Constitutional Hill

ANC

What Al-Bashir judgment said and why the Rule of Law is a prerequisite for democracy

The judgment of a full bench of three judges of the Gauteng High Court that South African law required the government to arrest President Al-Bashir and that attempts by the government to grant immunity from arrest and prosecution to President Al-Bashir were amateurish and legally misguided, raises important questions about the quality of legal advice provided to the government and about the threat the exercise of arbitrary power poses to our democracy.

In a postscript to his magisterial book “Whigs and Hunters” the Marxist historian EP Thompson called the Rule of Law “an unqualified human good”. Although highly critical of “the shams and inequities which may be concealed beneath this law”, he nevertheless argued fervently for the protection of the Rule of Law. In its absence, he said, those who exercise public power do so arbitrarily, unguided by the discipline and constraints that an adherence to the law brings.

When public power is exercised arbitrarily, it becomes impossible for those who do not wield state power to participate in politics in any meaningful way. Any semblance of democracy is snuffed out by those who make arbitrary decisions based purely on their own (instead of the common) interest – often in order to cement their power and to silence criticism and dissent.

The judgment of the Gauteng High Court in The Southern Litigation Centre v the Minister of Justice Others provides support for this argument.

At the heart of the judgment stands section 231 of the South African Constitution. The section states that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces”, unless it is an agreement of a technical, administrative or executive nature. Section 231(4) further states that “[a]ny international agreement becomes law in the Republic when it is enacted into law by national legislation”.

What the judgment illustrates is that the lawyers advising our government (in this case the Chief State Law Adviser) either did not know or understand these provisions, or our government chose to ignore them and to exercise its powers arbitrarily.

It is common cause that South Africa duly ratified the Rome Statute that creates the International Criminal Court and that this was approved by the democratically elected legislature. It is also common cause that the Rome Statute became law in South Africa in terms of section 231(4) of the Constitution after our democratic Parliament adopted the Implementation of the Rome Statute of the International Criminal Court Act in 2002 (Implementation Act).

It is furthermore common cause that the relevant African Union Conventions and the agreement between the African Union (AU) and South Africa to host the AU Summit were never made legally binding law in South Africa in terms of section 231(4) of the Constitution. (Informed observers may well ask why our government deemed the former agreement important enough to domesticate, but the latter not, and wonder what it says about our government’s purported commitment to AU.)

The Rome Statute devises a system of international criminal justice wherein the primary responsibility for the investigation and prosecution of those most responsible for serious violations of international law rests with the courts in the country in which the crimes were committed. In principle, a matter will only be admissible before the ICC where a state is either unable or unwilling to investigate and prosecute torture, genocide and other crimes against humanity. Once a matter is referred to the ICC though (either by a state itself or by the UN Security Council) the ICC gains jurisdiction over the prosecution.

The ICC may at this stage request a state to arrest and surrender a suspect. Article 89(1) of the Rome Statute imposes a duty on a state to “comply with requests for arrest and surrender”.

In terms of the Implementation Act adopted by the South African Parliament, South African authorities are enjoined to cooperate with the ICC, for example, to effect the arrest and provisional arrest of persons suspected of war crimes, genocide and crimes against humanity. These crimes have been specifically created in the South African context in terms of section 4 of the Implementation Act.

The question that arose in this case was whether the government had the requisite legal authority nevertheless to grant immunity to a sitting head of state attending an AU Summit on our soil, despite these clear international law obligations and obligations imposed by South Africa’s own law.

The South African government argued that the host agreement between the AU and South Africa provided for the granting of privileges and immunities and thus empowered the South African government to ignore its international law and domestic legal obligations. Clause 1 of Article VIII of this agreement records that the Republic of South Africa shall accord the Members of the AU Commission and Staff Members, the delegates and other representatives of Inter-Governmental Organisations attending the Meetings certain privileges and immunities. Tellingly, it does not refer to heads of state attending the Summit.

The government also referred to section C, Article V (1) (a) and (g) of the OAU Convention (which was not domesticated into South African law), which states that “[r]epresentatives of Member States to the principal and subsidiary institutions, as well as to the Specialised Commission of the Organisation of African Unity [now AU], and to conferences convened by the Organisation, shall, while exercising their functions and during their travel to and from the place of meetings, be accorded the following privileges and immunities” This includes immunity from personal arrest or detention.

In order to do so, the government argued, it published a notice in the Government Gazette in terms of section 5(3) of the Diplomatic Immunities and Privileges Act 37 of 2001 to grant foreign heads of state the requisite immunities during the AU Summit. The High Court found that there were several legal problems with this argument.

First, the Immunities Act in terms of which the immunity was purportedly granted does not domesticate the General Convention on the Privileges and Immunities of the OAU in accordance with section 231(4) of the Constitution. The OAU (now AU) Convention is therefore not binding law in South Africa, and the structures, staff and personnel of the AU consequently do not automatically enjoy privileges and immunity in South Africa.

Second, the hosting agreement between our government and the AU does not in fact confer immunity on heads of state – only on AU personnel and the like – and even if it did, it has not been made binding law in South Africa and therefore cannot trump our duly passed laws, including the Implementation Act.

Third the notice Gazetted by the Minister purporting to grant immunity to heads of states in terms of section 5(3) of the Immunities Act, is not applicable as section 5(3) only deals with the conferral of immunity and privileges on an organisation, which is defined in s. 1 of the Immunities Act as “an intergovernmental organisation of which two or more states or governments are members and which the Minister has recognised for the purposes of this Act”.

It does not deal with, or confer a power to grant immunity on, a head of state, envoy or other representative. It follows that the June agreement also does not confer immunity on President Bashir, and cannot serve to exclude this Court’s jurisdiction.

The high-water mark of the government’s case was that the Immunities Act confers a general discretion on the Minister to grant immunities and privileges on persons of her choosing, which she did by Gazetting a notice to this effect granting immunity to all heads of state.

However, the court rejected this argument, stating that:

she must exercise that discretion lawfully, in accordance with South Africa’s domestic and international law obligations. She cannot lawfully exercise the discretion where the effect will be to prevent the arrest and surrender of a person subject to an ICC warrant and request for surrender.

In other words, where a law grants a discretion to a Minister, it does not grant a discretion to that Minister to break the law while exercising the discretion. The court did not explicitly say so, but another reason why the Minister’s discretion in this regard is circumscribed is that it would be in breach of the separation of powers doctrine to grant a Minister the effective power to amend legislation (in this case the Implementation Act) which was duly passed by the national legislature. To hold otherwise would be to grant the Minister – a member of the Executive – the power to amended duly passed legislation. But legislation can only be amended by the legislature.

If any provision of the Immunities Act did indeed grant such a sweeping power to the Minister to amend the Implementation Act and to grant immunity to a head of state in contravention of the Implementation Act, the provision would therefore be unconstitutional. The Constitutional Court already held as much way back in 1995 in the Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others.

Lastly, even if one ignores section 231(4) of our Constitution which requires that agreements between South Africa and the AU or any other AU Convention only becomes enforceable law in South Africa if domesticated by our Parliament, it runs up against UN Security Council Resolution 1593 (2005) as well articles 25 and 103 of the UN Charter. In essence these require Members of the UN to accept and carry out the decisions of the Security Council. Furthermore, it affirms that in the event of a conflict in the obligations of members of the UN under the UN Charter and their obligations under any other international agreement their obligations under the Charter would prevail.

One could, of course, ask serious questions about the South African Government’s lack of commitment to the AU and the various agreements entered into by South Africa under the AU’s auspices. Why were none of these agreements made binding law in South Africa in terms of section 231(4)? Does this mean our government is not serious about its commitments to the African Union? Was it careless or incompetent in not doing so? Or did it deliberately and consciously decide to give domestic pre-eminence to the UN and to international agreements like the Rome Statute, perhaps in a bid to impress Western powers?

Those who have expressed anger at the South African judiciary for attempting to uphold the Rule of Law, to demonstrate appropriate respect for our domestic legislature and for enforcing the laws actually passed by our legislature, may well re-direct their anger towards our government who has not shown a burning commitment to make agreements entered into under the auspices of the AU binding in South Africa.

It may also direct some opprobrium at the state’s legal advisors who may have demonstrated a tenuous grasp of South Africa’s international law commitments. The failure to foresee the legal problems presented by our government not domesticating AU agreements but doing so with the Rome Statute has caused our government substantial reputational damage on the continent and across the rest of the world.

It has also placed our government in a position where it apparently decided to flout the very laws our democratic Parliament adopted and the court orders issued in terms of these laws, thus acting in an arbitrary manner and eroding respect for the Rule of Law. As the High Court warned in this regard:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.

The South African Constitutional Court has confirmed that principles of the rule of law are indispensable cornerstones of our constitutional democracy. As the High Court remarked:

The emphasis must be on “indispensible”. Where the rule of law is undermined by Government it is often done gradually and surreptitiously. Where this occurs in Court proceedings, the Court must fearlessly address this through its judgments, and not hesitate to keep the executive within the law, failing which it would not have complied with its constitutional obligations to administer justice to all persons alike without fear, favour or prejudice.

Thoughtful political “realists” and hardened cynics may well argue that it would never be in South Africa’s regional interest to arrest the sitting head of state of a fellow African country – even if that head of state is accused of orchestrating the deaths of 200 000 Africans. This would be a strong argument for expecting the South African government to have indicated politely to President Al-Bashir that it would not be in his best interest to attend the AU summit because our courts may order his arrest. It is, in other words, a strong argument in favour of informed, competent, pre-emptive action by our government to prevent the mess it created for itself.

What it is not and can never be, is a plausible argument in favour of the erosion of the Rule of Law – indeed an “unqualified human good” – through its bad planning, a cavalier disregard for laws passed by our democratic Parliament and enforced by our courts, and an indifference towards agreements concluded by our country under the auspices of the African Union.

Al-Bashir: flouting court orders are anti-poor and anti-democratic

The decision by the South African government to ignore the order of the Gauteng High Court not to allow President Omar al-Bashir from North Sudan to leave the country, constitutes a deliberate, pre-meditated, act of contempt of court.  The case raises many complex legal and geo-political questions over which reasonable people could profitably disagree. But even in an overheated political climate in which emotions tend to overpower principles and logic, it is unclear how any level-headed South African could support the deliberate flouting of a court order.

I am not a great fan of the International Criminal Court (ICC). Several years ago, just after Vusi Pikoli was suspended as National Director of Public Prosecutions (NDPP) I attended a conference in The Hague where several officials of the ICC were present. In private conversations, some of these officials did not impress me – I detected, and I make allowances for being hyper sensitive, a kind of cultural arrogance, bordering on racism emanating from some of the ICC officials.

However, in principle it must be possible to create a mechanism to prosecute political leaders of brutal authoritarian states who engage in crimes against humanity by facilitating mass torture, rape and ethnic cleansing. This is not an easy task because it will always be near impossible to bring to book the leaders of countries with the most economic and military power (I think here of the US, China and Russia, amongst others). In a world in which political, social and military power is not distributed equally, it is difficult to hold the most powerful human rights abusers to account.

Nevertheless the South African government decided to ratify the Rome Statute creating the ICC. It went further and became the first country in Africa to domesticate that treaty when its democratically elected representatives passed legislation to make the provisions of the treaty binding in South Africa. This occurred in 2002, eight years after South Africa became a democracy.

There are many cogent reasons for criticising the ICC, based on the fact that political considerations will prevent it from going after some politicians who are guilty of crimes against humanity. One could also argue on pragmatic grounds that it is unsound to arrest and prosecute a head of state because this would endanger the relative stability of the country over which he governs. Even when a leader is accused of facilitating the mass murder of his citizens – as President Omar Al-Bashir has been, with more than 200 000 people killed and more than 2 million displaced – grubby, unprincipled, pragmatic political considerations may militate against that President’s arrest.

But international agreements are entered into voluntary by states. When South Africa signed and ratified the Rome Statute (which establishes the ICC) and when it passed legislation in 2002 to make its provisions applicable within South Africa it did so voluntary.

The democratically elected government of South Africa could have chosen not to sign on to the Rome Statute. It could have chosen to withdraw from it if it believed that the ICC was unfairly targeting politically, economically and military weak leaders from the African continent. That South Africa did not do. Instead, it remained a signatory to the treaty and retained the law making that treaty applicable in South Africa on the statute books. In the same manner it has passed laws prohibiting rape and corruption, it has passed a law prohibiting crimes against humanity and placing a duty to on the government to co-operate with the ICC.

Those who oppose the extradition by South Africa to the ICC of a tyrant who allegedly was instrumental in facilitating the rape and killing of hundreds of thousands of Africans, are really critical of the ANC government decision to adhere to these obligations.

Any lawyer worth his or her salt would also have been aware that any immunity granted in terms of the Diplomatic Immunities and Privileges Act of 2008 to foreign heads of state on the assumption that the AU is akin to the UN would be on shaky legal ground. The international instruments and the South African Act was always likely to be interpreted to apply only to United Nations related personnel and was never likely applicable to the Presidents of foreign countries wanted by the ICC who attends an African Union summit in South Africa.

Although this area of the law is not well-settled, it was at least likely that a court would find that an attempt to grant immunity to President Omar Al-Bashir under this Act would not be legally valid and binding and would be trumped by South Africa’s constitutional obligations and international law obligations in terms of the Rome Statute.

(I am not an expert on international law, so I find the various conflicting provisions of the Rome statute, its interplay with the South African Constitution and how this relates to customary international law norms, rather perplexing. But even a brief search on the internet informed me that at the very least this is a grey area of law and that it was at least likely that a South African court would not find the legal immunity purportedly granted under this Act to be legally valid.)

It was therefore always at best unwise and at worst inviting a complete diplomatic meltdown, for South Africa to give the go-ahead for President Al-Bashir to visit South Africa. It was also arrogant and recklessly endangering South Africa’s standing on the African continent and in the international community not to warn President Al-Bashir that he may face legal consequences if he visited South Africa. If the South African government had explained that its laws may require it to arrest and extradite President Al-Bashir he would not have arrived.

Once an NGO approached the High Court about the matter and the High Court issued an order prohibiting President Al-Bashir from leaving until the matter was considered in full, the South African government had a full blown diplomatic crisis on its hands – entirely of its own making due to its arrogance and/or incompetence.

Then our government proceeded to make a bad situation worse by facilitating the departure of President Al-Bashir in clear and direct conflict with a court order not to do so.

Once a government flouts court orders it undermines the legitimacy of the courts – not only in highly charged political matters but also in ordinary matters affecting ordinary citizens. It is a calamity for every citizen – even if this may not at first be apparent to some citizens who might even, in a particular case, support the flouting of a court order and the lawlessness that it entails.

As former Chief Justice Sandile Ngcobo pointed out in a public lecture the judiciary needs to retain the public’s confidence in order for it to fulfil its role properly. Public confidence was important, suggested Ngcobo CJ, because it is necessary for the effective performance of judicial functions.  What was required was for members of the public to recognise the legitimacy of individual decisions of the court even when it disagreed with the outcome of such decisions: in other words, public opinion related to the institutional position of a court and hence courts had to act in such a manner that it retained the confidence – if not always full agreement – of the public it served.

When a democratically elected government flouts the orders of a court, it undermined public confidence in the courts and undermines the legal system as a whole. If members of the public come to believe that what matters is not what a specific legal principle require, but what those with money and power dictate, lawlessness in its most extreme form logically follows.

To quote former Chief Justice Ishmael Mahommed:

[u]nlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will.  The superior courts and the Constitutional Court do not have a single soldier.  They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts.  The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.

It is important to the rule of law that people and governments develop such confidence in the judiciary that they routinely accept and comply with judicial decisions. This acceptance is most necessary in the case of decisions that are controversial and unpopular. Every day courts make decisions that injure or offend people. Of course, there is a greater good underlying these decisions — respect for the law, and the policy goals and the protection of rights that the law represents.

Yet that greater good is not always apparent to losing parties or to those who do not support the court order. And yet the rule of law depends upon peaceful acceptance of those decisions, and compliance with court orders, even if they are strongly resented. Here the argument, familiar for political scientists, seems to be that it would be difficult for a Constitutional Court (or the judiciary at large) to survive institutionally if its decisions were routinely ignored or flouted by those with power and with connections to those with power.

The result would be a system in which who you know and how much money you have would become the only, the absolute only, determinant of whether you will enjoy the protection of the law or whether, alternatively, you will be thrown at the mercy of those with connections, money and power.

What the South African government did by flouting a court order preventing President Al-Bashir from leaving is to open the possibility to a situation in which who you are, how much money you have, and who you know will determine whether your dignity will be respected or undermined and whether your basic rights will be vindicated or ignored. This state of affairs is not compatible with a constitutional democracy in which the inherent human dignity of all are protected – regardless of economic or social status or political affiliations.

It is especially destructive to those without money and with no access to politically connected individuals as the courts are often their last resort. In South Africa courts have a relatively good record at actually listening and hearing the please of poor people whose rights are being flouted. Ignoring court orders is thus an anti-poor and anti-democratic move which, if repeated often enough, will destroy South Africa’s democracy.

Nkandla: yes the decision may be irrational and can be reviewed

There is an argument to be made that it will be more appropriate and effective to respond politically – instead of legally – to the manner in which President Jacob Zuma has dealt with the Nkandla scandal. The courts alone cannot hold politicians accountable. Voters have a pivotal role to play – both in the periods between elections and at the ballot box –  in holding politicians ultimately accountable. However, if the legal route is pursued, there may be both procedural and substantive grounds on which to challenge the executive’s response to the Public Protector’s report on Nkandla.

The Constitutional Court has not yet provided a definitive answer to the question of whether the findings of the Public Protector and the remedial action imposed by that office in terms of the Constitution, the Public Protector Act and the Executive Members Ethics Act are legally binding. Neither has our top court provided any guidance on when – if ever – such findings and remedial action can be ignored by those affected by the findings and tasked with implementing them.

The Western Cape High Court did provide preliminary answers to these questions in its judgment in Democratic Alliance v SABC and Others. Until the Constitutional Court clarifies the matter, the High Court judgment must guide any legal analysis of the Public Protector’s powers and the legal status of any remedial action imposed by her office.

The High Court held that the findings and remedial action ordered by the Public Protector are not directly binding and enforceable. However, it also held that the findings and remedial action imposed by the Public Protector cannot be ignored.

[T]the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject…. an organ of state cannot ignore the findings and remedial action of the Public Protector.

The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.

At the very least the organ of state must have acted rationally in declining to implement the findings and remedial action of the Public Protector. To decide whether a decision not to implement the findings and remedial action are rational and therefore lawful, “the underlying purpose of the Public Protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice” – must be considered.

In other words, you should ask whether there is a rational relationship between the need on the part of an organ of state to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice and the decision by that organ of state not to implement the findings and remedial action of the Public Protector.

Usually rationality is not a difficult legal standard to meet. But the manner in which the High Court phrased the rationality test in dealing with the non-implementation of Public Protector reports would make it very difficult for an organ of state to justify a decision not to implement the findings and remedial action. This is because it will be very difficult to show that there is a rational link between the decision of the executive not to implement the findings and remedial action imposed on the one hand, and its duty ensure effective and fair government free from corruption or maladministration on the other.

The executive will in effect have to show that it was necessary to ignore the Public Protector’s report in order to ensure effective and fair government free from maladministration and corruption. Showing that a different decision-maker could have reached a different decision from that reached by the Public Protector would not suffice.

In the absence of any evidence that the Public Protector acted in bad faith or misconstrued her powers it is not easy to see how the executive will manage to convince a court it had acted rationally (and hence lawfully) when it ignored the findings and remedial action of the Public Protector.

In terms of the Constitution and the Executive Members Ethics Act the ultimate obligation to deal with the findings and remedial action imposed by the Public Protector in her Nkandla report lies with the President. It does not lie with any cabinet minister whom the President appoints and can fire at will.

If it is assumed for the moment that the High Court judgment dealing with the powers of the Public Protector is correct, the President would have to show that “cogent reasons” exist that allows him to ignore the findings and remedial action of the Public Protector on Nkandla. It is unclear whether such reasons indeed exist.

First, the Public Protector ordered that the President pay a reasonable amount of the cost of the non-security related upgrades at Nkandla “as determined with the assistance of the National Treasury”. In other words, the President and the Treasury should have made a determination on the matter. This never happened. Instead the President tasked another Minister to determine if he needed to pay any amount and if so how much.

A procedural problem therefore arises because the President failed to involve the Treasury in the process and also failed (on the face of it) to take the decision as required – instead delegating the decision to the Minister of Police. Thus far no cogent reasons have been provided for failing to involve the Treasury as prescribed. Furthermore, no cogent reasons have thus far been advanced for why the President abdicated his responsibility to determine the amount to be paid “in consultation with the Treasury”.

There are, of course, pressing political reasons for the President to appear to delegate the decision on how much to pay to one of his colleagues (whom he appoints and can fire at wil). It places a symbolic distance between the President and a potentially unpopular decision to absolve him from any financial responsibility for Nkandla. Good politicians always manage to get others to take responsibility for unpopular decisions which may ultimately only be in their own best interest. But this would not constitute a cogent reason to justify ignoring the Public Protector’s report.

This seems to render the President’s response to the Nkandla report irrational and hence unlawful and invalid.

But even if this is not so, it is difficult to see how the decision by Police Minister Nathi Nhleko that President Zuma need not pay anything for the state-funded upgrades of his private home at Nkandla could be deemed rational.

The Minister did exactly what the High Court said was not allowed, namely he decided that the remedial action ordered by the Public Protector need not be implemented on the mere basis that he had a different view than the Public Protector about the appropriate findings and remedial action. As the Minister has not argued that the Public Protector acted in bad faith or misconstrued her powers, the decision that President Zuma did not benefit from the Nkandla upgrades and need not pay back any of the money therefore appears to be irrational and hence unlawful and invalid.

The findings and remedial action imposed by the Public Protector may, of course, itself be taken on review and a court can set aside such findings on the ground that due to a misinterpretation of the law or for some other reason the findings or remedial action are irrational.

At least two findings by the Public Protector regarding the Nkandla matter may be vulnerable to such a review, but unfortunately for the President it relates to findings that favour him. (Another body may of course request the court to review and set aside these findings in order to impose a far more onerous financial obligation on the President.)

First, the Public Protector found that while the claim made by President Zuma in Parliament that he and his family built and paid for everything at his private home, except for the security measures was not true, this may have been an honest mistake. The report thus found that there was no breach of section 2 of the Executive Members Ethics Act as it may have been a bona fide mistake that the President had misled Parliament. It is not clear from the Public Protector’s report on what rational basis this finding was made.

Given the fact that the President declined to provide the Public Protector with any information of how the non-security related aspects of Nkandla was financed (information which only the he could have provided) and given the fact that the extensive non-security related building at Nkandla (excluding the contested swimming pool, cattle kraal, chicken coop and amphitheatre) must have cost several million Rand, it is unclear how the President and his family could have financed it without assistance from a bank or from a third party.

(The President did provide evidence of a bond to the Public Protector, which was apparently obtained to finance the building of the first houses at Nkandla more than ten years ago.)

Where a person being investigated by the Public Protector refuses to provide her office with information that could exonerate that person, it would be rational to assume that such evidence does not exist – unless there are cogent reasons for the refusal. It is, at best, unclear whether such cogent reasons were provided to the Public Protector or indeed, whether they exist. If asked to do so, a court may therefore find that this finding was not rational and hence that the President did lie to Parliament in breach of the Executive Members Ethics Code.

Second, the Public Protector found that if a strict legal approach were to be adopted, the President would have been liable for all cost relating to the security upgrade of his private home. This is so because his Nkandla home was declared a National Key Point in terms of the National Key Points Act. The Act requires the owner of the property to carry all cost relating to security improvements.

However, the Public Protector generously found that such a finding would be unfair to President Zuma. This is because, in terms of a Cabinet Policy adopted in 2003 all Presidents and former Presidents are entitled to reasonable security upgrades at their private homes, at their request or that of their office. However, President Zuma stated that no such request was ever made.

There are two problems with the findings of the Public Protector in this regard.

First, the separation of powers doctrine holds that the executive cannot amend legislation adopted by the legislature nor can it decide to ignore applicable law validly passed by Parliament. Where legislation imposes a duty on a member of the executive, a Cabinet policy cannot nullify such an obligation as this would, in effect, amount to the executive usurping the power of the legislature.

Second, the President said he never requested any security upgrades at his private home, which is a requirement for the cabinet policy of 2003 to be activated. In the absence of a request from the President, it is therefore unclear how any rational person could have found that the policy nevertheless applied to the security upgrades at Nkandla. As no request was apparently made, the Cabinet Policy could not apply and the President may therefore be liable for the entire amount of the security upgrades as prescribed by the National Key Points Act.

There is therefore a plausible legal argument to be made that the Public Protector erred and acted irrationally – to the benefit of President Zuma. Although it is never easy to predict how a court would rule in a specific case, I would argue that there is at least a likelihood that, if asked, a court could review and set aside the decision by the Public Protector not to hold the President liable for the entire amount of the security upgrade as required by the National Key Points Act.

I hope I have made clear that while the electorate will ultimately decide whether to hold the executive and the party its members belong to accountable for the Nkandla scandal, there are several interesting legal arguments that could be presented to a court, in the event of the matter coming before it. And the worst case scenario for the President is that a court may rule that he is liable for the entire amount spent on security upgrades at his private home – not only the relatively small amount which he is liable for in terms of the Public Protector report.

Xenophobic statement: Is King Zwelithini guilty of hate speech?

Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini in a speech delivered in March fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?

Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.

But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.

(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)

With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.

When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):

[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).

The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.

In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.

He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.

Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.

In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.

To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:

could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.

Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).

What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:

foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”

The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.

In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.

All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.

As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.

Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.

Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.

If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.

“Unparliamentary speech”? There is no such thing.

In the no confidence debate in the National Assembly this week ANC Chairperson Baleka Mbete, who sometimes also moonlights as Speaker, ruled that it was “unparliamentary” to call President Jacob Zuma a “thief”. At present there is no Parliamentary rule, nor any standing order or resolution, which prohibits or regulates “unparliamentary” statements made by an MP. The Speaker therefore had no legal authority to make the ruling and her ruling was unlawful.

In a recent judgment, the Constitutional Court reminded us (if we needed reminding) that “[p]olitical life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious”. But, said the court, “[t]hat is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible”.

Such vigorous discussion will often be rude and aggressive and politicians who do not like being insulted should probably get another job. There is no place for the fainthearted in our political discourse.

In its judgment the Constitutional Court found that a text message sent by the Democratic Alliance before the previous election stating that “[t]he Nkandla report shows how Zuma stole your money to build his R246m home….” expressed an opinion that did not contravene the relevant provisions of the Electoral Act.

The judgment did not find that the claim that President Jacob Zuma is a thief was true. It is therefore not clear whether President Zuma would be able successfully to sue for defamation if he is called a thief outside Parliament. (The Constitution protects MPs from being sued for defamatory statements they make inside Parliament or in any of its committees.)

The Speaker was therefore correct to rule that the judgment did not speak directly to whether an MP can call the President a thief in Parliament. (However, to the extent that the Speaker suggested Parliament was not bound by applicable Constitutional Court judgments, she was obviously talking dangerous nonsense.)

What has to be determined is whether the rules of Parliament prohibit an MP from calling the President a thief on the ground that such a statement would be “unparliamentary”.

Neither the rules of the National Assembly nor the standing orders prohibit an MP from making prima facie defamatory statements about any individual who is not a member of the Assembly. The President is not a member of the Assembly (he ceases being a member of the Assembly when elected President) and for the purposes of this discussion is no different from any other ordinary member of the public. Even if there were a rule that prohibited an MP from calling another MP a thief (there is no such general rule), it would not apply to the President.

Section 58 of the Constitution states that Cabinet members, Deputy Ministers and members of the National Assembly have freedom of speech in the Assembly and in its committees, subject to its rules and orders. This means that MP’s can say anything about somebody in Parliament unless constitutionally valid rules or orders of the Assembly regulate or prohibit such speech. The Constitution does not allow the limitation of free expression in Parliament by a “practice”.

There is no rule that prohibits “unparliamentary” speech by an MP and so no rule that prohibits an MP from calling the President (or anyone else – including you and me) a thief. Strangely, a “practice” has developed according to which the Speaker forces MP’s to withdraw “unparliamentary” statements. As there is no fixed definition of what constitutes “unparliamentary” statements, this illegal practice grants the Speaker unfettered discretion to censor any statement by an MP she does not approve of.

But the Constitution does not allow a Speaker to limit the freedom of speech of MPs unless he or she is authorised to do so by the rules or orders of Parliament. A vague “practice” will not do. This means every time the Speaker rules that certain speech by an MP is “unparliamentary” and must be withdrawn, the speaker is unconstitutionally limiting the freedom of speech of MPs as she is invoking a “practice” that has absolutely no legal standing.

Now, the rules of Parliament could be amended in order to add a rule that would allow the Speaker to rule “unparliamentary” statements impermissible. It will depend on the content of the rule (especially whether it was formulated with sufficient precision) whether it would pass constitutional muster. Parliament could also adopt a standing order to this effect. Again, the standing order would need to comply with the Constitution. But none of these options have been followed.

This means there is no legal authority for the Speaker to rule on “unparliamentary” statements of MPs. When she rules speech “unparliamentary” she has the same legal authority to do so than, say, the legal authority I have to order South African troops to invade Lesotho. It’s a dangerous and anti-democratic nonsense inherited from the colonial Parliament. It is beyond me why the MPs of all political parties have thus far gone along with this flagrantly illegal limitation on their rights to free speech.

Now, one argument to counter this view would be that the Speaker retains a general discretion to make up rules and to invent “practices” that limit free speech. Such an argument would probably rely on rule 2, which grants the Speaker the authority to rule on “any eventuality for which these Rules do not provide”.

But this rule is not applicable to limitations on what can and cannot be said in Parliament because the rules of the National Assembly already contain extensive provisions on the regulation of speech in the National Assembly. As the rules already provide for the limitation and regulation of free speech to retain order and decorum in the House, the Speaker is not authorised by rule 2 to make up new rules or to invent new practices to limit free speech merely because the colonial masters in London may have applied a similar “practice” or “rule”.

If the rules were read differently, it would lead to absurd results as it would allow the Speaker to make any rule limiting the freedom of speech of MPs, including a general rule that no opposition MP is allowed to ever say anything in Parliament. As rule 2 does not apply, this means the Speaker cannot invoke the nonsense of “unparliamentary speech” because there is no rule or order that allows her to do so.

How do the actual rules and orders of the National Assembly limit free speech at present and why is it that these existing rules do not usually apply to statements made by MPs about the President (or about any other non-MPs)?

Rule 46 of the National Assembly prohibits MPs from talking aloud during a debate while rule 47 prohibits an MP from interrupting “another member whilst speaking, except to call attention to a point of order or a question of privilege”. Rule 50 further regulates speech by stating that the Speaker “after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech”.

Rule 61 prohibits any MP (including the Speaker!) from referring to any other MP by his or her first name or names only (which is why MPs often call each other honourable member – something which, I am ashamed to say, often makes me snigger like a naughty schoolgirl).

Rule 63 prohibits an MP from using “offensive or unbecoming language” in a debate. Rule 63 does not refer to the content of the speech but rather to the form the speech takes. Calling somebody a thief or a liar or alleging that a tenderpreneur has cheated the state out of millions of Rand would not be covered by this rule, but calling a person a “little shit” or a “fuckwit” or some such offensive term would obviously contravene rule 63.

Rule 66 also prohibits an MP from reflecting upon the competence or honour of a judge of a superior court, or of the holder of an office (other than a member of the Government) whose removal from such office is dependent upon a decision of the House, except when a substantive motion to that effect is being debated. This rule obviously applies to judges and individuals such as the Public Protector or members of the South African Human Rights Commission, but does not apply to the President or other Cabinet Ministers.

Rule 67 quaintly prohibits MPs from referring to any matter on which a judicial decision is pending. This rule contains the pre-constitutional position regarding the sub judice rule, but this position has been overturned by the Supreme Court of Appeal in the Midi-Television case, so rule 67 may well be unconstitutional. Nevertheless, until it is invalidated it applies, so when Deputy President Ramaphosa refused to comment on his involvement in the signal jamming fiasco he was acting in conformity with the existing rules.

However, there is a standing order made by a former Speaker of the National Assembly, Frene Ginwala, on 17 September 1996, which reads as follows:

A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.

First, it can be argued that the motion of no confidence in President Zuma indeed constituted a “substantive motion” about his conduct and therefore covers the debate conducted this week.

But even if this was not correct, the standing order quoted above did not apply to President Zuma. This is because the standing order only applies to MPs (or to the President when he is actually present in the Assembly) – not to non-MPs. Although rule 5 states that when the “President takes his or her seat in the Assembly” the rules also apply to him or her, this week (as is almost always the case when the Assembly sits) the President was not present in the Assembly, which means that the standing order quoted above could not possibly have applied to him.

Thus, as the rules stand, when the President is not in the Assembly, an MP is allowed to say the most scurrilous things about the President during any debate (regardless of whether a substantive motion to this effect had been brought) – as long as this is not done in “offensive or unbecoming” language.

When the President is not in Parliament an MP can call the President a murderer (perhaps alluding to Marikana), a thief (perhaps alluding to Schabir Shaik and/or Nkandla), a liar (perhaps alluding to his answers about Nkandla) or a weakling and lackey (perhaps alluding to the Gupta’s).

As the Constitutional Court pointed out in the case quoted above voters are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint.

When MPs make claims about the President in Parliament ordinary voters would judge such claims accordingly. Unless the President had acted in a way to give credence to the scurrilous claims made in Parliament about him, most voters would dismiss the claims as overblown political rhetoric.

This view accords with the idea that voters (and not politicians) are ultimately in charge and ultimately judge politicians and their parties on voting day. Voters judge whether they have any reason to believe an MP when he or she uses parliamentary privilege to call the President (or anyone else) a thief.

It’s called democracy. Pity the Speaker does not seem to be a fan.

Who will protect our Parliament against the President and his securocrats?

A press conference held on Tuesday revealed that ANC Chairperson and part time Speaker of the National Assembly (NA), Baleka Mbete, as well as former North West Premier and part time National Council of Provinces (NCOP) Chairperson, Thandi Modise, do not have a good grasp of either the architecture of the Constitution of the Republic of South Africa nor of the rules of Parliament which they are required to enforce impartially (but which they have chosen not to).

It is a little known fact among non-lawyers that the terms “separation of powers” and “checks and balances” are not to be found in the South African Constitution. However, the Constitutional Court, in a long line of cases, has held that the separation of powers doctrine (and the concomitant system of checks and balances) forms an integral part of the South African constitutional design.

The Constitution creates three branches of government (some argue it may create a fourth branch consisting of the Chapter 9 institutions) and allocates specific powers to each branch. This allows each branch to check the exercise of power by the other branches in order to ensure that no branch gains too much power. In theory this protects citizens from the abuse of power that inevitably results from the concentration of too much power in one institution or branch of government.

In modern democracies like South Africa (in which governance decisions have increasingly become complex and often technical in nature), the executive is by far the most dangerous branch of government. If the other branches do not vigilantly check the exercise of executive power and hold it accountable, the executive will threaten the health of the democracy as well as the rights and well-being of every person who lives in South Africa. (The Marikana massacre is the most bloody and extreme recent example of this phenomenon.)

The executive has direct operational control over the military and the other potentially repressive state institutions such as the police force and the secretive state security services with its network of spies and its ability to eavesdrop on the conversations of any citizen.

It also controls an army of civil servants who (in terms of chapter 10 of the Constitution) must execute the lawful policies of the government of the day but must remain politically impartial. However, many civil servants find this impossible to do because of an increasing conflation of the governing party and the state and because of the pressure to show loyalty to (and entertain the whims of) the head of the executive.

The problem of abuse of power by the executive is heightened in the South African system in which citizens do not directly elect the executive. Unlike the members of the NA (the only national institution democratically elected in direct elections by voters), the executive is formed at the whim of the President who, in turn, is indirectly elected (some will say, appointed) by the members of the NA.

In reality, at present the President is elected by the just over 4000 delegates who attend the ANC national elective conference every five years. However, to what extent these delegates represent the choices of the rank and file members of the party is unclear, because branches can be bought or otherwise manipulated to support one or the other candidate at the elective conference.

In order to safeguard our democracy against the dangerous and overweening power of the President and other members of his or her executive, the Constitution subjects the executive to the control of the legislature – in particular the democratically elected NA – as well as to the Constitution, enforced by an independent judiciary.

The President is not only elected by the NA, but can also be fired by it. The NA can also fire the cabinet. The NA can fire the President and/or the cabinet at any time for any reason it sees fit.

Section 42(5) of the Constitution empowers the President to summons Parliament to an extraordinary sitting at any time to conduct special business. When summoned, Parliament cannot refuse to gather, but in theory it retains the power vis-à-vis the President and his or her executive because it has the final say on any binding decision it is required to take.

Moreover, the President (or any other member of the executive or of the security apparatus) is not authorised to prescribe to Parliament how it should operate when it is called to such a special sitting or what decisions it should take.

This is made clear by section 45 of the Constitution, which states that the NA and the NCOP “must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council”. The President or members of the executive (include the police, military or state security) cannot rewrite these rules or circumvent them.

Section 57 and 70 of the Constitution also confirm that when the NA or the NCOP sit separately they are empowered to determine and control their internal arrangements, proceedings and procedures.

Section 56 and 69 further provide the NA and the NCOP with far reaching powers over the executive, stating that the NA or NCOP or any of their committees may:

  • summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  • require any person or institution to report to it;
  • compel, in terms of national legislation or the rules and orders, any person or institution to comply with such a summons; and
  • receive petitions, representations or submissions from any interested persons or institutions.

This means the NA or NCOP can at any time summons the President (or any other person) to appear before it. If the President (or any other person) refuses to do so, the NA or NCOP can force them to appear by summoning him or her to do so. If the President (or any other person) refuses to appear when summonsed he or she would be in contempt of Parliament. In terms of the rules of Parliament the Speaker or Chairperson of the NCOP needs to grant permission before a person is summoned.

(Of course, given the fact that the ANC Chairperson and the President meet every Monday at Luthuli House and given that her loyalty to the party and its leader will – in the absence of strong principles – trump loyalty to the rules of Parliament, it is not likely that the Speaker will ever grant such permission to summon the President to the NA.)

As we all know (because the rule was flouted last year) NA rule 111 also requires the President to answer questions in the NA at least four times every year. The question sessions are supposed to be scheduled in terms of the Parliamentary programme. If the Speaker fails to schedule such sessions (as she indeed failed to do last year) she is flouting the rules of the institution that she purportedly heads.

Because much of the de facto power resides with the President and his or her executive (as they control the potentially all-powerful and repressive state institutions as well as the public administration), Parliament can only perform its functions and hold its own against the potentially repressive actions of the executive, if the Speaker and Chairperson of the NCOP vigilantly protect Parliament from interference by the executive and protect the sanctity of the institution.

When Speaker protects Parliament in this manner, she is protecting democracy itself. She is protecting the democratic space and the right of voters to be represented in a robust and vigilant manner by the MPs representing the political parties for whom voters cast their ballots. If she fails to protect the sanctity of Parliament against the overbearing power of the executive, she is unlawfully surrendering our democratic space to the whims of unelected bureaucrats, shadowy securocrats or politicians who serve at the pleasure of the President, not at the pleasure of the voters.

It is to that end that the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004 specifically states in section 3 that:

The Speaker and the Chairperson [of the NCOP], subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.

The Speaker and the Chairperson cannot legally abdicate this control over Parliament to anyone. It cannot delegate their powers to the Minister of State Security, any of its spies, the South African Police Service or to any other government department. This fact is further underscored by section 4(1) of the Act, which states that:

Members of the security services may (a) enter upon, or remain in, the precincts for the purpose of performing any policing function; or (b) perform any policing function in the precincts, only with the permission and under the authority of the Speaker or the Chairperson.

When Baleka Mbete therefore suggested to journalists on Tuesday that she was not in control of the security arrangements at Parliament during SONA, she was admitting that she (along with the Chairperson of the NCOP) had failed to comply with section 3 and 4(1) of the Act.

Mbete said at the press conference that during a briefing on security plans for the state-of-the-nation address, “we became aware that there was a plan for certain equipment to be deployed”. But she admitted that:

It is an item we received as a report along with many other reports, without necessarily knowing the detail, in particular [the] effects, because it was an item dealing with what measures had to be taken for the protection, in particular, of the head of state and the deputy president.

This means that if the Speaker was being truthful she was admitting that she was unaware of the detail of the actions of the potentially repressive state institutions in the Parliament when she was legally bound to give permission for their actions and retain control over these actions. She had abdicated her legal responsibility, and had thus forsaken her Constitutional duty to protect the legislature against encroachment by the executive branch of government.

Her political loyalty to the head of the executive branch of government thus trumped her loyalty to the Constitution and her duty to uphold the law. It made her position (and that of the Chairperson of the NCOP) untenable.

Both have a duty to resign forthwith. That they won’t do so and won’t be forced to do so by the majority party, tells its own story.

SONA chaos: preliminary legal and strategic points

Your response to the events which occurred around the President’s State of the Nation Address (SONA) last night may well depend on whether you are an EFF supporter, an ANC supporter, or whether you judge events according to the principles of open democracy embodied by our Constitution. In the name of healthy public debate (dream on, I hear you say), I post my first thoughts about the SONA events, which I wrote for my Facebook page. 

It is not good for Parliament or for a democracy when unidentified individuals (who may or may not be police officers or soldiers) use violence to physically remove rowdy elected members of Parliament from the National Assembly Chamber. It seems to me the Speaker, the EFF as well as the unidentified security personnel at best behaved unwisely and at worst in contraventions of the various rules and regulations that govern their conduct.

First, the jamming of the cell phone signal in the House and the alleged involvement of the Department of State Security in jamming the signal (which has not been confirmed or denied) was both outrageous and illegal. It is illegal to scramble a cell phone signal as ICASA regulation (published in Government Gazette 24123, from November 2002) prohibits it. It is also in conflict with provisions of the Constitution, which allows the public and the media access to the proceedings of Parliament and only allows reasonable limitations on it.

If Department of State Security was involved (as suggested by several journalists) it is also a shocking breach of the separation of powers doctrine. The members of the Executive have no business involving themselves in the operation of Parliament. It is like the Director General for Home Affairs taking over the role of the Speaker.

Second, (and this is my personal view) I did not like the fact that the Speaker – employing kragdadigheid tactics which reminded me of a previous era – seemed overeager to call in the security services to have the EFF members removed and “taught a lesson”. It looked as if it was all planned and done according to a script. Using the police to teach political opponents a lesson (or creating the perception that you are doing this) is in conflict with the spirit of a constitutional democracy.

Allowing the EFF to go ahead, suspending the proceedings and demonstrating to all voters that the EFF was not prepared to act in terms of the rules would, in my opinion, have been the constitutionally desirable and politically most astute thing to do. Making martyrs of political opponents, on the other hand, is usually not a winning political strategy.

But was the Speaker legally authorised to send security personnel into the Parliament? Section 4(2) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act states:

When there is immediate danger to the life or safety of any person or damage to any property, members of the security services may without obtaining such permission enter upon and take action in the precincts in so far as it is necessary to avert that danger. Any such action must as soon as possible be reported to the Speaker and the Chairperson.

As there was no immediate danger to the life or safety of any person or damage to any property, the section does not apply. However, that is not the end of the matter as section 11 of the Act states:

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.

A disturbance is defined as: “any act which interferes with or disrupts or which is likely 10 to interfere with or disrupt the proceedings of Parliament or a House or committee”.

If the “person” referred to in section 11 includes any MP and if it is not limited to non-MPs, it would mean that once a disruption takes place, the Speaker can ask security services to enter the Chamber and remove MPs. However, it is not entirely clear whether section 11 covers MPs. The Constitution prohibits the arrest of MPs for anything they say in Parliament, so if section 11 allows for the arrest of MPs it would clearly be unconstitutional.

Further, the Act distinguishes in various places between “person’s” and MPs, which may cast doubt on whether section 11 applies to MPs.

If we assume that section 11 does cover MPs (a court will ultimately have to decide this point), the section must be interpreted narrowly so as to give effect to the provisions of the Constitution, specifically those sections guaranteeing the privileges of MPs and protecting their right to free speech. Section 11 must thus be interpreted to interfere with the free speech of MPs and with their privileges as little as possible, given what meaning the words are reasonably capable of meaning.

This suggests, I would argue, that a disruption which could trigger security force involvement would have to be interpreted to mean a situation where an MP or MPs act in such a way that it clearly renders it impossible for the House to continue with its business. I am not sure raising (what were clearly irrelevant and ill-conceived points of order or challenging the rulings made by the Speaker) rise to the level of a constitutionally valid “disruption”. At some point it may have been the case if the Speaker had allowed the EFF members to continue, but I am not sure it was the case when the Speaker ordered the removal of some EFF MPs.

But this is a legally grey area, so reasonable people may well differ on this until a Court clarifies the matter.

In any case, I am one of the voters who are put off by some of the antics of the EFF. I have no problem with EFF members raising points of order (as they were entitled to do by the rules). However, SONA is about more that Jacob Zuma – it’s about the President and Parliament as a constitutional entities. Continuing to raise points of order after the Speaker made her ruling to disallow it (which she was entitled to do in terms of the rules, even if she struggled to justify this) pushed the boundaries of what we should expect of our elected representatives.

That said, the security forces were authorised by the Speaker (whether validly or not) to remove Floyd Shivambu and Julius Malema from the chamber. As far as I am aware, they were not ordered to remove other EFF MPs from the chamber. These members cannot be collectively punished for what their leaders do (we do not live in Israel) so removing them (without explicit orders of the Speaker) must have been illegal unless somebody life was being threatened and section 4 of the Act would have kicked in.

These are the legal niceties. But there may be a broader point about the quality of our constitutional democracy and the manner in which people in power overreact to challenges to their authority, that come into play here.

If the Speaker had been a wiser person and had suspended proceedings and had said we only proceed once Julius and Floyd leaves the Chamber – all while South Africans waited impatiently for the SONA to proceed – the EFF antics would have started to irritate many voters. I am not sure most voters would continue to have sympathy for actions by MPs that go beyond what (at least arguably) could be justified by the rules of Parliament.

In the end, it is voters (and not the Speaker or security forces) who serve as the ultimate check on MPs and their behaviour. Where MPs realise they are losing the sympathy of the public, they will almost certainly moderate their behaviour (or am I far too optimistic about the level-headed nature of voters and MPs?). Placing more trust in the slow wheels of democracy and in the voters and less in the brutal exercise of militarised state power, would therefore, in my opinion, have been far wiser.

It will very seldom (if ever) be good for democracy to allow police officers to be deployed to suppress the speech of democratically elected members of Parliament. It matters not whether such members represent the majority of voters or a minority.

Yes, it would have been a bother. The President might have had to read his speech from a TV studio or we might have had to wait another 30 minutes for him to read the speech from the Assembly podium. But who said democracy is not sometimes a messy affair? The President is a politician used to the rough and tumble of politics, so surely it is not as if he would have been dealt a mortal blow if the EFF had been given more rope to hang themselves?

This is my initial view. But my view is perhaps less important than the views of the millions of voters who must decide who to vote for ion the upcoming local government and (eventually) national elections.

What do you think?

SONA and the EFF – What is the Speaker authorised to do?

The State of the Nation Address (SONA) – usually no more than a dry, uninspiring and pompous event showcasing the wealth, power and tawdry glamour of South African political elites – has this year taken on a sharply different meaning. This is due to vague threats by the Economic Freedom Fighters (EFF) to disrupt the event. Can the Speaker prevent EFF MP’s from carrying out their threat? If so, what legal basis is there for preventing EFF MP’s from asking the President questions he had failed to answer when he last appeared in Parliament?

Screenshot 2015-02-01 12.32.10

It is unclear why so much attention (and money) is lavished on the President’s State of the Nation Address (SONA) every year. Speeches delivered by politicians seldom have a direct impact on the lives of voters. Speeches do not put food on the table of the hungry or provide shelter from the elements for the homeless.

Perhaps politicians, media elites and the punditocracy pretend that such speeches really matter more than they actually do to bolster their own sense of (self)-importance. They can tell the rest of us that only they have the tools to identify the strengths and weaknesses of the speech and know how the speech will affect our lives.

Although SONA will almost certainly have no effect on the quality of governance in South Africa, we are asked to pretend that it has the potential to change our lives dramatically. I will prefer not to have to pretend that this is true.

Not that the antics of the EFF will have any effect on the quality of our lives either. At most it will provide some bread and circus to amuse an inquisitive public hungry for some entertainment. That is, if Eskom manages to keep the lights on, of course.

But what happens in the joint sitting of Parliament on Thursday will arguably raise significant constitutional questions. Does the Speaker have untrammelled power to make up rules as she goes along? Can the constitutional right of MP’s to freedom of expression in Parliament be limited and if so, can it be done via arbitrary rulings of the Speaker?

In Speaker of the National Assembly v De Lille the Supreme Court of Appeal (SCA) gave some indication that in a Rule of Law based system like ours, the actions of the Speaker have to be guided by legislation and the rules of Parliament. If legislation and the rules of Parliament do not explicitly authorise the Speaker to limit MP’s right to freedom of expression, conventions and habits cannot do so.

The SCA found that the threat that a member of the National Assembly may be suspended for something said in the Assembly inhibits freedom of expression in the Assembly and must therefore adversely affect the guarantee of free expression. Legal rules must therefore be interpreted to detract as little as possible from this right to free expression enjoyed by MP’s in Parliament.

The Constitution does authorise the adoption of national legislation which will itself clearly and specifically articulate the “privileges and the immunities” of MP’s. The question is whether the legislation or rules clearly and specifically authorise the Speaker to prevent MP’s from asking questions or raising points of order when the President delivers the State of the Nation Address.

Section 7 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act prohibits a person from improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions. It also prohibits a person from creating or taking part in any disturbance within the precinct of Parliament while it is meeting.

If it were assumed that the definition of “a person” includes an MP and is not restricted to non-MP’s (something that is far from clear), section 7 would thus prohibit an MP from disrupting Parliamentary processes. An MP would be disrupting a Parliamentary process if he or she causes such a disturbance or disruption in a manner not authorised by the rules of Parliament.

If an MP swears in Parliament, assaults another MP, sings songs in the chamber, reflects on the competence or honour of a judge during a debate or continuously interrupts the Speaker and refuses to follow her lawful orders, he or she would be in breach of the rules and the Speaker would have every right to order the MP to leave the House.

But what would happen if an MP raises a point of order or attempts to ask the President a question when the President rises to deliver the State of the Nation Address on Thursday?

In terms of Joint Rule 13 an MP will not have a right to make a speech during a joint sitting of Parliament unless invited to do so by the presiding officer or unless having obtained the permission of the Speaker and the Chairperson of the Council before the meeting.

But what about an MP not wishing to make a speech, but wishing to raise a point of order or ask a question instead? The joint rules of Parliament do allow MP’s to raise a point of order during a joint sitting as Joint Rule 14U states that: “A member may speak [during a joint session such as SONA] (a)  when called upon to do so by the presiding officer; or (b) to a point of order.”

Joint Rule 14L, which states that at a Joint Sitting a member “may only speak from the podium, except to raise a point of order or a question of privilege” or in other circumstances not relevant here, confirms the right of MP’s to raise points of order.

This means the Joint Rules do not allow MP’s to ask questions of the President when he rises to deliver his State of the Nation Address. However, at the same time the Joint Rules do clearly allow MP’s to raise points of order when the President delivers his State of the Nation Address addresses to a Joint Sitting of Parliament.

In fact Joint Rule 14S requires that when such a point of order is raised the person delivering the speech (in this instance it would be the President) must go back to his or her seat. After the point of order has been stated to the presiding officer by the member raising it, the presiding officer must then give his or her ruling or decision thereon either forthwith or subsequently.

Now, it is argued that a convention has been established over the years that MP’s do not raise points of order when the President delivers his State of the Nation Address.

However, Joint Rule 4 is very clear that such a practice cannot extinguish the right of MP’s to raise points of order at a joint sitting. The Rule states unequivocally: “No convention or rule of practice limits or inhibits any provision of the Joint Rules.”

In short, EFF MP’s will be within their rights to raise points of order during SONA. However, they will not be authorised to pose questions to the President.

But is it possible to argue that the Speaker retains a residual power to make rulings about the conduct of MP’s, regardless of whether the conduct is authorised by the rules of Parliament or not?

In this view, the Speaker would be able to enforce a convention established over many years by ruling that no MP may raise a point of order during SONA, because the Speaker has the ultimate authority to control matters in Parliament and to enforce discipline.

This view would be in conflict with the Rule of Law, a founding value in our Constitution, which requires that public power can in general only be exercised if the Constitution, legislation or other legal rules authorise it.

The Joint Rules of Parliament do authorise the Speaker and the Chairperson of the National Council of Provinces (NCOP), acting jointly, to “give a ruling or make a rule in respect of any matter for which the Joint Rules do not provide”.

As the Joint Rules do not provide for the asking of questions, the Speaker and Chairperson of the NCOP can rule that no questions will be allowed during SONA.

But the Joint Rules do provide for the raising of points of order by MP’s during a joint sitting of Parliament. SONA is such a joint sitting of Parliament. Nothing in the Rules provide for treating SONA as different from any other joint sitting of Parliament.

If I am correct in this reading, it means that the Speaker (acting alone or jointly with the Chair of the NCOP) is not legally authorised to make a ruling to disallow points of order because this would amount to an unlawful attempt to circumvent the written Joint Rules of Parliament, which do allow MP’s to raise points of order.

(The Joint Rules can of course over time be amended. But they cannot be amended unilaterally by fiat of the Speaker.)

Of course, if EFF members do not only raise points of order as they are legally authorised to do by the Joint Rules of Parliament, but bang on tables, sing songs or otherwise create a grave disorder, the Speaker is authorised by Joint Rules 14K to “adjourn the sitting” or to “suspend the proceedings for a period to be stated by him or her”.

It is unclear whether the Speaker has the legal authority to have MP’s physically removed from Parliament if they create a disturbance. Section 11 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures 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.

The Act generally distinguishes between “members” (in other words MP’s) and “persons” (non-MP’s), so whether the section applies to MP’s is not clear. It is also unclear whether exercising your right as an MP to free speech in Parliament by asking questions or raising points of order could ever be viewed as creating a disturbance.

I suspect in the months to come our courts may well have to give clarity on this question. What is clear that raising points of order will not fall under section 11, as one cannot take part in a disturbance by exercising one’s rights in terms of the Joint Rules.

In any event, despite the fact that a State of the Nation Address is probably going to have no impact on the quality of governance in South Africa and, hence, will have little impact on the lives of ordinary citizens, it is an event that is invested with much importance by politicians, media elites and the punditocracy.

It may therefore be strategically unwise for a political party to disrupt this event. A party who disrupts this flagship event runs the risk of inviting the wrath of the “opinion-formers” and media bosses who control the quality and the quantity of publicity a political party receives. Whether the EFF would be wise to take on the establishment in this way, thus remains an open question.

DA SMS judgment: what the court really found

How robust are politicians and political parties allowed to be when they engage in election campaigning? In the absence of a court finding to that effect, can one party call another party or its leaders racist? Can one candidate call another dishonest or callous without clearly stating that this was just his or her opinion and then setting out the factual basis for such an opinion? In the recent Constitutional Court judgment of Democratic Alliance v African National Congress and Another the majority of judges held that the Electoral Act and Electoral Code would normally allow such robust forms of speech. The minority judgment had a more restrictive view.

Last year before the general election the Democratic Alliance (DA) sent out an SMS during the election campaign which stated: “The Nkandla report shows how Zuma stole your money to build his R246m home….”

The African National Congress (ANC) approached the High Court for an interdict and other relief on the basis that the DA was not entitled by our law to distribute the SMS. The ANC relied on section 89(2)(c) of the Electoral Act and/or item 9(1)(b) of the Electoral Code, which prohibit any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election.

The majority of judges of the Constitutional Court have now rejected the ANC claim. Five judges (Justices Cameron, Froneman, Khampepe, Moseneke and Nkabinde) found it unnecessary to answer the question of whether the statement contained in the SMS was false or not. Instead, it found that the SMS expressed an opinion, not factual information, and was hence not prohibited by section 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code.

The approach of these five justices towards the importance of freedom of speech during an election campaign differed markedly from that of the minority judgement. The five judges argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”.

As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections. That is why the relevant sections of the Electoral Act and the Electoral Code had to be interpreted in a manner that would limit freedom of expression as little as possible.

A minority of three judges (Justices Zondo, Jafta and Leeuw) seemed to focus more on the alleged threats posed by robust but potentially untrue or difficult to prove expression on the running of free and fair elections. For these judges elections cannot be free and fair where political parties or politicians are allowed to make statements about opponents that are not factually true, or not clearly couched as opinion based on true facts that are either well known or that are mentioned by the speaker when he or she expresses an opinion.

To provide a pertinent example: the minority seems to believe that a free and fair elections would be endangered if a politician was allowed to state that X was racist or that party X was racist – unless the politician clearly stated that he or she was expressing an opinion and referred to the factual basis for the expression of the opinion.

Whether this view is at all plausible in a vibrant democracy is not clear to me. If the minority view were to be sustained many of the views expressed by politicians during an election campaign would become illegal. If the minority view were upheld, many politicians (of all political parties) would face a ten-year prison sentence for expressing views that are false, partly false or that are impossible to prove as being true. As Justice Van der Westhuizen pointed out (in a separate majority opinion in which Madlanga concurred):

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.

For me what lies at the heart of the disagreement between the two majority opinions, on the one hand, and the minority opinion, on the other, is the trust the majority judges place in political parties to debunk the wild accusations of their opponents andthe trust they place in voters to take many of the claims made by politicians with a pinch of salt. The two majority judgments seem to accept that political discourse is often infused with rhetoric and false or only semi-true claims or claims that cannot easily be proven, but that voters are aware of this.

The minority judgment seems to be premised on the idea that the law should prohibit such forms of expression to protect voters from the political rhetoric that flies around during election campaigns. In my view the minority holds a slightly patronizing view of voters – as if we are unable to distinguish between political rhetoric masquerading as fact and actual fact. As if we must be protected by the law from being exposed to such rhetoric.

In any event, the five judges who delivered the main judgment for the majority interpreted the relevant provisions of the Electoral Act and the Electoral Code narrowly to limit the kind of speech that would be prohibited by it.

Pointing out that the Electoral Act imposes tough criminal penalties (up to ten years in prison) on anyone found in breach of section 89 of the Act, the judges suggested that the prohibition on false information needed to be interpreted narrowly. As such, the judges suggested that section 89 was designed to protect the mechanics of the conduct of an election: voting, billboards, ballot papers, election stations, observers, and vote counts.

As the judges explained, the kind of statement that would constitute the provision of “false information” would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election.

Contested statements whose correctness could not be proven would not, according to this view, derail the free and fair election because voters (with the help of other political parties) would distinguish between wild claims and proven facts.

According to the 5 justices the section was not intended to limit the ability of politicians or a political party to make statements about their opponents that may well be difficult to prove as fact: say, that X or the party she belongs to is anti-poor, or anti-black, or callous, or corrupt.

However, the five judges said that it was not in fact necessary to go as far as finding that section 89(2) does not prohibit the dissemination of any information aimed at influencing voters’ views about opposing parties. As the section only prohibits “false information”, all the court had to do was to decide whether the SMS constituted fact or opinion. If it contained opinion and not a statement of fact, it was not covered by the section and was thus not prohibited.

The justices held that the SMS fell outside the ambit of section 89(2) because it was not a statement of fact but an interpretation of the content of the Public Protector’s Report on Nkandla. The SMS did not state as fact that the Report found President Jacob Zuma guilty of theft. What it did was to say that the Report “showed” how the President “stole your money”. This was the opinion of the DA, not a fact.

The minority disagreed with this view. Relying extensively on apartheid era precedent from the then Appeal Court, the minority argued that the SMS constituted a statement of fact, not an opinion and, hence, contravened section 89(2) of the Electoral Act. A politician or party would fall foul of the relevant section of the Electoral Act and the Electoral Code unless it could clearly indicate that it was expressing an opinion and not stating a fact and it further provided the voters with the information on which the opinion was based.

In terms of this minority view it would be illegal to say that party X or candidate X was racist. But it would be legal to say in your opinion party X or candidate X was racist because, for example, X used the “k” word on such and such a date, or party X only had .01% black members or had no black leaders or party X had such and such a policy that discriminated against black people.

On this basis the minority found that the DA SMS on Nkandla was not phrased as an opinion but as a fact and that its statement of fact was false.

In contrast Justices Van der Westhuizen and Madlanga found that it did not matter whether the statement was one of fact or opinion (as, in any case, it would not always be easy to distinguish between the two), but rather “whether the statement is purporting to describe a readily falsifiable state of affairs which poses a real danger of misleading voters and undermining their right to a free and fair election”.

The judges then examined the content of the SMS to determine whether it could – on a generous interpretation – be said that the claim contained in the SMS was true. Unlike the other judges Van der Westhuizen and Madlanga found that the claim could possibly be considered true. The judges then concluded:

According to the Nkandla Report, there was “misappropriation” of taxpayer money. The President benefitted from it. The misappropriation appears to have been tacitly accepted and in certain circumstances caused by the President, as set out in the Nkandla Report. The Nkandla Report seems to “show” that the President at least accepted actions, which resulted in the misuse of taxpayer money, which should not have been used on the project. It does not indicate that the President intended to return the appropriated money. The conduct alleged in the Nkandla Report does fall under a broadly conceived but reasonably possible meaning of the word “stole”, used in the context of an election campaign.

It is important to note that even justices Van der Westhuizen and Madlanga did not find that President Zuma is a thief. They could not do so as a court had not found the President guilty of theft. Neither has the Public Protector found in her Report that the President had stolen any money.

What the justices did was to say that theft does not only have a technical legal meaning. For example, you can say colloquially that a cell phone company is robbing you blind by imposing their exorbitant rates on you. This does not mean the company has been found guilty of theft or armed robbery, but that you believe the company is wrongly inflating its prices in a manner that disadvantages you.

In any case, although the judgment of the majority has been hailed as a victory for freedom of expression during election campaigns, I am not sure it will make a big practical difference to the robustness of speech during election campaigns in South Africa.

This is because during past election campaigns in South Africa politicians and political parties have often made claims about their opponents not couched as opinion and not based on clear evidence. Up until now they have not faced any consequences for making often wild and even spurious claims about opponents.

Elections are often fought via sound bites (X is racist!; Y is anti-poor!; Z is corrupt!) and as Justice Van der Westhuizen pointed out “fairly little of what electioneering politicians say” in such sound bites is likely to be completely true.

Did the politics of patronage require suspension of the Hawks boss?

When political and economic patronage (instead of ideology) becomes the glue that holds a governing party together, it becomes ever more difficult for the leaders of that party (no matter how honest and principled they might be) and the government they lead to obey legal rules and to provide strong support for the constitutional institutions which the party helped to create and which, in principle, it had always supported and respected. The current turmoil at the Hawks raises questions about whether patrimonial politics within the ANC has now reached this point.

B6uVbHOCcAIMWyj

Pic: Esa Alexander, The Times

Shortly after Jacob Zuma was elected President of the ANC, the ANC-led government abolished the Scorpions anti-corruption unit because it was pursuing more than 700 fraud and corruption charges against the President of the party. It replaced the Scorpions with a toothless body, which it ironically christened the Hawks.

The destruction of the Scorpions can be viewed as a pivotal moment in what Professor Tom Lodge in a recent article in African Affairs calls the apparent transformation of the ANC from a rule-regulated, mass-based party into an organisation mostly shaped by personal financial and other interests. As Lodge argues:

Increasingly within the ANC, leadership behaviour appears to be characterised by neo-patrimonial predispositions and, while formal distinctions between private and public concerns are widely recognised, officials nevertheless use their public powers for private purposes. Other symptoms of neo-patrimonial political behaviour have also appeared. There is factionalism, that is, the emergence of internal rival groups constituted by personal loyalty rather than shared ideological beliefs. Another manifestation is the affirmation by the ANC leadership of ‘traditionalist’ representations of indigenous culture, whereby moral legitimation is sought more and more from appeals to ‘Africanist’ racial solidarity and nostalgic recollections of patriarchal social order rather than on the basis of the quality of government performance.

In a neo-patrimonial political culture party leaders and their families acquire substantial business interests. Local office holders are kept happy through municipal and provincial tendering procedures when municipalities are “captured” by informal patronage networks that trump the influence of ANC branches.

Business leaders are “co-opted” and willingly contribute funds to the party or to individual leaders in exchange for financial and other benefits in the gift of the state. State owned enterprises also become vehicles for dispensing different forms of patronage.

This does not mean that there are not many leaders (and clearly many more members) within the governing party that do not detest illegal forms of patronage and corruption and do not try, as best they can, to counter it. But it does mean that their struggle becomes ever more difficult. As Lodge argues with reference to the ANC under President Jacob Zuma:

This kind of behaviour has been accompanied by sharpening competition for posts in government and within the party organisation, which in turn has eroded the decorum that used to characterise the ANC’s internal procedures. The ANC’s leadership increasingly reinforces its authority and demonstrates its power through displays of ostentation and through elaborate security procedures…. [Thus] the behaviour of ANC leaders and their followers is beginning to correspond to conventions associated with clientelistic organisations, in which specific public services and resources are offered to particular groups in exchange for political support.

While a neo-patrimonial governing party depends on institutions such as the Hawks, the Public Protector and the judiciary to deal with factional opponents and to legitimise its rule, the dominant faction needs to be able to exert some control over such institutions to protect the members of the dominant faction from some of the consequences of patrimonial politics.

(It must be said that while some forms of patronage are perfectly legal and are indulged in by all governing political parties in any democracy, many other forms of patronage are not).

The relentless attacks on the Public Protector in the wake of her Nkandla Report, and (perhaps) the illegal suspension of Anwar Dramat, the head of the Hawks, by police minister Nkosinathi Nhleko, may be manifestations of this need to exert control over “independent” institutions that may pose a threat to the financial and political interests of the dominant faction within the governing party.

Neo-patrimonial politics have negative consequences for a country and, inevitably, lead to an increase in corruption. And as the Constitutional Court stated in the original Glenister judgement:

corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

The majority of the Constitutional Court in that original Glenister judgment thus declared invalid several provisions of the law that torpedoed the Scorpions and created the toothless Hawks instead. Finding that an anti-corruption fighting body needed to be “shielded from undue political interference” to be effective, the Court found that the Hawks as originally set up lacked the adequate independence to shield it from such political interference.

One of the reasons the original legislation did not provide for adequate independence for the Hawks was the lack of specially entrenched employment security for members of the Hawks – including its head. Where members of the Hawks can be fired (or suspended) at the whim of a politician it “may well disincline members of the [Hawks] from reporting undue interference in investigations for fear of retribution”.

After Parliament purported to amend the legislation to give effect to the original Glenister judgment, the Constitutional Court once again declared invalid several sections of the amended legislation in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others.

One of the sections it declared null and void and thus of no force and effect was section 17DA(2) of the Police Services Act. This section stated, amongst others, that:

(2) (a) The Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i) for misconduct; (ii) on account of continued ill-health; (iii) on account of incapacity to carry out his or her duties of office efficiently; or (iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

The Constitutional Court explained that this section – purportedly relied on by the Minister of Police to suspend Mr Dramat – was unconstitutional and invalid because:

This subsection (2) removal power is inimical to job security. It enables the Minister to exercise almost untrammelled power to axe the National Head of the anti‑corruption entity.

The Constitutional Court therefore found that the quoted section of the Police Services Act was “inconsistent with the Constitution” and was “declared invalid and deleted” from the law. The effect of this Court ruling was that the section which the Minister of Police had relied on to “suspend” Dramat has the same legal power as a suicide note scribbled on a piece of toilet paper by a scorned lover about to jump in front of the Gautrain.

It must be noted that the Court did not declare invalid section 17DA(3) to (6) of the Act. These sections provide for the suspension of the National Head of the Hawks by the Minister, but ONLY AFTER a Committee of the National Assembly has initiated an investigation into the possible removal of the Head of the Hawks.

The sections require that a recommendation by a Committee of the National Assembly for the removal of the National Head would have to enjoy the support of at least two thirds of the members of the National Assembly to be implemented, thus protecting the Head against removal on party political grounds.

The National Assembly has not initiated such an investigation, which means that the Minister has no legal power to suspend the head of the Hawks. He could only suspend the head of the Hawks once the inquiry by the National Assembly has started.

Yet the Minister of Police relied on the unconstitutional and thus deleted section of the South African Police Services Act to “suspend” the head of the Hawks. This was unlawful. No court in South Africa will endorse the illegal suspension of Mr Dramat by the Minister of Police.

Which begs the question: why did the Minister of Police rely on a deleted section of the law to pretend to suspend the head of the Hawks just before Christmas? Was this really for the reasons stated or did it become necessary to break the law because members of the dominant faction within the governing party became anxious about investigations into their affairs by the Hawks?

In other words, when the Minister of Police was confronted by the demands created by the culture of neo-patrimonial politics within the ANC and its financial supporters, did he decide to ignore the Constitutional Court judgment (and hence, did he decide to flout the Rule of Law) in order to protect factional interests within the party?

Or did he act illegally because his legal advisors are so incompetent that they are unable to read and comprehend the order handed down by the Constitutional Court?