Constitutional Hill

ANC

Can Parliament act against EFF MPs for demanding answers in Parliament?

Can members of National Assembly (NA) who belong to the Economic Freedom Fighters (EFF) be suspended from Parliament for breaching the rules of the National Assembly? And if they “disrupt” proceedings by insisting that the speaker acts impartially and that the President answers the questions validly posed to him, can they be arrested – as suggested by a slightly unhinged Gwede Mantashe last week?

Parliament is supposed to be the engine room of South Africa’s democracy. Apart from considering and passing (constitutionally valid) legislation, Parliament is also required to hold the executive accountable, to oversee its activities and to provide a platform for debate about important issues of the day.

For members of the majority party there is an inherent conflict between fulfilling these constitutional obligations as elected representatives (and hence acting as servants of the people) and submitting to the strict discipline of the party who they represent in Parliament and following the instructions of their party leaders.

How do you hold the members of government accountable if they are leaders of your party who may have a decisive say in whether your name appears on the electoral list at the next election? How do you insist on accountability when you know Gwede Mantashe might call you in for a tongue lashing if you dare to ask the right questions? How do you insist on holding the executive to account if you run the risk of being “redeployed” as third assistant secretary to the South African ambassador of Tjkitjikistan?

Nevertheless, section 58 and 71 of the Constitution states that both Cabinet members and members of the National Assembly (NA) and the National Council of Provinces (NCOP) enjoy enjoys freedom of speech in Parliament and in its committees, “subject to its rules and orders”.

This means freedom of expression can only be limited if authorised by the rules and orders of Parliament. It cannot be limited by arbitrary rulings of the speaker not explicitly authorised by the rules and orders of Parliament.

As the Supreme Court of Appeal (SCA) ruled in the De Lille judgments many years ago, customs that apply in the British Parliament do not form part of South Africa’s Parliamentary rules and cannot be applied here without being incorporated into the rules and orders of our own Parliament.

The need for clearly defined, precise and narrowly tailored written rules on what kinds of speech can be limited in Parliament is important in a system like ours in which the speaker is neither independent nor impartial but a political leader of the majority party with a vested interest in protecting members of government against any accountability and criticism.

In the absence of clear rules, the speaker will have a blank cheque to make-up rules or to misapply vague rules to stop debate and to protect the members of cabinet from being held accountable by MPs who have a constitutional duty to do so.

It is for this reason that many of the rulings made by the speaker disallowing so-called “unparliamentary statements” by MPs are probably illegal and unconstitutional. There is no rule or order that authorises the speaker to limit “unparliamentary” statements and when she does make such a ruling it is therefore not authorised by law and almost certainly infringes on section 58 (or 71 if done by the Chairperson of the NCOP) of the Constitution.

Besides, the notion of “unparliamentary statements” is so vague and incomprehensible that it all but invites the speaker and other presiding officers to invoke it to stifle debate and free speech in Parliament in order to protect the members of the executive from criticism, scrutiny and accountability.

However, the rules of Parliament as well as the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act do regulate some forms of speech and conduct in Parliament.

Thus rule 49 of the NA requires members of the NA to take their seats when the presiding officer rises to speak. Rule 50 allows the presiding officer to order a member to stop his or her speech when the member persists in irrelevance or repetition of arguments. Rule 63 prohibits members from using “offensive or unbecoming language”. Rule 66 prohibits members from reflecting “upon the competence or honour” of a judge or a member of a Chapter 9 institution.

It is important to note that rule 72 of the NA makes clear that every member of the NA has a right to raise a point of order and may speak to do so. (Where a speaker refuses to hear a member who raises a point of order – as she did during the debate in which President Zuma refused to answer questions put to him by the EFF – she is in breach of the rules which she is supposed to uphold.)

Despite this, the speaker does have broad powers. She has a right to order a member to withdraw from the chamber where there is a breach of the rules or, in serous cases, to suspend the member. If the speaker is presiding this cannot be done after the fact, but must be done while the house is sitting. This means the speaker does not have the authority to suspend members of the EFF for what happened in the House last week, as she did not suspend them at the time – she merely suspended proceedings of the House, as she was entitled to do.

This does not mean that members of the EFF may not still potentially face legitimate suspension, as the Powers, Privileges and Immunities Act provides for suspension of members for up to 30 days and for a docking of an MPs pay for up to one month if they are found guilty of contempt of Parliament.

Contempt includes, amongst other things, improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions; assaulting or threatening another MP; while Parliament or a House or committee is meeting, creating or taking part in any disturbance within the precincts; bribing MPs or taking a bribe; or hindering or obstructing a staff member in the execution of the staff member’s duties.

A “disturbance” is defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or committee”.

This definition is vague: does it include statements made by MPs in which they raise points of order to demand that the President answer questions posed to him, when the President is illegally protected by the speaker from having to answer? And if it is a disturbance, is it an improper disturbance as required by the Act? Is an improper disturbance not only related to threats, violence and destruction of property and not to disturbances caused by the exercise of freedom of speech by MPs?

Given the fact that the Constitution guarantees the right of MPs to free speech in Parliament, these provisions have to be given a narrow interpretation to limit their scope. It may therefore very well be that an impartial body would find that what the EFF MPs did, does not amount to an improper disturbance of Parliament.

But who exactly caused the disturbance in the case relating to the (non) answering of questions by President Jacob Zuma in the NA? Was it the President who refused to answer the questions posed to him? Was it the speaker who bent the rules of Parliament to protect the President? Or was it the EFF members who refused to obey the rulings of the speaker and insisted that the president answer the questions? Or was it perhaps all three groups?

In terms of section 12 of the Powers, Privileges and Immunities Act, a standing committee of the NA (the Powers and Privileges Committee) must now decide these questions. An ad hoc Committee of the NA cannot decide on these questions as this would be in breach of section 12 of the Act read with section 191 of the rules of the NA.

The Act requires this committee to “enquire into the matter in accordance with a procedure that is reasonable and procedurally fair” and then to “table a report on its findings and recommendations in the House”. The House can then act against individual MPs if the standing Committee on Powers and Privileges makes a finding against them, based on the relevant facts, after having conducted a fair hearing.

It would obviously not be procedurally fair for the Committee to prejudge the matter or for the majority of the Committee members from the governing party to make decisions on the “guilt” or “innocence” of the EFF MPs based on the instructions of their party leaders. Where a perception has been created that the matter has been prejudged by some members of the Committee the fairness of the hearing will be called into question.

Given the statements made by some ANC leaders (and especially the Secretary General of the ANC) calling for strong action against EFF MPs, it is difficult to see how the Committee can actually conduct a reasonable and procedurally fair inquiry with ANC MPs present on the Committee. The Chief Whip of the ANC may very well have created a reasonable apprehension of bias on the part of ANC members of the Committee because of his premature statements about what happened in a branch of government.

Ironically, by commenting so hastily on the matter, the ANC leaders may well have provided the EFF members with a valid legal argument to nullify the work of the standing committee.

Lastly section 11 of the Act states that:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

If this section applies to MPs as well as other persons who are not MPs and if “disturbance” includes a disturbance made through rowdy and unpopular speech, the section is clearly unconstitutional. This is so because section 58 and 71 of the Constitution prohibits MPs from ever being arrested for anything any of them has said in either of the houses of Parliament or its committees (even if what they have said was disrespectful, disruptive or in breach of the rules and the orders of Parliament).

These sections are not limited in any manner, providing MPs with an absolute right against arrest for what they say in Parliament.

But the section could also be read in conformity with the Constitution by reading it as not applying to MPs and I suggest this is the correct interpretation of the section. It is for that reason that the statement by Gwede Mantashe that EFF MPs should have been arrested and any suggestion by so called “Security Cluster” Ministers that MPs could be arrested for what they say in Parliament is dangerous and unconstitutional nonsense.

All this does raise an important question: has the time not come to consider the need to appoint a more independent and impartial person as speaker to apply the rules fairly and in a more even handed manner?

Should an MP who is elected as speaker not give up membership of the party or any leadership positions in that party for the duration of his or her speakership? Surely, a more fair and impartial speaker would instil more respect from all MPs, would ensure impartial rulings and may well prevent a recurrence of the kinds of actions taken by EFF MPs last week.

Nkandla: Zuma’s convoluted series of Houdini moves

Over the past week the governing party released a veritable sea of red herrings into the political pond (more like a cesspit) in an attempt to avoid confronting the embarrassing but incontrovertible fact that President Jacob Zuma violated the Executive Ethics Code and improperly benefited when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations at his private Nkandla palace. It’s time to cut through the verbiage and explain what must happen next.

The Public Protector is the only independent constitutional institution that has conducted a comprehensive and impartial investigation into the Nkandla scandal. That institution produced a 447-page report clearly indicating what went wrong with the Nkandla palace upgrade and clearly setting out the remedial steps that must be taken to correct the wrongdoing.

The findings and remedial action imposed by the Public Protector are not popular in some quarters, but like all factual findings made by an independent constitutional institution they are not subject to changes made by the majority of MP’s in Parliament. If that were so, then the Public Protector would be irrelevant – just as the courts would be irrelevant if their decisions could be amended by Parliament.

What must happen next – in accordance with the Constitution – is that these remedial steps must be implemented forthwith (“speedily and without delay”, as the Constitution would have it). The rest is irrelevant political noise.

The Ministerial Task Team who first “investigated” the Nkandla scandal was not an independent body and did not conduct an impartial investigation. It was a body of people tasked with investigating their own bosses.

If Oscar Pistorius’ uncle Arnold Pistorius had been asked to rule on whether Oscar was guilty of murder, uncle Arnold’s “ruling” would probably have been more credible than the report produced by the Ministerial Task Team.

Such a “ruling” by uncle Arnold would also have had the same legal status as the Ministerial Task Team investigation and report. The investigation of the Ministerial Task Team was an informal one, not explicitly authorised by any law or any constitutional provision. It therefore has no legal standing. As a public relations exercise it might have had some value, but in law it is irrelevant.

The Special Investigative Unit (SIU) is also not an independent and impartial constitutional body. Because it is not independent and because its functions stray too far from that associated with that usually performed by a judge (who does have to be impartial) the Constitutional Court ruled that a judge couldn’t head the SIU.

In terms of the SIU Act its head is appointed by the president and can at any time be removed by the president. The SIU head thus serves at the pleasure of the president and he would therefore be foolish in the extreme to make any finding against President Zuma if he wanted to remain in office.

In any case, the SIU can only investigate matters when he or she is authorised to do so by the president. When the president authorised the SIU to investigate the renovations at Nkandla he (unsurprisingly) did not authorise the SIU to investigate whether President Zuma had breached the Ethics Code or had improperly benefited from the renovations when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations.

The SIU can institute civil proceedings against those it has investigated to recover damages or losses incurred by the state. It can therefore go after the architect and others who allegedly unduly benefited from the Nkandla renovations. The SIU should do so forthwith. However, even if it had wanted to (which would have been career suicide for its head) the SIU cannot hold the president to account for breaches of the Ethics Act or for improperly benefiting from the Nkandla palace renovations because President Zuma ensured that it could not investigate him.

The ad hoc committee of Parliament also has a role to play in holding the president and others accountable. In this it is to be assisted by the Public Protector, the president and other Ministers and functionaries found to have acted in breach of their legal and constitutional duties. Its role is to ensure that the president, the various ministers and the functionaries comply with the remedial action provided for by the Public Protector.

The ad hoc committee must therefore study the remedial action imposed by the Public Protector with a view to hold the executive accountable for complying with the remedial action. To this end it is empowered by section 56 of the Constitution to summon the president or any minister to appear before it to give evidence on oath or affirmation, or to produce documents (including the documents the president unlawfully refused to provide to the Public Protector). It can also require the president or any minister to report to it on any aspect of the scandal.

This it can do to ensure that the president, the relevant ministers and other functionaries comply with the remedial action imposed by the Public Protector’s report.

What the ad hoc committee cannot do is to either purport to review and reject the findings and remedial actions of the Public Protector. Chapter 9 institutions are independent and as Parliament itself found in an ad hoc Report on Chapter 9 bodies, neither the legislature nor the executive may interfere with the core business of a Chapter 9 institution.

The core business of the Public Protector is to investigate maladministration and breaches of the Ethics Code and to direct that remedial action be taken.

This means that the ad hoc committee has no authority to either review or ignore the findings and remedial action of the Public Protector. If it purports to review its findings and to replace the findings with different ones, it would be acting ultra vires and hence illegally. If it ignored the findings that are relevant for its oversight and accountability functions it would act irrationally and hence unlawfully.

This is made obvious with reference to an example from another Chapter 9 institution, the Electoral Commission. If the Electoral Commission declares candidate A from an opposition party to be the winner in a constituency in a local government by-election, a committee of Parliament cannot review that decision and decide that candidate B of the governing party should be elected instead. If it purported to do this it would represent a fundamental attack on democracy and would represent a flagrant unconstitutional power grab on behalf of the majority party in Parliament.

Similarly, if the ad hoc committee purports to review and set aside the findings of the Public Protector because the findings are unpopular with President Zuma, then the ad hoc committee would be launching a full frontal unconstitutional attack against the Constitution. In order to protect our democracy a court would have no problem in declaring such action by the ad hoc committee unconstitutional.

The various persons and bodies will probably not comply with the steps as set out above. In order to shield the president from the consequences of his own actions and to endorse the unlawful self-enrichment of the president and his family at taxpayers’ expense, the law and the Constitution (as well as Parliament) will probably be undermined and degraded. All because the president refuses to pay back the money that he owes to South African citizens.

Public Protector tries to assist President to act lawfully – to no avail.

Politicians often behave like alcoholics who refuse to acknowledge that they have a drinking problem. Instead of accepting the help they so desperately need to recover from the devastating illness, they attack those who try and assist them and vilify those who have their best interest at heart for “interfering in their lives”. The response of President Jacob Zuma (and, recently, that of the ANC) to the many attempts by Public Protector Thuli Madonsela to assist the President to deal properly and in a constitutionally and legally valid manner with the Nkandla scandal is a case in point.

In her most recent letter addressed to President Jacob Zuma about his response (or substantial lack thereof) to her report on the Nkandla scandal, Public Protector Thuli Madonsela points out that she is “currently preparing a special report to the National Assembly regarding progress achieved by organs of state with the implementation of remedial action”.

In order to protect the President and the government he leads she wishes to avoid a situation in which she has to advise the complainants and the National Assembly that the President has failed to engage with the substance of the report or implementation of the remedial action proposed in it.

Having to provide such advice would obviously cause further embarrassment to the Presidency and would also further expose the Presidency to legal action on the basis that his response to the report and his failure to implement the recommendations of the Public Protector are irrational and hence unlawful.

In terms of section 182(1)(c) of the Constitution the Public Protector has the power “to take appropriate remedial action” whenever that office finds that there was a breach of any law or whenever it was found that an organ of state acted unethically or in breach of its legal duties or is guilty of maladministration.

Section 181(3) of the Constitution further places a legal duty on all organs of state (including the President) to “assist and protect” the institutions of the Public Protector to ensure its “independence, impartiality, dignity and effectiveness”.

Relying on this power bestowed on her by the Constitution the Public Protector required the President to “take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures” implemented at his private residence “that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool”.

It further required the President to “pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document” and to “reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused”.

Lastly, in accordance with section 3(5) of the Executive Members Ethics Act the President was required (over and above the requirements set out above), to “report to the National Assembly on his comments and actions on this report within 14 days”.

It would not be appropriate for the Public Protector to be seen to interfere with the process according to which the National Treasury determines what portion of the money President Zuma should pay back.

But it is appropriate for the Public Protector to try and assist the President in order to prevent him from acting unlawfully by purporting to usurp the power of the courts and thus by infringing on the separation of powers doctrine.

As the letter by the Public Protector makes clear, neither the President, nor the Minister of Police is legally authorised to reconsider the findings and remedial action contained in the Public Protector report. Only a court of law can review and set aside the findings and remedial action instituted by the Public Protector.

The decision by the President to task the Minister of Police “to report to Cabinet on a determination to whether the
President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports” is therefore not authorised in law.

If challenged a court would almost certainly set aside this decision of the President on the basis that it is irrational and hence unlawful.

It is also clearly in breach of the separation of powers doctrine as the President is purporting to bestow a judicial power on the Minister of Police. As the President and other members of the executive have often in the past emphasised how important they regard the separation of powers doctrine, this purported action by the President is surprising indeed.

As the Constitutional Court found in Democratic Alliance v President of South Africa and Others when exercising his powers or fulfilling legal or other constitutional duties the President cannot ignore factors relevant to the decision (legal obligations and factual findings about wrongdoing being such relevant factors):

There is therefore a three stage enquiry to be made when a court is faced with an executive decision where certain factors were ignored. The first is whether the factors ignored are relevant; the second requires us to consider whether the failure to consider the material concerned (the means) is rationally related to the purpose for which the power was conferred; and the third, which arises only if the answer to the second stage of the enquiry is negative, is whether ignoring relevant facts is of a kind that colours the entire process with irrationality and thus renders the final decision irrational.

Where the President ignores the fact that his Minister of Police does not have the legal authority to review and set aside the decision by the Public Protector to require the President to pay back a reasonable amount of the money spent on non-security related upgrades, he is ignoring factors relevant to the exercise of his powers and acts irrationally.

By ignoring the fact that neither himself nor the Minister of Police (or the National Assembly for that matter) can review and set aside the findings or the remedial actions imposed by the Public Protector, the President is therefore proposing to act in an irrational and hence unlawful manner.

The letter of the Public Protector alerts the President to this fact, presumably with the hope that the irrational and unlawful action will be rectified before it becomes necessary to approach a court of law to set aside the President’s decision. It is a pity that the Public Protector is now being criticised for trying to assist the President to act lawfully.

Some confusion has been created about the role of the National Assembly in this matter.

In terms of section 3(5) of the Executive Members Ethics Act the President has a further duty (over and above his duty to implement the remedial actions of the Public Protector in a rational manner) to submit a copy of the report of the Public Protector on breaches of the Ethics Code and any comments thereon, together with a report on any action taken in this regard to the National Assembly.

This became necessary because the Public Protector found that the failure of the President “to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”.

(The President’s response that the Public Protector found that: “President Zuma did not mislead Parliament or violate the Executive Ethics Code when he addressed Parliament regarding the security upgrades” could therefore be misleading.)

This provision of the Executive Members Ethics Act recognises the role of the National Assembly in holding the executive to account. It allows the National Assembly to play its appropriate role in ensuring that the findings and remedial actions of the Public Protector are properly implemented. But the National Assembly cannot usurp the powers of a court or of the Public Protector. Its role is circumscribed.

Two important conclusions flow from this.

First, the National Assembly is not authorised to review and set aside the findings and remedial actions of the Public Protector. If the National Assembly purports to do so, it would act in breach of the separation of powers doctrine. Its task is limited to holding the executive accountable by checking whether the executive has implemented the recommendations and remedial actions set out by the Public Protector.

Second, it would be improper for the National Assembly to engage with an irrational and hence unlawful response by the President.

Recall that where the President acts irrationally by unlawfully authorising the Minister of Police to review the findings and remedial actions of the Public Protector, it taints the whole process and renders it irrational and unlawful. It is akin to a soccer game in which a player is ruled offside: everything that follows from the offside is null and void. Any goal scored after the offside ruling was made will not count.

It is therefore of no use for the National Assembly to engage with the irrational and unlawful recommendations of the President. The National Assembly is not a court of law and cannot render the actions of the President lawful by a say-so. If the National Assembly now engages with the irrational and unlawful recommendation of the President it would, at best, be wasting its time. At worst, it may endorse illegality.

It is for this reason that it was entirely appropriate for the Public Protector to write to the President in an attempt to protect the Presidency, the Ministry of Police and National Assembly and to ensure that these institutions refrain from acting unlawfully or from endorsing illegality.

It is rather unhelpful to shoot the messenger because the message she brings – no matter how true and timely – is unpleasant or embarrassing.

Just like it is unhelpful for the alcoholic to attack his or her friends and family members for pointing out that he or she needs help to deal with the illness at hand, so it is unhelpful for the President and the ruling party to attack the Public Protector for trying to assist the President (and the National Assembly) to deal lawfully and appropriately with the Nkandla scandal.

Hlaudi weather: The fog is even thicker than it looks

The appointment of Hlaudi Motsoeneng as the SABC’s Chief Operating Officer (COO) despite his dishonest and prima facie criminal behaviour raises serious questions about the willingness of public institutions and our government to respect constitutional institutions and to obey the law. It suggests that instead of viewing the public protector as an ally who can assist in rooting out dishonesty, maladministration, corruption and criminal behaviour, some public institutions and government ministers view the public protector as an irritating impediment to impunity.

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Some days I yearn for the time before the National Assembly selected Thuli Madonsela as public protector. In those more innocent and altogether more soothing times, I could read a report of the public protector without having my remaining trust in the basic decency and honesty of most human beings shaken to the core.

Now, because South African journalists who are not employed by the SABC often hunt in packs (journalists from the SABC seldom hunt at all) they often manage to create a negative image of an individual that accords with their own agendas, anxieties and prejudices.

Once the pack identifies a public persona as worthy of scorn, the good publicity ends and the relentless, predictable vilification continues apace. Nuance, even-handedness, and any consideration of the other side of the story seldom come in to the equation. I therefore try to be circumspect and not to assume the worst of a public official or politician in the absence of clear evidence that he or she is a scoundrel.

Over the past week, as the hysteria around the appointment of Hlaudi Motsoeneng reached a crescendo, I wondered whether Mr Motsoeneng may not have been unfairly targeted in this way because of his (authoritarian-sounding) support for the licencing of all journalists. Maybe it is not such a big deal that Mr Motsoeneng does not have formal qualifications – as long as he does his job diligently and with the necessary integrity?

I therefore went back to the report published by the public protector earlier this year on the shenanigans at the SABC to determine whether Mr Motsoeneng was not being unfairly painted as a dishonest, bumbling, scoundrel. Sadly, in this instance, the report of the public protector suggests, if anything, that journalists have been too kind to Mr Motsoeneng.

The public protector found that when Mr Motsoeneng first applied for a job at the SABC he completed an application form in which he indicated that he had passed Standard 10 (“matric”) in 1991 at the age of 23. However, he only provided symbols for 5 subjects (in which he indicated he had attained 4 E and one F symbols).

During an interview with the public protector, Mr Motsoeneng admitted falsifying his matric qualification and blamed others, whom he said told him to make up his matric symbols from the top of his head, which he did. With regard to the matric certificate, the form says “outstanding”, giving the impression that the certificate exists and would be submitted in due cause.

The report quotes Mr Motsoeneng as telling the public protector:

From me … for now because I do understand all the issues, I was not supposed, to be honest. If I was … now I was clear in my mind, like now I know what is wrong, what is right, I was not supposed to even to put it, but there they said, “No, put it”, but what is important for me Public Protector, is everybody knew and even when I put there I said to the lady, “I’m not sure about my symbols” and why I was not sure Public Protector, is because I go, a sub, you know I remember okay in English I think it was “E”, because it was you know after … it was 1995.

The report quotes from several letters sent by the SABC HR Department in which Mr Motsoeneng is requested to provide a copy of his outstanding matric certificate. It also quotes an undated response from Mr Motsoeneng, in which he indicates that he was still not in possession of the said certificate. He undertook to provide it as soon as he received it.

Now, in law, you commit fraud – a criminal offence – when you unlawfully make a misrepresentation with the intention to defraud which causes actual prejudice or which is potentially prejudicial to another.

It would not be a defence to claim that another person had told you to commit fraud, just as it would not be a defence to murder to claim somebody else told you to kill a person. Neither is it a defence to fraud to say that your fraudulent representation was known to be fraudulent by many people.

Where you persist in your misrepresentation (as Mr Motsoeneng did when he promised to provide the “outstanding” matric certificate) it will be easier for the state to prove that you had the intention to defraud.

In law, the actual or potential prejudice need not be financial but can also be to reputation or dignity. More importantly it exists where some aspect of public administration is materially inconvenienced.

The fraudulent nature of the misrepresentation was confirmed by a 2003 SABC Group Internal Audit, which confirmed that Mr Motsoeneng had misrepresented himself by stating that he passed matric in 1991. The Group Internal Audit also established that when Mr Motsoeneng applied for an Executive Producer’s post at Lesedi FM in 2003, the requirements for the post was a Degree or Diploma in Journalism with eight years’ experience in the production of Radio Current affairs programme.

Given this overwhelming evidence and given the admission of wrongdoing by Mr Motsoeneng himself the public protector concluded:

The allegation that Mr Motsoeneng committed fraud by stating in his application form that he had completed matric from Metsimantsho High School is substantiated. By his own admission during his interview, Mr Motsoeneng stated in his application form that he had passed standard 10 (matric), filled in made-up symbols in the same application form and promised to supply a matric certificate to confirm his qualifications. He did so knowing that he had not completed matric and did not have the promised certificate. His blame of Mrs Swanepoel and the SABC management that stating that they knew he had not passed matric, is disconcerting. If anything, this defence exacerbates his situation as it shows lack of remorse and ethical conduct.

What seem particularly disconcerting is that Mr Motsoeneng persisted in his dishonest behaviour, first lying to the public protector by denying he misrepresented his matric results but then, after being confronted with the employment application, admitting to the fraudulent misrepresentation.

Three perplexing questions arise form this sorry saga.

The first is why Mr Motsoeneng had not been prosecuted for fraud. Why had the relevant authorities at the SABC not requested the police to investigate the alleged fraud perpetrated against the SABC by Mr Motsoeneng?

The second question that arises is why so many people – including the previous and current chair of the SABC Board – have been eager to support the employment of a confidence trickster like Mr Motsoeneng in one of the most important positions at the corporation?

The previous Chair told the public protector in writing that “the SABC perused Mr Motsoeneng’s file and could find no evidence that he misrepresented his qualifications.”. This could not have been true as Mr Motsoeneng left the SABC under a cloud in 2003 after its own Group Internal Audit investigation found that he had misrepresented his qualifications.

Now, as Prof Burchell states in his textbook on Criminal Law: “Fraud is the crime of the liar, the cheat, the confidence trickster”. Why have so many people – some of them of high standing – been prepared to support and protect a “liar”, a “cheat”, a “confidence trickster”? Was there political pressure on them to do so, or did they do so because of their own lack of a moral compass?

The third question that arises is why the newly appointed Minister for Propaganda, Faith Muthambi, would ignore the recommendations by the public protector that the SABC should take disciplinary steps against Mr Motsoeneng for his dishonesty, abuse of power and improper conduct. This failure is almost certainly irrational and I would be extremely surprised if a court does not set aside the decision to confirm Mr Motsoeneng’s appointment.

The failure is also in conflict with the stated policies of the governing party to be serious about rooting out maladministration and corruption. The office of the public protector was created to assist public officials – including ministers – to adhere to the law and to act in a manner that would enhance trust in public bodies like the SABC. Yet, in the case of Mr Motsoeneng the Minister ignored the findings of the public protector and acted in a way that further eroded public trust in the SABC. It cannot be in the interest of the governing party to destroy the credibility of the SABC as it would then be far less likely to be believed by ordinary voters.

The Presidency issued a carefully worded statement claiming that President Jacob Zuma “has no role to play in the appointment of SABC management or staff and did not play any role in the said appointment”. This non-denial denial did not state that the President had not communicated his wishes about the desired appointment to Minister Muthambi or had not “requested” her to ensure the appointment of Mr. Motsoeneng as COO.

Whether the appointment was done to comply with the wishes of President Zuma is not clear. In any event, the statement by the Presidency does not deny it.

What is very clear is that the bizarre statement by Minister Muthambi that an independent law firm’s legal opinion to the board “cleared Mr. Motsoeneng of wrongdoing” and thus renders the appointment rational is a legal nonsense.

In fact, the claim by the Minister that the opinion of a private lawyer can trump the official findings of a constitutional body like the public protector may arguably open the Minister to criminal prosecution for contempt of the public protector in contravention of section 9 of the Public Protector Act.

Why would a new Minister risk her career to endorse a clearly illegal decision that opens her up to criminal prosecution? Could it be that she was merely complying with the request/instructions of the person who appointed her as Minister? Only the minister and the president would be able to enlighten us.

Attacks on Madonsela: blaming the messenger

The public protector is increasingly coming under attack from governing party politicians who fear that maladministration, misspending of public funds, disrespect to voters and outright corruption will be investigated and exposed. This is to be expected. No one wishes to be called to account for “eating” public funds or for acting in ways that completely disrespect the dignity of voters.

Last week an ANC MP, Bongani Bonga, complained before a justice portfolio committee meeting in the National Assembly (NA) that public protector Thuli Madonsela should desist from voicing views “that are political in nature”.

The Chair of the justice portfolio committee Mathole Motshekga supported his colleague and suggested that Chapter Nine institutions were duplicating each others’ work, and that this was adding to the public protector’s excessive caseload. Addressing Madonsela, he said: “I think the powers of these institutions, including yours, should be reviewed to avoid this costly duplication.”

While these attacks are not surprising or novel (after all, politicians all over the world will always try to protect themselves and the leaders of the party they belong to), they are not particularly well informed.

In terms of section 182 of the Constitution the public protector has the power to investigate “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action”.

Section 6(4) of the Public Protector Act further states that the office of the public protector may investigate a wide range of acts and omissions – either on his or her own initiative or on receipt of a complaint.

These include any alleged maladministration in connection with the affairs of government at any level; abuse of power or unfair, capricious, discourteous or other improper conduct by a public official; corruption with respect to public money; and improper or unlawful enrichment by a person as a result of the actions in the public administration at any level of government. However, for obvious reasons (relating to the independence of the judiciary) the public protector may not investigate court decisions.

The Nkandla investigation by the office of the public protector thus fell squarely within her mandate as set out above, relating as it did to maladministration, possible corruption as well as the improper and unlawful enrichment of President Jacob Zuma.

The only possible overlap in jurisdiction between the public protector and other Chapter Nine institutions relates to investigations of unfair or discourteous conduct by state officials. When the unfair or discourteous treatment may constitute unfair discrimination based on race, sex, gender, sexual orientation or some other relevant ground this may also be investigated by the Human Rights Commission or the Commission for Gender Equality. The Equality Courts can also deal with the same matters.

If the honourable Motshekga believes that discrimination based on race, gender or sexual orientation is not a particularly important matter and that citizens should rather not have the option of approaching different bodies to have this investigated, the Constitution or the relevant legislation can therefore be amended to make it more difficult for citizens to challenge racism, sexism and homophobia. But I suspect that is not official ANC policy.

No other Chapter Nine body may investigate maladministration, corruption, self-enrichment or discourteous and tardy service not related to the abuse of human rights. It is therefore unclear what Mathole Motshekga was referring to when he stated that the public protector and other Chapter Nine bodies were duplicating each others work.

It is important to recall that the independence and impartiality of the public protector is constitutionally protected. Another body – such as Parliament or the Presidency – cannot amend the findings of the public protector because such a body disagrees with these findings. This is so because it is a criminal offense to do anything in connection with an investigation of the public protector that would have constituted contempt of court if it had been done or said about court proceedings.

Just as it would constitute contempt of court for any individual to try and amend the findings of a court of law, so it would constitute a criminal offense to do so regarding an investigation of the public protector. It is also a criminal offense to insult the public protector or deputy public protector. You are liable for imprisonment for a period not exceeding 12 months if you commit such an offence.

Of course this does not mean that anyone – including Members of Parliament – cannot discuss the findings of the public protector and cannot criticize the findings on substantial grounds. However, imputing bad faith on the part of the public protector – as some politicians have been doing – does not constitute criticism of the findings of the public protector and would therefore constitute a criminal offence.

The public protector is in a difficult position. Her office does not have the same powers as a court of law and her findings cannot be enforced in the same manner as the orders of a court.

Nevertheless section 182 requires the public protector to “take appropriate remedial action” when necessary. This means that after concluding an investigation the public protector must make findings and must recommend the appropriate remedial action to be taken by the relevant authority.

Because the findings of the public protector do not have the same force of law as a court judgment, often the only way to ensure that the “appropriate remedial action” is taken is through publicity of the findings. That is why section 8 of the Public Protector Act provides for the publication of the public protector’s reports. Often the public protector will have to ensure the wide dissemination of her findings and recommendations to try and shame the relevant public officials or the politicians into taking the required remedial action.

I suspect it is this aspect of the public protector’s mandate that has upset the honourable Bonga. I assume the honourable Bonga believes the public protector must desist from using her authority and standing as an honest and independent investigator to try and shame or embarrass public officials and politicians into taking her findings and recommendations seriously.

But where politicians launch criminally prohibited personal attacks on her integrity in order to try and discredit the uncontested factual findings in her reports, she may be forced to engage with the public directly about the findings of a report.

Ironically then, were public officials and politicians to stop launching personal attacks on the public protector as the honourable Bonga did (an attack that may well constitute a criminal offence), it would be unnecessary for the public protector to engage widely in the media about the findings of a particular investigation.

Some of the investigations conducted by the public protector relate to the unlawful or possibly criminal conduct of state officials or members of the government. In such cases any engagement about the findings of such a report will inevitably be viewed as “political in nature”. When it is revealed that a politician has acted unlawfully or has unlawfully benefited from public funds, such a revelation inevitably has political consequences as it lowers the standing and the trust of that politician in the eyes of ordinary voters.

This does not mean the public protector who made the findings and then talked about them is making statements of a political nature. She is making statements based on her investigations and findings.

The person to blame for the bad publicity is of course the politician, not the public protector. To blame her and to say that she makes statements that are political in nature is nothing more than blaming the messenger. It is a bit like attacking a person for calling out another person on his or her racism, sexism or homophobia.

Interestingly, the honourable Motshekga may well have had a point when he argued that there is a costly duplication of powers of some chapter 9 institutions.

I am not sure he actually read the Report on Chapter 9 institutions prepared by the ad hoc Committee of the NA chaired by the late Kader Asmal. If he did, he would know that the Report found that the mandates of the South African Human Rights Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities do overlap.

The Asmal Report recommended that these three bodies – along with the Pan South African Language Board – be amalgamated into one “super” Human Rights Commission, empowered and resourced to assist ordinary citizens with enforcing their human rights.

Because it is prohibitively expensive for almost all of us to approach a court of law when our rights are being infringed, both private institutions (especially big companies) and state officials are guilty of undermining the basic rights of citizens – especially the vulnerable and marginalized citizens in our society.

Creating a “super” Human Rights Commission with the powers and resources to investigate and resolve human rights complaints would empower citizens vis-à-vis powerful private and public institutions. It will help to affirm the human dignity of all and will create a body of similar stature as the public protector in the field of human rights protection.

Imagine such a “super” Human Rights Commission had the resources to investigate and deal with every single complaint about the systemic racism, sexism and homophobia that still plague our country; the racists, sexists and homophobes across the country would quake in their boots – just as the politicians now do when they hear the current public protector is going to investigate them.

If our government was truly serious about restoring the human dignity of all citizens, it would take down the Asmal Report from the shelf where it has been gathering dust and would be discussing ways of implementing these radical proposals aimed at protecting ordinary citizens from the most flagrant human rights abuses.

In an ideal world Mathole Motshekga and the other members of the justice portfolio committee would be spearheading such a move instead of attacking the public protector for doing what she has been constitutionally tasked to do.

Gay Cabinet ministers: So what’s the big deal

Several media outlets reported this week that Lynne Brown became the first openly lesbian cabinet Minister in South Africa after President Jacob Zuma appointed her as Public Enterprises Minister on Sunday. In an ideal world the sexual orientation of a Cabinet Minister – like that of any other person – would be irrelevant. But we do not live in an ideal world.

I am deeply ambivalent about the ritualised staging of confessions which require some of us to make public declarations about aspects of our lives that are deemed to be different from a deeply entrenched norm.

If you happen to be gay, lesbian or HIV positive, for example, it is widely expected that at some point you will “come out of the closet”, which is often equated with making the requisite tearful “confession” to your family and friends and, later, an endless set of often nervous but dry-eyed declarations to members of the larger community.

Sometimes your “confession” is rejected out of hand or used to vilify and further marginalise you or to discriminate against you. Sometimes the “confession” leads to genuine and heartfelt questions or encouraging comments by well-meaning friends and acquaintances.

It matters not whether those who hear the confession are sympathetic or antagonistic. What matters is that you are prodded into confessing that you are different from the desired norm, from a supposedly coveted standard of human existence.

Much like a devout Catholic who is expected to confess his or her sins to either a stern or sympathetic but always elaborately frocked priest in a confession stall, you are expected to go through the ritual that confirms your difference and inherent peculiarity.

This ritual reinforces and perpetuates deeply held assumptions about being gay or lesbian: that your life is potentially difficult or filled with struggle (in my own case this is an assumption that is spectacularly wrong); that you are either a bad person or strangely brave for being able to deal with this loaded deck of cards that fate had dealt you.

When I am required to “confess” my homosexuality or HIV positive status I am required to play a game that results in me having to confirm that heterosexuality and non-HIV status are “normal” (or at the very least, the norm).

My confession, then, both signals and reinforces my perceived “otherness”. It imbues my invented “otherness” with singular meaning and provides yet another discursive tool that can be used by others to justify my marginalisation and oppression.

That is why I now try to avoid making confessions about these aspects of my identity. Instead, if I think it would be politically important to convey this kind of information about myself (or on a personal level, if I think I need to establish a measure of intimacy with someone else) I “accidentally” drop facts into a conversation that reveal more about who I am.

Talking about rugby with a colleague or acquaintance? Easy to say that although I am not sure whether he is a good fly half, I do think Kurt Coleman is exceedingly attractive, then telling the person about that time my father took me to watch the Springboks play at Ellis Park. Talking about the coming weekend? Easy to mention my romantic dinner with Lwando, then talk about my favourite restaurants.

Complaining to a colleague about being overworked? Easy to mention my visit to the doctor to do my bi-annual blood work or how my ARVs make me dream the most wonderful but tiring dreams, then talk about my computer screen that seems to be on the blink.

In short, I tend to avoid the “confessional” style of talking about my sexual orientation or my HIV status because I fear that the language of confession tends to erase the singularity of my existence as a human being and sets up a hierarchical opposition between “normal” people and poor “abnormal” me.

In an ideal world, this would scarcely have mattered. After all, in an ideal world the only normal thing about any human being would be that none of us are truly normal.

But we do not live in an ideal world.

We live in a world in which heterosexuality is deeply embedded in our culture as both normal and desirable. Conversely, the idea that homosexuality is wrong, shameful, strange or undesirable is also deeply embedded in our culture.

Because the notion that heterosexuality is desirable is so deeply entrenched in our culture, the way it permeates and infiltrates our existence becomes invisible. People tend not to notice how heterosexuality are ceaselessly advertised and promoted (almost always as normal, pure, desirable – few people mention that Adolf Hitler was straight and nod knowingly to imply this says anything about heterosexuals as a group) while homosexuality is silenced or erased, except when it is made visible to try and affirm the belief in its abnormality.

While gay men and lesbians are often told not to “flaunt” their sexuality by, for example, telling others about who they love, who broke their hearts or who they had slept with on the weekend, heterosexuals shamelessly get to “flaunt” their sexuality every day and this is called life.

At shopping malls heterosexual couples walk hand in hand, proudly advertising their heterosexuality. At the office, colleagues out themselves as straight almost as soon as you meet them for the first time, dropping not-so-subtle hints about their husbands or wives or partners in the tearoom or at other informal gatherings.

Politicians, sports stars and actors parade their heterosexuality for all the world to see, having pictures taken at their weddings (apparently You magazine actually pays “celebrities” to have their wedding pictures published) and appearing at the opening of Parliament or a new movie or at an awards ceremony with their different-sex partner on the arm.

This is the world we live in: relentlessly advertising and promoting heterosexuality; relentlessly making the rest of us invisible.

One way of being in the world (one man and one woman in love to the exclusion of all others) is valorised, incessantly promoted and rather optimistically and disingenuously lauded as an ideal that every person should strive for in order to attain eternal or at least temporary happiness.

Other ways of being in the world are vilified or erased through embarrassed or enforced silence, or “othered” by well-meaning people who insist on telling you that they have no problem with homosexuality – thus affirming that they think there is potentially something profoundly disturbing or at least strange about two men or two women loving each other, something that they are broad-minded enough not to have a problem with.

It is exactly because we live in this far from perfect world that it matters profoundly when an openly lesbian politician is appointed to an influential Cabinet position. I am not suggesting that Minister Brown herself should make a big deal out of it.

Because of my ambivalence about the politics of “confession”, of coming out, anything she says on the subject would have the potential to be counter-productive.

But when openly gay or lesbian individuals (or people living with HIV, for that matter) happen to be powerful politicians, sports stars, actors or other influential individuals like judges or business leaders, they become potential role models to others who might have internalised widespread societal prejudices and might previously have believed that being gay, lesbian is somehow shameful, something to hide from others.

Moreover, because such individuals have a distinctive presence in public life and are strongly associated with the characteristics that made them well known (their acting talent, their political acumen, their sporting prowess), people who would usually obsess about their sexual orientation might begin to look past this one aspect of their lives and see more of the whole person there.

When gay men, lesbians or bisexuals are appointed to important positions it also signals to the wider society that there is in fact nothing abnormal, shameful, surprising or undesirable about people who happen to love differently from themselves.

For these reasons I think it is more than noteworthy that Minister Brown has been identified as a lesbian. In another world, a world in which a person’s sexuality (whether he or she is gay, lesbian, bisexual or heterosexual) would be of no interest or importance to anyone in society, it would have been silly to take note of and report on this fact.

In the world we live in, it is far from it.

Nkandla report in court: Zuma’s interest or legal considerations?

News that the security cluster of ministers is to approach a High Court to review and set aside the public protector’s report on Nkandla does not come as a surprise. While it is difficult to see any plausible legal justification for the review, such a review will tie up the report in the courts for a year or two and will allow attention to be diverted away from the damning findings made in the report against President Jacob Zuma – at least for the foreseeable future.

According to acting government spokesperson Phumla Williams, the government is seeking a review of the public protector’s Nkandla report “to seek clarity” from the court on aspects of the report. In an interview on SAFM Ms Williams explained that the government had asked the public protector to discuss her report with them with a view to “clarify” it. As the public protector refused to revisit her final report, Ms Williams argued, it was hoped the court would provide the necessary “clarity”.

If this is indeed an aim of the government in having the public protector’s Nkandla report reviewed by a court, it demonstrates a worrying lack of basic knowledge of (and respect for) the Constitution and, most notably, for the independence of the public protector as guaranteed in section 181(2) of the Constitution.

As the Constitutional Court confirmed in at least two judgments, Chapter 9 institutions are not part of government and are thus outside of government and independent from it. Moreover, as stipulated in section 181(4) of the Constitution, no organ of state may interfere with the functioning of the public protector. As an ad hoc committee report of Parliament made clear, this means that neither parliament nor the executive could interfere with decisions taken by the public protector relating to a specific investigation.

An attempt to get the public protector to revisit a final report and to “clarify” aspects of it, constitutes a prima facie attempt to interfere with the independence of the public protector. If the public protector had indeed agreed to assist government to “clarify” aspects of her final report, she would have acted in a manner in breach of her constitutional duty to act independently and without fear, favour or prejudice.

For this reason, no judge in South Africa who is even vaguely familiar with the Constitution and the jurisprudence of the Constitutional Court is ever going to agree to interfere with the findings made by an independent Chapter 9 institution by “clarifying” the Nkandla report.

It just ain’t gonna happen.

This does not mean that a report issued by the public protector cannot be reviewed by a court and set aside on the basis that its findings are irrational. If a court finds that no rational person could have made the findings contained in a report of the public protector (based on the facts exposed in the report), a court can set aside that report as invalid.

However, rationality review sets an extremely exacting standard to meet and it will only be in the most exceptional circumstances that a court will set aside the findings contained in a report of the public protector on the basis that these findings are irrational.

As the Supreme Court of Appeal (SCA) indicated in the judgment of Public Protector v Mail & Guardian a court will not direct the public protector as to the manner in which an investigation is to be conducted.

A proper investigation might take as many forms as there are proper investigators. It is for the Public Protector to decide what is appropriate to each case and not for this court to supplant that function…. It would be invidious for a court to mark the work of the Public Protector as if it was marking an academic essay.

What is required, said the SCA, is that an investigation “must have been conducted with an open and enquiring mind” as an “investigation that is not conducted with an open and enquiring mind is no investigation at all”.

Rationality review does not allow the court to enquire into the correctness or the wisdom of the findings contained in a report. Even where the investigation and the findings of the public protector could be faulted or even where reasonable people could differ on whether the conclusions reached by the public protector in a report were correct, this will not render the report invalid.

However, where no rational person could possibly have made the findings contained in a report – based on the facts revealed in that report – a court would have a duty to set the report aside.

This means that it would not be sufficient for the security cluster ministers to point to contradictions between their own exculpatory report (in which they investigated and exonerated themselves) and the public protector’s report and then to argue that the findings in her report were irrational.

It is clear that the president and his security cluster ministers do not agree with some of the findings of the public protector’s report on Nkandla, are aggrieved that the latter report did not exonerate them all like their own report did, and prefer the findings of the government task team report. Who would not prefer a report conducted by your own underlings and exonerating you from any wrongdoing?

Unlike the ministerial task team who supposedly “investigated” the Nkandla scandal, the public protector is an independent constitutional body tasked with investigating such matters without fear, favour or prejudice. While the former report has no constitutional standing, the latter does. The former was not an independent investigation, the latter was. The former was a slap-dash effort of less than 50 pages; the latter was a more than 400 pages long.

But legally this is not the crux of the matter. What is the crux of the matter is that no court in South Africa is going to review and set aside a report conducted by an independent constitutional body because it conflicts with a report drafted by the very people implicated in wrongdoing or by people whose bosses are implicated in wrongdoing.

For this reason I thank my lucky stars that I am not the lawyer tasked with trying to convince a court that the public protector’s report on Nkandla must be set aside because it is irrational. The potential embarrassment and humiliation facing that lawyer is not something that I would wish on my worst enemy.

Having said this, if I had to attack the public protector’s Nkandla report on the basis of irrationality, I would focus on the finding that the president never meant to lie to Parliament. The facts contained in the report clearly suggest otherwise.

Moreover, the president refused to provide the relevant answers and documents requested of him, as he is obliged to do by the Public Protector Act. Prima facie this refusal to co-operate to provide the public protector with the answers that could have proven that he did not lie to Parliament constitutes a criminal offense.

The most plausible interpretation of the facts contained in the report suggest that the president did indeed lie to Parliament in breach of the Executive Members Ethics Code and then refused to co-operate with the public protector to cover up this lie.

The finding that the president did not lie to Parliament was therefore, in my opinion, clearly wrong. Whether it was irrational, thus rendering the report invalid is another matter.

Ms Williams also made another, to my mind, bizarre statement today. “It is the ministers’ view that the public protector’s report and the investigation she conducted trespass on the separation of powers doctrine and… section 198(d) of the Constitution which vests national security in Parliament and [the] national executive,” she said.

This argument is, quite frankly, a legal nonsense. I cannot imagine that any lawyer vetted it.

First section 182 of the Constitution states that the public protector has the power, as regulated by national legislation, to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The only matter which the Constitution prohibits the public protector from investigating is court decision.

Moreover, the Public Protector Act makes it clear that while the functions of the public protector include those that are ordinarily associated with an ombudsman, he or she may investigate, amongst other things, any alleged improper or dishonest conduct with respect to public money, any alleged offence created by specified sections of the corruption legislation with respect to public money, and any alleged improper or unlawful receipt of improper advantage by a person as a result of conduct by various public entities or functionaries. This includes, of course, the president, which, it may surprise the security cluster Ministers to hear, is not above the law.

Secondly, section 198(d) of the Constitution states that: “National security is subject to the authority of Parliament and the national executive.” It affirms that issues of national security cannot be exempted from civilian oversight. Parliament and the national executive have the final authority to direct decisions about national security, but nothing in the section excludes the public protector from investigating matters alleged to be related to national security.

To hold otherwise would be to argue that the president and his government is above the law as long as they claim an issue relates to national security. The argument is one in favour of impunity and lawlessness.

Third, in his reply to the National Assembly in which he responded to the findings of the public protector, the president stated that: “The Security Cluster Ministers, the SIU and the Public Protector all have a constitutional and a legislative mandate to conduct their respective investigations”.

The president has therefore already acknowledged that the public protector was empowered to investigate the matter, despite allegations that it relates to “national security”. The statement today thus directly contradicts the president’s previous acknowledgement that the public protector has the legal mandate to investigate the Nkandla matter.

For these reasons it is difficult to see how the decision to ask the court to review the Nkandla report can be based on any legal considerations. This is therefore almost certainly not a decision based on law, but instead a decision based on what is in the best interest of President Zuma (if not the ANC).

Critical thinking: the vital sign more important to democracy than your vote

Political parties play a pivotal role in modern democracies. In South Africa, where (in national and provincial elections, at least) voters can only vote for political parties and not for individual candidates, political parties play an even more important role. Yet, it is unclear to what extent political parties truly empower citizens and enhance the quality of any democracy.

After Yoweri Museveni and his National Resistance Movement (NRM) seized power in Uganda in 1986 in the aftermath of unspeakable atrocities committed by previous rulers, a coalition government was formed which initially included members from various political parties and rebel groups.

However, Museveni – stressing the importance of popular democracy, unity, security and economic development – soon identified political parties as one of the main sources of Uganda’s post-colonial woes and its history of ethnic strife. All the coalition parties eventually withdrew from the Museveni government, citing human rights abuses and government corruption as reasons for their withdrawal.

The NRM (later renamed the “Movement”) thus opted for a system in which political parties (other than the Movement) would play no role in the democracy. It was argued that a “no-party democracy” was a truly African political experiment aimed at responding to uniquely African problems.

A new Ugandan Constitution, introduced in 1995, endorsed this form of “no-party democracy”. While political parties were allowed to exist in Uganda, they were not allowed to hold public rallies, operate branch offices, hold elective conferences or recruit members.

National elections were instead held on the basis of the individual merit of candidates. In theory anybody could stand for office, but not on a party platform. However, Museveni’s Movement in fact remained the main political force in the country.

Over time the Movement used increasingly anti-democratic and illegal methods to suppress opposition. The police was also used to detain and harass those advocating for a multiparty system of democracy.

Uganda finally became a multi-party democracy in 2005 due to pressure from both international donors and internal pro-democracy groups. However, Museveni has continued to win elections (increasingly disputed as unfair or even rigged) and political activity cannot be said to be entirely free and fair in Uganda.

The flawed experiment with “no-party democracy” in Uganda bolsters the argument that democracy can only truly flourish in an environment in which different political parties are free to take part in frequently conducted competitive elections. Political competition between competing parties with different ideological orientations and different identities, so it is argued, is a pre-requisite for a democracy to flourish.

This is why section 1 of the South African Constitution states that South Africa is a democratic state founded on the values, amongst others, of “universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

In the absence of a workable alternative, political parties will remain an important vehicle through which representative democracy is made operable in a constitutional state. In order to determine who should represent our interests in various legislative bodies we vote for political parties or, in a constituency system, for candidates who mostly belong to (and represent the interests of) political parties.

Political parties ideally provide ideological coherence to an elected government and make it easier for a majority party to govern a country. It can be said to have a stabilising effect on a democracy.

However, I would contend that multi-party democracy is not particularly well-suited to empower ordinary citizens to take charge of their own lives and to take part in decisions that affect their daily lives.

While a system of multi-party democracy scores high on delivering on representative democracy, it can diminish the important role played by ordinary citizens in their self-government through participatory democracy.

Where political parties are deeply entrenched, where their brands are seared in the consciousness of voters and where they are therefore extremely influential and powerful, the majority of citizens have little direct say in how and by whom they are governed.

The overwhelming majority of voters are not card-carrying members of any political party and thus have no say in electing the leaders of the political party they may vote for. Instead, the relatively small number of card-carrying members of a party elects its leaders (if that party elects its leaders at all). It is this set of leaders at best elected by a few thousand people who direct the work of its democratically elected representatives in the legislature and executive.

In the South African system the leader of the largest party also usually becomes the head of the executive, which means that most voters have no say in who becomes president of the Republic. The leadership of the governing party (not elected by all citizens) will often make the most important decisions about our lives behind closed doors at party headquarters without any direct input from the vast majority of voters who voted for the party.

However, for a rich, lively, meaningful democracy to thrive, voters must have a real say in how they are governed and must therefore be able to participate in important governing decisions. This cannot be achieved merely by obtaining a new mandate from voters every five years.

At the heart of the constitutional guarantee of dignity for everyone lies the idea that citizens must be treated as individuals with human agency and thus that citizens must be allowed to direct how they are governed.

But meaningful citizen participation in governance decisions diminishes the power of governing parties (and its leaders) and most parties who serve in government would therefore try to delegitimise citizen participation or would try to dissuade citizens from becoming actively involved in social movements or citizen groups who may express views and aspirations independent of those of the party of government.

Some political parties achieve this goal by invoking the need for “loyalty” or “unity” in the party and branding those who criticise or question governance decisions that are not in the interest of citizens as “dissidents”, “free agents”, “counter-revolutionaries”, or even “traitors”. The ANC often deploys such tactics to silence citizens and to weaken the ability of its core constituents to act as active citizens whose human dignity will be affirmed by playing a decisive role in how they are governed.

Other political parties deploy the technocratic language of bureaucrats to intimidate or silence citizens. The DA seems to be particularly adept at delegitimising the valid demands of voters by implying that citizens do not and can never understand the complexities of governance and therefore should have no say in how they are actually governed. A textbook example of this is the manner in which the DA handled the open toilet scandal in Cape Town.

Successful political parties are usually also capable of exerting some indirect control over their core supporters by purporting to be more than an organisation with mere aspirations of acquiring and exercising power over others and over the resources of the state.

Selling itself as a movement – something like a religious sect – with its own heroic history, its divine and selfless mission, its righteous battle against forces of darkness, its own colours (green, yellow and black for the ANC; blue for the DA; red for the EFF) it provides some voters with a sense of belonging and creates a group of followers who will blindly and uncritically support whatever the party leaders decide.

Instead of critical and independent thought – the foundation of active citizenship – such party loyalists often hurl tired, cliché-ridden, insults at (and concoct conspiracy theories about) those who retain a semblance of individualism and dare to question or criticise leaders who exercise power unwisely or unlawfully.

It is for this reason that the one thing I am absolutely certain about in life is that I will be attacked, vilified and called names by some DA or ANC loyalists whenever I dare to criticise something their party or its leaders might have done. (I find DA supporters more blindly loyal and less prepared to admit its party’s mistakes than ANC supporters, but I know this observation, too, will elicit howls of protest.) Whenever this happens I sigh I think: “Yes, there it is again, the deathly hand of thoughtlessness, of unthinking, of blind loyalty.”

I am not, of course, suggesting that every single person who happens to be loyal to a political party or its leaders is incapable of independent thought. Far from it. What I am suggesting is that such independent and critical thought occurs despite their party loyalty – not because of it.

Neither am I suggesting that we should abolish political parties to save our democracy. Instead, I am making the rather trite point that the quality of a democracy is enhanced when citizens do not see themselves as beholden to political parties (and the financial interests of big corporations who bankroll the activities of these parties).

Active citizens who read and think, who ask questions, who praise good deeds and criticise unwise or arrogant governance actions, who take part in protest marches (within the limits of the law) and organise their fellow citizens in opposition to policies that serve the rich and well-connected instead of the community at large, play a vital role in enhancing the quality of a democracy.

To fall back on the language of the religious sect so beloved of many political parties: we would make a big mistake if we believed that our salvation lay in the hands of party bosses. Instead, it is only as active, involved, informed, critically thinking citizens that we can take back the power from party bosses and turn them from our rulers into our servants.

That Nkandla SMS: why it is (legally) complicated

Courts are often not well placed to act as mediators in highly charged political disputes. The ANC’s attempt to use the court to deal with the DA’s claim that the Public Protector’s Report “showed that Zuma stole your money to build his R246 home” is a case in point.

Election campaigns tend to get extremely heated and the rhetoric overblown. Leaders of political parties do not only make wild promises they know they can never keep (we all know there won’t be 6 million jobs – or even job opportunities – after the election), they also hurl insults and accusations at their opponents that might ring true for some voters but – from a legal perspective – are difficult or impossible to prove.

When ANC politicians claim that the DA is a racist party, that it does not care about the poor or that it will bring back Apartheid if elected, we all know that these claims are part of the ANC’s election rhetoric. Some voters will take it seriously and some will not. The best way the DA could counter such claims is to demonstrate, through their words and action, that the claims are untrue.

Similarly, when the DA claims that President Jacob Zuma has stolen taxpayers’ money, that ANC leaders are all corrupt or that the ANC will undermine the Constitution, we all know that this is part of the DA’s election rhetoric. Some voters will believe the claims and some will not. Surely the best way for the ANC to counter such claims would be to show, through words and deeds, that the claims are untrue.

The ANC chose not to follow this route to challenge the accuracy of the SMS sent by the DA that the Public Protector Report shows that President Zuma has stolen taxpayers’ money. Perhaps because it thought it would not be able to win the argument or because it feared that the damage done to the ANC brand by the Nkandla scandal could not be repaired through reasoned debate and argument alone, it approached the court to try and stop the DA from making these claims.

The ANC relied on section 89(2)(c) of the Electoral Act which prohibits any person from publishing any false information with the intention of influencing the conduct or outcome of an election and on item 9(1)(ii)(b) of the Electoral Code which prohibits any registered party or candidate from publishing false or defamatory allegations in connection with an election in respect of a candidate or that candidate’s representatives.

If a court were to interpret these provisions strictly, it would have a drastic effect on what could and could not be said during an election campaign. It would then become illegal to make accusations about a political party or its candidates unless it could easily be shown that the accusations are true.

A large amount of statements made by ANC politicians about opposition parties and quite a number of statements made by opposition parties about the ANC would immediately be rendered illegal during an election campaign.

It will always be very difficult, if not impossible, to show that many of the accusations made during an election campaign are indeed true. A strict interpretation of the Electoral Act would therefore impose a drastic limit on what could be said during an election campaign and would impoverish political debate and contestation.

As the distinction between facts and opinion based on those facts can be very difficult to maintain, politicians would have to curb their exuberance when making claims about opposition parties and their candidates.

As a result, those taking part in the election campaign would be unable to raise many critical questions about their opponents and voters would be deprived of opinions about political parties and their candidates that may otherwise have played a pivotal role in their decision who to vote for.

A narrow, literal, interpretation would therefore leave the relevant sections of the Electoral Act open to constitutional challenge.

It may be for this reason that the High Court reinterpreted the relevant sections of the Electoral Act in line with section 39(2) of the Constitution. This section requires a court when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights”.

If words in legislation are reasonably capable of an interpretation in line with the provisions of the Bill of Rights, a court must give those words the constitutionally valid meaning.

The court thus rejected the argument, advanced on behalf of the ANC, that section 89(2) created strict liability and prohibited false statements even where those who made them believed them to be correct.

Instead it interpreted the section in the light of the right to freedom of expression and in the light of section 1 of the Constitution, which states, inter alia, that ours is a state based on the values of a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

The judgment thus, somewhat controversially, introduced the principles developed in law of defamation regarding fair comment when interpreting the relevant provisions in the Electoral Act.

In effect, the court found that you would not be in breach of the Electoral Act every time you make what turns out to be a false statement about a candidate or political party. You will only be in breach of the Act if your statement is false and does not amount to “fair comment”.

The court noted that in the law of defamation regard must be had to who is being targeted. Politicians and public figures must not be too thin-skinned about comments made about them. What may be defamatory of a private person may not necessarily be defamatory of a politician or a judge. This is so because right-thinking people will probably not likely greatly be influenced in their esteem of a politician by derogatory statements made about him or her.

Interpreted in the light of the law of defamation, a comment based on facts need not commend itself to the court, nor need it be impartial and well-balanced. Fair comment requires only that the view must – objectively speaking – be an honest and genuine expression of opinion about a set of facts and must not disclose malice.

The idea is that divergent views should be aired in public and subjected to debate and scrutiny because it is through such debate that bad ideas will be exposed and shown to be wrong-headed. Untrammeled debate enhances truth-finding. If the relevant sections of the Electoral Act were interpreted too strictly, it would make untrammeled debate very difficult, if not impossible.

Given this expansive interpretation of the relevant provisions of the Electoral Act, the court found that the comments made by the DA in its SMS constituted fair comment.

This was so because the DA SMS did not state as fact that the Public Protector Report found that President Jacob Zuma stole money. Instead the SMS claimed that the Report “show[ed]” that he did so.

In this regard the court noted that the Public Protector’s Report found that government created a license to loot situation during the Nkandla construction. It also noted that the president was aware of the upgrades but never raised any concerns as to the scale and cost of the upgrade, that he thus tacitly accepted the upgrades and that he improperly benefited in the process.

The court thus found that the SMS expressed a conclusion which could be fairly reached by a person reading the report.

Although the judgment wisely attempted to narrow the scope of section 89(2)(c) of the Electoral Act and item 9(1)(ii)(b) of the Electoral Code in order to preserve a space in which robust free and fair campaigning could occur, another court may well find that the wording of the Electoral Act could not reasonably be interpreted in the way the court interpreted it.

However, I would guess that if another court declined to follow the reasoning of the High Court, and instead interpreted the relevant sections to prohibit all claims made about a political party or its candidates that cannot be shown to be true, it would render these sections of the Electoral Act unconstitutional for breaching the right to freedom of expression.

There is therefore a possibility that an appeal of the judgment by the ANC may be successful. If it is successful, then it would leave the relevant sections open to constitutional attack.

It may therefore well be that after a lengthy legal battle, more or less the same outcome reached by the High Court is reached by another court – but based on different grounds, namely that the sections invoked by the ANC are unconstitutional.

The unbearable lightness of being a Nkandla Report critic

Like any judgment in a court of law, a report of the Public Protector is not above criticism. Although it is a criminal offence to insult the Public Protector or to say anything about an investigation that would have constituted contempt of court if it had been said of court proceedings, criticism of the findings of the Public Protector should be welcomed. However, some of the criticism levelled at the Public Protector’s Nkandla Report is so far off the mark that no rational person, acting in good faith, could possibly have made it.

The investigation and report of the Public Protector into the use of public funds for large-scale construction at President Jacob Zuma’s private homestead near Nkandla, and into Zuma’s denials about this to the National Assembly, can indeed be faulted.

This is illustrated by the failure of the Public Protector to use her extensive legal powers to try to prevent the president from thwarting the investigation and her failure to act more decisively to try and force him to comply with his legal duties.

Section 7(4) (read with section 9(3)) of the Public Protector Act renders it a criminal offence for any person to refuse or fail to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated. It also renders it a criminal offence to refuse to answer questions duly put to that person by the Public Protector about an investigation.

However, when the president failed to answer most of the relevant questions put to him by the Public Protector and further failed to provide evidence of the alleged bond (as he was legally required to do), the Public Protector did not force him to comply with the law.

Neither did she refer the president’s failure to answer most of her questions and to furnish her with information about the alleged bond to the police or the National Prosecuting Authority for further investigation and possible criminal prosecution.

The Public Protector also did not make use of section 7A of the Act to obtain a search and seizure warrant allowing her office to search the private home and the office of the president for documents relating to the investigation which the president had illegally refused to hand over to her office.

Furthermore, the Public Protector found that the claim made by President Zuma to the National Assembly that his family had built its own houses and the state had not built any for it or benefited them was not true. However, curiously, she found that this false statement could have been a bona fide mistake.

This finding is almost certainly wrong. Given the extensive evidence of the president’s knowledge of (and involvement in) the project, it is not credible to believe that the president did not intend misleading the NA when he made this false statement.

After all, her report contains evidence that the president was shown designs for the swimming pool for his approval. How could he then in good faith have told the National Assembly that he and his family had paid for all non-security related construction at Nkandla?

But those who have been criticising the Nkandla Report have not done so because they are worried that the president’s involvement in the scandal was not investigated as vigilantly as it could have been. Instead, they have bizarrely criticised the Report for making any findings of wrongdoing against the president and for requiring him to repay a small part of the amount with which he and his family had unlawfully been enriched.

A good example of this flawed and entirely biased reasoning can be found in an article penned by attorney Krish Naidoo, and published in The New Age.

It is clear from the article that Mr Naidoo did not read the Public Protector’s Report.

He claims that the Public Protector had
invoked section 140 of the Constitution in justifying her finding that the president had not complied with the Executive Members Code of Ethics. A quick word search of the Report confirms that section 140 is not mentioned in the Report at all. In fact, the Public Protector correctly cited section 96 of the Constitution in support of her findings.

It is unclear why Mr Naidoo would claim otherwise.

Although the argument is difficult to follow, Mr Naidoo also seems to claim that the president’s Oath of Office in Schedule 2 of the Constitution does not contain words to the effect that the president must “protect and promote the rights of all people within the republic”. This is a curious claim as a quick perusal of Schedule 2 immediately reveals that these exact words are contained in the Schedule.

Why Mr Naidoo would make such a clearly untrue statement is not clear.

Mr Naidoo also claimed that the Public Protector plagiarised a statement that “Our government is the potent, the omnipresent teacher.” However, on page 4 of her Report this statement – serving as one of the mottos to the Report – is clearly attributed to Justice Louis D Brandeis, US Supreme Court Justice.

Once again it is unclear why this false claim of plagiarism was made at all. Even if Mr Naidoo had only read up to page 4 of the Report, he would have discovered that the claim of plagiarism couldn’t be sustained.

In disputing the Public Protector’s finding that the president was in breach of section 2 of the Executive Members Ethics Code, Mr Naidoo argued that the Code only applied in cases where the president had failed to comply with a constitutional duty and that no such duty to protect state resources can be derived from the Constitution.

This is not true as section 2 of the Code places a wide-ranging set of legal duties on, amongst others, the president to:

“(a) perform their duties and exercise their powers diligently and honestly;

(b) fulfill all the obligations imposed upon them by the Constitution and law; and

(c) act in good faith and in the best interest of good governance, and

(d) act in all respects in a manner that is consistent with the integrity of their office or the government.”

This means, even where no constitutional or other legal duty is imposed on the president to protect state resources, the Code – imposing a broad ethical duty that can be legally enforced – requires him at all times to act in good faith and in the best interest of good government.

Recall that the Executive Members Ethics Act, which gives effect to section 96 of the Constitution, authorises the Public Protector to investigate breaches of the Executive Members Ethics Code. In fact this Act places a legal duty on her to do so.

In other words, the Executive Members Ethics Act, read with the Code, place a legal duty on the president to act ethically to pursue what is in the best interest of good government.

Where the president fails to stop unlawful action which has the effect of financially benefitting him in ways that go far beyond security related upgrades, it can surely not be said that he had acted in good faith in the best interest of good government.

But this is not the end of the matter. Even if – like Mr Naidoo – one wrongly focused only on the sub-section of the Code that requires a constitutional or legal duty to have been breached before there can be any finding of wrongdoing by the president, it is clear that the various sections of the Constitution (read together) impose a constitutional duty on the president to protect state resources.

This is so because section 83(b) of the Constitution states that the president “must uphold, defend and respect the Constitution as the supreme law of the Republic”. Section 96(2)(b) further states that the president – as is the case with other members of Cabinet – may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Section 195(b) of the Constitution furthermore places a legal duty on the public administration to promote the “[e]fficient, economic and effective use of resources”.

All these sections, read together, clearly place a constitutional duty on the president to prevent a situation where his public duties as president and his private interests collide, as was clearly the case here.

Moreover, where state resources are used improperly to benefit the president and his family in ways that have nothing to do with his security, where he clearly is aware that the resources have been spent in this way and where he fails to halt this, he is clearly in breach of his constitutional obligations as set out above. This is so because he has then not promoted efficient, economic and effective use of resources as he is constitutionally obliged to do.

This is underscored by the fact that the president is the head of the cabinet and the executive authority of the Republic is vested in him. As a cabinet member he is individually and collectively accountable for the actions of the government.

But as head of the executive, ultimate responsibility for the use of state resources rests with the president. In the terminology of the American Presidency, our constitution clearly enforces the principle that: “the buck stops with the president”. To hold otherwise would be to ignore the fact that the executive authority of the Republic vests in him.

While the Public Protector Report is not perfect, the bizarre and sometimes completely untrue claims made with the aim of discrediting the Report are worrying. It suggests either that critics have not read the Report or are unwilling or unable to understand the most basic arguments contained in the Report, or that they are willfully trying to mislead the public by making claims that they know are untrue.