to build the private residence of the president or that any house belonging to the president was built with public money”. But Nxesi might not have contradicted himself — it all depends on how one defines terms like “build”, “private residence” and “belong”.

When former President Bill Clinton tried to explain in 1998 during his grand jury testimony on the Monica Lewinsky affair why he had not lied to his top advisors, despite having assured them that “there is nothing going on between us”, he famously said that it all “depends on what the meaning of the words ‘is’ is.” Later, when asked if he was ever alone with Lewinsky he said: “It depends on how you define alone…”

Clinton was widely ridiculed for his lawyerly parsing of words. Nxesi is surely also going to be derided for claiming that although the state had spent more than R135 million on non-security related upgrades at Nkandla, none of this was spent to build the private residence of the President. I will leave it to the comedians to mock Nxesi. Instead, I propose to parse his word in the best lawyerly fashion, before determining whether it was lawful to spend over R200 million on construction at the private residence of the President.

Of course, we do not know what is really contained in the report of the government task team set up to investigate the spending at President Zuma’s private home at Nkandla. Nxesi is refusing to release the report for “security” reasons, which means we should treat his most recent statements about the matter as no more than allegations. But assuming these allegations are true, this is what I suspect Nxesi might have meant.

Nxesi originally claimed that the government only spent money on security upgrades at Nkandla. He now admits that his previous claim was false. According to Nxesi, the government allegedly spent just over R71 million on “security upgrades” at Nkandla. Over R20 million of this was allegedly spent on private security consultants. (By the way, the use of private consultants suggests that our government is not very serious about President Zuma’s security. Who says these security consultants won’t sell information about the security measures at Nkandla to a foreign government or to the Boeremag? These consultants obviously know how to make a fast buck, so there are no guarantees that they will keep their special knowledge secret.)

Nxesi now claims that the government allegedly spent a further R135 million on non-security related construction at Nkandla, but none of it was allegedly used to build the private residence of President Zuma or on any of the houses that belongs to him. How can this be true?

It can be true, first, if one adopts an innovative definition of “build” to include only houses built from scratch. This definition of “build” would exclude any cost related to the upgrade or extension of existing houses. For example, installing gold taps or electrically heated toilet seats in his residences, or adding a few rooms to an existing structure at Nkandla, would then conveniently not fall within the definition of “build”.

Second, it can be true if one assumes that a “private residence” is only the main house where the President normally sleeps and works. Other houses in the Nkandla compound — where the family watches TV, or where his wives, children, extended family sleep — would then conveniently not be viewed as his “private residence”. That would mean that some of the R135 million was used to build many other houses at Nkandla for the private use and benefit of President Zuma and his family but these would then not be viewed as his “private residence”.

Third, Nxesi might have meant that although R135 million was spent to build several buildings at Nkandla and that many of them are exclusively used by Zuma and his family, these buildings do not “belong” to Zuma, because they were built on communal land and are not legally registered in his name at the deeds office. It could also mean that he had ceded the houses to one of the Gupta’s or to First National Bank, who allegedly was kind enough to break the rules and register a bond over the property despite the lack of a title deed.

Does this clear things up? Perhaps not, as there is still the little matter of the Ministerial Handbook, the go-to Bible of our Ministers and MEC’s. The Handbook states that:

The Department of Public Works will be responsible for making available general cleaning services in private residences used for official purposes. Members are responsible for all costs related to the procurement, upkeep and maintenance of private residences used for official purposes.

But, dear readers, there might be a loophole in the Ministerial Handbook, as it defines a “Member” as any “Minister, Deputy Minister, Premier, Member of the Executive Council (MEC) and a Presiding Officer/Deputy Presiding Officer in Parliament”. One can therefore argue that as far as the Handbook is concerned the President is not a “Member” (no sniggers) and that the state is therefore not bound by this strict prohibition on the use of state funds for the procurement or upkeep of his private residence. While it is obviously unconscionable for the state to spend R135 million on upgrading the private property of the President, one might argue that the Ministerial Handbook does not prohibit this. Just like the Bible sanctions the keeping of slaves, the Ministerial Handbook might sanction the use of public funds to enrich the President.

Perhaps the drafters of the Ministerial Handbook assumed that the President could be trusted not to waste R200 million of public funds on his own comfort while many of our compatriots languish in poverty. If one cannot trust the President (who earns a R2 million salary and eat and live for free) to put the interest of the poor above his own interest, who can one trust to do so?

Ironically, this potential loophole does not seem to be available to justify the spending of R71 million of public funds for security upgrades at President Zuma’s private residence at Nkandla. This is so because Annexure E to the Handbook limits the amount of public funds that can be spent on security upgrades of the private house of a “Public Office Bearer” if it is being used as an official residence to the “maximum amount of R100 000, or the total cost of security measures not exceeding R100 000”. One cannot really get language more precise and clear than this.

President Zuma might not be a “Member”, but — as I have argued before — he almost certainly is a “Public Office Bearer” and is therefore bound by the R100 000 limit imposed by the Ministerial Handbook for state sponsored security upgrades of a private residence being used for official purposes. As the President is a member of the cabinet and is empowered by the Constitution to exercise public power as head of the executive, it would make no sense if he was not included in the definition of “Public Office Bearers”. This view is strengthened by the fact that the Remuneration of Public Office Bearers Act of 1997 regulates, amongst other things, the determination of the salary of the President by the Commission for the Remuneration of Public Office-Bearers.

In any event, if we leave the lawyerly parsing of words aside for the moment, the one big question that no one has been able to answer is this: how can anyone ethically justify the use of R250 million of public funds on the enrichment of President Zuma? Is it not, as a matter of plain decency, unconscionable that so much money is spent on the private home of an elected politician who might be voted out of office in 2014, while that money could have been used to build houses for the poor, provide textbooks for learners, build a new University, or improve health care for those who cannot afford medical aid?

In short, when the President and his enablers decide that it is better to spend over R200 million on improving the life of the President rather than to spend it on improving the lives of the millions of South Africans who rely on the state to help them gain a semblance of dignity, what does that say about the character of the President and those who justify and defend this wasteful expenditure or remain silent about it?

Reaction to FNB advert like Lady Macbeth’s guilty rants

It is never a good sign when an organisation or individual completely overreacts to perceived criticism. As the simmering discontent of South Africa’s underclass boils over into open revolt and violence and as corrupt shoot-to-kill cops are increasingly deployed in places as far flung as Marikana, De Doorns and Sasolburg to protect the old and new elites from the wrath of the dispossessed, some politicians are increasingly resembling Lady Macbeth, driven by their guilt and shame to commit ever more heinous misdeeds. The hysterical and often undemocratic response of various ANC and SACP structures to the silly First National Bank (FNB) advertising campaign is a case in point.

In Shakespeare’s “Macbeth”, Lady Macbeth urges her husband to kill Duncan, the king, to allow Macbeth to satisfy his ambitions of becoming king. She overrides all of her husband’s objections by challenging his manhood and he relents and kills Duncan. Later Lady Macbeth becomes racked with guilt and sleepwalks through the palace, haunted by the murder of the former king. In this trance she tries to wash off imaginary bloodstains from her hands, shouting: “Out, damned spot! Out, I say!—One, two. Why, then, ’tis time to do ’t. Hell is murky!—Fie, my lord, fie! A soldier, and afeard? What need we fear who knows it, when none can call our power to account?—Yet who would have thought the old man to have had so much blood in him.”

The response of the ANC, the ANC Youth League and the SACP to the FNB campaign resembles the attempts of Lady Macbeth to clean imaginary bloodstains from her hands.

What need we fear who knows it, when none can call our power to account?”

The FNB campaign includes videos of young South Africans apparently speaking their minds. In one of the videos a participant says: “Stop voting for the same government in hopes for change – instead, change your hopes to a government that has the same hopes as us.”

The ANC Youth League and SACP joined the ANC in slamming the campaign, with the league saying it was “deeply angered and disappointed” by the bank’s “treacherous” campaign. On Sunday, Youth League spokeswoman Khusela Sangoni-Khawe said FNB had failed in trying to “recreate an Arab Spring of some sort in South Africa” and said it “uses children to make unproven claims of a government rife with corruption. We call upon South Africans to close ranks against what is a treacherous attack on our country.”

ANC spokesperson Jackson Mthembu said the ANC (who is never directly mentioned in any of the videos) was “appalled” by the campaign in which the ANC, its leadership and government were “under attack” the campaign was an “undisguised political statement that makes random and untested accusations against our government in the name of discourse. While we believe that people are entitled to their views, we don’t accept that young kids should be used as proxies to articulate political views espoused, as in the case of the FNB advertisement.”

Out, damned spot! Out, I say!”

These vehement reactions to what appear to be rather mild criticisms of the government and platitudes about one’s right to vote for the party of one’s choice (widely accepted in any functioning democracy) are curious for several reasons.

First, whatever one might think of FNB and its advertising campaign (and I am not a fan of the campaign or of the lily-livered manner in which the bank caved in to political thugs), the manner in which several ANC and SACP spokespersons conflated the ANC with the state and with the country is worrying. The ANC is not the state. Neither is it the sole representative of the South African people. South Africa, in the words of the Freedom Charter, belongs to all who live in it – it does not belong to the ANC. Like any political party, the ANC deserves to be praised when it does something well and deserves to be criticised when it abandons the poor that it professes to love and serve.

Second, the statement that the FNB campaign is treacherous and tries to recreate the Arab Spring, is anti-democratic and – I am sorry to have to use such an emotive term – proto-fascist. There is nothing wrong with telling people that they should refrain from voting for the governing party. Voting for whomever one pleases is at the heart of political freedom in a democratic state. Every democratic election is based on a fair and free contestation between political parties in which we are all allowed to express our preferences.

We are also all free to try and convince others to vote for the ANC, to vote for the DA, or to vote for the TP (Tender Party), for that matter. It is probably not a great business model for a Bank to get involved in an advertising campaign that might alienate the majority of voters, but if it does, there is nothing treacherous about it. If FNB had not pulled the adverts I might even have lauded the bank for putting its principles (which one may agree or disagree with) before naked profits.

The Arab Spring refers to various uprisings organised by oppressed populations in countries where citizens did not enjoy political rights and where democratic contestation and free and fair elections could not be held. To refer to an advertising campaign in which a teenager urges people in South Africa to vote for the party of their choice as an attempt to recreate an Arab Spring, suggests the ANC Youth league believes that South Africa is not a democracy, that its citizens are oppressed and do not enjoy political rights and that they will never be allowed to change the government by using their vote. Like Lady Macbeth wandering in a trance and trying to wash off imaginary bloodstains from her hands, the ANC Youth League is revealing rather more than it intended about its own undemocratic tendencies. Pity Jackson Mthembu will not display the same sense of outrage about this full-frontal attack on our democracy.

Whether one is a staunch ANC supporter or a supporter of the right wing Freedom Front Plus, if one supports democracy one will not be appalled by the fact that an institution has dared to criticise a political party. Only proto-fascists would be appalled by the fact that a bank has dared to broadcast statements criticising the government.

One might, of course, disagree with the sentiments expressed by the youngsters in the FNB produced videos, and the ANC has every right to express its disagreement with some of the statments made by the youngsters. But claiming that the sentiments are treacherous or that it is not legitimate to criticise the party displays the kind of undemocratic intolerance that cannot be associated with a party who supports democracy.

Personally I find that it is better to ignore attacks that are far-fetched or motivated by racism, hatred or a complete lack of information. That is what I do when I am criticised for something I have written. “Don’t feed the trolls,” I tell myself every time I read the unhinged invective of faceless loonies on my Blog. If the criticism is serious, one either responds to it by pointing out why and how it is wrong, or one takes it on board and changes one’s behaviour. Just a thought: use it, don’t use it.

One does not tell those who criticise that they are committing treason or that they are attacking the state merely because one happens (for the time being) to be the party of government.

I was reluctant even to enter this discussion, not because I am fearful of repercussions, but because what I have written here is so obvious and because all this fuss about a bank’s advertising campaign detracts attention from the far more important social and economic issues facing the country.

Maybe that is why the campaign has attracted such hysterical responses from the ANC and its partners. Like Lady Macbeth, whose paranoid dreams symbolises the fact that she is haunted by her guilt, the ANC reaction is perhaps a symptom of the fear and guilt that stalks the political class in South Africa. As Marikana, De Doorns and Sasolburg have shown, the poor, economically excluded and marginalised members of society have not benefited as handsomely from the end of apartheid as the members of the old (mostly white) and emerging (mostly black) middle classes.

While those in the chattering classes squabble about silly adverts made to promote the commercial interests of a big bank and argue whether these adds exploit children, many of those same children are dropping out of school or receiving a third rate education because of the cowardice of politicians who are too scared to take on a powerful union. While I write about the nature of democracy, members of social movement are harassed and tortured by the police. While Helen Zille spends her days on twitter, blaming the poor for the lack of services in their communities in Cape Town, millions of South Africans go to bed hungry, wondering whether this wonderful democracy will ever guarantee them a full stomach.

Judicial appointments: The JSC’s transformation problem

When the Judicial Service Commission (JSC) interviews candidates for appointment to various courts, many of its members seem to be passionate about its mandate to promote transformation within the judiciary. But this appears to be a rather narrow and stunted passion, often focusing on the replacement of old guard (white) patriarchs, with new order (white and black) patriarchs. Changing the racial aesthetics of the judiciary (within limits) often seems to take precedence over the need to change the prevalent legal culture, a culture which allowed most apartheid-era judges to claim that their job was merely to apply the law — no matter how unjust, racist or oppressive — in a “neutral”, “objective” and “impartial” manner. The way in which the JSC is currently dealing with the filling of a vacancy on the Constitutional Court, does nothing to challenge this impression.

The Constitutional Court is an important institution with immense powers. It can declare invalid Acts passed by the democratically elected Parliament. It can also nullify the unlawful or unconstitutional actions performed by the President. The judges are not elected. They earn their legitimacy and authority from the cogency, dynamism and logic of their judgments as well as their ability to marry a certain pragmatic respect for the separation of powers doctrine with a willingness to make principled decisions not swayed by the political pressures exerted on them by unscrupulous politicians and powerful business lobbyists. This is not an easy task, but it is made more difficult when more than 50% of the population is not adequately represented on the Court.

Currently, only two of the eleven judges on the Constitutional Court are women. For a while there were three women on the Court, but in our patriarchal society it is no surprise that this state of affairs did not last.

For the latest appointment the JSC shortlisted five candidates for interviews — all five of them male. The list is not particularly inspiring — except, perhaps, if one is a patriarchal traditionalist with strong views about the purity of the common law and the limited role judges should play in interpreting the Constitution and the law. If on believes that Constitutional Court judges have an important role to play in the promotion of a progressive, transformative, vision of society through their interpretation of the Constitution and their development of the common law and customary law, the shortlist of nominees may not inspire or excite.

Judges Selby Baqwa; Lebotsang Bosielo; and Brian Spilg are all competent lawyers, but none of these judges have (as far as I can tell) demonstrated any progressive streak or deep insight into the ways in which our legal culture could and should be transformed. Advocates Jeremy Gauntlett and Mbuyiseli Madlanga are both good advocates, but I suspect they suffer from the same deficit than the nominated judges: a lack of legal imagination and daring and a lack of enthusiasm for the transformation of the legal system.

Surely, we should appoint more judges who will use their considerable legal skills to develop and mould the common law and customary law legal rules to ensure that these rules do not disproportionately benefit the powerful and the well-connected inside government, in big business and within the traditional leadership structures? Can we really say that a legal system is fair when most people cannot afford to employ the services of even a mediocre lawyer and when most judges do not subject legal rules to sustained ideological questioning, even when these rules often tend to benefit those who can afford to pay R20 million for a Buffalo or for the services of a team of highly paid advocates? And how many of the shortlisted candidates have a deep commitment to feminism and insight into the manner in which seemingly neutral legal rules often promote the interests of men (and male domination) in our society?

Sadly, I am not sure that either the JSC or President Jacob Zuma will take into account such issues during the appointments process. The Constitution prescribes a different process for the appointment of Constitutional Court judges than for the appointment of other High Court or Supreme Court of Appeal (SCA) judges. The JSC has the final say on the appointment of ordinary judges. But when a vacancy occurs on the Constitutional Court, the JSC must conduct interviews and then prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. When there is one vacancy — as there is now — the JSC must therefore submit a list of four names to the President. The President can then appoint one of the four candidates nominated by the JSC after consulting the Chief Justice and the leaders of parties represented in the National Assembly.

During the previous round of appointments, the list of four names included one excellent woman candidate. However, President Zuma appointed a (legally) more conservative male above a (legally) more progressive woman candidate. Not that this came as a surprise: the President was merely exercising his political discretion in accordance with his own ideological disposition, choosing a male judge that would not push for radical legal transformation above a female judge who might have been slightly more progressive.

I am, of course, not arguing that women candidates for appointment to the judiciary will always be more progressive or more prepared to pursue a vigorous transformative agenda than male judges. Just as Margaret Thatcher had shown that a woman Prime Minister could be even more reactionary and bigoted than her male contemporaries, so the extra curial writing of judge Carol Lewis have demonstrated that a female judge on the SCA will not necessarily be more enthusiastic about judicial transformation (in either the narrow or broader sense) than her male counterparts.

There are two issues at stake here. The first is about the constitutional injunction that when making judicial appointments the need for the judiciary broadly to reflect the racial and gender composition of South Africa should be taken into account. A failure to take heed of the disproportionately small number of women judges on the Constitutional Court, would suggest that — for reasons of retaining patriarchal dominance and privilege — this constitutional injunction is only respected as far as race is concerned. Although the President has the final say on who gets appointed to the Constitutional Court, voters — including all of us who take gender equality seriously — have a right and a duty to criticise the President if he fails to take heed of the imperative of gender transformation on the bench. The second issue relates to the need to appoint judges (male and female, white and black), who are passionate about transforming the legal system to make it more just and equitable, and less in service of the rich and the powerful men in our society.

Given the fact that all five candidates to be interviewed for the one vacancy on the Constitutional Court (left by the departure of Justice Zak Yacoob) are men, the JSC will send a list of 4 male nominees to the President to choose from. The President is, of course, not obliged to appoint anyone from this list of 4 names. He can advise the JSC that some of the nominees are not acceptable and provide excellent and justified reasons for this view, after which the JSC will have to supplement the list.

This means President Zuma can tell the JSC that, given the requirement contained in section 174(2) that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”, the absence of any women on the list is unacceptable. If he did this, the JSC would then have to produce more names that include those of appointable women candidates, of which there are several. But I am not holding my breath.

Of course, why the JSC decided not to re-advertise the Constitutional Court vacancy when it saw that no credible women candidates were nominated, tells another story about the JSC’s lack of commitment to real judicial transformation.

Why the criminalisation of consensual sexual exploration between teenagers is unconstitutional

Is it in the best interest of children to turn up to 80% of them into potential criminals? Is it constitutionally acceptable for teachers, principals and parents to abdicate their responsibility to educate children about sexual matters by potentially criminalising all forms of kissing, cuddling, touching and other forms of sexual exploration between children, despite the fact that such behaviour are ordinarily associated with the normal physical and emotional development of children? Thankfully, Judge Piere Rabie of the North Gauteng High Court this week ruled that it would not. Predictably, the sexual perverts and prudes who see sex as something dirty, disgusting and corrupting are up in arms. This is why they are wrong.

The High Court was asked, among others, to consider the constitutional validity of section 15 and 16 of the Sexual Offences Act. These sections prohibit 12 to 15 year old adolescents from engaging in voluntary and consensual conduct with one another that would include anything from kissing, holding hands and light petting, to oral sex and other forms of sexual intimacy including sexual intercourse, if there is more than a two year age gap between them. If a child of 15 kisses a child of 13 both commit an offence. However, if a child of 17 kisses a child of 15 only the 17 year old can be prosecuted. The Act therefore provides an incentive for children younger than 16 to engage in sexual activities with people older than 16.

The Act also states that when a child deceives an accused into believing that he or she is already 16, then the older child or adult will not be guilty of an offence. This means that when a girl pretends to be 16 (but is, in fact, 15) and has sex with a 16 year old boy (or kisses that boy), neither of them could be prosecuted. However, if the same 15 year old girl has sex with (or kisses) a 15 year old boy, both could be prosecuted because the exception does not apply to children younger than 16.

The Act further places a legal duty on any person who has knowledge that any of these sexual offence have been committed against a child must report such knowledge immediately to a police official and failure to do so constitutes an offence for which the person is liable on conviction to a fine or to imprisonment for a period not exceeding five years. This means that where a 15 year old boy informs his mother that he has kissed a 17 year old girl, his mother will potentially become a criminal if she does not report her child to the police.

The Act bestows a discretion on the NPA to decide on whether to prosecute the children, but requires the NPA to prosecute both parties involved in the sexual activity if they are both younger than 16, regardless the circumstances. However, the Act does not provide any guidelines for how this discretion should be exercised, meaning that the enforcement of these criminal prohibitions will necessarily be selective and arbitrary.

According to statistics submitted to court between 39% and 80% of adolescents surveyed in Cape Town and Polokwane had engaged in kissing; between 25.8% and 33.8% had engaged in heavy petting; and between 15% and 26.8% had engaged in vaginal sex. The reality is that most adolescents experiment with their sexuality and this is recognised by our law.

Thus, in order to protect adolescents against HIV infection and pregnancy, section 134 of the Children’s Act prohibits any person from refusing to sell condoms to a child over the age of 12 and requires the provision of condoms to all children over the age of 12 on request where such condoms are provided or distributed free of charge. Contraceptives other than condoms may be provided to a child on request by the child and without the consent of the parent or care-giver of the child if the child is at least 12 years of age. The Choice on Termination of Pregnancy Act further provides that “no consent other than that of the pregnant woman shall be required for the termination of a pregnancy”, meaning that any 13 year old is entitled to terminate her pregnancy without knowledge or consent of her parents or caregivers.

The expert evidence submitted to the court indicated that “given their developmental stage and their developmental tasks, it is not unusual or necessarily unhealthy and harmful for adolescents to engage in sexual behaviours as they begin to learn about their sexuality and become more mature in several life domains.” Experts defined “healthy” sexual behaviour as “behaviour that is mutually consensual, wanted desired, non-violent, safe (in terms of using methods to minimise risks of STI transmission and pregnancy), and for which the individual feels emotionally and physically ready.” Different children will obviously be ready for different forms of sexual exploration at different stages of their lives. The best possible way to help children deal with their sexual development in a healthy manner is to ensure that they seek out advice and help from appropriate individuals.

If one criminalises consensual sexual acts, this will discourage adolescents from seeking help with respect to their sexuality, because they may then be prosecuted for such behaviour and because it reinforces the social stigmas and taboos around sexuality. Because the Act silences and isolates adolescents regarding their sexual exploration, it makes unhealthy behaviour and poor developmental outcomes more likely and does not advance the best interest of children as required by section 28(2) of the Constitution. As the court pointed out:

This would also increase the likelihood that adolescents will engage in risky behaviour by making it impossible for caregivers to provide advice, counselling and support on issues regarding the child’s sexuality. Such caregivers would obviously also, from their side, be reluctant to enquire too much and would thus be inhibited in their actions, and actually be prevented from performing their duties as they are supposed to do. The existence of the offences also increases the risk that children will experience unhealthy sexual contact, by teaching them that consensual, developmentally normative sexual behaviour is wrong and deserves to be punished.

There is an even bigger problem with the impugned provisions: it may discourage rape survivors from reporting the rape. Because it would be far easier for the NPA to prove consensual sex occurred between the minor and an adult, than it would to prove rape occurred, there is a danger that the NPA will tend towards pursuing a charge of consensual sex.  Where the alleged rapist is under 16 years old, the victim of the possible rape must herself also be charged with contravening section 15. It would then be for her to prove that the sex was non-consensual and thus avoid conviction under section 15. Failing this, she would be convicted.

The problem with these provisions is that it treats children not as individual social beings. Instead, in an attempt to impose a narrow, moralistic, view of sexuality not in line with the  lived experience of children, it runs the risk of turning many children into criminals for no other reason than that they explored healthy  sexual behaviour as part of their normal development as human beings. To emphasise this point, the High Court quotes from the Constitutional Court judgment in S v M (Centre for Child Law as Amicus Curiae) where the purpose of the children’s rights guaranteed in section 28 of the Constitution is described as follows:

Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood.

As with all High Court orders declaring invalid legislative provisions, the order of invalidity will not come into effect until it is confirmed by the Constitutional Court. For the time being, it thus remains a criminal offence for a 15 year old to kiss or hold hands with a 13 year old, which might come as a relief to some parents who believe the criminal law should do their parenting for them, but is not in the best interest of children exploring their sexual awakening in the normal and healthy manner.

Why there are no authentic Africans, Afrikaners, women or homosexuals

The re-emergence of a virulent form of identity politics poses a serious threat to South Africa’s democracy and the freedom of its citizens. Wherever one turns there are people who insist that there is one authentic way to be African, Afrikaans, Zulu, Xhosa, gay or lesbian, white, black, heterosexual, Jewish, Christian, Muslim, or atheist and that if one does not conform to one of these essentialist stereotypes one is somehow inauthentic and fake, not worthy of being shown respect and of being taken seriously. Identity is thus used to try and silence critics, to enforce conformity and obedience within the group and to banish those who refuse to perform their “essential” identities from the policed group itself.

Growing up as a white Afrikaans boy in the threatening shadows of apartheid, I was often told that certain beliefs and actions and certain people were “volksvreemd” (alien to the “Afrikaner nation”). Beyers Naude, Bram Fischer and Frederick van Zyl Slabbert were volksvreemd. Listening to “Queen”, “The Rolling Stones” and “The Beatles” were volksvreemd – unless one played their songs backwards to identify the dangerous messages from the devil supposedly contained in them in order to confirm how volksvreemd these bands really were. Being an atheist or criticising National Party leaders like BJ Vorster and PW Botha were volksvreemd. Dancing on a Sunday and being a moffie were volksvreemd. Marrying an Engelse meisie or, god forbid, sleeping with somebody classified as “coloured” or “African” were beyond volksvreemd. And, of course, opposing apartheid and supporting the struggle against it was definitely volksvreemd.

Some people were devastated when branded as volksvreemd. (Others rather revelled in being excommunicated from the very “tribe” in charge of perfecting apartheid.) Volksvreemdes were often shunned by family and friends, ridiculed and shamed, told that they were not “true” Afrikaners (whatever that might be). Their views could therefore be ignored, laughed at or branded as “dangerous” or “inauthentic”. At best, they would be pitied for having lost their way. At worst, they would be banished.

The Afrikaner establishment thus attempted to police the thoughts and behaviour of white Afrikaans speakers to ensure that not too many of us would become critical of the government or ask too many questions about the injustices of the world we lived in and from which we benefited socially and economically. We were told that there was only one “right” way to think about our world and our place in it and one “right” way to live if we wanted to be viewed as authentic Afrikaners.

I was recently reminded of this oppressive past by several public statements. President Jacob Zuma was reported as saying that black people should not keep dogs as pets because it is “un-African”. Then Gillian Schutte, in a widely read open letter, called on “white people” to recognise that by jumping in on national debates “that do not concern them” they are usurping a platform for “authentic black voices”. And yesterday ANC spokesperson Jackson Mthembu attacked Lindiwe Mazibuko for criticising President Jacob Zuma who said that one’s business will multiply if one donated money to the ANC by stating that Mazibuko is “naive when it comes to African traditions” which she cannot relate to. “It is our tradition as Africans that if someone gives you something, in return you thank him/her and wish them prosperity and abundance,” Mthembu said in a statement.

What all these comments may have in common, it seems to me, is that they accept that there is a “right” way and a “wrong” way to be African and that those who are “real” Africans are worthy of respect and to be listened to while those who are not, can be ridiculed and dismissed as being un-African or need not be taken seriously. One either has an authentic black voice or one is inauthentically black (whatever that may mean). One is either a true African (who likes people more than dogs, embraces a certain traditional culture and rewards those who look after you) or one is un-African and therefore lacks credibility, authenticity and any authority to be taken seriously.

Some commentators even imply that the authentic, “truly African”, identity ought to be strictly policed and that those who do not conform (because they have become “too white”, because they twang when they speak English, because they sleep with members of their own sex, because they have become too critical of their elders or the leaders of the ANC) must be expelled from the group and branded as “coconuts” (sorry for having to use this offensive term), or race traitors.

Although I am referring to African identity, I could just as easily have used examples showing how the identities of women, gay men and lesbians, Afrikaners, or Jews are policed. A woman who does not like to cook for “her man”, or wears a miniskirt or is not monogamous is suddenly not a “real” woman. A gay man who knows nothing about Judy Garland or does not support same-sex marriage is suddenly told that he is in denial about his sexuality. An Israeli who criticises the occupation of Palestine becomes a self-hating Jew. An Afrikaner who supports the ANC once again becomes a volksvreemde verraaier.

By complaining about the oppressive and disciplining power of essentialised identities, I am not denying the fact that there are sometimes strategic benefits to be had from pretending to belong to a more or less stable and fixed identity group. Claiming to belong to a marginalised identity group helps us to resist oppression and marginalisation and to challenge the economic and social dominance of the privileged group, whose inferior opposite we have been defined as.

That is why, for strategic reasons, some of us resist homophobic oppression by invoking our identities as gay men and lesbians – even as we know that there are a million ways to love and desire members of the same sex. Some of us insist that it is important to address the effects of past and on-going racial discrimination by pretending that there is an easily identifiable group called “Africans”, and that this category can be used to implement effective and necessary redress policies – even as we know that there are a million ways in which such “Africans” can choose to live their lives.

Ironically racism thrives on the assumption that all people who are black (or all people who are white, for that matter) are exactly the same; that they have no individuality; and that people who belong to the despised race possess no personal attributes and characteristics not associable with their race. That is why the strategic use of identity categories will not be without its problems and dangers.

Given the fact that identities are always based on a “them” and “us” logic, and given that there is always a hierarchy of dichotomous identities (heterosexual vs. homosexual; black vs. white; male vs. female) which allows members of the dominant identity group (whites; heterosexuals, males) to exploit their cultural, social and economic dominance and to benefit from it, this kind of exploitation and oppression will only end if we manage to destabilise or even destroy the logic of (and the belief in) essentialist notions of identity categories such as race or sex or sexual orientation. The paradox is that we need racial (and other) identity categories to resist racial (and other forms of) oppression, even as we run the risk of thereby perpetuating the very system that we need to destabilise or even destroy.

The only way out, so it seems to me, is to challenge the notion that there is one authentic or true or inevitable way in which one is supposed to be African, to be gay and lesbian, to be white, to be a woman. One should note that the only thing one really always has in common with all other members of any of the identity groups that one might associate with is the shared experience of either the oppression and marginalisation caused by the prejudices of others or by the shared experience of benefiting from being seen as a member of a dominant identity group.

The rest is all drag.

Who must decide on school admissions?

It is an uncontested fact that there are vast disparities in the quality of education provided to children at different public schools in South Africa. Although there are some laudable exceptions, the quality of education provided at schools in more affluent areas is generally far better than the quality of education provided at schools situated in poorer areas. Given the lingering effects of apartheid town planning and racial dispossession, this means that schools formerly exclusively reserved for white children often produce the best results. How to address this injustice has become one of the most intractable but emotionally laden issues in South Africa.

The legal battle between the Governing Body of the Rivonia Primary School and the Department of Basic Education about who may determine the number of learners a school may admit, occurs against this problematic backdrop. However, the suggestion that the battle over the admission of the grade 1 pupil to Rivonia Primary School would never have reached the courts if the mother of the child was not politically well-connected (apparently having direct access to the Gauteng MEC for Basic Education) and the fact that she demanded special treatment for her child, further complicates the matter.

Late last year the Supreme Court of Appeal (SCA) ruled that the South African Schools Act grants the right to determine the number of learners to be admitted to a school to that school’s Governing Body, not to the MEC. Relying on section 5(5) of the Act, which states that “the admission policy of a public school is determined by the governing body of such school”, Cachalia JA (writing for a unanimous bench of 5 judges) dismissed the arguments from the Department of Basic Education that sections 3(3) and 3(4) of the Act granted the power to determine the number of children to be admitted to each school to the MEC.

Section 3(3) obliges the MEC to “ensure that there are enough school places so that every child who lives in his or her province can attend school . . .”. Section 3(4) obliges the MEC, if he or she cannot comply with subsection (3) because of a lack of capacity existing at the time of commencement of the Act, to “take steps to remedy such lack of capacity as soon as possible” and to “make an annual report to the Minister on the progress achieved in doing so”. Relying on a so called “plain reading” of these sections, the SCA stated that these sections were concerned with the MEC’s obligation to ensure that infrastructure is provided for compulsory school attendance of all children in the province, not with determining how many children could be accepted by each school in accordance with the admissions policy determined by the Governing Body.

It is unclear what the MEC is supposed to do if children are denied schooling because all the Governing Bodies in an area have decided, on reasonable and rational grounds, that their schools cannot admit more children. As it takes a while to build new classrooms, one assumes those children not admitted to any school will be denied an education until such time as the Department had increased the number of classrooms to accommodate them. This effective denial would be in breach of section 29(1) of the Constitution, which states that “everyone has the right to basic education”. That is why the Department (as well as Equal Education who intervened in the case) argued for a constitutionally appropriate interpretation of the Act as required by section 39(2) of the Constitution to allow the MEC to determine how many children should be admitted to each school.

It must be said that the Act prohibits any Governing Body from discriminating against any child when making admissions decisions. A school is also prohibited from administering any test related to the admission of a learner to a public school. No learner may be refused admission to a public school on the grounds that his or her parent is unable to pay or has not paid the school fees or because the child does not subscribe to the mission statement of the school.

Section 22 of the Act authorises the HoD, on reasonable grounds, to withdraw any one or more of the functions of a governing body – including its power to decide on the admission of pupils – after following a prescribed process. This means that if a Governing Body refuses to admit a child on racial grounds the Department can intervene and withdraw that Governing Body’s power to make decisions on admissions. But what happens if there are reasonable and rational admissions policies in place at all the surrounding schools but there simply is no place for a pupil in any of the public school in the area where the child lives? Must the child sit at home and wait for better days?

There are two questions at the heart of this dispute. First, to what extent should affluent parents be allowed to buy exclusive education for their children through their control of the Governing Body of a school situated in a wealthy area? The Schools Act (adopted in 1996 by our democratic Parliament) surprisingly seems to suggest that wealthy parents should be allowed to buy a better life for their children and that children of poorer parents do not deserve the same quality of schooling than the children of wealthy parents. As the SCA explains, in terms of the Schools Act:

A governing body stands in a position of trust towards the school. It promotes the school’s best interests and strives to ensure its development by providing quality education to the learners. Implicit in this model of governance is an acceptance on the lawmaker’s part that the state cannot provide all the resources for the proper functioning of a high quality schooling system. So governing bodies are enjoined to ‘take all reasonable measures within [their] means to supplement the resources supplied by the State in order to improve the quality of education provided by the school…’ Governing bodies thus have a mandate – indeed, an obligation – to raise additional funds through the active involvement of the parents, who in return for their financial contributions are given a direct and meaningful say in school governance and the employment of school funds.

The second underlying question is whether, given the governance framework adopted by the Schools Act, the Department of Basic Education could have done more to improve the quality of schooling at those schools where Governing Bodies cannot pour resources into a school to improve the quality of the education there because they cannot charge more school fees or because they do not have the management expertise and know-how that would assist them to hold the headmaster and the teachers of that school to account for their performance.

The answer is that the Department could do more but that it has, inexplicably, not done so. One way of addressing the problem of underperforming schools is for the Minister of Basic Education to make use of section 5A of the Schools Act to prescribe minimum and uniform norms and standards for a school.

The section states that such norms and standards has to deal with infrastructure (dealing with the availability of classrooms; electricity; water; sanitation; a library; laboratories for science, technology, mathematics and life sciences; sport and recreational facilities; electronic connectivity at a school; and perimeter security); the capacity of a school in respect of the number of learners a school can admit (dealing with the number of teachers and the class size; quality of performance of a school; curriculum and extra-curricular choices; classroom size; and utilisation of available classrooms of a school); and the provision of learning and teaching support material (dealing with stationery and supplies; learning material; teaching material and equipment; science, technology, mathematics and life sciences apparatus; electronic equipment; and school furniture and other school equipment).

In terms of the section, a Governing Body must comply with these norms and standards and is required to compile and review its admission policy in accordance with such norms and standards. As no such norms and standards have yet been promulgated, the Rivonia Primary School could not be compelled to adhere to these norms and standards, which aggravated the problem.

Under pressure from the NGO Equal Education, the Minister of Basic Education this week did promulgate draft norms and standards, but these are so vague and nonsensical that they would be of little use in the current case, nor would it be of use to improve the infrastructure and the management of pupil placement at schools. Thus the draft norms and standards require that a school be provided with “adequate sanitation facilities that promote health and hygiene standards and that comply with all applicable laws”; “basic water supply which complies with all relevant laws; and “where reasonably practicable, a school should be provided with some form of connectivity for purposes of communication”.

The draft guidelines seem to kick for touch, empowering MEC’s to develop plans to provide better facilities to schools. But we do not need more plans to be developed. What we need is the enforcement of clear and detailed minimum norms and standards to ensure that each school provides education of a basic minimum quality in an environment conducive to learning. Surely it is untenable that 93% of public schools have no libraries, almost 2500 schools have no water supply and 46% of schools still reportedly use pit latrines? More detailed minimum norms and standards about the number of pupils that could be admitted to each school would also enable the Department to force schools to admit more children in cases where children would otherwise be denied an education.

Meanwhile we will have to wait and see whether the Constitutional Court overturns the SCA decision or whether other measures will be required to deal with difficult cases where children might be denied access to education through no fault of their own.

Why are South Africans not worried about deployment of troops in a civil war?

When should South African troops get involved in the internal disputes of another country? Should we ever send troops to protect the President of a foreign country and to train its army who is fighting a rebel insurgency? Would it be acceptable to send South African troops to Afghanistan to protect President Hamid Karzai and to train his soldiers fighting the Taliban? If not, when would it be wise to send troops to a foreign country involved in a war? For some reasons most South Africans do not seem to care much about such vital questions. But they should.

Earlier this week the Presidency announced the movement of about 400 South African National Defence Force (SANDF) soldiers to the troubled Central African Republic (CAR). The deployment was apparently authorised by President Jacob Zuma, who is also the Commander-in-Chief of the SANDF, on January 3 to “assist with capacity building of the CAR Defence Force” and to assist CAR with the “planning and implementation of the disarmament, demobilisation and re-integration” of rebel troops and is authorised for a period of 5 years.

Few South Africans would be aware that South Africa has had a military presence in CAR since 2007 in terms of a bilateral co-operation agreement between the two countries. South Africa and CAR signed a military cooperation agreement in 2007, which was renewed for a further five years in December 2012. That agreement is to provide CAR’s army with an array of military training, from infantry, artillery and Special Forces training to logistics and driving courses, as well as “refurbishment” of military infrastructure in Bouar and Bangui. South Africa’s military has also supported disarmament, demobilization and reintegration (DDR) programmes, and it assisted in CAR’s 2011 elections.

After the signing of the military cooperation agreement – and before the recent deployment – the numbers of SANDF personnel had fluctuated by between 20 and 46 soldiers. These soldiers served in CAR at the request of President Francois Bozize who came to power in a coup and won controversial re-election in 2011. The original deployment included a SANDF Special Forces unit, provided for “VIP protection to President Bozize.” This means South African troops have been protecting President Bozize (acting as a potentially lethal blue light brigade) for the past two years.

Section 201 of the South African Constitution authorises the President to deploy the SANDF “in fulfilment of international obligations”. However, the section also requires the President to inform Parliament “promptly and in appropriate detail” of the reasons for the employment of the defence force; any place where the force is being employed; the number of people involved; and the period for which the force is expected to be employed. Section 18 of the Defence Act further requires the President to inform Parliament of the “expenditure incurred or expected to be incurred” by the deployment.

When Parliament is not in sitting during the first seven days after the defence force is employed (as is currently the case), the President must provide the information required to the Portfolio Committee on Defence. This means that Zuma has until Thursday to inform the Portfolio Committee of the deployment as well as of the estimated cost of the deployment. If he fails to inform the Portfolio Committee as required, the deployment would become unconstitutional and unlawful.

There are two important reasons for the requirement to inform the Parliament of the deployment.

First, it prevents the President from deploying SANDF troops in secret, either inside or outside South Africa. In 1975 the apartheid regime invaded Angola, but this information was kept from the South African public. In Mark Behr’s novel, The Smell of Apples there is a scene in which the South African troops in Angola listened in astonishment as the South African government Ministers denied that South African troops were present in Angola. The apartheid regime saw nothing wrong with lying to the country about the Defence Force involvement in Angola.

South Africans only received confirmation of this invasion when it was revealed in Parliament by Frederick van Zyl Slabbert. Slabbert had to reveal the information in Parliament where he was protected by Parliamentary privilege in order to evade the strict secrecy legislation in place at the time. Our Constitution now requires the President to inform Parliament promptly of a deployment to prevent the government from misleading the public again in such a flagrant manner. As the deployment of South African troops in a war situation is a radical step, and as the President is accountable to Parliament and to the voters for taking such a step, the President cannot deploy troops in secret to avoid accountability for his actions.

Second, Parliament has the ultimate say over any deployment of troops, both inside South Africa and abroad. In terms of section 18 of the Defence Act, Parliament is authorised to confirm the deployment of troops; order the amendment of such authorisation; or order the termination of the employment of the Defence Force. This has to be done by a resolution “within seven days after receiving information” about the deployment from the President.

This means that if Parliament is not happy with the deployment of South African troops to a foreign country it may recall the troops. Given the fact that the ANC has a large majority in Parliament and that its members will not second-guess the President, it is sadly unthinkable at present that Parliament would use its power to amend the deployment order (by limiting it to a period of 6 months, say) or to recall the troops already stationed in CAR.

Section 20 of the Defence Act allows soldiers stationed in CAR to exercise powers and duties for the purpose of the successful execution of their employment. As the soldiers have been deployed to disarm rebels and to protect the President, this seems to authorise our soldiers to get involved in fighting in CAR. How else will one disarm rebels who are refusing to lay down their arms and how else will one protect President Bozize if he is being attacked by rebels. Let’s hope it does not get to that.

But I guess that was also what many Americans said when they first heard of the deployment of their troops in Vietnam.

On the common sense bigotry of Stephen Mulholland

“Common sense” can be a dangerous thing. People often invoke “common sense” when they refer to the commonly shared prejudices of those they happen to encounter in their small circle made up of family, friends and acquaintances. This danger is starkly illustrated by a column on homosexuality published yesterday in the Sunday Times Business Times by one Stephen Mulholland (who, apparently, used to be quite a big shot in the media industry before the internet era).

Most of Mulholland’s column is given over to patronising remarks of the “some-of-my-best-friends-are-black” variety. Goodness, isn’t it nice to know that Mulholland believes homosexuals are by and large not such bad people after all and that we now even have the legal right to get married. Some of us are, apparently, even quite clever and “creative”, which one gathers is something of which Mulholland approves.

Once, confesses Mulholland, he even knew a gay man who never gave the slightest hint of “coming on” to him – as if this “restraint” on the part of the unnamed gay man says something profound about the moral character of gay men in general. Mulholland apparently never considered the possibility that the man did not “come on” to him because of Mulholland’s obvious lack of charm and sexual appeal. Oh, how vain some heterosexuals can be sometimes.

Such is the blissful world of common sense bigotry in which Mulholland lives; a world in which it is assumed, without having to provide any argument, that one is praising a group of people because one of the group never made a pass at you. He is too steeped in his own world of common sense prejudice to realise that by mentioning this he is not being kind and open minded. Moreover he seems blissfully unaware that he is inadvertently displaying his own anxieties about his heterosexuality while signalling his fear and prejudice of same-sex sexuality.

One assumes Mulholland believes (but he is not self-aware or clever enough to realise this) that the gay man’s discretion saved him from the “embarrassment” of being thought of by his fellow homophobes as being open to advances by another man. This ensured that he retained his image as a firmly heterosexual man – albeit not one sexy enough to be “hit on” by a sensible gay man.

The absurdity of this view (in the absence of deep-seated homophobia) is nicely illustrated if we imagine a role-reversal. If Mulholland had written a column on, say, the way women are rather jolly workmates and how modern men should normally treat them as more or less their equals, it is unthinkable that he would have added a paragraph about knowing a woman once who never “came on” to him in order to illustrate how harmless women really are and how they are not such bad people after all. In a world in which heterosexuality is never embarrassing, in which heterosexual men are not hated and despised and raped and killed because they are heterosexuals, such an “argument” does not make any sense.

Mulholland concludes his rather queer column (if you excuse the pun) in the following manner:

Thus, as same-sex relationships are increasingly, and appropriately, accepted in society, it is also fair to expect same-sex parents to be frank with their children that such arrangements are neither the norm nor ultimately desirable — even if they are loving relationships.

Maybe Mulholland failed to provide reasons for this boldly stated – but highly obnoxious and controversial – view because it is his first column of the New Year, knocked off next to the pool with a glass of chardonnay in hand. But judging from his inability on Eusebius McKaiser’s radio show this morning to provide any logical argument to back up this view, I suspect something else is at play here. I almost felt embarrassed on Mulholland’s behalf because under sustained questioning from Eusebius he, shall we say, did not sound like the sharpest tool in the shed.

Giving Mulholland the benefit of the doubt and assuming for the moment that he is not a complete fool, one can only assume that Mulholland believes his view that same-sex relationships are undesirable is so obvious, so commonsensical, that no argument is needed to justify it. When one is so blissfully unaware that one’s own common sense views are steeped in prejudice and bigotry, one has truly lived a sheltered and impoverished life, a life devoid of the joys of mingling with and making an effort to learn from diverse groups of people from different cultures, races, sexual orientations and class backgrounds.

On the radio show Mulholland tried to justify his view (as far as I can tell) by arguing that being gay or lesbian can be traumatic for one’s parents. Even if one agreed with Mulholland that it would be better to spare parents the trauma created by their own bigotry by warning children about the undesirability of same-sex relationships, this argument makes no sense in the context of his column. After all, one assumes that one of the benefits of having same-sex parents would be that they would not be homophobic and would not be traumatised if their son or daughter told them that they were gay or lesbian.

The larger problem here is of course that the bigotry and prejudice of others are used to justify one’s own bigotry and prejudice and the perpetuation of bigotry and prejudice in one’s children. And it is done on the basis that the bigotry in question is shared by all and is no more than common sense.

What Mulholland does not understand is that if any parent is traumatised because he or she has a gay or lesbian child, then the problem is with the parent – not the child. Making an argument in defence of the parents is like making an argument in defence of the racial views of Eugene Terreblanche – it rather taints one by association. What is obviously undesirable is to have a homophobic parent – just as it is undesirable to have a racist or sexist parent – and we should work on changing the hurtful and destructive attitudes of these parents by challenging their prejudices and fears and, if necessary, by ostracising them from society.

What we should not do is to encourage other parents who are not bigoted to instil prejudices in their children by telling them that same-sex relationships (or relationships between people of different races for that matter) are undesirable merely because some people have not overcome their irrational fear and hatred of those who do not have the same skin colour or do not share the same sexual orientation as them.

In my world, prejudice is undesirable. Racism is undesirable. Physically or sexually abusing one’s partner or a child is undesirable. Allowing a person like Mulholland to publish such a lazy, un-argued, thoughtless and bigoted column in the Sunday Times is undesirable.

What is never undesirable is when two consenting adults love and support one another. I have never understood how anyone can believe that it is harmful for two consenting adults to love one another. I can only think that what is meant is that when one treats same-sex relationships as desirable, one challenges the fears and the prejudices of others and by upsetting them, one harms their oblivious, unearned, spoilt sense of well-being; a sense of well-being based on bizarre idea that one deserves only to be confronted by those who look like you and love like you and behave like you and think (I am using the term very loosely here) like you.

Personally I do not think anyone has the right not to have their prejudices challenged and ridiculed. So, unlike Mulholland I believe every parent – whether in a same-sex relationship or otherwise – has the ethical duty to tell their children that loving and caring relationships (whether between members of the same or of opposite sexes) are desirable but that bigotry never is.

Come to think of it, one should start by telling the editors of the Sunday Times.